[Cite as State v. McDaniel, 2021-Ohio-724.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 VS. 

ANTHONY MCDANIEL, 

 Defendant-Appellant. 

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APPEAL NO. C-190476 

TRIAL NO. C-19CRB-799 

 O P I N I O N.

 

Criminal Appeal From: Hamilton County Municipal Court 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: March 12, 2021 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Raymond L. Katz, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2 

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-
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶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. 

{¶8} As already noted, evidence of Mr. McDaniel’s prior convictions 

emerged in the midst of defense counsel’s cross-examination of the roommate. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶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 LincolnMercury, 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, ¶ 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, ¶ 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, ¶ 

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 
OHIO FIRST DISTRICT COURT OF APPEALS 

7 

court abused its discretion in refusing to strike the roommate’s testimony or by 

allowing her to finish responding. 

{¶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, ¶ 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. O’Connell, 2020-Ohio-1369, 153 N.E.3d 771, ¶ 1 

(1st Dist.). However, Rule 404(B) does permit the admission of other acts for limited 

purposes, “such as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶16} Although it may seem easy enough in theory to distinguish between 

using other-acts evidence to show propensity and using the same evidence for a 

legitimate purpose, it’s much more difficult to apply the distinction in practice. The 

Ohio Supreme Court recently acknowledged the point: “Courts have long struggled 

with differentiating between the two types of evidence.” State v. Hartman, 161 Ohio 

St.3d 214, 2020-Ohio-4440, 161 N.E. 3d 651, ¶ 23. And in an effort to “clear up some 

of the confusion,” the Hartman Court set forth “a road map for analyzing the 

admission of other-acts evidence.” Id. at ¶ 19. 

{¶17} In reviewing Rule 404(B) other-acts evidence, we follow a three-step 

framework: (1) the evidence must be relevant to the particular purpose for which it is 

offered, Evid.R. 401; (2) the other acts must be offered for a legitimate purpose and 

not to show propensity to criminal conduct, Evid.R. 404(B); and (3) the danger of 

unfair prejudice must not substantially outweigh the probative value of that 

evidence, Evid.R. 403. See State v. Graham, Slip Opinion No. 2020-Ohio-6700, ¶ 

72, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 

20. We review these three prongs under a mixed standard of review: the first two 

pose legal questions that we review de novo, and the third constitutes a judgment call 

which we review for abuse of discretion. Hartman at ¶ 22 (“The admissibility of 

other-acts evidence pursuant to Evid.R. 404(B) is a question of law.”), citing 

Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events, 

Section 4.10 (2d Ed.2019); Hartman at ¶ 22 (noting that although the trial court is 

precluded from allowing improper evidence, it nonetheless has discretion whether to 

admit permissible evidence), citing Williams at ¶ 17. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶18} Here, the state stumbles at the outset of our analysis—whether the 

prior convictions are relevant. To be sure, the relevance inquiry often proves vexing 

because “[i]t is almost always true that propensity evidence will have some 

relevance.” Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E. 3d 651, at ¶ 25; 

see Evid.R. 401 (“ ‘Relevant evidence’ means evidence having 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.”). “Indeed, 

[propensity] evidence is excluded ‘not because it has no appreciable probative value 

but because it has too much.’ ” Hartman at ¶ 25., quoting 1A Wigmore, Evidence, 

Section 58.2, at 1212 (Tillers Rev.1983). For this reason, the relevance inquiry does 

not ask whether the other acts ultimately render the defendant’s guilt more or less 

likely. Id. at ¶ 26. Instead, the inquiry considers “whether the evidence is relevant to 

the particular purpose for which it is offered.” (Emphasis sic.) Id. As we have 

noted, the state admitted Mr. McDaniel’s public indecency convictions for the 

particular purpose of showing that he intended to record the roommate. Thus, for 

Mr. McDaniel’s convictions to be relevant, they must “tend[] ‘to show, by similar acts 

or incidents, that the act in question was not performed inadvertently, accidentally, 

involuntarily, or without guilty knowledge.’ ” Id. at ¶ 52, quoting McCormick, 

Evidence, Section 190, at 804 (4th Ed.1994). 

{¶19} Elucidating how other acts may be relevant to intent, the Court in

Hartman offered a helpful illustration: 

Say, for instance, the fourth wife died from a gunshot wound at the 

hand of her husband during a hunting trip, and he defends against the 

murder charge by claiming that the shooting was accidental. Evidence 
OHIO FIRST DISTRICT COURT OF APPEALS 

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that he shot his other wives under similar circumstances might be 

probative of his intent to kill. The inference is that because it is so 

unlikely that the defendant accidentally shot four women under 

similar circumstances, it is highly likely that he acted with the intent to 

kill. 

