State v. McDaniel

168 N.E.3d 910

STATE of Ohio, Plaintiff-Appellee,

v.Anthony MCDANIEL, Defendant-Appellant.

NO. C-190476

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

Date of Judgment Entry on Appeal: March 12, 2021

OPINION.

Bergeron, Presiding Judge.

{¶1} Sometimes, a case helps illustrate the wisdom of a familiar adage, like don't ask a question you don't know the answer to. This is such a case. Defense counsel pried from the victim, in cross-examination, damaging (and otherwise inadmissible) testimony about the defendant's prior convictions by asking her to share any concerns she had about the defendant. With the door thrown open, the trial court admitted certified copies of these prior convictions, which the state portrayed as admissible under Evid.R. 404(B). As we explain below, we find that the trial court impermissibly admitted this latter evidence, which is hallmark propensity evidence in contravention of Evid.R. 404(B), as the Ohio Supreme Court has recently explained. However, we ultimately find this error harmless because the jury already had before it evidence of the prior convictions by virtue of the victim's testimony, blunting any prejudice that the defendant could claim. Therefore, we affirm the conviction.

I.

{¶2} At the time of these events, defendant-appellant Anthony McDaniel was living with his girlfriend and her roommate in a single family home. The roommate testified that one morning, while in the bathroom preparing to shower, she noticed a phone in the corner, partially obscured by some towels. She didn't think much about it and proceeded with her day. About a week later, however, she again noticed the phone as she prepared to shower, raising her suspicions. Upon further inspection, the roommate discovered that the phone was video recording. She then accessed the phone's previous recordings, finding, to her dismay, a 17-minute video of her from several days earlier in the bathroom, in varying stages of undress. The phone belonged to Mr. McDaniel.

{¶3} Shaken by this discovery, the roommate took the phone to her car to investigate further, calling Mr. McDaniel's girlfriend to confront her about the video. In the meantime, Mr. McDaniel began looking for his phone and, after finding it with the roommate outside, an altercation ensued where he recovered his phone from her. Mr. McDaniel's girlfriend soon returned, attempting to broker a détente about the incident. Mr. McDaniel explained that the recording from several days earlier had been an accident—he intended to record his girlfriend (allegedly with her consent), rather than the roommate. Mr. McDaniel then relinquished his phone for inspection, but the roommate testified that only the earlier 17-minute recording remained on the phone—the video from that day had vanished. The roommate obtained a copy of the video, which was admitted into evidence at trial.

{¶4} The state charged Mr. McDaniel with voyeurism under R.C. 2907.08(B), which provides: "No person, for the purpose of sexually arousing or gratifying the person's self, shall commit trespass or otherwise surreptitiously invade the privacy of another to videotape, film, photograph, or otherwise record the other person in a state of nudity." Because it was undisputed that Mr. McDaniel recorded the roommate, the only issue at trial was whether he intended to record her. The resolution of this question boiled down to witness credibility. Evidence in Mr. McDaniel's favor consisted of his own claim of accidental recording, which his girlfriend corroborated by testifying as to her consent to being recorded. Counterbalancing that evidence was the roommate's testimony that Mr. McDaniel had recorded her a second time while his girlfriend was away from the house.

{¶5} Against this backdrop, additional evidence made it into the record at trial that largely forms the basis of this appeal: Mr. McDaniel had two prior convictions for public indecency. As relevant here, these convictions were introduced in two stages. First, the roommate testified on cross-examination, upon prompting from defense counsel, that Mr. McDaniel was on probation for exposing himself to different people. Then the state presented certified copies of the two convictions as other-acts evidence under Evid.R. 404(B). The stated purpose of admitting these convictions was to show absence of mistake—that Mr. McDaniel had intended to record the roommate. Ultimately, the jury sided with the state and found Mr. McDaniel guilty of voyeurism.

{¶6} On appeal, Mr. McDaniel presents two assignments of error. He first argues that his prior convictions constituted impermissible propensity evidence, and second, he challenges his conviction as against the weight of the evidence. We address each assignment of error in turn.

II.

{¶7} As to Mr. McDaniel's first assignment of error regarding his prior convictions, we note that the separate presentations of that evidence affect our analysis. We thus address each admission separately—the roommate's testimony, then the certified copies of the convictions.

