[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

State v. Morris, Slip Opinion No. 2014-Ohio-5052.] 

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. 2014-OHIO-5052

THE STATE OF OHIO, APPELLANT, v. MORRIS, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Morris, Slip Opinion No. 2014-Ohio-5052.] 

Criminal procedure—Appeals—Standard of review for determining harmlessness 

of erroneously admitted evidence. 

(No. 2013-0251—Submitted February 2, 2014—Decided November 20, 2014.) 

APPEAL from the Court of Appeals for Medina County, 

No. 09CA0022-M, 2012-Ohio-6151. 

___________________________ 

SYLLABUS OF THE COURT

In determining whether to grant a new trial as a result of the 

 erroneous admission of evidence under Evid.R. 404(B), 
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 an appellate court must consider both the impact of the 

 offending evidence on the verdict and the strength of the 

 remaining evidence after the tainted evidence is 

 removed from the record. 

___________________________________ 

LANZINGER, J. 

{¶ 1} This is the second time we have had this case before us. Previously, 

we remanded the cause to the Ninth District Court of Appeals to consider whether 

the trial court abused its discretion in admitting other-acts evidence under Evid.R. 

404(B) during the trial of Carl M. Morris on two counts of rape of his minor 

stepdaughter. 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, reversing 

9th Dist. Medina No. 09CA0022-M, 2010-Ohio-4282. On remand, the court of 

appeals vacated Morris’s conviction and ordered a new trial. Although there was 

no majority opinion, the court apparently found that the trial court did abuse its 

discretion by admitting impermissible evidence. One judge also determined that 

this error, coupled with the state’s repeated references to the improper character 

evidence, violated Morris’s due-process right to a fair trial, concluding that there 

was “a reasonable possibility that the improper evidence may have contributed to 

the conviction” and therefore that the error could not be determined to be 

harmless beyond a reasonable doubt. 2012-Ohio-6151, 985 N.E.2d 274, ¶ 60. 

{¶ 2} We now affirm the judgment of the court of appeals that the 

appropriate remedy for the improper admission of other-acts evidence under 

Evid.R. 404(B) in this case is a new trial. 

The Evidence at Trial 

{¶ 3} The state charged Morris with two counts of rape of his minor 

stepdaughter, S.K., under R.C. 2907.02, a first-degree felony. 
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Testimony of S.K. 

{¶ 4} S.K. was 15 at the time of trial and testified to events that allegedly 

occurred when she was six or seven when she lived with her mother, older halfsister, grandmother, and stepfather Morris. She testified to Morris’s card tricks 

and magic tricks that included asking her to touch his thumb, which was covered 

by a towel. He would then make his thumb turn to Jell-O and then get hard again. 

S.K. asserted that Morris’s “thumb” was actually his penis. She testified that 

Morris began lying by her on the couch masturbating, while he rubbed her thigh. 

When she was in the first grade, Morris began touching her vagina with his hand. 

S.K. testified that Morris sexually molested her as many as 30 times and that 

every time, he ejaculated into a towel. Morris told her not to tell anyone what he 

was doing. 

{¶ 5} S.K. testified that she could not recall all the dates, but recalled two 

specific times that Morris raped her. The first occurred on April 22, 2003, on the 

day that her mother went to the hospital. She was then nine. A second rape 

occurred late in October 2005, which she recalled because she was watching a 

Halloween television show. As she grew older, she began to realize that Morris’s 

conduct was improper. 

{¶ 6} When asked if Morris’s actions were ever interrupted, S.K. testified 

that one time, her sister came “hurtling down the stairs,” causing Morris to jump 

and cover himself. S.K. remembered another incident when she and Morris were 

on the couch and he had a hand down his pants and the other on her thigh, and her 

mother came down the stairs silently and called out Morris’s name, which caused 

him to jump. 

{¶ 7} After her grandmother died in September 2006, S.K. testified, she 

rebuffed Morris’s advances and he eventually stopped. Shortly before Christmas 

2007, six months after Morris moved out of the house, S.K. told her parents that 

Morris had raped her. 
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Testimony of S.K.’s Sister 

{¶ 8} S.K.’s sister testified that in 2005 when she was 19, Morris had 

grabbed her and stated: “You don’t know what I would do to you but your mother 

would get mad.” Although she believed that Morris’s statement was sexual in 

nature, she “laughed it off,” thinking he was intoxicated. 

{¶ 9} At this point, Morris objected to the line of questioning on the 

grounds that it was prejudicial. The court admitted the testimony under Evid.R. 

404(B) to prove “motive, opportunity, intent, preparation, plan, knowledge, or 

absence” and offered to give a cautionary instruction to the jury prior to the jury’s 

deliberation; the defense accepted that offer. S.K.’s sister then testified that 

Morris apologized the next day, explaining that he had been drunk. She 

confirmed that she had seen Morris drinking the night of the incident. She also 

testified that when she told her mother about the incident, Morris was kicked out 

of the house for a day. Finally, the sister testified that although Morris and S.K. 

had been close, seeing them under a blanket together made her feel 

uncomfortable. 

Testimony of S.K.’s Mother 

{¶ 10} S.K.’s mother confirmed that Morris performed magic tricks for the 

family. She testified that one night she came downstairs, causing both Morris and 

S.K. to jump off the sofa “real quick,” and that S.K. went to the bathroom. She 

asked her daughter if everything was ok, and S.K. said yes. The mother testified 

that she suspected that something was happening between S.K. and Morris but 

that she believed S.K.’s response. 

{¶ 11} S.K.’s mother also testified that if she refused to have sex with 

Morris, he sometimes kicked the dog. Finally, she testified that Morris ejaculated 

into a tee shirt or a towel after they had sex. Morris objected. The trial court 

overruled his objection, but permitted a continuing objection to the line of inquiry 
January Term, 2014

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regarding the sexual relationship between Morris and S.K.’s mother. The state 

argued that because Morris allegedly engaged in this behavior with both S.K. and 

her mother, it was evidence of his “modus operandi, knowledge, and other acts of 

evidence.” The trial court agreed with the state and admitted this evidence under 

Evid.R. 404(B). 

