State v. Wilson

• Decision Date: 16 December 1982
• Parties: , 8 O.B.R. 288 The STATE of Ohio, Appellee, v. WILSON, Appellant. *
• Court: Ohio Court of Appeals

Page 216

8 Ohio App.3d 216

456 N.E.2d 1287, 8 O.B.R. 288

The STATE of Ohio, Appellee, v. WILSON, Appellant. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 16, 1982.

Syllabus by the Court

1. Failure to object to evidence at trial constitutes a waiver of any challenge, regardless of the disposition made for a preliminary motion in limine.

2. Psychiatric testimony can be used in appropriate cases to impeach the non-testifying declarant whose out-of-court statement is admitted into evidence, where the declarant's ability to perceive, remember, or relate events is allegedly impaired by organic illness or a psychiatric disorder.

3. Where psychiatric or psychological testimony asserts a scientifically accurate conclusion on subjects whose scientific reliability is uncertain, such evidence should be rejected if the probative value of the expert testimony is outweighed by its prejudicial effect and its ability to confuse and mislead the jury.

John T. Corrigan, Prosecuting Atty., for appellee.

Marillyn Fagan Damelio, Avon Lake, for appellant.

MARKUS, Judge.

Defendant appeals from his convictions on three counts of rape, arguing that the trial court improperly admitted testimony about another sex offense by defendant at a later time, excluded expert testimony attacking the credibility of defendant's alleged confession, and failed to merge the three allied counts into a single rape conviction. We find no merit in defendant's last contention, and we conclude that any error described in defendant's first two claims was waived or was harmless in the circumstances of this case. Therefore, we affirm.

At the trial in December 1980, the state's case consisted of testimony and related exhibits from the seven-year old boy who was the alleged victim, his three sisters (ages fourteen, seven, and six), his mother, a medical records librarian, and three police officers. The boy testified that a man solicited him for sexual activity on November 15, 1979, and took him to a nearby church on November 16, 1979. In a downstairs room at the church, the man forced the boy to perform oral sodomy, forcefully caused the boy to submit to anal intercourse, and forcefully caused the boy to submit to oral sodomy. Immediately after being subjected to that assaultive conduct, the boy returned home and recounted his experience to his fourteen-year old sister.

His sister observed his disheveled appearance, bathed him, and washed his underclothes that were heavily soiled with a semen-like substance. That sister then accompanied the boy to a nearby street corner where the boy pointed out his assailant, and the assailant frightened them away by exposing his genitals. Later that day the boy and that sister told their mother about these events. The boy's mother reported the circumstances to the police by phone, but they apparently failed to respond to that call. His mother also took the boy to a local hospital emergency room that evening.

Approximately four months later, on March 16, 1980, the boy's two sisters (ages seven and six) were approached by the defendant in front of a nearby laundromat. These girls testified that defendant asked them to participate in sexual activity. Two police officers observed that conversation from a police car approximately sixty to sixty-five feet away, although they could not hear anything defendant said to the girls. One officer recognized the defendant and observed him touch the girls on the arm or shoulder. The other officer testified that he observed the defendant fondling his genitals through his trouser pocket.

When the officers approached, the defendant walked away. The officers questioned the girls, then arrested the defendant for importuning. ¹ Other information obtained from the girls caused the officers to transport defendant in their police car to the children's home. On their arrival there, the alleged rape victim came out of the house and provided details of the incident four months earlier. The officers then arrested defendant on the added charge of rape. Before they transported defendant to the police station and after they gave him appropriate advice about his constitutional rights, the defendant voluntarily stated he had given the alleged rape victim three dollars so he could perform oral sodomy on the boy. He also told the officer he preferred to be taken to the Cleveland Psychiatric Institute where he had been a patient previously.

Approximately twenty-five hours after defendant was booked and jailed on the rape charge, defendant requested an opportunity to make a further statement. He was again advised of his constitutional rights, both orally and by a written statement, in which he gave details of the offenses on November 16, 1979, and admitted the two acts of oral sodomy.

The defense argued that defendant was not the man involved in the November 16 rape offenses. The sole witness called by the defense was a guard at the Cleveland House of Corrections who testified that defendant was released from that institution after a fifty-day incarceration, at approximately 9:00 a.m. or 9:30 a.m., on November 16. Apparently the defense sought to demonstrate that defendant could not have solicited sex from the alleged rape victim on the preceding day, as the boy had testified, even though defendant's signed statement acknowledged that the solicitation and the sexual conduct both occurred after his release from jail on November 16.

The defense also sought to call the court's psychiatrist who had examined defendant to determine his competence to stand trial, but the court declined to permit that testimony. The defense proffered that the psychiatrist would have testified the defendant's psychiatric condition caused defendant to seek institutionalization, and that defendant's oral and written statements therefore lacked credibility. No claim was made that defendant was not guilty by reason of insanity, and the court had previously found defendant competent to stand trial with defense counsel's apparent concurrence.

I

Defendant's first assignment of error asserts:

"It was prejudicial error for the trial court to admit testimony concerning other acts of the appellant for which he was not on trial."

Defendant claims that evidence of his subsequent unlawful importuning was admitted solely for the impermissible purpose of showing that appellant had a propensity to commit sex crimes.

Under Evid.R. 404(B), "[e]vidence 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." However, such evidence may be "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The Staff Note to Evid.R. 404(B) emphasizes that this list of justifiable purposes for evidence of other acts is not exclusive or exhaustive. Therefore, a party may sometimes introduce "other acts" evidence, although the purpose for its admission is not enumerated in Evid.R. 404(B).

Where such evidence is not offered for the forbidden purpose, and is not admitted for one or more of the listed permissible purposes, then it is admissible only if it is relevant under Evid.R. 401 and not excluded under Evid.R. 403. Evid.R. 401 states that evidence is relevant where it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In this case, the disputed evidence showed that defendant was found in the immediate neighborhood of the earlier offense and that he was speaking to the alleged victim's sisters. It also showed the reason why he was transported to the alleged victim's home where he was confronted by the alleged victim and the alleged victim's older sister with details of the prior offense. Collectively, these circumstances corroborated his identification as the offender in his own oral and written statements. ²

However, otherwise relevant and admissible evidence must be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Evid.R. 403(A). In the present case, the state did not offer evidence of defendant's arrest for importuning or the circumstances leading to that arrest, for the prohibited purpose of showing that defendant raped the boy in conformity with a character trait of soliciting sexual activity with young children. We recognize that such evidence could have that effect, even though it was relevant for other purposes. Thus, its probative value could be outweighed by its prejudicial effect. Since the importuning event was a significantly less serious offense and was closely intertwined with the arrest and identification for the rape charge, we cannot say that the trial court abused its discretion in permitting that evidence to be received. ³

Moreover, any error in receiving that evidence has not been properly preserved for appellate action. Defense counsel made a motion in limine before the trial began, requesting that all reference to the importuning episode be excluded. The trial judge denied that motion, without deciding the merits of the defense objection, and directed that the issue be raised at the trial when it developed. Even if the trial judge had denied the motion in limine by ruling that the evidence was proper, counsel asserting the objection would have been obliged to challenge the evidence when the full context of the evidentiary issue was presented during the trial.

Failure to object to evidence at the trial constitutes a waiver of any challenge, regardless of the disposition made for a preliminary motion in limine. Evid.R. 103(A)(1); State v. White (1982), 6 Ohio App.3d 1, 4, 451 N.E.2d 533; Fetzek v. Lafon (December 13, 1979), Franklin App. No. 79 AP-419, unreported. In this case, defense counse...