State v. Smith (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Smith, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 

              THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Smith, Slip Opinion No. 

.]
Criminal law—Other-acts evidence—Evid.R. 404(B)—The protection against
        double jeopardy provided by Article I, Section 10 of the Ohio Constitution
        does not categorically bar the use of other-acts evidence relating to past
        criminal charges for which a criminal defendant was acquitted—Other-acts
        evidence must be probative of a proper particular purpose for which it is
        offered and must not be premised on asking jurors to draw improper
        character inferences—Other-acts evidence must be excluded under Evid.R.
        403(A) when its probative value is substantially outweighed by the danger
        of unfair prejudice, confusion of the issues, or misleading the jury.
 (No. 2018-1831—Submitted January 29, 2020—Decided September 22, 2020.)
              APPEAL from the Court of Appeals for Hamilton County,
                             No. C-170335, 

.
                                   __________________
                             SUPREME COURT OF OHIO




       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 for which
Smith had been put on trial but ultimately acquitted. 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 Years’ 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,




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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 denied touching her inappropriately and insisted that any improper
contact was accidental. He also denied pressing his penis against the girl, but 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.




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        {¶ 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 we’ve just described, 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 had been 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




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                                  January Term, 2020




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




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value is outweighed by the danger of unfair prejudice. Prior to the second trial, the
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 Conviction and Appeal
       {¶ 18} The jury convicted Smith on the gross-sexual-imposition and
dissemination counts, but it acquitted on the rape charges.        Smith appealed,
asserting among other things that the trial court had not engaged in the proper
analysis to determine the admissibility of V.M.’s and L.S.’s testimony, that courts
should categorically prohibit the use of other-acts evidence of conduct for which
the accused had been acquitted in a previous prosecution, and that the admission of
such evidence in this case violated Smith’s rights under the Ohio and United States
Constitutions. The First District Court of Appeals affirmed Smith’s convictions. It
concluded that the other-acts evidence was relevant “to show motive, intent and
absence of mistake.” 

. The court also rejected Smith’s
constitutional challenge, explaining that because the standard of proof for
admission under Evid.R. 404(B) is lower than for a criminal conviction, the prior




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                                 January Term, 2020




acquittal did not collaterally estop the state from presenting evidence of the 1986
allegations. Id. at ¶ 14, citing United States v. Felix, 

, 

, 

 (1992).
          {¶ 19} We accepted Smith’s appeal to consider two propositions of law.
See 

, 

, 

. In the first, we are
asked to hold that the Ohio Constitution bars the use of any other-acts evidence
relating to past criminal charges for which a criminal defendant has been acquitted.
In the second, Smith argues that the other-acts evidence should not have been
admitted under Evid.R. 403 and 404(B) and our prior caselaw construing those
rules.
                        II. The Double-Jeopardy Protection
          {¶ 20} In his merit brief in the court of appeals, Smith cited the double-
jeopardy provisions of the federal and Ohio Constitutions. Without distinguishing
between the two documents, he argued that the double-jeopardy protection contains
a collateral-estoppel element that prevents the admission of evidence of conduct
that was the subject of a prior acquittal.
          {¶ 21} Smith can obtain no relief under the federal Constitution. The
United States Supreme Court has held that the federal double-jeopardy provision
does not preclude evidence of conduct that was subject to a prior acquittal from
being introduced as other-acts evidence in a subsequent trial for a different offense.
Dowling v. United States, 

, 

, 

(1990).     Thus, Smith now limits his double-jeopardy argument to the Ohio
Constitution.
          {¶ 22} The Ohio Constitution guarantees that “[n]o person shall be twice
put in jeopardy for the same offense.” Ohio Constitution, Article I, Section 10.
This language dates back in nearly identical form to Ohio’s first Constitution. See
1802 Constitution, Article VIII, Section 11. Ohio’s constitutional provision is
similar to the protection provided by the Fifth Amendment to the United States




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Constitution: “No person shall * * * be subject for the same offence to be twice put
in jeopardy of life or limb.”
          {¶ 23} On its face, the Ohio Constitution’s guarantee speaks only of being
placed in jeopardy for the “same offense.” Nonetheless, Smith argues that Ohio’s
provision contains a collateral-estoppel element that precludes the use of other-acts
evidence related to a prior acquittal in a subsequent prosecution for a different
crime.
          {¶ 24} The notion that the double-jeopardy protection contains a collateral-
estoppel element has its genesis in the United States Supreme Court’s decision in
Ashe v. Swenson, 