{¶ 12} In testifying that shortly before Christmas 2007 she and S.K.’s 

father were told of Morris’s sexual molestation of S.K. , S.K.’s mother stated that 

she “never saw [S.K.] like that. She was so upset. She was red and pulling her 

head and crying.” 

Testimony of Dr. Keck 

{¶ 13} Dr. Gregory Keck, a psychologist, testified that during treatment 

with him S.K. stated that she had been sexually abused by Morris. She also told 

Dr. Keck about Morris’s magic trick in which he used a towel to cover his 

“thumb.” Dr. Keck testified that although he could not be certain whether a 

patient was telling the truth, he had no reason to disbelieve S.K.’s assertions 

regarding Morris. Dr. Keck testified that use of magic tricks is a method that 

pedophiles use to groom their victims for sexual activity. 

Prosecutor’s statements 

{¶ 14} During closing argument, the prosecutor discussed Morris’s 

propositioning of S.K.’s sister, stating that she was 

[t]oo smart for [Morris], maybe too old too, I don’t know. You 

see, she looked pretty young. * * * She would know what’s 

wrong but you see even when his inhibitions were down when 

he would be drunk, if you want to know a little bit about, and 

there will be an instruction on this, if you want to know a little 

bit about his motives and his intent and his intent for this 

victim, just look at how he treated his other stepdaughter * * *. 
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(Emphasis added.) 

{¶ 15} In his closing, defense counsel addressed Morris’s propositioning of 

S.K.’s sister by saying, “Did you hear anything about [Morris] ever sexually 

coming on to her over the course of many years? Absolutely not.” Later, he 

stated: “It’s easy to isolate a particular theme within a particular context and say 

that this is further evidence of somebody who would engage in sexual 

molestation.” 

{¶ 16} In his rebuttal, the prosecutor referred to the sister as being the 

victim of a “sexual come-on” by Morris. 

Jury Instruction 

{¶ 17} After the closing arguments concluded, the trial judge gave the jury 

the following instruction: 

Evidence received about the commission of acts other 

than the offense with which the Defendant is charged in this 

trial. The evidence was received only for a limited purpose. 

It was not received, and you may not consider it, to prove the 

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

conformity or in accordance with that character. If you find 

that the evidence of other crimes or acts is true and that the 

Defendant committed it, you may consider that evidence 

only for the purpose of deciding whether it proves the 

absence of mistake or accident, or the Defendant’s motive, 

opportunity, intent or purpose, preparation or plan to commit 

the offense charged in this trial or knowledge or 

circumstances surrounding the offense charged in this trial or 
January Term, 2014

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the identity of the person who committed the offense in this 

trial. 

That evidence cannot be considered for any other 

purpose. 

The jury convicted Morris of both counts of rape. 

Procedure on Appeal 

First Appellate Review 

{¶ 18} On appeal, Morris argued that the proposition evidence and the 

evidence that he kicked the dog were admitted in contravention of Evid.R. 

404(B). The court of appeals in a two-to-one decision held that the evidence was 

not admissible to prove motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident and that the trial court erred in 

admitting this evidence. 2010-Ohio-4282 at ¶ 25, 32. The court of appeals said 

that S.K.’s mother’s testimony that Morris would kick the dog out of sexual 

frustration should have been excluded because it had no relevance to any fact at 

issue in the case and was intended only to show defendant’s character as mean 

and aggressive. The court also said that the sexual-proposition testimony from 

S.K.’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. It therefore 

reversed Morris’s convictions, remanding the case for a new trial. Id. at ¶ 44. 

{¶ 19} We accepted the state’s appeal, in which the state asserted that “the 

court of appeals erred in applying a de novo standard of review to the 

admissibility of ‘other acts’ evidence and substituted its own judgment for that of 

the trial court.” 128 Ohio St.3d 1448, 2011-Ohio-1618, 944 N.E.2d 697. We 

held, “Trial court decisions regarding the admissibility of other-acts evidence 

under Evid.R. 404(B) are evidentiary determinations that rest within the sound 
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discretion of the trial court. Appeals of such decisions are considered by an 

appellate court under an abuse-of-discretion standard of review.” 132 Ohio St.3d 

337, 2012-Ohio-2407, 972 N.E.2d 528, syllabus. Accordingly, we reversed the 

judgment of the court of appeals and remanded the matter to the court of appeals 

“to apply an abuse-of-discretion standard.” Id. at ¶ 23. 

Second Appellate Review 

{¶ 20} On remand, the court of appeals again reversed the conviction. An 

opinion by Judge Dickinson stated that the trial court had abused its discretion in 

admitting the proposition evidence and the kick-the-dog evidence. 2012-Ohio6151, 985 N.E.2d 274, ¶ 40, 44. Quoting this court’s decision in State v. Bayless, 

48 Ohio St.2d 73, 106, 357 N.E.2d 1035 (1976), vacated on other grounds, 438 

U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155, the opinion stated that the court could 

hold that the erroneously admitted other-acts evidence was harmless only if it 

could “ ‘declare a belief that the error was harmless beyond a reasonable doubt.’ ” 

Id. at ¶ 50. Judge Dickinson concluded, “The State’s repeated references to 

improper character evidence violated Mr. Morris’s right to a fair trial.” Id. at 

¶ 60. 

{¶ 21} We accepted the state’s appeal. The state’s proposition of law is 

“When reviewing allegedly erroneous admission of evidence, an appellate court 

should analyze whether substantial other evidence supports the verdict.” 136 

Ohio St.3d 1406, 2013-Ohio-2645, 989 N.E.2d 1021. 

Legal Analysis

Harmless Error 

{¶ 22} The parties distinguish the standard of review of harmless error 

based on whether the rights affected by the error are constitutional or 

nonconstitutional rights. The state argues that improper admission of Evid.R. 

404(B) evidence does not involve the violation of a constitutional right and 
January Term, 2014

9

therefore that the nonconstitutional harmless-error standard of review set out in 

State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994), applies. Webb

held that nonconstitutional error is harmless if there is substantial other evidence 

to support the guilty verdict. On the other hand, Morris argues that the 

erroneously admitted Evid.R. 404(B) evidence prejudicially violated his right to a 

fair trial, requiring application of the constitutional harmless-error standard of 

review set out in State v. Crawford, 32 Ohio St.2d 254, 255, 291 N.E.2d 450 

(1972), which held that constitutional error is harmless if it is harmless beyond a 

reasonable doubt. 

