State v. Eubank

• Decision Date: 26 December 1979
• Docket Number: No. 79-337,79-337
• Citation: 14 O.O.3d 416,398 N.E.2d 567,60 Ohio St.2d 183
• Parties: , 14 O.O.3d 416 The STATE of Ohio, Appellant, v. EUBANK, Appellee.
• Court: Ohio Supreme Court

Page 183

60 Ohio St.2d 183

398 N.E.2d 567, 14 O.O.3d 416

The STATE of Ohio, Appellant, v. EUBANK, Appellee.

No. 79-337.

Supreme Court of Ohio.

Dec. 26, 1979.

Defendant-appellee, James R. Eubank, was indicted by the Wood County Grand Jury on two counts of gross sexual imposition, a violation of R.C. 2907.05. Defendant pleaded not guilty to both counts. The trial court granted defendant's motion for separate trials, and trial to the court on count one of the indictment commenced on September 12, 1977.

The state's primary witness was a 13-year-old boy, the alleged victim of the offense charged. He testified that in early March 1977, when he was only 12 years old, he spent the night in defendant's mobile home with defendant and two other boys. On that night, according to the witness, the defendant called him into the living room and proceeded to fondle the young man's private parts.

During cross-examination, the witness' credibility came under severe attack. He was interrogated concerning numerous prior inconsistent statements made at the preliminary hearing. In one of those prior statements, the witness seemingly testified that the sexual contact with the defendant was accidental, and occurred when the witness brushed against defendant.

After the testimony of another witness who was not present at the time of the alleged offense, the state called, in succession, two young men to the stand. Both were permitted to testify, over the objections of defense counsel, that the defendant had previously attempted to engage in sexual activities with them.

The defense presented testimony from the defendant and the two boys who were present in the mobile home on the night of the alleged offense. Their testimony contradicted that of the purported victim. The defendant testified that he had never had sexual contact with the state's witness. The two boys testified that they had no knowledge of any incident on the night in question.

Following the testimony of the state's rebuttal witnesses, the case was submitted to the court. The court found defendant guilty of gross sexual imposition, a violation of R.C. 2907.05(A)(3). As to the second count of the indictment, defendant subsequently entered a plea of guilty to the lesser offense of attempted gross sexual imposition.

Defendant appealed the trial court's judgment on the first count. The Court of Appeals reversed that conviction on the ground that the court had improperly allowed testimony of alleged other sexual acts of the defendant.

The cause is now before this court pursuant to allowance of the state's motion for leave to appeal.

John S. Cheetwood, Pros. Atty., and Rex H. Huffman, for appellant.

Robison, Curphey & O'Connell and Timothy D. Krugh, Toledo, for appellee.

PER CURIAM.

R.C. 2907.05, the statute defining the offense of gross sexual imposition, provides, in division (D), that:

"Evidence of specific instances of the defendant's sexual activity * * * shall not be admitted under this section unless it * * * is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value."

R.C. 2945.59 provides that:

"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."

In its first proposition of law the state contends that defendant raised an inference of mistake or accident on cross-examination of the alleged victim, and that it was then proper to rebut that inference by evidence of specific instances of the defendant's previous sexual activity.

From the inception of this cause, the defendant has maintained that he never had sexual contact with the alleged victim. In his opening statement, defense counsel commented that "our evidence will show that at no time did Mr. Eubank touch * * * (the supposed victim). There was no sexual contact between Mr. Eubank and * * * (the state's witness) as alleged in the indictment." The defendant has never abandoned that position.

Rather than attempting to raise the issue of accident or mistake on cross-examination, as is contended by the state, it is clear from the record that defense counsel was simply attempting to impeach the state's witness' credibility with the use of prior inconsistent testimony. The prior testimony of the witness was inconsistent with his trial testimony in many particulars, including location and time of the incident, location of the other persons present at the time, and the manner in which the alleged sexual contact occurred.

Accordingly, we hold that it was error for the court to admit testimony concerning other sexual acts of the defendant on the basis that those acts proved the absence of mistake or accident. Mistake or accident was not a material issue at trial.

However, the state contends, in the alternative, that the testimony of prior sexual acts was...