, 

, 

 (1970). In that case,
the court dealt with a defendant who was accused of being one of a group of masked
men who robbed multiple players in a poker game. After the defendant was
acquitted of robbing one of the players, the court held he could not be tried for
robbing another player at the same game because the prior jury’s verdict of acquittal
meant that that jury could not conclude beyond a reasonable doubt that he was one
of the robbers. 

. Thus, the court in Ashe established a rule that the
government may not try a defendant if to secure a conviction, the “prosecution must
prevail on an issue the jury necessarily resolved in the defendant’s favor in the first
trial.” Currier v. Virginia, ___ U.S. ___, 

, 

(2018).
          {¶ 25} In Dowling, 

, 

, 

, the
United States Supreme Court refused to extend Ashe to encompass the scenario that
we are presented with today. In rejecting the double-jeopardy claim, the court
explained that the standard for admitting other-acts evidence pursuant to
Fed.R.Evid. 404(b) is lower than that required for a criminal conviction, and
therefore the prior action did not determine an ultimate issue in the case. 

 at 348-
349. The court determined that a jury could reasonably believe that a defendant
likely committed a prior act even if it possessed a reasonable doubt that he did so.




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Thus, even under principles of collateral estoppel, the prior acquittal did not
preclude consideration of the evidence.
        {¶ 26} Smith asks us to hold that Ohio’s double-jeopardy provision includes
a collateral-estoppel element. But he asks us to go beyond the United States
Supreme Court’s interpretation of the federal provision and hold that Ohio’s
provision precludes any use of acquittal evidence, even if the traditional elements
of collateral estoppel would not apply. Specifically, he would like us to read into
the Ohio Constitution the view advocated by Justice Brennan’s dissent in Dowling.
Under that view, the double-jeopardy protection bars the use of any fact found in a
defendant’s favor in a prior proceeding.             

 (Brennan, J.,
dissenting). Further, the state would be required to show that any issue it sought to
relitigate was not resolved in the defendant’s favor in the prior proceeding. 

.
        {¶ 27} We have generally treated the double-jeopardy protection articulated
in Article I, Section 10 of the Ohio Constitution as coextensive with that contained
in the Fifth Amendment to the United States Constitution. State v. Gustafson, 

, 

 (1996) (citing cases); Girard v. Giordano,

, 

, 

. And there is reason to
think that at least at the time of its adoption, Ohio’s provision extended the same
double-jeopardy protection to state prosecutions that the federal Constitution
extended to federal prosecutions.1 The wording of the two provisions is nearly
identical, and Ohio’s provision was included in the first Ohio Constitution, which
was adopted about a decade after the ratification of the federal Bill of Rights.
Moreover, both provisions have been said to have their basis in the common-law




1. It was not until 1969 that the United States Supreme Court concluded that the federal double-
jeopardy protection applied to the states through the Fourteenth Amendment. Benton v. Maryland,

, 

, 

 (1969).




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                              SUPREME COURT OF OHIO




understanding of the protection. See Currier, ___ U.S. at ___, 

-
2153, 

; Hurley v. State, 

 (1834).
        {¶ 28} Smith is correct that because the Ohio Constitution is “a document
of independent force,” Arnold v. Cleveland, 

, 

(1993), we are not bound to walk in lockstep with the federal courts when it comes
to our interpretation of the Ohio Constitution. Indeed, there are good reasons why
we might choose not to do so. See generally Jeffrey S. Sutton, 51 Imperfect
Solutions: States and the Making of American Constitutional Law (2018). And
even if the provisions were initially understood to provide functionally the same
protections, we are not bound to mirror subsequent United States Supreme Court
decisions delineating the scope of the protection.
        {¶ 29} But Smith offers no persuasive reason that the Ohio Constitution
entitles him to the relief he seeks. In construing our state Constitution, we look first
to the text of the document as understood in light of our history and traditions. See