{¶ 23} But in actuality, the Ohio Rules of Criminal Procedure do not 

specifically use the words “constitutional” or “nonconstitutional” to divide the 

standard of review in this way. Crim.R. 52(A) defines harmless error in the 

context of criminal cases and provides: “Any error, defect, irregularity, or 

variance which does not affect substantial rights shall be disregarded.” During a 

harmless-error inquiry, the state has the burden of proving that the error did not 

affect the substantial rights of the defendant. State v. Perry, 101 Ohio St.3d 118, 

2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Furthermore, if there is “a ‘[d]eviation 

from a legal rule,’ ” courts undertake a “ ‘harmless error’ inquiry—to determine 

whether the error ‘affect[ed] substantial rights’ of the criminal defendant.” State 

v. Fischer, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting 

United States v. Olano, 507 U.S. 725, 732-733, 734, 113 S.Ct. 1770, 123 L.Ed.2d 

508 (1993). The term “substantial rights” has been interpreted to require that 

“ ‘the error must have been prejudicial.’ (Emphasis added.)” Id., quoting Olano

at 734. If a court determines that the error did not affect the defendant’s 

substantial rights, then the error is harmless and “ ‘shall be discarded.’ ” Id., 

quoting Crim.R. 52(A). 

{¶ 24} Thus Crim.R. 52(A), the harmless-error rule, was created in 

essence to forgive technical mistakes. But rather than distinguish between 
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constitutional and nonconstitutional rights, the rule asks whether the rights 

affected are “substantial.” And the second important question is what happens if 

substantial rights are affected. Not every error requires that a conviction be 

vacated or a new trial granted. R.C. 2945.83 states: 

 No motion for a new trial shall be granted or verdict set aside, 

nor shall any judgment of conviction be reversed in any court 

because of: 

 * * * 

(C) The admission or rejection of any evidence offered 

against or for the accused unless it affirmatively appears on the 

record that the accused was or may have been prejudiced thereby. 

(Emphasis added.) 

{¶ 25} And so the real issue when Evid.R. 404(B) evidence is improperly 

admitted at trial is whether a defendant has suffered any prejudice as a result. If 

not, the error may be disregarded as harmless error. And while courts may 

determine prejudice in a number of ways and use language that may differ, they 

focus on both the impact that the offending evidence had on the verdict and the 

strength of the remaining evidence. Both the error’s impact on the verdict and the 

weight of the remaining evidence must be considered on appellate review. 

Ohio Case Law 

{¶ 26} We disagree with the state’s position that Ohio law is inconsistent 

on harmless error. Erroneous admission of Evid.R. 404(B) evidence is a singular 

problem. “Prosecution evidence that a defendant has committed other crimes, 

wrongs or acts independent of the offense for which he is on trial is not generally 

admissible to demonstrate that the defendant has a propensity for crime or that his 

character is in conformity with the other acts.” State v. Mann, 19 Ohio St.3d 34, 
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11

482 N.E.2d 592 (1985), paragraph one of the syllabus. The question is when an 

improper admission affects the defendant’s “substantial rights” so that a new trial 

is required as a remedy. Several principles emerge from our cases. 

{¶ 27} First, there must be prejudice to the defendant as a result of the 

admission of the improper evidence at trial. “[A] judgment of conviction should 

not be reversed because of ‘the admission * * * of any evidence offered against 

* * * the accused unless it affirmatively appears on the record that the accused 

was or may have been prejudiced thereby.’ ” State v. Crawford, 32 Ohio St.2d 

254, 255, 291 N.E.2d 450 (1972), quoting R.C. 2945.83(C). See, e.g., State v. 

Abrams, 39 Ohio St.2d 53, 56, 313 N.E.2d 823 (1974) (same requirement in 

considering improper judge-jury communications). 

{¶ 28} Second, an appellate court must declare a belief that the error was 

not harmless beyond a reasonable doubt. Id.; Crawford; Chapman v. California, 

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 

U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); State v. Bayless, 48 Ohio St.2d 

73, 106, 357 N.E.2d 1035 (1976), vacated in part on other grounds, 438 U.S. 911, 

98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978); accord State v. Lytle, 48 Ohio St.2d 391, 

358 N.E.2d 623 (1976), paragraph three of the syllabus (“Error in the admission 

of other act testimony is harmless when there is no reasonable possibility that the 

testimony contributed to the accused’s conviction”), vacated in part on other 

grounds, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978). 

{¶ 29} Third, in determining whether a new trial is required or 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. In a case dealing with 

the improper admission of privileged spousal testimony, we stated that “ ‘the 

cases where imposition of harmless error is appropriate must involve either 

overwhelming evidence of guilt or some other indicia that the error did not 

contribute to the conviction.’ ” State v. Rahman, 23 Ohio St.3d 146, 151, 492 
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N.E.2d 401 (1986), quoting State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d 

265 (1983), fn. 5. But in reviewing the remaining evidence, we cautioned, “We 

are also mindful that our role upon review of this case is not to sit as the supreme 

trier of fact, but rather to assess the impact of this erroneously admitted testimony 

on the jury.” Id. at fn. 4. 

{¶ 30} Here, the lead opinion of the Ninth District Court of Appeals 

considered both the prejudice to Morris and the remaining evidence. It 

determined that the trial court had erroneously admitted inflammatory Evid.R. 

404(B) evidence in a case that was not strong. There was no physical evidence, 

and there were questions regarding the credibility of Morris’s stepdaughter S.K., 

the main witness. Furthermore, the opinion emphasized that the state had 

repeatedly referred to the evidence in its closing argument. These improper 

statements were thus highlighted for the jury. Given the weakness of the evidence 

that remained, the opinion deemed that a new trial was necessary because the 

court could not find beyond a reasonable doubt that the improper evidence had no 

effect. The only remedy for the prejudice was a new trial. 