Id. at ¶ 53. 

{¶20} But as the Hartman Court acknowledged, the difference between using 

other acts to show intent versus propensity is often “thin.” Id. at ¶ 57. “Evidence 

that a husband shot three previous wives in ‘hunting accidents’ does allow a jury to 

(permissibly) reason that it is unlikely that the fourth shooting was committed 

accidentally, but it also enables a jury to (impermissibly) reason that he likely killed 

his fourth wife because he is a killer.” Id. Thus, using “other-acts evidence to prove 

the defendant’s state of mind ‘flirts dangerously with eviscerating the character 

evidence prohibition’ altogether.” Id., quoting Leonard, The New Wigmore: 

Evidence of Other Misconduct and Similar Events, Section 7.4 (2d Ed.2019). 

{¶21} Cognizant of these pitfalls, the Court clarified the permissible 

inference: “ ‘ “the oftener a like act has been done, the less probable it is that it could 

have been done innocently.” ’ ” (Emphasis added.) Hartman, 161 Ohio St.3d 214, 

2020-Ohio-4440, 161 N.E. 3d 651, at ¶ 56, quoting State v. Evers, 139 Wis.2d 424, 

437, 407 N.W.2d 256 (1987), quoting 2 Weinstein & Berger, Weinstein's Evidence, 

Section 404[12], at 404-84 to 404-87 (1985). The difference, then, between 

permissible and impermissible evidence turns on whether it is more probative of the 

defendant’s intent to commit the charged act or of the defendant’s inclination to 

commit similar crimes. Id. at ¶ 58. And the answer flows from this underlying 
OHIO FIRST DISTRICT COURT OF APPEALS 

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question: “whether, ‘under the circumstances, the detailed facts of the charged and 

uncharged offenses strongly suggest that an innocent explanation is implausible.’ ” 

(Emphasis sic.) Id., quoting Leonard at Section 7.5.2. In other words, the other acts 

“ ‘must be so related to the crime charged in time or circumstances that evidence of 

the other acts is significantly useful in showing the defendant’s intent in connection 

with the crime charged.’ ” (Emphasis added.) Id., quoting 1 Wharton’s Criminal 

Evidence, Section 4:31 (15th Ed.2019). 

{¶22} Distilling these principles to this case, we must decide whether Mr. 

McDaniel’s prior convictions are probative of his intent when recording the 

roommate or of his predisposition to commit sexual offenses. And to answer that 

question, we ask whether the detailed facts of this voyeurism charge and his prior 

convictions strongly suggest that he intended to record the roommate. They do not. 

The circumstances of the prior convictions for self-exposure are not related in time 

or circumstance to this voyeurism charge. In fact, the only connection between the 

two is that both are sexual in nature, establishing nothing more than a 

(impermissible) propensity inference. See Hartman at ¶ 62 (holding that evidence 

defendant previously molested his stepdaughter did not support the inference that 

he entered adult victim’s hotel room intending to rape her because the two acts had 

no similarity “other than being sexual in nature.”). If Mr. McDaniel’s prior 

convictions were also for voyeurism, and he invoked mistake as a defense, those 

convictions might well be appropriate for rebutting that defense. But the prior 

convictions were for self-exposure, not voyeurism. And nothing about the prior 

convictions sheds any light on whether he intended to record the roommate. We 

thus conclude that Mr. McDaniel’s prior convictions were not relevant for the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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purpose of showing absence of mistake. And of course, our conclusion that the trial 

court should not have admitted this evidence obviates our need to proceed with the 

balance of the inquiry. See Graham, Slip Opinion No. 2020-Ohio-6700, at ¶ 72 

(“The court is precluded from admitting improper character evidence under Evid.R. 

404(B), but it has discretion to allow other-acts evidence that is admissible for a 

permissible purpose.”). 

{¶23} However, even though we find error, we must measure that against the 

harmless error standard: 

(1) “There must be prejudice to the defendant as a result of the 

admission of the improper evidence at trial”; (2) “an appellate court 

must declare a belief that the error was not harmless beyond a 

reasonable doubt,” i.e., that there was “no reasonable possibility that 

the testimony contributed to the accused's conviction”; and (3) “in 

determining whether the error is harmless beyond a reasonable doubt, 

the court must excise the improper evidence from the record and then 

look to the remaining evidence.” 

State v. Benson, 1st Dist. Hamilton No. C-180128, 2019-Ohio-3255, ¶ 23, quoting 

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153 ¶ 24, 27–29; 

O’Connell, 2020-Ohio-1369, 153 N.E.3d 771, at ¶ 31 (applying harmless error analysis 

after finding Evid.R. 404(B) error). 

