State v. O'Connell

153 N.E.3d 771

2020 Ohio 1369

STATE of Ohio, Plaintiff-Appellee,

v.Daniel W. O'CONNELL II, Defendant-Appellant.

NOS. C-180600

C-180601

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: April 8, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.

OPINION.

Bergeron, Judge.

{¶1} Evid.R. 404(B) exists to guard against the "propensity" inference—in other words, wielding past bad acts to prove action in conformity therewith, which facilitates a conviction based on prior conduct rather than the evidence at hand. In this prosecution for rape and gross sexual imposition, the state presented evidence of allegations (not a conviction) that the defendant perpetrated similar conduct over 20 years earlier. The state insisted that such actions constituted a common "plan" under Evid.R. 404(B), and the trial court agreed, admitting this evidence without any limiting instruction. Our review convinces us that the trial court abused its discretion in this regard, and given the prominence of this evidence at trial (testimony the trial court described as "riveting"), we must reverse and remand for a new trial.

I.

{¶2} Underlying this case is a trio of victims, each related to defendant-appellant Daniel O'Connell and each alleging that he sexually assaulted them at various times. The allegations span decades and include conduct constituting gross sexual imposition and rape perpetrated against the victims while in Mr. O'Connell's care. After some of these allegations came to light, Mr. O'Connell was indicted in 2017 on charges involving gross sexual imposition, felonious sexual penetration, and rape. The genesis of these indictments flowed from allegations of sexual abuse made by Mr. O'Connell's then nine-year-old daughter, K.O. Divulging these allegations to her school counselor in 2016, K.O.'s accusations ultimately attracted the attention of the authorities, but she subsequently recanted.

{¶3} Later, K.O. would return to her story, and she offered further disclosures of more abuse. Eventually, these allegations prompted the state to revisit sexual abuse claims lodged by another of Mr. O'Connell's daughters, T.P., and his cousin, K.L., years prior, which were not pursued at the time of their reporting. Therefore, the 2017 indictment also included one count each of rape and gross sexual imposition of T.P., along with one count of rape and one count of felonious sexual penetration based on K.L.'s allegations.

{¶4} The state encountered problems with the prosecution as it related to K.L., since those assaults allegedly occurred in 1995, more than 20 years prior to the indictment and when Mr. O'Connell was younger than 15 years old. He accordingly moved to dismiss, which the trial court eventually granted on statute of limitations and jurisdictional grounds.

{¶5} Nevertheless, following Mr. O'Connell's motion to dismiss the counts related to K.L., the state tendered its "Notice of Intention to Use the Evidence," alerting the trial court of its intention to present K.L.'s testimony as evidence of "other acts" of the "same and similar conduct" to "show the defendant's scheme, plan and system for carrying out the sexual abuse" and "to show the defendant's intent, plan and motive," pursuant to R.C. 2945.59 and Evid.R. 404(B). Approximately a month later, the state also marshalled a second indictment, based on further disclosures by K.O., charging three additional counts of rape.

{¶6} As trial proceedings progressed, Mr. O'Connell objected to the state's request to introduce K.L.'s testimony, emphasizing the protections engrained in Evid.R. 404(B). Defense counsel explained: "Your Honor, we're talking now about allegations that are over 20 years old. * * * And I believe that it is manifestly unfair * * * to pile on witnesses in an attempt to sway the jury[.]" The trial court, however, ultimately deemed the testimony admissible because the conduct was "pretty much same and similar" to the charged offenses involving T.P. and K.O.

{¶7} K.L., T.P., and K.O. all proceeded to testify at trial, describing the various instances of abuse they experienced. Mr. O'Connell took the stand in his own defense, denying that he ever sexually abused his daughters or K.L. During cross-examination, Mr. O'Connell endeavored to paint a conspiratorial portrait of his daughters, positing that the girls had spent time together during holiday family gatherings, enabling them an opportunity to collaborate on their accusations, egged on by other adults such as K.O.'s mother and T.P.'s grandmother.

{¶8} The jury eventually convicted Mr. O'Connell on all but one charge, the rape of T.P. Mr. O'Connell received five years on each of the three gross sexual imposition charges and four life sentences without the possibility of parole for each of the remaining rape charges, all to run consecutively.