{¶ 31} We ourselves have considered that the actions of a prosecutor may 

combine with an evidentiary error to cause greater impact. In a capital case in 

which we vacated a death sentence and remanded the case for resentencing 

pursuant to R.C. 2929.06, the trial court had allowed gruesome slides to be 

admitted into evidence during the guilt phase. State v. Thompson, 33 Ohio St.3d 

1, 15, 514 N.E.2d 407 (1987). Although the conviction was unaffected, in 

considering the penalty phase when the prosecutor emphasized this evidence, we 

stated: 

The prosecutor’s subsequent reference to those same slides at the 

penalty phase was impermissible. * * * [H]is entreaty that the jury 

should remember the slides could have had no other effect than to 
January Term, 2014

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cause the jurors to re-experience the horror and outrage they must 

have felt upon viewing the slides earlier in the trial. This later use 

of the slides to appeal to the jurors’ emotions and to prejudice them 

against the appellant is grounds for reversal. 

Id. 

{¶ 32} In other words, blatant prejudice may override even a strong case 

and require a new trial. As noted, however, an improper evidentiary admission 

under Evid.R. 404(B) may be deemed harmless error on review when, after the 

tainted evidence is removed, the remaining evidence is overwhelming. State v. 

Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983), quoting Harrington v. 

California, 395 U.S. at 254, 89 S.Ct. 1726, 23 L.Ed.2d 284. 

The Webb Case 

{¶ 33} The state relies upon the statement that “[n]onconstitutional error is 

harmless if there is substantial other evidence to support the guilty verdict.” State 

v. Webb, 70 Ohio St.3d at 335, 638 N.E.2d 1023. As indicated earlier, both the 

nature of the error and the prejudice to defendant (the measure of how the error 

affected the verdict) are important. Appellate judges upon review determine these 

issues and decide which trial errors are harmless and which instead necessitate the 

remedy of reversal and new trial. Although the language used by the courts may 

vary, the principles themselves are clear: That is, technical error will be ignored 

under Crim.R. 52(A); structural error will result in automatic reversal, State v. 

Fischer, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222; and evidence 

errors that are prejudicial because they improperly affect the verdict will be 

excised from the record with the remaining evidence weighed to see if there is 

evidence beyond a reasonable doubt of the appellant’s guilt, State v. Rahman, 23 

Ohio St.3d at 150, 492 N.E.2d 401. Therefore, we hold that in determining 

whether to grant a new trial as a result of the erroneous admission of evidence 

under Evid.R. 404(B), an appellate court must consider both the impact of the 
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offending evidence on the verdict and the strength of the remaining evidence after 

the tainted evidence is removed from the record. 

Conclusion 

{¶ 34} The Ninth District has twice reviewed the record and held that this 

evidence was improperly admitted. We affirm the judgment of the court of 

appeals vacating the conviction and granting a new trial. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, and O’NEILL, JJ., concur. 

KENNEDY, and FRENCH, JJ., dissent. 

O’DONNELL, J., dissents. 

________________________________ 

KENNEDY, J., dissenting. 

{¶ 35} Respectfully, I dissent. 

Introduction 

{¶ 36} I agree with the state insofar as I categorically reject the majority’s 

position that Ohio law is consistent in the test that is applied to determine whether 

improperly admitted other-acts evidence is harmless error. I further reject the 

majority’s attempt to disavow our precedent that distinguishes between 

constitutional and nonconstitutional harmless error while in effect adopting the 

constitutional, “beyond a reasonable doubt” harmless-error test as the second 

prong of its test for erroneously admitted other-act evidence. In my view, this 

wrongly elevates the improper admission of other-acts evidence to the level of an 

error of constitutional import. I would hold that the improper admission of otheracts evidence involves a nonconstitutional error, and in order to settle Ohio law, I 

would adopt the federal circuit courts’ nonconstitutional harmless-error test 

originally set forth in United States v. Kotteakos, 328 U.S. 750, 66 S.Ct. 1239, 90 

L.Ed.2d 1557 (1946), which provides that “without stripping the erroneous action 
January Term, 2014

15

from the whole,” an error is harmless if the outcome was “not substantially 

swayed by the error.” Id. at 765. I would further hold that making this 

determination requires a case-by-case inquiry of the centrality of the evidence, 

limiting instructions, and other relevant factors set forth below. 

Ohio Law Is Inconsistent 

{¶ 37} The majority finds no inconsistency in Ohio law regarding the 

harmless-error analysis of improperly admitted other-acts evidence. I disagree. 

{¶ 38} This court has applied the constitutional harmless-error standard of 

review in some cases. E.g., State v. Lytle, 48 Ohio St.2d 391, 404, 358 N.E.2d 

623 (1976) (the court held that there was “no reasonable possibility that the 

improperly-admitted ‘other act’ testimony contributed to the appellant’s 

conviction, and * * * that the error committed was harmless beyond a reasonable 

doubt”), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135, 57 

L.Ed.2d 1154 (1978); State v. Gumm, 73 Ohio St.3d 413, 425-426, 653 N.E.2d 

253 (1995) (the court was convinced beyond a reasonable doubt that the 

defendant would have been convicted even without the improperly admitted 

evidence). 

{¶ 39} But in other cases, this court has applied the nonconstitutional 

“substantial other evidence” harmless-error standard of review as set out in State 

v. Webb, 70 Ohio St.3d 325, 638 N.E.2d 1023 (1994). E.g., State v. Getsy, 84 

Ohio St.3d 180, 192-193, 702 N.E.2d 866 (1998) (other-acts evidence was 

improperly admitted, but the error was harmless because the “evidence against 

Getsy was substantial”); and State v. Brown, 100 Ohio St.3d 51, 56-57, 796 

N.E.2d 506 (testimony that Brown was in a gang was improperly admitted, but 

the error was harmless “given the substantial evidence of [Brown’s] guilt”). 

{¶ 40} Many Ohio appellate districts apply a constitutional harmless-error 

standard of review in determining whether improperly admitted other-acts 

evidence is harmless. E.g., State v. Williams, 1st Dist. Hamilton Nos. C-060631 
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and C-060668, 2007-Ohio-5577, ¶ 38, 39; State v. Dotson, 2d Dist. Clark No. 

