State v. Thompson

Celebrezze, C. J.,

dissenting. The most restrained observation that I can make about this tragic case is that the record, considered as a whole, renders any conceivable error harmless beyond a reasonable doubt. Accordingly, I must respectfully dissent.

I agree with the majority that the disputed testimony should not have been admitted in evidence pursuant to the scheme or plan exception of R. C. 2945.59. As this court ruled in State v. Curry (1975), 43 Ohio St. 2d 66, “other acts” testimony, in order to be admissible under the scheme or plan exception, must: (1) illustrate the immediate background of the crime charged, such that without this testimony it would be virtually impossible to prove that the accused committed the crime; or (2) establish the identity of the perpetrator. See, also, State v. Wilkinson (1980), 64 Ohio St. 2d 308.

Clearly, additional sexual contact, prior or subsequent to the time frame charged in the indictment, does not form the immediate background of the crime charged, either chronologically or substantively. Moreover, the state has not demonstrated that it would be impossible to prove gross sexual imposition without this additional testimony. Finally, the defendant’s identity was not a disputed issue at the trial.

The mere fact that error was committed, however, should begin, not end, our review of Thompson’s conviction. The critical consideration under the facts at bar is whether this error was prejudicial. Chapman v. California (1967), 386 U. S. *50218; State v. Eubank (1979), 60 Ohio St. 2d 183; State v. Adams (1978), 53 Ohio St. 2d 223; State v. Lytle (1976), 48 Ohio St. 2d 391; State v. Abrams (1974), 39 Ohio St. 2d 53.

Putting aside the challenged “other acts” testimony, the independent evidence of guilt is so overwhelming in this case that, in my estimation, it cannot be seriously contended that the aforementioned error is anything but harmless beyond a reasonable doubt. Chapman v. California, supra.

Initially, the molested child’s admissible testimony about sexual contact initiated by her father during the time frame charged in the indictment remains uncontroverted. Her credibility was unshaken. Conspicuous by its absence from the majority opinion is any reference to Thompson’s written confession, state’s exhibit No. 2, in which he admitted that he had engaged in sexual contact with the victim — his natural daughter. Finally, the jury had the benefit of the corroborating testimony of Sergeant Dennis Woods of the Newark Police Department, the investigating and arresting officer, to whom Thompson confessed by both the spoken and written word.

Thus, upon consideration of the foregoing independent, credible, admissible evidence of Thompson’s guilt, I submit that there is no reasonable possibility that the improperly-admitted “other acts” testimony contributed to Thompson’s conviction.

Nearly a half-century ago, Justice Cardozo, in refusing to set aside a state criminal conviction, made a perceptive observation that seems particularly timely for the 1980’s: “There is danger that the criminal law will be brought into contempt— that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.” Snyder v. Massachusetts (1934), 291 U. S. 97, 122.

For all of the foregoing reasons, I can see no justice in the result engineered by the majority. Accordingly, I would reinstate the conviction for gross sexual imposition.

Locher and Holmes, JJ., concur in the foregoing dissenting opinion.