State v. Smith

• Citation: 551 N.E.2d 190,49 Ohio St.3d 137
• Decision Date: 07 March 1990
• Docket Number: 89-151,Nos. 88-768,s. 88-768
• Parties: The STATE of Ohio, Appellant, v. SMITH, Appellee. (Two Cases.)
• Court: United States State Supreme Court of Ohio

Page 137

49 Ohio St.3d 137

551 N.E.2d 190

The STATE of Ohio, Appellant, v. SMITH, Appellee. (Two Cases.)

Nos. 88-768, 89-151.

Supreme Court of Ohio.

Submitted Sept. 12, 1989.

Decided March 7, 1990.

Syllabus by the Court

Pursuant to R.C. 2945.59 and Evid.R. 404(B), evidence of "other acts" to prove intent to commit a crime and the identity of the perpetrator is admissible where two deaths occur under almost identical circumstances.

At approximately 1:00 a.m. on Tuesday, February 4, 1986, police officers from the Reading Police Department were dispatched to Uhrig Trailer Park to investigate a reported death. The officers were met by defendant-appellee, James K. Smith, at his trailer. Defendant told them that decedent, Steven Tittle, had been staying with him for a couple of days, that the two men had had an argument on the previous afternoon, and that defendant had left the trailer twice and had been unable to cause Tittle to leave. Defendant also claimed that Tittle had been drinking a lot of beer, smoking some marijuana and taking some Valium. Defendant told the officers that when he returned to the trailer after midnight, he found Tittle lying on the bunk. Defendant claimed he tried unsuccessfully to revive Tittle, and that he then "cleaned the trailer up" before the police officers arrived.

An autopsy was performed on the body. The general drug screen results showed no alcohol and only a small amount of Valium. Tittle's blood was not tested for morphine, and a deputy coroner determined the cause of death to be acute bronchopneumonia with purulent bronchitis and bronchiolitis. No criminal charges were filed at that time in Hamilton County.

Two months later, on Saturday, April 19, 1986, at approximately 4:00 p.m., Warren County sheriff's deputies responded to a call to the Kings Island Campground. Defendant met the officers at his trailer, indicating that there was a dead body in his trailer.

Defendant told police that the victim, Robert Wright, was an old friend, that the two men had run into each other at a bar on Thursday night and that Wright had asked to stay in defendant's trailer for a few days. Smith claimed the two men went to the house of an acquaintance until Friday morning. Defendant stated that both took illegal drugs, and that Wright had "mainlined" cocaine.

The two men returned to defendant's trailer and slept. They left on an errand in the afternoon, and returned at five or six o'clock in the afternoon. It is unclear what happened between Friday evening and Saturday afternoon. Defendant claims he woke around noon on Saturday and discovered that Wright was dead. He searched Wright's pockets and the rest of the trailer to determine whether decedent had hidden any drugs. Defendant then "cleaned up" the trailer and called the police.

Defendant told sheriff's deputies that Wright had probably died of an overdose of cocaine. Analysis of Wright's blood showed a "possible trace" of cocaine, no alcohol, .02 milligrams percent of codeine and diazepam (Valium), and .07 milligrams percent of morphine, ¹ a lethal concentration.

A deputy coroner determined the cause of death to be acute intoxication due to acetylated morphine derivative, and a toxicologist working for the coroner opined that the method of consumption was through the mouth.

When the results of the Wright autopsy became known to the deputy coroner who had performed the autopsy on Tittle, he had a preserved sample of Tittle's blood examined for morphine, revealing .07 milligrams percent of morphine. The deputy coroner then revised his earlier opinion, declaring the cause of Steven Tittle's death to be acute intoxication due to morphine.

Defendant was charged with aggravated murder and tampering with evidence in the death of Steven Tittle in Hamilton County. A jury trial in August 1986 resulted in conviction on both charges. The First District Court of Appeals reversed and remanded for a new trial. The court held that the trial court had improperly admitted extensive testimony pursuant to R.C. 2945.59 and Evid.R. 404(B) regarding Robert Wright's death at defendant's trial for the murder of Tittle.

The court also held that testimony given by witness Ed Marino about an "unnamed" woman's alleged attempt to bribe him had not been properly connected to defendant, and that the trial court erred in not excluding this testimony. The court of appeals further held that the trial court erred when it excluded the testimony of a defense witness who violated an order for separation of witnesses issued at the beginning of the trial.

