State v. Smith

• Decision Date: 22 September 2020
• Docket Number: No. 2018-1831,2018-1831
• Parties: The STATE of Ohio, Appellee, v. SMITH, Appellant.
• Court: Ohio Supreme Court

162 Ohio St.3d 353

165 N.E.3d 1123

The STATE of Ohio, Appellee,

v.SMITH, Appellant.

No. 2018-1831

Supreme Court of Ohio.

Submitted January 29, 2020

Decided September 22, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellee.

Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske, Assistant Public Defender, for appellant.

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Samuel C. Peterson, Deputy Solicitor General, urging affirmance for amicus curiae Ohio Attorney General.

Timothy Young, Ohio Public Defender, and Katherine R. Ross-Kinzie, Assistant Public Defender, urging reversal for amicus curiae Office of the Ohio Public Defender.

DeWine, J. {¶ 1} Michael Smith was charged with sexually abusing his granddaughter. At his trial, the state sought to introduce "other acts" evidence that he had molested his daughter under similar circumstances decades earlier—allegations that Smith had been put on trial for but ultimately acquitted of. The trial court allowed the other-acts evidence to be admitted at his current trial, Smith was convicted, and that conviction was upheld on appeal. We accepted jurisdiction of this case to consider two challenges that Smith raises to the introduction of the evidence of the prior conduct, one constitutional and one evidentiary.

{¶ 2} First, we are asked to categorically hold that allowing the state to present evidence related to crimes for which a defendant has been acquitted violates the defendant's rights under the Double Jeopardy Clause of the Ohio Constitution. Because we find nothing in the text or history of our Constitution that would support such a conclusion, we reject this challenge.

{¶ 3} Second, we consider whether the acquitted-act evidence in this case was admitted for a proper purpose under Evid.R. 404(B) —which prohibits the use of evidence related to other acts of the defendant to show his character or propensity to commit crimes—as well as whether the evidence was relevant and not unduly prejudicial. Because Smith claimed as part of his defense that if he touched his granddaughter inappropriately, it was an accident and not done with sexual intent, the state could permissibly refute that claim by presenting evidence that he had molested his daughter under similar circumstances. We therefore affirm the judgment of the First District Court of Appeals.

I. Smith Is Charged with Raping His Granddaughter in 2016

A. The 2016 Incident

{¶ 4} On New Year's Day 2016, Smith made plans to take three of his granddaughters to a matinee of the new Star Wars movie and Smith's daughter dropped them off at his home. The youngest fell asleep and they missed the movie, so he offered to have the girls stay the night and take them to see it the next day. Their mother approved.

{¶ 5} When she picked up her girls the following day, the mother noticed that ten-year-old R.E. was not acting like herself. Later, after they got home, R.E. told her mother that something had happened at Smith's house.

{¶ 6} R.E. described what happened this way. When it was bedtime, the girls climbed into Smith's bed and began watching a cartoon. While lying next to Smith, she told him that dog hair in the bed was making her itch. Smith rubbed baby oil on her to help with the discomfort. But rather than apply it only to her back as he had done in the past, he rubbed the oil under her clothing on her chest, buttocks, and vagina. Smith then started licking her breasts and vagina. After a time, he got up and put on a pornographic film depicting oral and vaginal intercourse. By this time, R.E.'s younger sisters were asleep in the bed. R.E. eventually fell asleep too.

{¶ 7} She was awakened the next morning when Smith pulled her hand down and placed it on his penis. She yanked her hand away, and he began pressing his penis into her backside. He started to pull her underwear down, but she moved away and he got out of bed.

{¶ 8} R.E.'s mother went to the police when she learned what Smith had done. At the suggestion of law enforcement, she called Smith from a police station on a recorded line. Confronted about the incident, Smith admitted putting baby oil on R.E., but he denied touching her inappropriately and insisted that any improper contact was accidental. He also denied pressing his penis against the girl, but he said that he gets erections while he is sleeping and suggested that R.E. may have brushed against him. And Smith claimed that what R.E. had seen was a few seconds of an R-rated movie that accidentally began playing and he did not possess any pornography.

{¶ 9} The state indicted Smith for two counts of rape, three counts of gross sexual imposition, and one count of disseminating matter harmful to a juvenile. An initial attempt to try Smith resulted in a mistrial after the jury was unable to reach a verdict. A second trial was conducted before a different judge.

