State v. Morris
| Decision Date | 28 December 2012 |
| Docket Number | No. 09CA0022–M.,09CA0022–M. |
| Citation | 985 N.E.2d 274 |
| Parties | STATE of Ohio, Appellee v. Carl M. MORRIS, Jr., Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
David C. Sheldon, Ashtabula, Attorney at Law, for Appellant.
Dean Holman, Prosecuting Attorney, and Russell A. Hopkins, Assistant Prosecuting Attorney, for Appellee.
{¶ 1} A jury convicted Carl M. Morris Jr. of two counts of raping his stepdaughter,S.K. According to S.K., Mr. Morris sexually molested her over the course of several years. Mr. Morris appealed, and this Court reversed his convictions because the trial court prejudiced Mr. Morris by incorrectly admitting other-act evidence in violation of Rule 404 of the Ohio Rules of Evidence. State v. Morris, 9th Dist. No. 09CA0022–M, 2010-Ohio-4282, 2010 WL 3528992, ¶ 44,rev'd,132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528. In reaching that conclusion, this Court applied a de novo standard of review to consider whether the proffered evidence had a tendency to prove any of the enumerated permissible purposes for such evidence under Evidence Rule 404(B) and whether any of those things were of consequence to the determination of the action. Id. at ¶ 13. The Ohio Supreme Court reversed this Court's decision and remanded the matter for application of an abuse-of-discretion standard of review to the first assignment of error and, if necessary, a review of the remaining assignments of error that were mooted by this Court's reversal of the convictions. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 23. This Court reverses Mr. Morris's convictions because the trial court abused its discretion by admitting other-act evidence in violation of Rule 404 of the Ohio Rules of Evidence.
{¶ 2} When S.K. was in first grade, her mother married Mr. Morris and he moved into their house to live with S.K., her mother, her grandmother, and her older sister, Sarah. According to S.K., when she first met Mr. Morris, he would do magic tricks to entertain her. He would do card tricks, coin tricks, or make his leg “disappear” using a towel. Sarah and the girls' mother testified that Mr. Morris walked around the house in a towel before and after showering and would sometimes stop and do magic tricks, like the one involving manipulating the towel to make it seem as though one of his legs had disappeared.
{¶ 3} S.K. testified that, when she and Mr. Morris were alone, he used to show her a trick requiring her to feel his thumb covered by a towel across his lap. S.K. was amazed that he could make his “thumb” turn to Jell-o and then become very hard. She testified that Mr. Morris later showed her that it was his penis she had been touching behind the towel. According to S.K., at some point, Mr. Morris started lying on the couch beside her and masturbating while rubbing her thighs with his other hand.
{¶ 4} S.K. testified that Mr. Morris vaginally raped her at least 10 times between when she entered second grade and when her grandmother died. S.K. was 13 years old when her grandmother died. She testified that, after her grandmother died, she started walking away from Mr. Morris when he would try to touch her. According to S.K., Mr. Morris soon stopped trying.
{¶ 5} S.K. testified that, for the most part, she could not remember the dates of the events she described, but that, after talking to police, she found she was able to assign dates to two of the incidents. She testified that Mr. Morris raped her when they were home alone before taking her to the hospital to visit her mother after surgery. S.K.'s mother testified that she stayed overnight in a hospital on April 22, 2003, following a hysterectomy. S.K. was nine years old at that time. S.K. also testified that Mr. Morris raped her sometime between October 20 and November 1, 2005, when she was 12 years old. She testified that she remembered the date because Mr. Morris interrupted a Halloween cartoon on television.
{¶ 6} S.K. testified that Mr. Morris never grabbed her, used force, or threatened her; that he never told her not to tell anyone what he was doing; and that she did not tell anyone about his behavior until at least four months after he had separated from her mother and moved out of their house. S.K.'s best friend testified that, about four or five months after Mr. Morris had moved out of the house, S.K. told her that he had raped her, but did not share any details. Six months after Mr. Morris had moved out of the house, S.K. told her parents that Mr. Morris had raped her. They insisted that she repeat the information to the police and to a therapist she had been seeing. S.K.'s therapist testified that, although he cannot be certain whether a client is telling the truth, there was no clinical reason to disbelieve S.K.'s account. He further testified that her description of the magic tricks fit the pattern of something a pedophile would do to prepare a child for sexual activity.
{¶ 7} At trial, Mr. Morris argued that both S.K. and her mother had reasons to fabricate the allegations against him. S.K.'s mother testified that, after Mr. Morris moved out, she suffered financial hardship and lost the house they had purchased together. Although she said that Mr. Morris had difficulty keeping jobs, she admitted that she could not afford the house without his help. Mr. Morris also elicited testimony from various witnesses that S.K. first told her parents that Mr. Morris had raped her in the middle of a dramatic confrontation between her and her parents regarding something they had seen on her MySpace page. The trial court excluded the details of the information contained on the page, but S.K. testified that the issue that provoked her parents' wrath had nothing to do with Mr. Morris.
{¶ 8} Although neither Sarah nor the girls' mother testified to ever having seen Mr. Morris molesting S.K., they both testified to situations that provoked some suspicion regarding his conduct with S.K. Sarah testified that she once saw Mr. Morris and S.K. “underneath the blankets” on the couch. Although the two had always been close and it was not uncommon to see them physically close to each other, it made her uncomfortable on that occasion.
{¶ 9} S.K.'s mother testified that she came downstairs late one night in the spring of 2005 “and both [S.K. and Mr. Morris] jumped off the couch really quick and [S.K.] went and ran in to the bathroom.” She testified that she confronted both of them, but each repeatedly denied that anything inappropriate had happened. S.K. testified that she remembered being on the couch with Mr. Morris while he was masturbating and touching her leg with his other hand when her mother suddenly came down the stairs. According to S.K., “[Mr. Morris] jumped a little” while she just “tightened up” for a moment before heading to the bathroom. She said that when her mother asked her what was going on, she told her that nothing had happened.
{¶ 10} Mr. Morris's first assignment of error is that the trial court incorrectly allowed the State to introduce evidence of his “other ... acts to show proof of [his] character in violation of [Rule 404(B) of the Ohio Rules of Evidence]....” Mr. Morris has pointed to three lines of questioning to which he objected at trial. First, he has argued that the trial court should have excluded all references to an incident involving Sarah, S.K.'s adult sister. Second, he has argued that the trial court should have excluded S.K.'s mother's testimony regarding him sometimes ejaculating into towels or t-shirts during intercourse. Finally, he has argued that the trial court should have excluded S.K.'s mother's testimony regarding his penchant for kicking the dog if the mother refused to have sex with him.
{¶ 11} “A hallmark of the American criminal justice system is the principle that proof that the accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime.” State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). Rule 404(B) of the Ohio Rules of Evidence provides that, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith[,]” but may be admissible for other purposes. Evid. R. 404(B). For example, evidence of other crimes, wrongs, or acts may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Although the permissible purposes for the use of character evidence found in Evidence Rule 404(B) are not limited to those delineated in the rule, such evidence is “not admissible to prove the character of a person in order to show action in conformity therewith[.]” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 18.
{¶ 12} The Ohio Supreme Court has recently directed courts to conduct a three-step test to consider whether other-act evidence is admissible. State v. Williams, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19. “The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Id. at ¶ 20 (citing Evid. R. 401). The second step is to “consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether [it] is presented for a legitimate purpose, such as those stated in Evid.R. 404(B).” Id. “The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.” Id. (citing Evid. R. 403).
{¶ 13} This Court has held that the rule “is to be strictly construed against the state and conservatively applied by the trial courts.” State v. Bronner,...
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