State v. Lowe

• Decision Date: 06 July 1994
• Docket Number: No. 93-493,93-493
• Citation: 69 Ohio St.3d 527,634 N.E.2d 616
• Parties: The STATE of Ohio, Appellant, v. LOWE, Appellee.
• Court: Ohio Supreme Court

Page 527

69 Ohio St.3d 527

634 N.E.2d 616

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

No. 93-493.

Supreme Court of Ohio.

Submitted Dec. 8, 1993.

Decided July 6, 1994.

SYLLABUS BY THE COURT

1. To be admissible to prove identity through a certain modus operandi, other-acts evidence must be related to and share common features with the crime in question.

2. The standard of appellate review in midtrial appeals is the same as that in post-trial appeals.

Late in the evening of July 5, 1986, Phyllis Mullet and Belle Center Marshal, Murray Griffin, were killed in Mullet's Belle Center home. Mullet died of stab wounds; her body was found partially clad, her feet bound with rope and her hands bound with a cloth. Marshal Griffin was shot to death--possibly with his own revolver, which was missing from the crime scene--as he responded to a call to Mullet's home. More than four years later, defendant-appellee Terry Lowe was indicted on two counts of aggravated murder. This interlocutory appeal was taken to determine the admissibility of certain other-acts evidence.

Central to the state's case are what it asserts are interrelated pieces of evidence. The linchpin piece of evidence is a handwritten document known as the "power list." (See Appendix.) The power list was found in Lowe's trash during a search of his home on July 12, 1986. The state characterizes the document as a written plan of deviant sexual activity. The right side of the document contains a list of names, with the names bracketed into several groupings, presumably by families. The name "Tootie," Mullet's nickname, as well as the names of Mullet's two children, appears on the list. The list also contains the names of two other female children whom the state seeks to have testify against Lowe.

The prosecutor describes the power list as "a memorandum of the plan of sexual control the defendant wished to complete in a year's time." To prove that theory, the state seeks to introduce certain other-acts evidence, specifically the testimony of Mullet's daughter, Mandy Mullet, Mandy Orders, and Amy Mathews, who were eleven, eight and eight years of age, respectively, at the time of the murders. The state argues that the sexual nature of Lowe's activities with those girls indicates that the power list was not just fantasy put to paper, but was instead a plan of activities which Lowe had begun to embark upon. Lowe's plan to have sex with Mullet, the state argues, went awry, resulting in the murders.

Mandy Orders testified about the children's activities with Lowe prior to trial. For the most part, Lowe's most questionable activities were with the two younger girls, Mandy Orders and Amy Mathews. Mandy Orders began visiting Lowe with her friend Amy Mathews in the late spring of 1986, prior to the murders. Lowe knew the girls' parents, who permitted the girls to visit him. Mandy Mullet would also occasionally visit Lowe's home.

When visiting Lowe the girls would play among themselves or with Lowe, occasionally shop at the drugstore across the street from Lowe's home, and once travelled with Lowe to a K-Mart in Lima or Kenton. Lowe and the girls played several different games, including the "rug game," in which Lowe would wrap the children up in a rug, tie a rope on one end and drag them around the floor. In a variation on hide-and-seek, a person was tied and had to get loose in order to find the other players. Lowe would untie the girls if they were unable to do so themselves.

Some of Lowe's other activities with the girls were of an overtly sexual nature. On at least one occasion he showed Orders and Mathews X-rated videotapes, and explained to the girls what was happening in the films. At times while watching the videos, Lowe's hands would be down his pants. On other occasions, Lowe would walk through his house in a bikini swimsuit or bikini underwear, and would sometimes have his hands down his pants. Lowe also showed Mathews and Orders Playboy magazines, and allowed the girls to make audiotapes of themselves uttering sexual language. There has been no testimony that Lowe ever touched the girls in a manner which constituted sexual contact.

