November 28, 2012
Other-Acts Evidence

by Justice Paul E. Pfeifer

In any trial there are rules that must be followed regarding what evidence is admissible and what is not. Earlier this year here at the Ohio Supreme Court we reviewed a case that focused on this issue.

Carl Morris was convicted by a jury of two counts of rape involving a minor. When Morris appealed, one of his arguments was that the trial court had improperly allowed the state to introduce evidence of his “other ... acts to show proof of his character.” Morris claimed that allowing this evidence violated Rules of Evidence 403 and 404(B).

What was the “other-acts” evidence that the court allowed? Some of it involved testimony from the minor’s mother, who was asked general questions about her sexual relationship with Morris. The state then asked more specific questions about the relationship the girl’s mother had with Morris. The victim’s mother described Morris’s reaction when she declined his daily sexual advances: he was verbally and mentally abusive, and he sometimes kicked the dog. Morris’s attorney objected to these questions, but the court overruled.

The adult sister of the victim also testified about an incident in which Morris grabbed her and made what she interpreted as a sexual proposition. When her mother learned of Morris’s conduct, she kicked him out of the house for the night. Morris’s attorney objected to this testimony on the basis that it was prejudicial, but the trial court allowed it.

At the end of the trial, the court gave a limiting instruction to the jury. The judge cautioned that evidence of “other acts” was received for the limited purpose of deciding whether that evidence proved the absence of mistake or accident, or Morris’s motive, opportunity, intent, or plan to commit the offense, or knowledge of circumstances surrounding the offense charged.

On appeal, Morris argued that the trial court abused its discretion and acted unreasonably when it admitted the state’s other-acts testimony. He maintained that admission of the other-acts testimony was not harmless.

The court of appeals agreed. It concluded that the trial court improperly admitted other-acts testimony, that the trial court’s error was not harmless, and that the error materially prejudiced Morris. The court of appeals vacated the conviction. After that, the case came before us for a final review.

The general principle that guides admission of evidence is that “all relevant evidence is admissible.” But Evidence Rule 403 provides exceptions to this general principle and gives circumstances for the exclusion of relevant evidence.

Rule 404(B) also provides some exceptions: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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.”

In prior cases, we have established that the admission of other-acts evidence lies within the “broad discretion of the trial court, and a reviewing court” – such as the court of appeals or our court – “should not disturb evidentiary decisions in the absence of an abuse of discretion that created material prejudice.”

When it reviewed this case, the court of appeals concluded that two portions of the state’s other-acts testimony did not meet the substantive, legal requirements of admissibility under Rule 404(B). The court said that the wife’s testimony that Morris would abuse the dog out of sexual frustration should have been excluded because it had no relevance to any fact at issue and was intended only to show Morris’s character as mean and aggressive.

The court also said that the sexual-proposition testimony from the victim’s sister should have been excluded because the challenged testimony did not describe how the other act was a part of a single criminal transaction involving the criminal charges but instead described a wholly unrelated incident. In making these decisions, the court of appeals rejected the state’s argument – and the trial court’s apparent conclusion – that the other-acts testimony demonstrated Morris’s common scheme, motive, and plan with respect to his commission of the charged crime.

In reaching its conclusion, the court of appeals reviewed Morris’s case under a “de novo” standard of review. “De novo” basically means, “anew” or “a second time.” A de novo review is appropriate “where a trial court’s order is based on an erroneous standard or a misconstruction of the law.” When a court of appeals is making a determination of a pure question of law, it “may properly substitute its judgment for that of the trial court.”

But a de novo review does not apply to the situation presented in Morris’s case. The substantive law under the rule is clear: evidence of other crimes, wrongs, or acts, although not admissible to prove the character of a person in order to show action in conformity therewith, may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, or plan.

Whether specific evidence will be admitted is a matter left to the considerable, but not unlimited, discretion of the trial court. The use of the words “may” and “such as” in the rule suggests that the trial judge has considerable discretion to determine whether the specific evidence is of such a nature that it falls within one of the other purposes for which the evidence may be admitted, and if it does, whether in fact it should be admitted.

It is well established that a trial court’s decision to admit evidence is an evidentiary determination within the broad discretion of the trial court. By a seven-to-zero vote, we concluded that a court of appeals is to apply an abuse-of-discretion standard of review – not a de novo standard – when considering claims that a trial court improperly admitted other-acts evidence to prove the character of a person in order to show conformity therewith, in violation of Rule 404(B).

We therefore sent the matter back to the court of appeals with instructions to apply an abuse-of-discretion standard of review.

EDITOR'S NOTE: The case referred to is State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407. Case No. 2010-1842. Decided June 5, 2012. Majority opinion written by Justice Robert R. Cupp.