Civ.A.2003 CA 34, 2004-Ohio-6875, ¶ 17; State v. Elliot, 91 Ohio App.3d 763, 

771, 633 N.E.2d 1144 (3d Dist.1993); State v. Davis, 7th Dist. Mahoning No. 08 

MA 236, 2011-Ohio-292, ¶ 67; State v. Watson, 9th Dist. Summit No. 25915, 

2012-Ohio-1624, ¶ 22; State v. Jackson, 10th Dist. Franklin No. 02AP-867, 2003-

Ohio-6183, ¶ 32; State v. Foster, 11th Dist. Portage No. 2004-P-0104, 2005-Ohio5281, ¶ 59; State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio6557, ¶ 11. However, at least two districts currently apply the nonconstitutional 

substantial-other-evidence harmless-error standard of review set out in Webb. 

State v. Murphy, 4th Dist. Scioto No. 09CA3311, 2010-Ohio-5031, ¶ 80; and 

State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 97. 

{¶ 41} Therefore, contrary to the majority opinion, I agree with the state 

and believe that Ohio law is inconsistent in its harmless-error review of 

improperly admitted other-acts evidence and that this inconsistency must be 

rectified. 

The Law Recognizes a Distinction Between Constitutional and Nonconstitutional 

Harmless Error 

{¶ 42} In reaching its determination, the majority ignores the distinction 

between constitutional and nonconstitutional harmless error on the basis that the 

language in Crim.R. 52 fails to expressly recognize the distinction. Crim.R. 

52(A) does state that “[a]ny error * * * which does not affect substantial rights 

shall be disregarded.” However, well-settled case law recognizes a distinction 

between constitutional and nonconstitutional errors when employing the 

harmless-error analysis. The distinction is important because it imposes different 

standards of review depending upon the nature of the error involved. 

A constitutional error is harmless if it appears “beyond a 

reasonable doubt that the error complained of did not contribute 
January Term, 2014

17

to the verdict obtained.” Chapman v. California, 386 U.S. 18, 

24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). By contrast, the 

standard for nonconstitutional error, as set forth in Kotteakos v. 

United States, provides that such an error is harmless if it did 

not have a “substantial and injurious effect or influence in 

determining the jury’s verdict.” 328 U.S. 750, 776, 66 S.Ct. 

1239, 1253, 90 L.Ed.2d 1557 (1946). 

(Emphasis added; citations omitted.) United States v. Powell, 334 F.3d 

42, 45 (D.C.Cir.2003). 

{¶ 43} This court has also recognized the distinction between 

constitutional and nonconstitutional harmless errors in Ohio. See State v. Powell, 

132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 63, 64. Accordingly, 

the majority improperly disregards this well-settled distinction in its analysis. 

{¶ 44} Moreover, the determination of the majority that Crim.R. 52 fails to 

expressly distinguish constitutional and nonconstitutional harmless error raises the 

question of whether the majority is disavowing this distinction in all harmlesserror cases, only in harmless-error cases involving other-act evidence, or in just 

this case. 

The Majority Adopts the Constitutional Harmless-Error Analysis 

{¶ 45} In determining whether improperly admitted other-acts evidence is 

harmless, the majority holds that “an appellate court must consider both the 

impact of the offending evidence on the verdict and the strength of the remaining 

evidence after the tainted evidence is removed from the record.” (Emphasis 

added.) Majority opinion at syllabus. According to the majority, courts must first 

ask: Is the evidence prejudicial? If it is, then the reviewing court must determine, 

improperly admitted other-acts evidence aside, whether it is convinced beyond a 

reasonable doubt that there is overwhelming evidence against the defendant. 
SUPREME COURT OF OHIO

18

Despite purportedly rejecting the constitutional/nonconstitutional distinction, the 

majority has nevertheless apparently adopted the constitutional harmless-error 

standard of review. See United States v. Estrella, 518 Fed.Appx. 822, 825, 2013 

WL 1943433, *2 (11th Cir.2013) (“Moreover, even if Estrella could establish a 

constitutional violation, any error in admitting his comments concerning the 

robbery of Detective Lebid would have been harmless beyond a reasonable doubt 

in light of the overwhelming evidence of Estrella’s guilt”). 

Improperly Admitted Other-Acts Evidence Is Nonconstitutional Error 

{¶ 46} I believe that the majority’s holding has erroneously elevated the 

improper admission of other-acts evidence to the status of constitutional error for 

purposes of harmless-error determination. Although courts recognize that 

improper admission of other-acts evidence may result in a violation of the 

defendant’s constitutional right to a fair trial, the error in the admission of the 

evidence originates from a violation of Evid.R. 404(B). See generally State v. 

Wegmann, 3d Dist. Allen No. 1-06-98, 2008-Ohio-622, ¶ 42. Therefore, the 

violation of a rule, including Evid.R. 404, implicates a nonconstitutional 

harmless-error analysis. See Murphy v. Dewine, 6th Cir. No. 1:1-cv-581, 2012 

WL 2357391 (June 19, 2012); United States v. Moncayo, 440 Fed.Appx. 647, 656 

(10th Cir.2011); and United States v. Boateng, 81 F.3d 170, unpublished opinion; 

text at 1996 WL 155154, *1 (9th Cir.1996). Because the error herein originates 

from a violation of Evid.R. 404(B), I agree with the state’s proposition of law that 

the nonconstitutional harmless-error standard of review applies, contrary to the 

majority’s holding. 

{¶ 47} However, I believe that the nonconstitutional harmless-error test set 

out in Webb is inadequate to address whether improperly admitted other-acts 

evidence is harmless. Under Webb, an error is harmless if there is substantial 

other evidence to support the verdict. Therefore, under Webb, a court would not 

inquire as to whether improperly admitted other-acts evidence affected the 
January Term, 2014

19

outcome of the case, and yet precluding a jury from considering whether a 

defendant acted in conformity with a prior bad act is precisely the purpose of 

excluding evidence under Evid.R. 404(B). State v. Nichols, 10th Dist. Franklin 

No. 97APA09-1162, 1998 WL 226430, * 3 (May 5, 1998) (the risk of other-acts 

evidence is that the jury will use it to “infer character and conformity therewith”). 