. Smith does not present any argument relating to the “unique
language [or] historical background” of the Ohio constitutional provision that
would support the result he seeks. Stolz v. J & B Steel Erectors, Inc., 

, 

, 

 (Fischer, J., concurring).
Instead, Smith reargues the debate between Justice Brennan and the Dowling
majority and asserts that a complete bar of acquittal evidence would be more just
and more workable in practice. But he presents nothing from the text or history of
Ohio’s constitutional provision to support the relief he seeks.
        {¶ 30} Start with the text. “No person shall be twice put in jeopardy for the
same offense.” Ohio Constitution, Article I, Section 10. Over a century ago, this
court interpreted the meaning of the word “offense” in that provision, concluding,
“[l]ayman and lawyer alike understand the word ‘offense’ to here mean simply a
crime.” State v. Rose, 

, 386, 

 (1914). The court went
on, “The words ‘same offense’ mean same offense, not the same transaction, not




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                                January Term, 2020




the same acts, not the same circumstances or same situation.” 

 The provision
speaks not about the relitigation of issues but of offenses. Thus, if one simply looks
to the text of the provision, it does not bar the use of evidence related to the crimes
for which Smith was tried in 1986, because his 2016 prosecution was for different
offenses.
       {¶ 31} Smith fares no better when we look to the clause’s history and our
early interpretations of the provision. In 1834, this court said of Ohio’s provision,
“[N]o rule is better settled than that which prohibits putting a person twice in
jeopardy for the same crime; and our Constitution is nothing more than the
recognition of the common law principle on that subject.” Hurley, 

.
Indeed, this court in Hurley relied on the English common law as authority without
reference to the United States Constitution’s double-jeopardy provision. The
common-law rule barred only a subsequent prosecution for the same offense. See
United States v. Wilson, 

, 

, 

(1975), citing 3 Edward Coke, Institutes of the Laws of England, 212-213 (6th
Ed.1680), and 4 William Blackstone, Commentaries on the Laws of England, 335-
336.
       {¶ 32} Historically, we have interpreted the Ohio Constitution’s double-
jeopardy provision in line with that offense-based understanding. Thus, in an 1876
case, we held that a prior acquittal on a charge would not preclude the state from
using evidence from the first trial to convict the defendant of a similar offense.
Bainbridge v. State, 

, 272-273 (1876). In that case, the defendant
had previously been acquitted on a charge of selling adulterated milk. At the first
trial, the state had presented evidence that the defendant had sold adulterated milk
on multiple occasions over a period of several months. In the second proceeding,
the defendant was indicted on additional charges for sales of adulterated milk that
took place during the same time period as the evidence adduced at the first trial. Id.
at 271. The defendant argued that the prior acquittal acted as a bar to the subsequent




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charges. This court disagreed, noting that while the state had put on evidence of
illegal sales during the entire time period, the prosecutor in the first trial had been
required to elect the particular milk sale for which he sought a conviction and the
jury verdict thus barred only a subsequent conviction for that transaction. Id.
Applying this offense-based understanding, we explained that “[w]hile it is the right
of every person not to be put in jeopardy more than once for the same offense, the
principle should be so applied as not to create an immunity for crimes which do not
constitute the offenses for which the criminal has once been exposed to
punishment.” Id. at 272. For the protection to apply, the “ ‘prosecution [must be]
for the same identical act and crime.’ ”       Id., quoting 4 William Blackstone,
Commentaries on the Laws of England, at 336.
       {¶ 33} In Patterson v. State, 

, 

 (1917), this court
addressed a remarkably similar claim to the one presented here. In that case, the
defendant was tried for theft of an automobile. Id. at 94. The state presented
evidence of another car theft for which the defendant had been acquitted, on the
theory that both thefts were part of a larger scheme involving the defendant. Id.
This court rejected the claim that the acquittal prevented the state from presenting
evidence of the other car theft. In line with the common-law understanding, the
Patterson court held that the situation did not implicate double-jeopardy concerns
because the two crimes were distinct offenses. Id. The court concluded, “There is
no guarantee, either by constitution or by statute, that evidence offered upon the
trial of the accused for a different offense, of which he was convicted or acquitted,
may not be offered to prove a distinct but related offense.” Id. at 95. And even
though it held that double-jeopardy protections were not invoked by the use of the
acquitted-act evidence at a trial for a different offense, the court nevertheless
questioned the assertion that an acquittal would have a preclusive effect under the
doctrine of collateral estoppel:




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                                January Term, 2020




        But why should a former acquittal be conclusive as an adjudication
        of the facts involved therein upon a second trial for a separate and
        distinct offense resulting from the plan or scheme under which both
        offenses were committed? On the former trial the witnesses for the
        state may have committed perjury resulting in such acquittal, or may
        have absented themselves from the state. The acquittal may have
        resulted from an erroneous charge, misconduct of counsel or jury,
        lack of proof upon a single material element, or from other causes.
        Can it reasonably be urged, either from the standpoint of law or good
        morals, that the state * * * is in any way estopped from marshaling
        its competent evidence upon a subsequent trial for another offense,
        proving a common scheme or plan to steal specified automobiles,
        followed, in fact, by the theft of each?


Id. at 96.
        {¶ 34} In sum, neither the text of Article I, Section 10, nor the historical
understanding of that provision support Smith’s proposed reading. We therefore
reject Smith’s claim that the admission of other-acts evidence violated the Ohio
Constitution’s protection against double jeopardy.
                     III. Ohio’s Due Course of Law Clause
        {¶ 35} Smith also asks us to conclude that the admission of other-acts
evidence related to a prior acquittal “violates the fundamental fairness component”
of the Ohio Constitution’s Due Course of Law Clause, Article I, Section 16. Even
under a generous reading of his appellate briefing, this is not an issue that Smith
raised below. Other than an unexplained mention of Article I, Section 16 of the
Ohio Constitution and the Fifth and Fourteenth Amendments to the United States
Constitution in the text stating his first assignment of error, Smith did not make any
due-process argument relating to the use of other-acts evidence in his merit briefs




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in the court of appeals. We generally decline to consider issues that were not raised
in the court of appeals. Wireman v. Keneco Distribs., Inc., 

,

 (1996); State v. Phillips, 

, 

(1971). We follow that rule today and decline to consider Smith’s due-course-of-
law argument.
                             IV. Other-Acts Evidence
                       A. The Basics of Other-Acts Evidence
        {¶ 36} Evid.R. 404(B) categorically prohibits evidence of a defendant’s
other acts when its only value is to show that the defendant has the character or
propensity to commit a crime. Other-acts evidence may, however, be admissible
for another non-character-based purpose, such as “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” 

“The key is that the evidence must prove something other than the defendant’s
disposition to commit certain acts.” State v. Hartman, __ Ohio St.3d __, 2020-
Ohio-4440, ___ N.E.3d ___, ¶ 22.
        {¶ 37} In Hartman, we provided a guide for courts to evaluate proposed
other-acts evidence to determine whether the evidence connects to a permissible
purpose without relying on any improper character inferences. The threshold
question is whether the evidence is relevant. Id. at ¶ 24; Evid.R. 401; see also State
v. Williams, 

, 

, 

. As we
explained in Hartman, the problem with other-acts evidence is rarely that it is
irrelevant; often, it is too relevant. Hartman at ¶ 25; see 1A Wigmore, Evidence,
Section 58.2, at 1212 (Tillers Rev.1983). In the Evid.R. 404(B) context, the
relevance examination asks whether the proffered evidence is relevant to the
particular purpose for which it is offered, as well as whether it is relevant to an issue
that is actually in dispute. Hartman at ¶ 26-27; see also Huddleston v. United
States, 

, 

, 

 (1988).




                                           14
                                January Term, 2020




       {¶ 38} Thus, courts should begin by evaluating whether the evidence is
relevant to a non-character-based issue that is material to the case. If the evidence
is not premised on improper character inferences and is probative of an issue in the
case, the court must then consider whether the evidence’s value “is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.” Evid.R. 403(A); Hartman at ¶ 29. Because other-acts
evidence “ ‘almost always carries some risk that the jury will draw the forbidden
propensity inference,’ ” courts should be vigilant in balancing the prejudicial
impact of the evidence against its probative value. Id. at ¶ 33, quoting United States
v. Gomez, 

