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State of Ohio v. Van Williams

November 3, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
VAN WILLIAMS DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525486

The opinion of the court was delivered by: Larry A. Jones, J.:

Cite as State v. Williams,

JOURNAL ENTRY AND OPINION EN BANC

JUDGMENT:

REVERSED AND REMANDED

BEFORE: En Banc Court

{¶1} Pursuant to App.R. 26 and Loc.App.R. 26, this court determined that a conflict existed among this court's decisions on the question of whether evidence of other similar acts is admissible pursuant to Evid.R. 404(B) to demonstrate a scheme, plan, or system when the evidence is not part of the immediate background of the present crime and the offender's identity is not at issue. Accordingly, we granted en banc consideration in this matter sua sponte and convened an en banc conference in accordance with McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, on this question.

{¶2} In the case at bar, defendant-appellant, Van Williams, appeals his convictions for rape, unlawful sexual conduct with a minor, kidnapping, and gross sexual imposition. For the reasons that follow, we reverse and remand for a new trial.

{¶3} There is perhaps no more muddled area of evidence law than that surrounding Evid.R. 404(B) and its application to crimes of sexual assault. Through our review of Ohio and, in particular, this district's case law on the subject, we have found cases that have applied the evidence rule in different and conflicting ways. While we are not at this time going to attempt to define each exception to the common-law rule prohibiting the admission of character evidence, we will attempt to define a path through the quagmire surrounding the issues that apply to the case at bar, that is, the Evid.R. 404(B) exceptions for other acts evidence to prove "intent" or a "scheme, plan, or system."

Procedural History and Facts

{¶4} In 2009, Williams was charged in a 61-count indictment with 12 counts of rape, 12 counts of unlawful sexual conduct with a minor, 12 counts of kidnapping, 24 counts of gross sexual imposition, and one count of intimidation of a crime victim or witness. All criminal activity was alleged to have occurred between November 1, 2008, and April 30, 2009, when the victim, "J.H.," was 14 and 15 years old.*fn1

{¶5} Prior to trial, the state filed a "Motion to Admit Evidence Pursuant to Evidence Rule 404(B) and R.C. 2945.59," indicating that it intended to admit into evidence prior allegations of sexual abuse committed by Williams against a teenage boy, "A.B." Williams filed a brief in opposition to the state's motion and requested an evidentiary hearing.

{¶6} On February 16, 2010, the day trial was to commence, Williams's attorney again asked for a hearing on the Evid.R. 404(B) motion. He explained to the court that he thought his client would be prejudiced if the decision on the admission of the Evid.R. 404(B) evidence was further delayed. The trial court denied the request and began voir dire. The next day, defense counsel filed a motion in limine asking the trial court to prohibit any Evid.R. 404(B) testimony, again requesting an evidentiary hearing. In court, defense counsel asked the trial court to rule on his motion prior to opening statements. The trial court denied counsel's request to rule on the motion prior to opening statements and trial commenced.

{¶7} J.H.'s grandmother testified that she had custody of J.H. They belonged to the same church as Williams and once J.H. joined the men's choir, Williams began to mentor him, since her grandson did not otherwise have a "male role model" in his life. The grandmother testified Williams took J.H. various places including to get his hair cut, to shop for video games, to the movies, and to see J.H.'s friends. She testified that Williams was constantly buying J.H. gifts, such as video games, clothes, shoes, a guitar and guitar lessons, and he also gave J.H. money to do odd jobs around his house.

{¶8} Michael Tessler testified that he worked at J.H.'s school. During a May 2009 counseling session, J.H. disclosed to Tessler that a man at his church had been molesting him. Tessler reported the allegations to the Cuyahoga County Department of Children and Family Services ("CCDCFS").

{¶9} After Tessler testified, the trial court excused the jury and began the Evid.R. 404(B) hearing. A.B. took the witness stand, testified, and was subject to cross-examination. A.B. testified that when he was 16 years old, he attended a local high school where Williams served as the swim coach. A.B. was not close to his own father, but he joined the swim team and developed a close relationship with Williams. In 1997, after a swim meet at a high school in Perry, Ohio, Williams took A.B. behind that school's concession stand, kissed A.B. and "fondled" him. When the team returned to their school later that night, he and Williams engaged in oral sex in the locker room. He testified that although he and Williams never engaged in anal intercourse, they engaged in oral sex two to three times per week in the school's locker room and that activity lasted until the end of the school year. He further testified that the sexual activity was consensual. After A.B.'s testimony, the trial court continued the evidentiary hearing at Williams's request because he had a witness to rebut A.B.'s testimony.

{¶10} The trial court resumed the jury trial. J.H.'s mother was the next witness to testify in the state's case-in-chief. She testified that she had a drug problem when her son was young so she sent J.H. to live with his grandmother. She testified that Williams was the only influential male figure in her son's life.

{¶11} J.H., who was 16 years old at the time of trial, testified that he developed a close relationship with Williams after joining the men's choir at church. He testified that Williams would often pick him up and take J.H. to his house. Williams bought him gifts, including a watch, clothing, and a guitar.

{¶12} J.H. testified that over time Williams became someone that he "completely trusted." But Williams eventually began to molest him. The first incident occurred in September 2008 when J.H. was 14 years old. J.H. testified he was sitting on a bed in Williams's house and the older man began to massage J.H.'s back. Williams then massaged his legs and "groin area." Williams told J.H. not to tell anyone because Williams could go to jail.

{¶13} The next incident occurred later the same month. Williams massaged J.H.'s back and groin area. The next incident occurred in Williams's basement when Williams was giving J.H. a haircut. J.H. testified that during the haircut Williams put the clippers down, began to massage J.H.'s back, pulled J.H.'s pants down and bent him forward, and then "[stuck] his private part in my behind." When he was "done," J.H. explained, Williams got a cold rag and wiped J.H.'s buttocks. J.H. testified that the sexual intercourse hurt.