Therefore, instead of relying on Webb, I would look to the federal 

nonconstitutional harmless-error standard of review as set out in Kotteakos, 328 

U.S. 750, 66 S.Ct. 1239, 90 L.Ed.2d 1557. See United States v. Lane, 474 U.S. 

438, 446, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), fn. 9 (recognizing that Kotteakos

sets out the harmless-error “standard for nonconstitutional errors”). 

{¶ 48} In Kotteakos, the issue was “whether [defendants] * * * suffered 

substantial prejudice from being convicted of a single general conspiracy by 

evidence which * * * proved not one conspiracy but some eight or more different 

ones of the same sort executed through a common key figure.” Kotteakos, 328 

U.S. at 752. In determining whether the error was harmless, the court in 

Kotteakos stated that “[t]he crucial thing is the impact of the thing done wrong on 

the minds of [the jury] * * * in the total setting.” Id. at 764. The court elaborated: 

[I]f one cannot say, with fair assurance, after pondering all that 

happened without stripping the erroneous action from the 

whole, that the judgment was not substantially swayed by the 

error, it is impossible to conclude that substantial rights were 

not affected. The inquiry cannot be merely whether there was 

enough to support the result, apart from the phase affected by 

the error. It is rather, even so, whether the error itself had 

substantial influence. If so, or if one is left in grave doubt, the 

conviction cannot stand. 
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20

Id. at 765. 

{¶ 49} Unlike Webb, which holds that an error is harmless if there is 

substantial other evidence to support the verdict, Kotteakos requires courts to 

consider the effect of the error on the outcome of the trial within the context of the 

entire record. 

{¶ 50} The First, Fourth, Sixth, Seventh, and Tenth Federal Circuit Courts 

of Appeals, as well as the Court of Appeals for the District of Columbia, have 

adopted the Kotteakos nonconstitutional harmless-error standard of review for the 

purpose of determining whether improperly admitted other-acts evidence is 

harmless. United States v. Garcia-Rosa, 876 F.2d 209, 222 (1st Cir.1989), 

vacated on other grounds sub nom. Rivera-Feliciano v. United States, 498 U.S. 

954, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990); United States v. Byers, 649 F.3d 

197, 211 (4th Cir.2011); United States v. Corsmeier, 617 F.3d 417, 422 (6th 

Cir.2010), fn. 3; United States v. Hill, 898 F.2d 72, 75-76 (7th Cir.1990); United 

States v. Starr, 276 Fed.Appx. 761, 765 (10th Cir.2008); and United States v. 

Linares, 367 F.3d 941, 952 (D.C.Cir.2004). 

{¶ 51} Consistent with these federal circuits, I would adopt the 

nonconstitutional harmless-error standard of review set forth in Kotteakos v. 

United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed.2d 1557, for the purpose of 

determining whether improperly admitted other-acts evidence is harmless error 

under Crim.R. 52(A). 

{¶ 52} While Kotteakos supplies the proper harmless-error standard of 

review, it does not instruct courts on what to consider in determining whether an 

error is harmless or not, but some federal circuits have weighed in on that 

question. In United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir.1993), the 

court stated: 

 
January Term, 2014

21

There is no bright-line rule for divining when particular 

errors that result in a jury’s exposure to improper evidence are 

(or are not) harmless. Rather, a harmlessness determination 

demands a panoramic, case-specific inquiry considering, among 

other things, the centrality of the tainted material, its 

uniqueness, its prejudicial impact, the uses to which it was put 

during the trial, the relative strengths of the parties’ cases, and 

any telltales that furnish clues to the likelihood that the error 

affected the factfinder’s resolution of a material issue. 

 

{¶ 53} And in United States v. Regan, the Fifth Circuit Court of Appeals 

stated that a court’s “issuance of a limiting instruction ‘greatly minimize[s]’ the 

risk of undue prejudice posed by an erroneous admission under Rule 404(b).” 

725 F.3d 471, 490 (5th Cir.2013), quoting United States v. Crawley, 533 F.3d 

349, 355 (5th Cir.2008). 

{¶ 54} Therefore, I would hold that improper admission of other-acts 

evidence is harmless error under Crim.R. 52(A) if a “court can say, with fair 

assurance, after pondering all that happened without stripping the erroneous 

action from the whole, that the judgment was not substantially swayed by the 

error.” United States v. Kotteakos, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed.2d 

1557. And I would hold that applying this test “demands a panoramic, casespecific inquiry considering, among other things, the centrality of the tainted 

material, its uniqueness, its prejudicial impact, the uses to which it was put during 

the trial, the relative strengths of the parties’ cases, * * * any telltales that furnish 

clues to the likelihood that the error affected the factfinder’s resolution of a 

material issue,” and any limiting instructions pertaining to other-acts evidence. 

United States v. Sepulveda, 15 F.3d 1161, 1182. 
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{¶ 55} I would remand this case to the court of appeals to apply this test to 

the evidence in this case. 

{¶ 56} Therefore, I respectfully dissent. 

FRENCH, J., concur. 

_______________________________ 

 O’DONNELL, J., dissenting. 

{¶ 57} Respectfully, I dissent. 

{¶ 58} The parties here seek a determination of whether the admission of 

other acts evidence in this case is a constitutional or nonconstitutional error and 

clarification as to the appropriate standard of appellate review. The majority, in 

my view, conflates the principles that control this case with standards that apply 

when the state fails to accord an accused a federally guaranteed constitutional 

right, and it second-guesses the credibility determinations made by jurors in this 

case. 

{¶ 59} Other acts evidence may be admitted to show proof of motive, 

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

or accident, but cannot be offered to prove the character of an accused in order to 

show that the accused acted in conformity therewith. See Evid.R. 404(B) and R.C. 

2945.59. 

{¶ 60} Crim.R. 52(A) provides: “Any error, defect, irregularity, or 

variance which does not affect substantial rights shall be disregarded.” Similarly, 

Evid.R. 103(A) provides that “[e]rror may not be predicated upon a ruling which 

admits or excludes evidence unless a substantial right of the party is affected” and 

the party timely objected or made an offer of proof. 