 (7th Cir.2014) (en banc).
               B. The Other-Acts Evidence Was Properly Admitted
       {¶ 39} Applying these principles here, we turn to the admissibility of
V.M.’s and L.S.’s testimony under our evidentiary rules. The state contended—
and the trial court found—that evidence relating to the 1986 allegations was
admissible for two main purposes: to show a common scheme or plan and to show
an absence of mistake.
       {¶ 40} We provided a detailed explanation of common-scheme or plan
evidence in Hartman. In short, evidence of a plan must generally demonstrate that
the other acts are part of the same transaction as the crime charged or part of a
sequence of events leading up to the instant crime. Hartman, __ Ohio St.3d __,

, ___ N.E.3d ___, at ¶ 41, citing Weissenberger, Federal Evidence,
Section 404:18 (7th Ed.2019). We explained that the evidence should show that
the other acts and the present crime are tied to “the same grand design”; otherwise,
“proof that the accused has committed similar crimes is no different than proof that
the accused has a propensity for committing that type of crime.” Id. at ¶ 46.
       {¶ 41} The other-acts testimony in this case was not evidence of a plan.
Smith’s alleged abuse of his daughter and that of his granddaughter are discrete
events occurring some 30 years apart—not a plan embracing both the prior criminal




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activity and the charged crimes. Without a direct connection between the two
incidents, evidence that Smith has a design to molest the girls is tantamount to
saying he has a disposition to do so.
       {¶ 42} Often, litigants conflate plan evidence with modus operandi
evidence. With respect to a defendant’s modus operandi, entirely separate offenses
may become linked in that they share a truly “ ‘distinctive, one-of-a-kind’ ” feature.

, quoting 1 Imwinkelried, Giannelli, Gilligan, Lederer & Richter,
Courtroom Criminal Evidence, Section 907 (6th Ed.2016).             While there are
similarities between Smith’s alleged abuse of his daughter and that of his
granddaughter, those similarities do not demonstrate a signature “ ‘method of
working’ ” such that the “separate crimes are recognizable as the handiwork of the
same wrongdoer.” People v. Barbour, 

, 

 (1982); see 

. Indeed, the facts presented in both cases are
unfortunately typical of such abuse. Moreover, even if the 1986 allegations shared
a unique modus with the crimes in this case, they still would not be admissible
under this theory: modus operandi evidence is relevant to identify the perpetrator,
and Smith’s identity as the alleged perpetrator was not disputed.
       {¶ 43} Thus, we conclude the trial court was incorrect in its conclusion that
the evidence was admissible to show a common scheme or plan. Nonetheless, we
agree with the other part of the trial court’s assessment—the evidence was
admissible to show an absence of mistake.
       {¶ 44} At trial, the defense’s general theory was that when Smith applied
baby oil to R.E.’s body, he did so without any sexual intent and any contact with
her private parts was accidental. His response to R.E.’s claim that he pressed his
penis against her was that if it happened, it was an accidental result of his tendency
to get erections while sleeping. And he refuted the allegations that he played
pornography for R.E. by claiming that an R-rated movie accidentally started




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playing. Thus, a material issue at the trial was whether, if the alleged acts occurred,
Smith had any sexual intent in performing them.
       {¶ 45} Evidence of a defendant’s other acts may be admissible to negate his
claim of accident or mistake with respect to the crime for which the defendant is on
trial. Hartman, __ Ohio St.3d __, 

, ___ N.E.3d ___, at ¶ 52. Such
evidence demonstrates, “ ‘by similar acts or incidents, that the act in question was
not performed inadvertently, accidentally, involuntarily, or without guilty
knowledge.’ ”    

 quoting McCormick, Evidence, Section 190, at 804 (4th
Ed.1994). Thus, absence-of-mistake evidence is often closely linked to intent; to
be probative of intent, such evidence must be sufficiently similar to the crime
charged. See id. at ¶ 53. The logical theory on which such evidence is premised is
that when circumstances arise often enough, it becomes substantially less likely that
they have arisen by chance. See id. at ¶ 53, 56; State v. Evers, 

, 

 (1987), quoting 2 Weinstein & Berger, Weinstein’s Evidence,
Section 404[12], at 404-84 to 404-87 (1985) (“ ‘the oftener a like act has been done,
the less probable it is that it could have been done innocently’ ” [emphasis deleted]).
       {¶ 46} State v. Schaim, 

, 

 (1992), involved
similar facts to the present case. In that case, the defendant admitted that he had
touched his daughter’s buttock while giving her a backrub, but he denied that he
did so for the purpose of sexual gratification. 