{¶24} We acknowledge that propensity evidence is inherently prejudicial. 

And in a case that turns on credibility, such as this one, evidence that impermissibly 

suggests that the defendant is sexually deviant can easily tip the scale in the state’s 

favor. Nonetheless, we do not believe that the copies of Mr. McDaniel’s prior 
OHIO FIRST DISTRICT COURT OF APPEALS 

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convictions contributed to his guilty verdict because the jury permissibly knew of the 

convictions from the roommate’s testimony. Even excising the impermissible copies 

of his convictions, Mr. McDaniel’s prior behavior still remained in play. It is not as if 

the state brought in new witnesses to dwell on the details of his prior convictions—it 

just sought admission of the certified copies of the convictions, and these were not 

read to the jury. Taking into account the context of this case, we simply fail to see 

how the challenged evidence added much to the mix. Thus, we are confident that the 

trial court’s error was harmless, and we overrule this assignment of error. 

III. 

{¶25} In his second assignment of error, Mr. McDaniel characterizes his 

conviction as against the manifest weight of the evidence. As we have explained, this 

case was mainly a credibility determination, and we chronicled the relevant evidence 

above. “ ‘When conflicting evidence is presented at trial, a conviction is not against 

the manifest weight of the evidence simply because the trier of fact believed the 

prosecution testimony.’ ” State v. Robinson, 12th Dist. Butler No. CA2018-08-163, 

2019-Ohio-3144, ¶ 29, quoting State v. Lunsford, 12th Dist. Brown No. CA2010-10-

021, 2011-Ohio-6529, ¶ 17. We see nothing in the record to draw into question the 

integrity of the trial or to convince us that a manifest injustice occurred, and we 

therefore overrule Mr. McDaniel’s second assignment of error. 

* * * 

{¶26} In light of the foregoing analysis, we overrule Mr. McDaniel’s two 

assignments of error and affirm the judgment of the trial court. 

 

Judgment affirmed. 
OHIO FIRST DISTRICT COURT OF APPEALS 

14 

WINKLER, J., concurs. 

CROUSE, J., concurs in part and dissents in part. 

CROUSE, J., concurring in part and dissenting in part. 

{¶27} I concur with the majority that the trial court did not err in allowing 

the roommate to finish answering counsel’s question during cross-examination or 

refusing to strike her testimony. I also concur that the trial court erred in admitting 

the certified copies of Mr. McDaniel’s prior public-indecency convictions. However, 

when it comes to the majority’s harmless-error analysis, I must respectfully dissent. 

{¶28} I do not agree that because the jury already heard a little about the 

prior convictions from the roommate, the admission of the certified copies of Mr. 

McDaniel’s convictions was harmless error. 

{¶29} There is no dispute that a video recording of the roommate was taken. 

What is in dispute is whether the defendant was trying to video record the roommate 

or his girlfriend. He testified that he was trying to record the girlfriend. The 

girlfriend corroborated his testimony, stating that they had a discussion to do so on 

that day. As the majority noted, the case turned on credibility–would the jury believe 

Mr. McDaniel’s explanation that he did not intend to record the roommate, but 

rather intended to record his girlfriend? 

{¶30} The adage “don’t ask a question you don’t know the answer to” is 

“cross-examination 101.” When a lawyer occasionally violates that golden rule and 

receives an answer that he did not intend, we fortunately have gatekeeper judges 

whose job it is to ensure the defendant receives a fair trial despite the lawyer’s 

mistake. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶31} After defense counsel realized what he had done by asking the 

dangerous question that prompted such a disastrous response from the roommate, 

he attempted to fix the damage he caused by objecting and moving to strike her 

answer. While it was not error for the trial court to allow the roommate to finish her 

answer, the court should not have compounded defense counsel’s error by admitting 

the certified copies of Mr. McDaniel’s convictions, which the majority agrees was 

clearly improper propensity evidence. 

{¶32} In finding harmless error, the majority states, “we simply fail to see 

how the challenged evidence added much to the mix.” On the contrary, I find that 

the challenged evidence did add much to the mix. Once the court decided to allow 

the additional evidence of the convictions, these convictions became a major topic of 

discussion by both the defense and the prosecution. 

{¶33} The only thing the jury learned from the roommate about the prior 

convictions was that Mr. McDaniel “was on probation in two different counties for 

exposing himself on different occasions to different people,” and that the roommate 

believed his girlfriend’s explanations for it—that it “wasn’t his fault” and “[h]e didn’t 

mean anything bad.” 

