[Cite as State v. Mills,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NO. CA2015-12-101 Plaintiff-Appellee, : OPINION : 9/26/2016 - vs - :

GERALD L. MILLS, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2015 CR 0118

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellant

M. POWELL, P.J.

{¶ 1} Defendant-appellant, Gerald L. Mills appeals his conviction in the Clermont

County Court of Common Pleas for felonious assault.

{¶ 2} On March 3, 2015, the Clermont County Grand Jury returned a one-count

indictment charging Mills with felonious assault in violation of R.C. 2903.11(A)(1), a second-

degree felony. The charge stemmed from an altercation that occurred at a Marathon gas Clermont CA2015-12-101

station in Williamsburg, Ohio. The matter ultimately proceeded to a four-day jury trial that

concluded on October 29, 2015. Several witnesses testified on behalf of the state and Mills

testified on his own behalf. The evidence presented at trial revealed the following facts.

{¶ 3} On the evening of February 12, 2015, Mills entered the gas station to purchase

a drink and a candy bar. He filled his drink and set it atop the counter near the register, and

then, proceeded to another aisle to select a candy bar. During this time, Herbert Dearing

entered the gas station to make a purchase at the counter. When Mills returned to the

counter to pay for the items that he had selected, a verbal exchange ensued between Mills

and Dearing regarding who was first in line. Gas station employees, Kelsey Daugherty and

Cassie Everheart, were present during the exchange and both testified that Mills appeared to

be the aggressor. Daugherty testified that upon completion of Mills' transaction, she escorted

Mills out of the store based on her observations of the altercation.

{¶ 4} Once Dearing completed his purchase, he exited the store. Upon Dearing's

exit, another verbal exchange began between him and Mills. Daugherty, Everheart, and

Dearing testified that as Dearing approached Mills during this exchange, Mills punched

Dearing in the face. Dearing sustained a blowout orbital fracture to his left eye and required

immediate medical attention. Mills admitted to striking Dearing; however, contrary to the

testimony of Daugherty, Everheart, and Dearing, Mills testified that Dearing had first

attempted to punch him, and thus, Mills argued he was acting in self-defense.

{¶ 5} On cross-examination, the state asked Mills about an incident occurring at a

casino earlier on the day of the altercation between Mills and Dearing, in which Mills punched

another man in the face. Over defense counsel's objection, and after providing the jury with

a limiting instruction, the trial court allowed the state to question Mills on the matter and to

play a portion of a recorded telephone jail conversation between Mills and a female third-

party regarding the incident at the casino. In the recording, Mills is heard to state in -2- Clermont CA2015-12-101

reference to the casino incident that, "I'm like, 'man, don't – walk up on me.' He walked up on

me. He ate one. Yeah, he ate one. Yeah, just like I do everybody. Gave him about a 200-

mile-an-hour smack in the mouth."

{¶ 6} After both parties rested, the trial court supplied the jury with jury instructions,

which included another limiting instruction addressing the testimony and telephone recording

regarding the casino incident. Following deliberations, the jury returned a verdict of guilty on

the felonious assault charge. The trial court then sentenced Mills to a four-year prison term

and ordered him to pay restitution to Dearing. Mills now appeals from his conviction, raising

a single assignment of error claiming reversible error in the admission of the "other acts"

evidence relating to the casino incident.

{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY

PERMITTING THE ADMISSION OF "OTHER ACTS" EVIDENCE.

{¶ 8} We find no merit to Mills' argument.

{¶ 9} "A trial court has broad discretion in the admission and the exclusion of

evidence and unless it clearly abused its discretion and appellant is materially prejudiced

thereby, an appellate court should not disturb the decision of the trial court." State v. Martin,

12th Dist. Butler No. CA2007-01-022,

, citing State v. Finnerty,

(1989). An abuse of discretion is more than an error of law or judgment.

Rather, it suggests the "trial court's decision was unreasonable, arbitrary or unconscionable."

State v. Perkins, 12th Dist. Clinton No. CA2005-01-002,

. "A review

under the abuse-of-discretion standard is a deferential review." State v. Morris,

,

.

{¶ 10} "'Evidence that an accused committed a crime other than the one for which he

is on trial is not admissible when its sole purpose is to show the accused's propensity or

inclination to commit crime or that he acted in conformity with bad character.'" State v. Ward, -3- Clermont CA2015-12-101

12th Dist. Clermont No. CA2013-07-059,

, quoting State v. Williams,

,

. However, the Ohio Supreme Court has promulgated

certain exceptions to the common law regarding the admission of other acts evidence.

Those exceptions are contained in Evid.R. 404(B), which states:

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Furthermore, in order for evidence to be admissible pursuant to Evid.R. 404(B), there must

be substantial proof the alleged other acts were committed by the defendant and the

evidence must tend to prove one of the enumerated exceptions. State v. Lowe,

(1994); see also State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-

Ohio-150, ¶ 37. "Substantial proof" is not proof "beyond a reasonable doubt." State v.