{¶9} From these convictions Mr. O'Connell now appeals, raising five assignments of error. Mr. O'Connell challenges the trial court's admission of "other acts" evidence via K.L.'s testimony and the trial court's decision to allow written transcripts as evidentiary exhibits. He also alleges ineffective assistance of counsel, attacks his convictions as against both the sufficiency and weight of the evidence, and criticizes his sentence as contrary to law.

II.

{¶10} We begin with Mr. O'Connell's first assignment of error, which we find dispositive of this appeal. In his first assignment of error, Mr. O'Connell maintains that the trial court erred in permitting K.L. to testify, as it violated the general prohibition on propensity evidence, i.e., introducing a defendant's past acts to prove that he or she committed a charged offense by acting in conformity with a character trait. We address first the state's waiver argument before turning to the merits.

A.

{¶11} Before addressing the merits of this assignment of error, we consider the state's suggestion on appeal that Mr. O'Connell waived this challenge by failing to specifically object on Evid.R. 404(B) grounds. We find this unpersuasive, concluding that he properly preserved the error.

{¶12} Evid.R. 103(A)(1) provides that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right * * * is affected; and * * * a timely objection * * * appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context [.]" (Emphasis added.) Upon review, the record reveals that the context surrounding Mr. O'Connell's objection sufficed to supply the specific grounds for the objection—everyone understood that the state sought admission under this rule and that the defense objected. Compare State v. Collins , 9th Dist. Summit No. 22333, 2005-Ohio-2812, 2005 WL 1339157, ¶ 14 ("While Appellant did not specifically cite Evid.R. 702(C) in his objection to [the witness's] testimony, the specific ground was apparent from the context of the testimony.") with State v. Smith, 2d Dist. Montgomery No. 21049, 2006-Ohio-4163, 2006 WL 2336878, ¶ 43 (defendant's one-word objection insufficient to preserve error where "the specific ground would not have been apparent to the trial court from the context."). Underscoring the point, defense counsel stressed the temporal remoteness of K.L.'s allegations, arguing that the staleness of the two-decades old accusations factored into the admissibility calculus of Evid.R. 404(B). See State v. Miller , 2015-Ohio-519, 27 N.E.3d 564, ¶ 31 (8th Dist.), citing State v. Jones , 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 191 (noting that temporal remoteness of 30-year-old threat and distinctness from the present circumstances "renders the other-acts evidence non-probative in this matter."); State v. Moore , 2012-Ohio-1958, 970 N.E.2d 1098, ¶ 88 (8th Dist.), citing State v. Burson, 38 Ohio St.2d 157, 159, 311 N.E.2d 526 (1974) ("[T]he prior act must not be too remote and must be closely related in time and nature to the offense charged.").

{¶13} Nor need we speculate on this point. Before admitting K.L.'s testimony, the parties debated its admission and its propriety under Evid.R. 404(B). After Mr. O'Connell's counsel voiced concerns over the evidence, the trial court recited the language of Evid.R. 404(B) verbatim. Later, when it ultimately admitted the evidence, the trial court concluded, "I think it's clearly 404(B)," to which defense counsel inquired "[s]o our objection is preserved for the record[?]" The court agreed: "Yes, yeah." The context surrounding the evidence's admission sufficiently indicated the grounds for the objection, obviating the need for defense counsel to explore these points further simply for preservation's sake.

B.

{¶14} Finding that Mr. O'Connell properly preserved his challenge, we turn to the merits of the evidentiary question, which we review for an abuse of discretion. See State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. A trial court abuses its discretion when it acts unreasonably, arbitrarily, or unconscionably in determining the evidentiary issue at hand. See State v. Hornschemeier , 2012-Ohio-2860, 973 N.E.2d 779, ¶ 34 (1st Dist.), quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62.

{¶15} Evidence of an individual's "other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Evid.R. 404(B). The introduction of such evidence is limited in its admissible scope out of concern that an accused may be convicted simply because he or she is a bad person with a tendency to commit such acts, and also due to the risk of tainting the jury's perspective. See State v. Sellers , 1st Dist. Hamilton No. C-140655, 2015-Ohio-4843, 2015 WL 7573190, ¶ 13.

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