{¶34} That should have been the end of it. The trial court should have 

prohibited further questioning by either of the parties and any argument about these 

convictions in closing. But instead, the court decided that defense counsel had laid a 

foundation for the prosecution to bring in certified copies of these prior convictions 

as exhibits to show absence of mistake under Evid.R. 404(B). 

{¶35} The certified copies of the convictions carried much more weight than 

a vague comment by the roommate during cross-examination. Those exhibits 
OHIO FIRST DISTRICT COURT OF APPEALS 

16 

actually contained the details of the offenses and the affidavits of the victims in those 

cases. One of the affidavits stated: 

He then gave me a weird look with just no expression. He just stared 

me in the eye and I was looking away as I glanced down out of his plaid 

green and black pajama pants his hard looking penis was completely 

up * * * . 

{¶36} Another victim account stated: 

McDaniel held his phone at waist level, when [she] looked, she saw 

McDaniel’s penis sticking out of the top of his shorts. McDaniel was 

wearing elastic waistband shorts, and had them pulled partially down. 

[She] turned away and McDaniel moved in front of her, and still had 

the tip of his penis exposed. 

{¶37} Allowing evidence of these prior convictions put Mr. McDaniel in a 

situation where he had to testify about them on direct examination in an effort to 

explain them away as mistakes. The prosecutor was also permitted to cross-examine 

Mr. McDaniel about these prior misdemeanor convictions, convictions that the Rules 

of Evidence would have otherwise prohibited the prosecutor from referencing during 

cross examination. See Evid.R. 609(A)(2) and (A)(3). “ ‘Evid.R. 609 prohibits the 

use of a prior misdemeanor conviction to attack a witness’ credibility unless the 

crime involved dishonesty or a false statement.’ ” State v. Evans, 1st Dist. Hamilton 

No. C-170034, 2018-Ohio-2534, ¶ 26, quoting State v. Lewis, 10th Dist. Franklin No. 

93AP-911, 1994 WL 171181, *8 (Apr. 28, 1994). 

{¶38} Defense counsel addressed the convictions during his closing 

argument, asking the jury to be fair and to not judge Mr. McDaniel based on his past 
OHIO FIRST DISTRICT COURT OF APPEALS 

17 

mistakes. The prosecutor then emphasized the convictions during his rebuttal, 

questioning Mr. McDaniel’s characterization of the prior convictions and then stating 

to the jury: “Ask yourself if you buy it. If after all this, every single mistake, a 

reasonable person keeps making that mistake, or alternatively, the evidence shows if 

he did it on purpose.” 

{¶39} And finally, the prior convictions were further highlighted during the 

jury instructions, when the court told the jury: 

Other acts. Evidence was received in this matter about the 

commission of other acts or crimes other than the offense with which 

the Defendant was charged in this trial. The evidence was received for 

a limited purpose. It was not received, nor may you consider it to 

prove, the character of the Defendant in order to show that he acted in 

conformity or accordance with that character. 

If you find that the evidence of the other crimes, wrongs, or acts as 

true that the Defendant committed them, you may consider that 

evidence only for the purpose of deciding whether it proves an absence 

of mistake or absence of accident. The Defendant’s motive, 

opportunity, intent, or purpose, the Defendant’s preparation or plan to 

commit the offense charged in this trial, or knowledge of 

circumstances surrounding the offense charged in this trial, related to 

the identity of the person who committed this offense. That evidence 

may not be considered for any other purpose. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶40} Thus, the court told the jury that it could consider Mr. McDaniel’s 

prior convictions to decide the central issue in the case–his intent, i.e., whether he 

video recorded the roommate on purpose. 

{¶41} As the Ohio Supreme Court explained in Hartman: “To tell a jury that 

a certain piece of evidence may be considered as evidence of ‘proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident’ imparts nothing meaningful and is akin to telling the jurors that the 

evidence may be considered for any purpose.” Hartman, 161 Ohio St.3d 214, 2020-

Ohio-4440, 161 N.E.3d 651, at ¶ 69, quoting Evid.R. 404(B). 

{¶42} I agree with the majority that this case turned on credibility. The jury 

had to decide who to believe—Mr. McDaniel or the roommate. Evidence that Mr. 

McDaniel had two prior public-indecency convictions was extremely prejudicial in 

this case. Based on how these convictions were emphasized throughout the trial, I 

cannot say that there was no reasonable possibility that the evidence contributed to 

Mr. McDaniel’s conviction and that the error was harmless beyond a reasonable 

doubt. 

{¶43} For these reasons, I would reverse Mr. McDaniel’s conviction and 

remand for a new trial. 

Please note: 

The court has recorded its entry on the date of the release of this opinion