A.

{¶8} As already noted, evidence of Mr. McDaniel's prior convictions emerged in the midst of defense counsel's cross-examination of the roommate.

DEFENSE COUNSEL: And anything that he did beside what happened that disturbed you in any way as a roommate than what you already talked about?

ROOMMATE: In hindsight, yes.

DEFENSE COUNSEL: Go on.

ROOMMATE: He is on probation from two different counties ...

{¶9} Defense counsel immediately objected. But the court determined that, because the attorney had "opened the door," the roommate could finish answering the question.

Yes, in hindsight, it's uncomfortable that he was on probation in two different counties for exposing himself on different occasions to different people. At the time, I chose to believe [his girlfriend's] explanations for how it * * * wasn't his fault. He didn't mean anything bad, but it's an uncomfortable situation to be in. I chose to have faith in my friend.

{¶10} Both sides agree that the roommate's testimony was not independently admissible. But despite acknowledging the inartfulness of defense counsel's questioning, Mr. McDaniel nonetheless maintains that the trial court committed reversible error because his attorney objected immediately. However, he fails to explain how the timeliness of the objection affects whether the roommate should have been permitted to answer the question. Thus, we proceed to determine whether defense counsel's question "opened the door" to this testimony about his prior convictions.

{¶11} "The term ‘opening the door’ is based upon the doctrine of ‘invited error’ * * *." In re Bailey , 1st Dist. Hamilton No. C-990528, 2001 WL 477069, *1 (May 2, 2001). This doctrine "prohibits a party who induces error in the trial court from taking advantage of such an error on appeal." Id. ; see also Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div. , 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus ("A party will not be permitted to take advantage of an error which he himself invited or induced."). And "the doctrine of invited error prevents [a] defendant from asserting an error arising from the disclosure of a prior conviction as a result of his cross-examination of the witness." State v. Scott , 6th Dist. Sandusky No. S-19-030, 2020-Ohio-4854, 2020 WL 5989675, ¶ 27.

{¶12} Here, Mr. McDaniel does not cite any case undermining this textbook application of invited error. Indeed, the case law points in the opposite direction. See State v. Cephas , 1st Dist. Hamilton No. C-180105, 2019-Ohio-52, 2019 WL 169320, ¶ 24 (holding that invited error allowed the admission of victim's statements (who did not testify) because defense counsel asked the detective about those statements, also permitting the state to further examine the statements on redirect examination); State v. Pennington , 1st Dist. Hamilton Nos. C-170199 and C-170200, 2018-Ohio-3640, 2018 WL 4356131, ¶ 54–55 (holding that invited error allowed the admission of pathologists’ statements (who did not testify) because defense counsel asked the testifying expert if she had consulted other pathologists before coming to her conclusion). Here, defense counsel asked the roommate an open-ended question about whether Mr. McDaniel had done anything to disturb her, even encouraging her with "go on." Nor was this an episode of a witness going rogue and injecting nonresponsive details. Defense counsel asked the question; it was hers to answer. Thus, we cannot find that the trial court abused its discretion in refusing to strike the roommate's testimony or by allowing her to finish responding.

B.

{¶13} But just because a door creaks open, it does not allow a parade to march through. "It has been observed that ‘opening the door is one thing. But what comes through the door is another. Everything cannot come through the door.’ " State v. Bronner , 9th Dist. Summit No. 20753, 2002-Ohio-4248, 2002 WL 1906507, ¶ 72, quoting United States v. Winston , 447 F.2d 1236, 1240 (D.C. Cir. 1971). " ‘[T]he doctrine is to prevent prejudice and is not to be subverted into a rule for injection of prejudice.’ " (Emphasis sic.) Id. at ¶ 73, quoting Winston at 1240. And this brings us to the state's effort to admit the prior convictions.

{¶14} Soon after the roommate testified, the state renewed a motion it previously made to admit certified copies of Mr. McDaniel's prior convictions. And the trial court ruled that the convictions would go to the jury, reasoning that "under the [roommate's] testimony, * * * the 404(B) evidence, absence of mistake * * * has been met * * *." Mr. McDaniel frames this issue on appeal as a violation of Evid.R. 404(B). We agree.

{¶15} As we recently explained: " 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." State v....