{¶14} The next act of anal intercourse occurred in Williams's bedroom and was also preceded by Williams massaging J.H.'s back and groin area. This time, when Williams touched J.H.'s penis, J.H. asked him why he was doing this. Williams replied "he wasn't getting any from his wife." During this incident, Williams abruptly stopped the intercourse, thinking his wife was coming home. When Williams realized they were still alone, he took J.H. to the basement and resumed anal intercourse. J.H. testified Williams told him he would stop "doing this to me" before J.H. turned 15 years old.

{¶15} Then next time Williams assaulted him, Williams used Vaseline on his (Williams's) penis. J.H. testified that the last assault happened in January 2009 when he was 15 years old, in the computer room at Williams's house.

{¶16} J.H. testified that he was confused if sexual activity was something boys were supposed to do with older men. He stated he did not put up much resistance because he was afraid Williams would hurt him.

{¶17} Shawana Cornell, a CCDCFS social worker, testified that she was assigned to J.H.'s case after the county received a report that J.H. had been sexually abused. The state inquired about the conversation she had with Williams as part of her investigation. Cornell testified, over defense counsel's objection, that Williams "said he was accused of this about 12 years ago, and that the charge was taken down to a misdemeanor assault." During a subsequent conversation with Williams, Cornell testified that she asked Williams "if he would mind telling me about the allegation from 12 years ago with the other boy, and [he] did not want to tell me about that." Cornell testified Williams denied any sexual activity occurred with J.H. and did not know why the boy would make such an allegation.

{¶18} After Cornell testified, defense counsel asked for a mistrial, arguing his client had been unduly prejudiced by the social worker's testimony, especially since the trial court had not yet made a ruling on the state's Evid.R. 404(B) motion. The trial court denied the motion for a mistrial.

{¶19} The trial court then resumed the Evid.R. 404(B) hearing. Williams called Terrance Gaither, an assistant swim coach at A.B.'s high school, to testify. Gaither testified he was an assistant swim coach when A.B. was on the swim team. He stated that after the swim meet in Perry, the team immediately left to go back to their school. He and Williams drove some students home and then went out to clubs in the Flats district of Cleveland. He stated that Williams was well-liked and no other students ever made any allegations against him.

{¶20} After Gaither's testimony, the trial court heard arguments from both parties on the state's Evid.R. 404(B) motion. The state argued that A.B.'s testimony should be admitted into evidence as it tended to show Williams's intent in committing sexual acts with J.H. and because it showed his scheme or plan to mentor young boys who did not have strong male role models in their lives, gain their trust, and then groom them to be his victims.

{¶21} The trial court granted the state's motion, finding that the evidence should be admitted to show Williams's "intent." The trial court based its reasoning as follows:

"Intent is the strongest one. The sexual gratification of the [d]efendant, with respect to his acts with [J.H.], which so far there is just some inferences there could be some sexual gratification, it becomes much more clear when you hear the testimony of [A.B.] with respect to their conduct together. Certainly [A.B.'s] testimony indicated that this [d]efendant was sexually gratified by that conduct. I don't know for what other purpose you make out with somebody for; oral sex, mutual masturbation. There is really no other purpose for that.

"Although there was no testimony from [J.H.] about other sex, in fact, I believe [defense counsel] brought out on cross-examination of the social worker [J.H.] told her that he, the [d]efendant, wanted oral sex but [J.H.] wouldn't let him. So that evidence is out there as well. As well as opening statements, which defense counsel made clear to jurors that * * * Mr. Williams['s] sexual preference was not in question at all. It was directly in opening statement as well as what was brought out from the social worker's testimony with respect to he is not attracted to males.

"So [A.B.'s] testimony directly rebuts that. And if that is the defense that the Defense is putting before these jurors, then the State has a right to rebut that and show with other acts that his intent in these acts with [J.H.] were for his sexual gratification. And it goes to his motive as well. I think that is a proper purpose.

"The probative value in this case, because of the nature of the defense proposed by the Defense, is it's highly probative. I think in this case it will outweigh any potential for unfair prejudice than the Defense is going to put on a witness that will cast into doubt when [A.B.] says as, well, if there is substantial evidence that the crime occurred. * * * I think it's proper for the jurors to hear that."

{¶22} Defense counsel again asked for a mistrial, citing the prejudice to his client in commencing trial prior to the court ruling on the Evid.R. 404(B) motion. The trial court denied the motion and A.B. took the stand to testify before the jury. His testimony was substantially the same as the testimony he gave during the motion hearing.

{¶23} After A.B. testified, Williams moved for acquittal pursuant to Crim.R. 29. The trial court dismissed Counts 6-12 (rape), 18-24 (unlawful sexual conduct with a minor), 32-36 (kidnapping), and 43-61 (gross sexual imposition).

{¶24} Terrance Gaither was the first defense witness to testify in front of the jury and his testimony was substantially the same as his testimony during the motion hearing.

{¶25} Antoine Abrams testified that he was a former student of Williams. He grew up with the Williams family, Williams was a father figure to him, and Williams helped ensure that other neighborhood children stayed out of trouble. Abrams testified that Williams was a selfless role model and helped the Abrams family pay for field trips.

{¶26} Robert Moss testified that he sang in the men's choir with J.H. and Williams. Moss believed J.H. was a troubled teenager.

{ΒΆ27} Charles Bell testified that he knew Williams for 23 years and cut his hair. Williams took J.H. to Bell's home for haircuts on three or four occasions. Regina Williams testified that she was married to Williams, who often mentored troubled boys. She stated that she was often at home during the time-frame of the alleged abuse. She testified on ...


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