The Ohio Rule on Harmless-Error 

{¶ 61} Chief Justice Moyer explained the rule for appellate review of 

harmless-error this way in State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 

802 N.E.2d 643: 
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23

[I]f the defendant has objected to an error in the trial court, an 

appellate court reviews the error under the “harmless error” 

standard in Crim.R. 52(A)—“a standard significantly more 

favorable to the defendant.” United States v. Curbelo (C.A.4, 

2003), 343 F.3d 273, 286. Under that rule, the government bears 

the burden of demonstrating that the error did not affect the 

substantial rights of the defendant. [United States v.] Olano, 507 

U.S. [725] 741, 113 S.Ct. 1770, 123 L.Ed.2d 508 [1993]; State v. 

Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, 

¶ 136 (“Once [the defendant] objected [to the error], the burden 

shifted to the state to demonstrate an absence of prejudice”). * * * 

An appellate court must reverse a conviction if the government 

does not satisfy this burden; unlike Crim.R. 52(B), Crim.R. 52(A) 

is mandatory, not permissive, and thus affords the appellate court 

no discretion to disregard the error. Id. at 735–736, 113 S.Ct. 1770, 

123 L.Ed.2d 508. 

(Emphasis sic.) Id. at ¶ 15. 

{¶ 62} This court has earlier specified that to affect the substantial rights 

of an accused, “ ‘the error must have been prejudicial: It must have affected the 

outcome of the [trial] court proceedings.’ (Emphasis added.)” State v. Fisher, 99 

Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v. 

Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See also

United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 159 

L.Ed.2d 157 (2004) (“the standard phrased as ‘error that affects substantial 

rights,’ used in Rule 52, has previously been taken to mean error with a 

prejudicial effect on the outcome of a judicial proceeding”). 
SUPREME COURT OF OHIO

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{¶ 63} And although we have not quantified the degree of proof needed to 

establish harmless error, other jurisdictions with rules analogous to Ohio Crim.R. 

52(A) require the prosecution to demonstrate that more likely than not the error is 

harmless. See, e.g., State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013); 

United States v. Keck, 643 F.3d 789, 798 (10th Cir.2011); United States v. 

Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.2005); see also O'Neal v. 

McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (explaining 

that in a federal habeas action, error is not harmless when “in the judge’s mind, 

the matter is so evenly balanced that he feels himself in virtual equipoise as to the 

harmlessness of the error”); Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333, 

159 L.Ed.2d 157 (requiring an accused asserting plain error to show “a reasonable 

probability” that but for the error the outcome would have been otherwise). 

Harmless Error Implicating a Constitutional Right 

{¶ 64} However, in Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 

17 L.Ed.2d 705 (1967), the court clarified that a state harmless error rule is 

limited and does not control when the error violates the federal constitutional 

rights of an accused: 

The application of a state harmless-error rule is, of course, a state 

question where it involves only errors of state procedure or state 

law. * * * Whether a conviction for crime should stand when a 

State has failed to accord federal constitutionally guaranteed rights 

is every bit as much of a federal question as what particular federal 

constitutional provisions themselves mean, what they guarantee, 

and whether they have been denied. 

In its ruling, the court “requir[ed] the beneficiary of a constitutional error to prove 

beyond a reasonable doubt that the error complained of did not contribute to the 
January Term, 2014

25

verdict obtained,” and it held that “before a federal constitutional error can be 

held harmless, the court must be able to declare a belief that it was harmless 

beyond a reasonable doubt.” Id. at 24. And as the Eighth Circuit Court of 

Appeals has noted, the reasonable-doubt standard imposes a stricter test than that 

applied to evidentiary errors that do not affect constitutional rights. United States 

v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.1994). 

{¶ 65} Thus, in my view, the law at issue here is well-defined. When 

preserved error arises from a question of state procedure or state law and does not 

affect a federally guaranteed constitutional right, Crim.R. 52(A) applies, and the 

error is harmless if the state can demonstrate that it is more likely than not that the 

error did not affect the outcome of the trial. But when a preserved error arises 

from the state’s failure to accord a federally guaranteed constitutional right, 

Chapman controls, and the state must prove beyond a reasonable doubt that the 

error did not contribute to the guilty verdict. 

{¶ 66} Rather than admit that this court has, on occasion, misapplied these 

rules and relied on the Chapman standard to review nonconstitutional error, the 

majority purports to reconcile our case precedent. First, it seems to require the 

accused to show that prejudice “affirmatively appears” on the record, majority 

opinion, ¶ 27, the standard for reviewing plain error; a claim of harmless error, 

however, requires the state to show that prejudice does not affirmatively appear 

on the record. See Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at 

¶ 15; State v. Quarterman, Slip Opinion No. 2014-Ohio-4034, ¶ 16. The majority 

then merges the Crim.R. 52(A) inquiry with the Chapman standard and now 

requires the state to prove beyond a reasonable doubt that any preserved error did 

not contribute to the conviction—presumably even if the error would not have 

affected the outcome of the trial. This, in my view, mischaracterizes the law with 

respect to nonconstitutional harmless error and further confuses this field of law. 
SUPREME COURT OF OHIO

26

{¶ 67} Notably, the parties recognize this confusion and agree that 

separate standards of review apply in deciding whether constitutional or 

nonconstitutional errors are harmless. They maintain that we need only determine 

whether the erroneous admission of other acts evidence is a constitutional or a 

nonconstitutional error and then apply the corresponding standard. 

Review of Other Acts Evidence 

{¶ 68} In Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 

L.Ed.2d 708 (1990), a masked man entered a home in Frederiksted, St. Croix, 

Virgin Islands, and robbed the occupant at gunpoint. During a struggle, the 

victim, Vena Henry, unmasked the intruder and later identified him as Rueben 

Dowling. However, a jury acquitted Dowling of burglary, attempted robbery, 

assault, and weapons offenses. The federal government then prosecuted him for a 

bank robbery perpetrated by a man wearing a similar mask, and the district court 

permitted Henry to testify regarding the robbery at her home in order to identify 

Dowling as the bank robber. The Third Circuit Court of Appeals determined that 

the trial court had erred in permitting this other acts evidence, and in reviewing 

for harmless error, it “explicitly declined to apply the more stringent standard, see 

Chapman v. California, 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705] 

(1967), applicable to constitutional errors because, according to the court, the 

District Court’s mistake was merely evidentiary and not of constitutional 

dimension.” Dowling, 493 U.S. at 346-347. 