In July 1987, defendant was tried in Warren County on charges of aggravated murder for the death of Robert Wright, tampering with evidence, and obstruction of official business. A jury returned a verdict of guilty on all counts. Defendant appealed, alleging, inter alia, that the trial court erred in permitting evidence of other acts under R.C. 2945.59 and Evid.R. 404(B) regarding the death of Steven Tittle, that the jury should have been instructed on the lesser included offense of involuntary manslaughter, and that the court erred in admitting into evidence a transcript of testimony from a prior trial.

The Twelfth District Court of Appeals agreed with defendant, and the cause was reversed and remanded for a new trial.

These appeals (case No. 88-768 from the Court of Appeals for Hamilton County, and case No. 89-151 from the Court of Appeals for Warren County) are now before us pursuant to the allowance of motions to certify the record.

Arthur M. Ney, Jr., Pros. Atty., William E. Breyer, Cincinnati, and R. Daniel Reif, for appellant in case No. 88-768.

Timothy A. Oliver, Pros. Atty., Joanne Hash, Lebanon, and Carolyn A. Benninghoff, for appellant in case No. 89-151.

R. Scott Croswell III and Elizabeth E. Agar, Cincinnati, for appellee.

MOYER, Chief Justice.

The state asserts five propositions of law, one of which is related to both the Warren County and Hamilton County trials. We address this issue first.

I

The principal issue is whether the trial courts erred in allowing evidence of other acts to be introduced at each trial pursuant to R.C. 2945.59 or Evid.R. 404(B). For the reasons stated below, we hold that the challenged evidence was properly admitted pursuant to R.C. 2945.59 and Evid.R. 404(B).

This court has examined admissibility of "other acts" evidence in a number of decisions. We have stated the general rule to be "that in a criminal trial evidence of previous or subsequent criminal acts, wholly independent of the offense for which a defendant is on trial, is inadmissible." State v. Wilkinson (1980), 64 Ohio St.2d 308, 314, 18 O.O.3d 482, 486, 415 N.E.2d 261, 267; see State v. Williams (1988), 38 Ohio St.3d 346, 528 N.E.2d 910.

Exceptions to this general rule have been limited by R.C. 2945.59 and Evid.R. 404(B) to instances where the probative value of the evidence is sufficient to allow its admission.

R.C. 2945.59 provides:

"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."

Under this section, evidence of other acts is admissible if the evidence tends to prove a specific element of the crime charged or one of the matters specifically enumerated in the statute. See State v. Curry (1975), 43 Ohio St.2d 66, 72 O.O.2d 37, 330 N.E.2d 720.

Similarly, Evid.R. 404(B) provides:

"Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Evid.R. 404(B) is essentially an extension of Evid.R. 404(A) which is intended to preclude a prejudicial attack on a defendant's character. Generally, extrinsic acts may not be used to prove the inference that the accused acted in conformity with his other acts or that he has a propensity to act in such a manner. However, Evid.R. 404(B) permits "other acts" evidence for "other purposes" including but not limited to certain enumerated issues. See 1 Weissenberger, Ohio Evidence (1981), Section 404.23; State v. Byrd (1987), 32 Ohio St.3d 79, 92, 512 N.E.2d 611, 624, certiorari denied (1988), 484 U.S. 1037, 108 S.Ct. 763, 98 L.Ed.2d 780.

The evidence introduced over defense objection at the Hamilton County trial for Tittle's death was testimony from sheriff's deputies from Warren County who had investigated Wright's death, and from the deputy coroner who had performed the autopsy.

At defendant's trial in Warren County for Wright's death, the transcript of the testimony of Dr. Jolly, the deputy coroner who had testified in the Hamilton County case regarding Tittle's autopsy, was read to the jury. Testimony was also given by state witness Dr. Russell Tye, the former chief toxicologist of the Hamilton County Coroner's office, and defense witness Dr. Fredric Rieders of National Medical Services, an independent laboratory. These expert witnesses had performed chemical analyses for drugs on samples of Wright's blood, urine, and stomach contents, and of Tittle's blood. The state also presented testimony from Tittle's girlfriend, his sister, and brother-in-law about Tittle's drug and alcohol habits. Two police officers who investigated Tittle's death also testified. At no time during the Warren County proceedings did the prosecution, the defense or the trial court state...