OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. Lowe, Appellee.
[Cite as State v. Lowe (1994), -- Ohio St. 3d ---.]
Criminal law -- Aggravated murder -- Evidence -- Other-acts
evidence to prove identity through a certain modus
operandi admissible, when -- Standard of appellate review
in midtrial appeals.
1. To be admissible to prove identity through a certain
modus operandi, other-acts evidence must be related to
and share common features with the crime in question.
2. The standard of appellate review in midtrial appeals
is the same as that in post-trial appeals.
(No. 93-493 -- Submitted December 8, 1993 -- Decided July
6, 1994.)
Appeal from the Court of Appeals for Logan County, No.
8-92-36.
Late in the evening of July 5, 1986, Phyllis Mullet and
Belle Center Marshal, Murray Griffin, were killed in Mullet's
Belle Center home. Mullet died of stab wounds; her body was
found partially clad, her feet bound with rope and her hands
bound with a cloth. Marshal Griffin was shot to death --
possibly with his own revolver, which was missing from the
crime scene -- as he responded to a call to Mullet's home.
More than four years later, defendant-appellee Terry Lowe was
indicted on two counts of aggravated murder. This
interlocutory appeal was taken to determine the admissibility
of certain other-acts evidence.
Central to the state's case are what it asserts are
interrelated pieces of evidence. The linchpin piece of
evidence is a handwritten document known as the power list.
The power list was found in Lowe's trash during a search of his
home on July 12, 1986. The state characterizes the document as
a written plan of deviant sexual activity. The right side of
the document contains a list of names, with the names bracketed
into several groupings, presumably by families. The name
"Tootie," Mullet's nickname, as well as the names of Mullet's
two children, appears on the list. The list also contains the
names of two other female children whom the state seeks to have
testify against Lowe.
The prosecutor describes the power list as "a memorandum
of the plan of sexual control the defendant wished to complete
in a year's time." To prove that theory, the state seeks to
introduce certain other-acts evidence, specifically the
testimony of Mullet's daughter, Mandy Mullet, Mandy Orders, and
Amy Mathews, who were eleven, eight and eight years of age,
respectively, at the time of the murders. The state argues
that the sexual nature of Lowe's activities with those girls
indicates that the power list was not just fantasy put to
paper, but was instead a plan of activities which Lowe had
begun to embark upon. Lowe's plan to have sex with Mullet, the
state argues, went awry, resulting in the murders.
Mandy Orders testified about the children's activities
with Lowe prior to trial. For the most part, Lowe's most
questionable activities were with the two younger girls, Mandy
Orders and Amy Mathews. Mandy Orders began visiting Lowe with
her friend Amy Mathews in the late spring of 1986, prior to the
murders. Lowe knew the girls' parents, who permitted the girls
to visit him. Mandy Mullet would also occasionally visit
Lowe's home.
When visiting Lowe the girls would play among themselves
or with Lowe, occasionally shop at the drugstore across the
street from Lowe's home, and once travelled with Lowe to a
K-Mart in Lima or Kenton.. Lowe and the girls played several
different games, including the "rug game," in which Lowe would
wrap the children up in a rug, tie a rope on one end and drag
them around the floor. In a variation on hide-and-seek, a
person was tied and had to get loose in order to find the other
players. Lowe would untie the girls if they were unable to do
so themselves.
Some of Lowe's other activities with the girls were of an
overtly sexual nature. On at least one occasion he showed
Orders and Mathews X-rated videotapes, and explained to the
girls what was happening in the films. At times while watching
the videos, Lowe's hands would be down his pants. On other
occasions, Lowe would walk through his house in a bikini
swimsuit or bikini underwear, and would sometimes have his
hands down his pants. Lowe also showed Mathews and Orders
Playboy magazines, and allowed the girls to make audiotapes of
themselves uttering sexual language. There has been no
testimony that Lowe ever touched the girls in a manner which
constituted sexual contact.
The murder scene contained no direct evidence which
indicated that the killings were sexually motivated. Mullet's
body was found clad only in a shirt, but there is no dispute
that the attacker surprised Mullet after she had quickly
emerged from the shower to answer the telephone. Mullet's body
was not sexually mutilated.
On February 6, 1992, the trial court held that the other
acts enumerated in the state's notice of intent to use evidence
of January 23, 1991, and its amended notice of intent of
January 28, 1991, were inadmissible pursuant to Evid R. 404(B)
and 403(A). The court accepted proffered statements in lieu of
testimony as a factual basis for the decision.
That decision was appealed and on June 24, 1992, the Third
District Court of Appeals vacated the trial court's suppression
order and remanded the case. The appellate court found that
the proffered statements, specifically those of the state's
expert witness, Dr. Sandra B. McPherson, were insufficient to
determine whether Lowe's other acts could be admissible
pursuant to Evid. R. 404(B). McPherson's proffered statement
had been offered to tie together the acts, the power list, and
the murders. The appellate court found that proffer to be
ambiguous and limited. The appellate court opined that "the
trial court can more properly make a determination of the
admissibility of the evidence in the context of the trial."