{¶ 69} On appeal to the Supreme Court, Dowling argued that “the Third 

Circuit was wrong when it found that the admission of Henry’s testimony did not 

offend the Constitution and therefore declined to apply the Chapman v. 

California, supra, harmless-error standard.” Id. at 347. 

{¶ 70} The Supreme Court did not accept that argument and affirmed the 

conviction, concluding that “the admission of Ms. Henry’s testimony was 

constitutional and the Court of Appeals therefore applied the correct harmless-
January Term, 2014

27

error standard.” Dowling, 493 U.S. at 354. The court first rejected the argument 

that the Double Jeopardy Clause precluded the government from eliciting the 

other acts evidence. Id. at 348. It then considered whether “the introduction of 

this evidence was unconstitutional because it failed the due process test of 

‘fundamental fairness.’ ” Dowling, 493 U.S. at 352. The court recognized that 

the introduction of evidence in circumstances like those involved 

here has the potential to prejudice the jury or unfairly force the 

defendant to spend time and money relitigating matters considered 

at the first trial. The question, however, is whether it is acceptable 

to deal with the potential for abuse through nonconstitutional 

sources like the Federal Rules of Evidence, or whether the 

introduction of this type of evidence is so extremely unfair that its 

admission violates “fundamental conceptions of justice.” United 

States v. Lovasco, 431 U.S. 783, 790 [97 S.Ct. 2044, 2048, 52 

L.Ed.2d 752] (1977). 

(Footnote omitted.) Dowling, 493 U.S. at 352. The Supreme Court determined 

that Henry’s testimony did not violate principles of fundamental fairness, 

explaining that the district court’s authority to exclude potentially prejudicial 

evidence adequately addressed the risk that a jury will convict the accused on the 

basis of inferences drawn from other acts evidence and therefore permitted 

Dowling to receive a fair trial. 

{¶ 71} As Dowling demonstrates, the accused may not bootstrap any trial 

error in the admission of evidence to the right to a fair trial in order to obtain the 

heightened scrutiny that Chapman requires for constitutional errors. Thus, federal 

circuit courts treat the admission of other acts evidence as a nonconstitutional 

error and do not apply Chapman in these circumstances. See, e.g., United States 
SUPREME COURT OF OHIO

28

v. Hicks, 575 F.3d 130, 143 (1st Cir.2009); United States v. Corey, 566 F.2d 429, 

432 (2d Cir.1977); United States v. McBride, 676 F.3d 385, 400 (4th Cir.2012); 

United States v. Corsmeier, 617 F.3d 417, 422 (6th Cir.2010), fn. 3; United States 

v. Miller, 673 F.3d 688, 700 (7th Cir.2012); United States v. King, 36 F.3d 728, 

733 (8th Cir.1994), fn. 5; United States v. Bailey, 696 F.3d 794, 803 (9th 

Cir.2012); United States v. Starr, 276 Fed.Appx. 761, 765 (10th Cir.2008); United 

States v. Johnson, 519 F.3d 478, 483 (D.C.Cir.2008). 

{¶ 72} Therefore, because the erroneous admission of other acts evidence 

in violation of Evid.R. 404(B) does not violate the United States Constitution, our 

review of the record for harmless error requires application of Crim.R. 52(A) and 

Evid.R. 103(A) to determine whether the state has demonstrated that the other 

acts evidence more likely than not had no effect on the outcome of the trial. See

State v. Lundgren, 73 Ohio St.3d 474, 486, 653 N.E.2d 304 (1995) (“even where a 

court abuses its discretion in the admission of evidence, we must review whether 

the evidentiary ruling affected a substantial right of the defendant. Evid.R. 103 

and Crim.R. 52(A)”). 

{¶ 73} The other acts evidence elicited here—that Morris occasionally 

kicked the dog after his wife refused him sex and that he once propositioned his 

adult stepdaughter—did not affect the outcome of this trial. First, the trial court 

instructed the jury that it could not consider this evidence to prove that Morris 

acted in conformity with bad character, and we presume that a jury follows 

limiting instructions on the use of other acts evidence. See State v. Williams, 134 

Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 23. 

{¶ 74} Second, this other acts evidence is insignificant when compared to 

the compelling evidence that he groomed a six-year-old child for molestation—

using a “magic trick” to make his “thumb” turn to Jell-O and then become hard 

again—and then sexually abused and raped her over an extended period of time. 

In my view, it is not likely that, but for the admission of evidence that Morris 
January Term, 2014

29

kicked the dog when his wife refused to have sex with him and propositioned his 

adult stepdaughter, the jury would not have found him to be guilty of rape of a 

child under 13. Nor am I persuaded by the majority’s vague, conclusory 

statement that “there were questions regarding the credibility” of the victim. 

Majority opinion, ¶ 30. Credibility of witnesses is a determination made by 

jurors, and that is their province. Contrary to the majority, I would respect the 

jury’s credibility determination in this case and its finding that the victim’s 

testimony proved beyond a reasonable doubt that Morris had raped her. The 

verdict is based on that testimony, not evidence about kicking a dog. 

{¶ 75} Accordingly, the admission of other acts evidence in this case is 

harmless error, and I would reverse the judgment of the court of appeals and 

reinstate Morris’s convictions for the two separate counts of rape. 

_______________________________ 

Dean Holman, Medina County Prosecuting Attorney, and Matthew A. 

Kern, Assistant Prosecuting Attorney, for appellant. 

David C. Sheldon, for appellee. 

Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Daniel 

Van, Assistant Prosecuting Attorney, urging reversal for amicus curiae the 

Cuyahoga County Prosecuting Attorney’s Office. 

John Murphy, Joseph T. Deters, Hamilton County Prosecuting Attorney, 

and Rachel Lipman Curran, Assistant Prosecuting Attorney, urging reversal for 

amicus curiae the Ohio Prosecuting Attorney Association. 

__________________