{¶ 10} R.E. and her mother testified to the facts described above, and the state played the recorded conversation with Smith for the jury. Smith took the stand in his defense and largely stuck to his initial story. He said he applied the baby oil where R.E. said she itched: on her back, legs, and chest. But he did so, he said, without any sexual intent. He denied touching R.E. underneath her underwear; he said that if he got too close to her private parts, it was an accident. And Smith again denied showing the girls pornography. He said that he put a SpongeBob DVD into the player, but the device instead started playing an R-rated VHS movie that was already in the machine. By his account, the scene that came on depicted a woman's breasts and that must have been what R.E. had described as pornography.

B. The 1986 "Other-Acts" Evidence

{¶ 11} In 1986, Smith was charged with the sexual battery of his daughter V.M. when she was a minor. A jury acquitted him. Prior to trial in the present case, the state gave notice that it intended to have V.M. and her younger sister L.S.—now adults—testify about the events underlying the 1986 case, asserting that the prior conduct was similar to what happened with their niece, R.E. Smith filed a motion in limine to have the testimony excluded, and V.M. and L.S. testified at a hearing on the motion before the start of Smith's first trial.

{¶ 12} At the hearing, V.M. described molestation by Smith spanning from the time that she was a young child to her teenage years. She testified that Smith fondled her vaginal and rectal regions, performed oral sex on her and forced her to reciprocate, and showed her and L.S. pornographic films depicting oral sex. A substantial portion of this abuse had occurred at the home of her grandparents, with whom Smith had lived then; this house is the same house where Smith was alleged to have abused R.E. in 2016.

{¶ 13} L.S. also testified at the hearing. She confirmed that Smith had forced her and V.M. to watch pornographic displays of oral sex. L.S. described an evening when the girls were asleep on a pull-out couch with Smith, during which she woke up and saw Smith putting his hands up her sister's shirt. L.S. told her mother what she had witnessed, which culminated in charges being filed against Smith.

{¶ 14} The state argued that the testimony was admissible under Evid.R. 404(B) to show "a common scheme and a lack of a mistake or an accident." Specifically, the state contended that the evidence rebutted Smith's claims during the recorded phone call that any inappropriate touching had been unintentional and that he had not played a pornographic film but instead had accidentally played a few seconds of an R-rated movie. The state noted that the conduct was similar in that in both situations, Smith had shown scenes of oral sex to minors and had abused a minor who was asleep in the same bed as him.

{¶ 15} Smith's attorney argued that it is not enough to show that two incidents occurred in the same manner; that is not a common scheme, he contended, but merely evidence that the defendant may have committed two crimes of the same nature. Defense counsel also argued that presenting evidence of crimes for which Smith had been acquitted 30 years before would force Smith to defend himself against those charges a second time in addition to defending against the present allegations; he suggested that doing so would present constitutional concerns as well as practical difficulties.

{¶ 16} The trial court found evidence of the 1986 incidents potentially admissible to show "lack of mistake, preparation, [and] plan." The court did not engage in an overt analysis regarding whether the evidence was admissible under Evid.R. 403(A), which requires a court to exclude relevant evidence if its probative value is outweighed by the danger of unfair prejudice. Prior to the second trial, Smith's defense attorney renewed his motion in limine, arguing that the state was collaterally estopped from presenting evidence of the 1986 allegations because of Smith's acquittal and that the evidence did not meet the requirements of Evid.R. 404(B). Relying on the testimony from the earlier hearing on the motion in limine as well as the renewed motion and arguments, the trial court ruled that the evidence could be admitted during the retrial pursuant to Evid.R. 404(B).

{¶ 17} V.M.'s and L.S.'s testimony at the retrial was substantially the same as their testimony at the pretrial hearing. Before they testified, the court provided a limiting instruction admonishing the jury that V.M.'s and L.S.'s testimony could not be considered "to prove the character of the Defendant in order to show that he acted in accordance with that character." And in its final instructions to the jury, the court instructed that the other-acts evidence was to be considered "only for the purpose of deciding whether it proves the Defendant's motive, opportunity, intent or purpose, preparation, and/or plan to commit the offense charged in this trial."

C. Smith's...