The murder scene contained no direct evidence which indicated that the killings were sexually motivated. Mullet's body was found clad only in a shirt, but there is no dispute that the attacker surprised Mullet after she had quickly emerged from the shower to answer the telephone. Mullet's body was not sexually mutilated.

On February 6, 1992, the trial court held that the other acts enumerated in the state's notice of intent to use evidence of January 23, 1991, and its amended notice of intent of January 28, 1991, were inadmissible pursuant to Evid.R. 404(B) and 403(A). The court accepted proffered statements in lieu of testimony as a factual basis for the decision.

That decision was appealed and on June 24, 1992, the Third District Court of Appeals vacated the trial court's suppression order and remanded the case. The appellate court found that the proffered statements, specifically those of the state's expert witness, Dr. Sandra B. McPherson, were insufficient to determine whether Lowe's other acts could be admissible pursuant to Evid.R. 404(B). McPherson's proffered statement had been offered to tie together the acts, the power list, and the murders. The appellate court found that proffer to be ambiguous and limited. The appellate court opined that "the trial court can more properly make a determination of the admissibility of the evidence in the context of the trial."

Lowe's right to a jury having been waived, trial on the case commenced on September 14, 1992. On the fifth day of trial, the other-acts evidentiary issue was argued again. The record upon which the trial court based its ruling included the evidence presented during the first four days of trial, the opening statements of counsel, the voir dire testimony of Mandy Orders, taken at a hearing on August 7, 1992, the deposition of Sandra McPherson, taken on September 9, 1992, and the testimony of FBI agent Douglas in a hearing before the trial court on March 15, 1991.

The trial court made several findings upon which it based its decision. Those included that Mullet was stabbed to death and that her hands were bound with a cloth and her feet with a clothesline-like rope, that there was no evidence of sexual conduct by the assailant, that Lowe authored the power list on which were listed the names of Mullet and the three young girls, that Lowe showed the girls sexual publications and X-rated videotapes and allowed them to make audiotapes of sexual phrases, that one game he played with the girls involved tying them up with a white rope, and that Lowe never touched the children so as to constitute "sexual conduct" or "sexual contact" as defined in R.C. 2907.01.

The trial court received a significant amount of evidence, and based upon the testimony of the state's expert that she could not give an expert opinion based on reasonable psychological certainty that the acts and the power list were linked to the crime in question, found that the evidence showing other acts was inadmissible pursuant to Evid.R. 404(B) and R.C. 2945.59.

The state took a midtrial appeal pursuant to Crim.R. 12(J), which allows an appeal as of right from the granting of a motion to suppress evidence when the prosecuting attorney certifies that "(1) the appeal is not taken for the purpose of delay; and (2) the granting of the motion has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed."

The appellate court affirmed the trial court's decision, stating that the trial court's ruling was "in accordance with authority and its attitude was not unreasonable, arbitrary or unconscionable, where the State has failed to establish by substantial proof some substantial link between the defendant's actions with the three minor girls, the 'power list,' and a motive, plan or scheme to commit the murders of Phyllis Mullet and Murray Griffin."

This cause is now before this court pursuant to this court's allowance of a motion to certify the record.

Gerald L. Heaton, Logan County Pros. Atty., for appellant.

Dennis Day Lager and Marc S. Triplett, Bellefontaine, for appellee.

PFEIFER, Justice.

Evidence of other acts is admissible if (1) there is substantial proof that the alleged other acts were committed by the defendant, and (2) the evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Broom (1988), 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 690-691; Evid.R. 404(B); R.C. 2945.59. R.C. 2945.59 and Evid.R. 404(B) codify the common law with respect to evidence of other acts of wrongdoing, and are construed against admissibility. See State v. Burson (1974), 38 Ohio St.2d 157, 67 O.O.2d 174, 311 N.E.2d 526; State v. Hector (1969), 19 Ohio St.2d 167, 174-175, 48 O.O.2d 199, 203-204, 249 N.E.2d 912, 916-917.

That there is...