Lowe's right to a jury having been waived, trial on the
case commenced on September 14, 1992. On the fifth day of
trial, the other-acts evidentiary issue was argued again. The
record upon which the trial court based its ruling included the
evidence presented during the first four days of trial, the
opening statements of counsel, the voir dire testimony of Mandy
Orders, taken at a hearing on August 7, 1992, the deposition of
Sandra McPherson, taken on September 9, 1992, and the testimony
of FBI agent Douglas in a hearing before the trial court on
March 15, 1991.
The trial court made several findings upon which it based
its decision. Those included that Mullet was stabbed to death
and that her hands were bound with a cloth and her feet with a
clothesline-like rope, that there was no evidence of sexual
conduct by the assailant, that Lowe authored the power list on
which were listed the names of Mullet and the three young
girls, that Lowe showed the girls sexual publications and
X-rated videotapes and allowed them to make audiotapes of
sexual phrases, that one game he played with the girls involved
tying them up with a white rope, and that Lowe never touched
the children so as to constitute "sexual conduct" or "sexual
contact" as defined in R.C. 2907.01.
The trial court received a significant amount of evidence,
and based upon the testimony of the state's expert that she
could not give an expert opinion based on reasonable
psychological certainty that the acts and the power list were
linked to the crime in question, found that the evidence
showing other acts was inadmissible pursuant to Evid. R. 404(B)
and R.C. 2945.59.
The state took a midtrial appeal pursuant to Crim. R.
12(J), which allows an appeal as of right from the granting of
a motion to suppress evidence when the prosecuting attorney
certifies that "(1) the appeal is not taken for the purpose of
delay; and (2) the granting of the motion has rendered the
state's proof with respect to the pending charge so weak in its
entirety that any reasonable possibility of effective
prosecution has been destroyed."
The appellate court affirmed the trial court's decision,
stating that the trial court's ruling was "in accordance with
authority and its attitude was not unreasonable, arbitrary or
unconscionable, where the State has failed to establish by
substantial proof some substantial link between the defendant's
actions with the three minor girls, the 'power list,' and a
motive, plan or scheme to commit the murders of Phyllis Mullet
and Murray Griffin."
This cause is now before this court pursuant to this
court's allowance of a motion to certify the record.
Gerald L. Heaton, Logan County Prosecuting Attorney, for
appellant.
Dennis Day Lager and Marc S. Triplett, for appellee.
Pfeifer, J. Evidence of other acts is admissible if (1)
there is substantial proof that the alleged other acts were
committed by the defendant, and (2) the evidence tends to prove
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. State v. Broom
(1988), 40 Ohio St. 3d 277, 282-283,
533 N.E.2d 682, 690-691;
Evid. R. 404(B); R.C. 2945.59. R.C. 2945.59 and Evid. R.
404(B) codify the common law with respect to evidence of other
acts of wrongdoing, and are construed against admissibility.
See State v. Burson (1974),
38 Ohio St. 2d 157,
67 O.O.2d 174,
311 N.E.2d 526; State v. Hector (1969),
19 Ohio St.2d 167,
174-175,
48 O.O.2d 199, 203-204,
249 N.E.2d 912, 916-917.
That there is substantial proof that Lowe engaged in
questionable activities with the young girls is not disputed.
The issue is whether those activities tend to prove any of the
enumerated purposes of Evid. R. 404(B).
The state argues that Lowe's activities with the girls
should be admitted into evidence in order to show identity.
Identity is the least precise of the enumerated purposes of
Evid. R. 404(B). Evid R. 404(B) states that other acts are not
admissible "to prove the character of a person in order to show
that he acted in conformity therewith," and we therefore must
be careful when considering evidence as proof of identity to
recognize the distinction between evidence which shows that a
defendant is the type of person who might commit a particular
crime and evidence which shows that a defendant is the person
who committed a particular crime.
Other acts can be evidence of identity in two types of
situations. First are those situations where other acts "form
part of the immediate background of the alleged act which forms
the foundation of the crime charged in the indictment," and
which are "inextricably related to the alleged criminal act."
State v. Curry (1975), 43 Ohio St.2d 66, 73,
72 O.O.2d 37, 41,
330 N.E.2d 720, 725-726. For instance, if someone had seen
Lowe trespassing on Mullet's property on the evening of the
attack, or had seen him speeding away from the crime scene, or
had found him trying to remove evidence from the crime scene,
or had seen him threatening a witness, such evidence could be
admitted to prove identity. Such evidence would directly tie
Lowe to the crime at issue. The other acts the state seeks to
introduce do not tie Lowe to the immediate background of, nor
are they inextricably related to, the murders. The other acts
in this case are separate from the planning, carrying out, and
aftermath of the crimes at issue.