. We held that on the limited
issue of the defendant’s intent, testimony from an older daughter that her father’s
backrubs were a pretext for sexual fondling was relevant to show that the defendant
had touched his younger daughter for the purpose of sexual gratification. 

       {¶ 47} Likewise, Smith admitted to rubbing baby oil on R.E.’s chest, but he
denied having any sexual intent in doing so. L.S. and V.M. testified that Smith had
touched V.M.’s chest as a child and achieved sexual gratification from it. The
evidence was admissible to show not that Smith has a propensity to molest young
girls, but rather that when he touched his granddaughter, he did so with a sexual




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intent. The permissible inference is that such contact is sexually gratifying to him,
even if it would not be to the average person.
       {¶ 48} Smith also denied showing pornography to R.E., claiming instead
that he had accidentally played an R-rated movie depicting a woman’s breasts.
V.M.’s and L.S.’s testimony addressed Smith’s use of pornography during his
abuse of V.M. and tended to refute Smith’s innocent explanation for why R.E.
might have claimed she had seen pornography.
       {¶ 49} In sum, the detailed facts of Smith’s molestation of both his daughter
and granddaughter—his relationship to the victims, the manner in which he touched
them, the location and environment in which the abuse occurred, and his priming
of the children by showing them pornography depicting oral sex—were so similar
as to “ ‘strongly suggest that an innocent explanation is implausible.’ ” Hartman,
__ Ohio St.3d __, 

, ___ N.E.3d ___, at ¶ 58, quoting Leonard, The
New Wigmore: Evidence of Other Misconduct and Similar Events, Section 7.5.2
(2d Ed.2019). Because Smith placed his intent at issue by claiming that his actions
were accidental and not done with sexual intent, the evidence was properly
admissible to show absence of mistake—or to put it another way, that he committed
the acts not accidentally, but with the intent of sexual gratification.
       {¶ 50} Even when other-acts evidence is probative of a permissible
nonpropensity purpose, a court must still weigh its probative value against the
dangers of unfair prejudice and jury confusion. Evid.R. 403(A). We review a trial
court’s Evid.R. 403(A) decision for an abuse of discretion. 

. Here,
the jury was informed that Smith had been acquitted of the prior allegations, and it
was free to believe or disbelieve the testimony of V.M. and L.M.             “As the
importance of the factual dispute for which the evidence is offered to the resolution
of the case increases, the probative value of the evidence also increases and the risk
of unfair prejudice decreases.” (Emphasis sic.) Id. at ¶ 31. Given the highly
probative nature of the other-acts evidence in this case, we cannot say that the




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evidence was unduly prejudicial or the trial court’s decision to admit the evidence
was unreasonable.
        {¶ 51} Finally, we note that the trial court’s instruction to the jury was
overly broad, in that it listed multiple purposes for which the evidence could be
considered that were not relevant to this case. As explained in Hartman, going
forward courts should tailor their instructions to the particular uses that are relevant
to the case and explain to jurors in plain language the permissible and impermissible
inferences that may be drawn from the other-acts evidence. Id. at ¶ 70. But defense
counsel did not object to the language used by the court, and the instruction largely
tracked the model one in the Ohio Jury Instructions, see 

, so we
conclude that the court’s instruction did not amount to plain error.
                                   V. Conclusion
        {¶ 52} The Double Jeopardy Clause of the Ohio Constitution does not
impose a per se bar to the use of other-acts evidence for which the defendant was
previously acquitted. Nevertheless, such evidence should be evaluated rigorously,
applying Evid.R. 401, 403, and 404(B). On the facts of this case, we conclude that
because Smith placed his intent at issue by claiming that his actions were accidental
and not done with sexual intent, the trial court properly admitted evidence of the
prior sexual-assault allegations. We therefore affirm the judgment of the court of
appeals.
                                                                   Judgment affirmed.
        O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DONNELLY, and
STEWART, JJ., concur.
                                _________________
       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.




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                           SUPREME COURT OF OHIO




       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.
                              _________________




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