Other acts may also prove identity by establishing a modus
operandi applicable to the crime with which a defendant is
charged. "Other acts forming a unique, identifiable plan of
criminal activity are admissible to establish identity under
Evid. R. 404(B)." State v. Jamison (1990), 49 Ohio St. 3d 182,
552 N.E.2d 180, syllabus. "'Other acts' may be introduced to
establish the identity of a perpetrator by showing that he has
committed similar crimes and that a distinct, identifiable
scheme, plan, or system was used in the commission of the
charged offense." State v. Smith (1990),
49 Ohio St. 3d 137,
141,
551 N.E.2d 190, 194. While we held in Jamison that "the
other acts need not be the same as or similar to the crime
charged," Jamison, syllabus, the acts should show a modus
operandi identifiable with the defendant. State v. Hutton
(1990),
53 Ohio St. 3d 36, 40,
559 N.E.2d 432, 438.
A certain modus operandi is admissible not because it
labels a defendant as a criminal, but because it provides a
behavioral fingerprint which, when compared to the behavioral
fingerprints associated with the crime in question, can be used
to identify the defendant as the perpetrator. Other-acts
evidence is admissible to prove identity through the
characteristics of acts rather than through a person's
character. To be admissible to prove identity through a
certain modus operandi, other-acts evidence must be related to
and share common features with the crime in question.
In Jamison, supra, where the crime committed was a
robbery-murder which took place in the midafternoon in downtown
Cincinnati, this court allowed evidence of seven other
robberies defendant had perpetrated over a four-month span near
downtown Cincinnati. The robberies, including the one at
issue, had many similar qualities. In
Smith, supra, where
defendant was charged with murder for administering an overdose
of morphine to an overnight guest, this court allowed evidence
that another overnight guest of defendant had been killed by an
overdose of morphine. In
Broom, supra, defendant was charged
with abducting and killing a fourteen-year-old girl. This
court ruled admissible evidence of defendant's two other
attempted abductions which shared many of the characteristics
of the one at issue.
Lowe's activities with the girls establish no modus
operandi applicable to the Mullet and Griffin murders. Lowe
acted in a completely nonviolent manner with the girls. All of
the activities occurred at Lowe's home, when the children were
entrusted to his care. There was no stalking of the girls, no
element of surprise, and no force.
Mullet's killer, on the other hand, took her by surprise
in her own home. The attack on her was brutally violent -- she
was stabbed in the chest repeatedly and her throat was
slashed. There was no direct evidence that the attack was
sexually motivated.
Lowe's other acts and the murders are not sufficiently
related, nor do they share any significant common features.
The state argues that the other acts and the murders were both
grounded in sexual perversion, but evidence of the sexual
nature of the murders was found insufficient by the trial
court. The only arguably common feature of the other acts and
the murders is the use of rope -- Lowe sometimes tied the
girls, and Mullet's feet were tied together with rope. The use
of rope itself does not provide a distinctive behavioral
fingerprint.
The evidence at issue neither inextricably ties Lowe to
the underlying crime nor establishes a modus operandi
consistent with the murders. Basically, the evidence shows
that Lowe acted in an extraordinarily inappropriate, possibly
criminal, manner with some very young girls. That evidence may
support a conviction for disseminating matter harmful to
juveniles, with which Lowe has also been charged. That
evidence, however, does not belong in this case.
In State v. Malinovsky (1991), 60 Ohio St. 3d 20,
573
N.E.2d 22, this court recognized the state's right to file
midtrial appeals on evidentiary issues. The standard of
appellate review in these appeals is the same as that in
post-trial appeals. That is, "'[t]he trial court has broad
discretion in the admission … of evidence and unless it has
clearly abused its discretion and the defendant has been
materially prejudiced thereby, this court should be slow to
interfere.'" State v. Maurer (1984),
15 Ohio St. 3d 239, 265,
15 OBR 379, 401,
473 N.E.2d 768, 791, quoting State v. Hymore
(1967),
9 Ohio St.2d 122, 128,
38 O.O.2d 298, 302,
224 N.E.2d
126, 130. This court previously held that "[t]he term 'abuse
of discretion' connotes more than an error of law or judgment;
it implies that the court's attitude is unreasonable, arbitrary
or unconscionable." State v. Adams (1980),
62 Ohio St. 2d 151,
157,
16 O.O.3d 169, 173,
404 N.E.2d 144, 149. With that
standard of review in mind, the appellate court in this case
correctly affirmed the trial court.
The trial judge certainly did not abuse his discretion in
this case. The standard for admissibility of other-acts
evidence is strict, and the evidence sought to be admitted here
comes nowhere near that standard. This murder has kept the
surrounding community on edge for the last eight years. In
that crucible of emotion, the trial judge made the clearly
correct ruling.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
F.E. Sweeney, JJ., concur.