Bromagen, 12th Dist. Clermont No. CA2005-09-087,

. Additionally,

R.C. 2945.59 provides that

[i]n any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

{¶ 11} The Ohio Supreme Court in Williams outlined a three-part test for courts to

apply when considering the admissibility of other acts evidence.

. First,

the court should "consider whether the other acts evidence is relevant to making any fact that

is of consequence to the determination of the action more or less probable than it would be

without the evidence." Id. at ¶ 20, citing Evid.R. 401. Second, the court should determine if -4- Clermont CA2015-12-101

"evidence of the other crimes, wrongs, or acts is presented to prove the character of the

accused in order to show activity in conformity therewith or whether the other acts evidence is

presented for a legitimate purpose, such as those stated in Evid.R. 404(B)." Id. Third, the

court should "consider whether the probative value of the other acts evidence is substantially

outweighed by the danger of unfair prejudice." Id., citing Evid.R. 403.

{¶ 12} Mills argues that the two incidents were unrelated because they took place

approximately an hour apart, and together do not demonstrate any plan, scheme, or system.

In support of these arguments, Mills asserts the disputed testimony was inadmissible, as it

did not fall into any of enumerated exceptions for the admissibility of other acts evidence

pursuant to R.C. 2945.59 and Evid.R. 404(B) and thereby violated the second prong of the

Williams analysis. Mills further argues that allowing the jury to consider the earlier incident

unfairly prejudiced him regarding the later incident, a violation of the third prong of the

Williams analysis.

{¶ 13} After a thorough review of the record, it is undisputed that there is substantial

proof that the alleged other acts were committed by Mills, as he testified that he made the

phone call and to the events discussed within the phone call. Additionally, the other acts

evidence must fall within one of the enumerated exceptions found within R.C. 2945.59 or

Evid.R. 404(B). Here, the trial court found the recorded phone call could be used to prove

Mills' intent, plan, or absence of mistake. We find no error in the trial court's decision.

{¶ 14} Mills argues the recording does not fall within an exception and bases his

argument on the Ohio Supreme Court's decision in State v. Curry, which "interpreted R.C.

2945.59 and stated that 'scheme, plan, or system' evidence is relevant in two general factual

situations: those in which the other acts form part of the immediate background of the alleged

act that forms the foundation of the crime charged in the indictment and those involving the

identity of the perpetrator."

, citing State v. Curry,

, 72 -5- Clermont CA2015-12-101

(1975). However, after Curry, the Ohio Supreme Court explained that admissibility is not

limited to those two situations and Curry predates Evid.R 404(B), thus the decision did not

consider or apply the rule.

(holding other acts may be admissible even if

the immediate background of a crime or identity of an accused is not at issue).

{¶ 15} In Williams, the defendant was convicted of several charges after a jury found

him guilty of sexually abusing J.H., a minor he mentored at his church. Id. at ¶ 3. During

trial, the court admitted evidence of a similar relationship with A.B., a minor Williams coached

as part of a swim team. Id. at ¶ 5. The Ohio Supreme Court outlined the aforementioned

three-part test, and then, determined the prior relationship "was relevant because it tended to

show his motive and the preparation and plan he executed to target, mentor, groom, and

abuse teenage boys, all of which could corroborate J.H.'s testimony." Ward,

at ¶ 34, discussing

. Next, the court found the state did not offer the

evidence to show conformity with William's character, specifically noting, "the trial court gave

two limiting instructions that this evidence was not being offered to prove Williams's character

– one just prior to the testimony of A.B., and one prior to deliberation." (Emphasis sic.)

. Lastly, the court found the testimony was not unduly prejudicial "because

the trial court instructed the jury that this evidence could not be considered to show that

Williams had acted in conformity with a character trait[;] * * * [thereby,] lessen[ing] the

prejudicial effect of A.B.'s testimony, and A.B. corroborated J.H.'s testimony about the sexual

abuse, which had been denied by Williams." Id. at ¶ 24.

{¶ 16} The evidence in this case is probative of Mills' professed intent to defend

himself, as it reveals his plan and scheme to preemptively strike someone who "walks up on

him" in circumstances such as those present in the instant case. The trial court properly

found that cross-examination of Mills and the recorded telephone conversation concerning

the earlier incident were relevant as tending to negate Mills' claim of self-defense, as well as -6- Clermont CA2015-12-101

to prove the absence of mistake or accident. See, e.g., State v. Machuca, 3d Dist. Allen No.

1-15-01,

(finding other acts evidence relevant to proving intent where

the act occurred less than a year from the current incident and involved the same subject

matter). Here, the earlier casino incident occurred approximately one hour before the

incident at the Marathon gas station and the factual circumstances are remarkably similar.

Both incidents involved an initial verbal altercation, and when the victims "walked up on"

Mills, he preemptively gave them a "200-mile-an-hour smack in the mouth." Moreover, the

earlier incident tends to corroborate the testimony of Dearing, Daugherty, and Everheart.

{¶ 17} Additionally, as in Williams, the trial court provided a limiting instruction before

the admission of the evidence of the earlier incident and then, once again, provided the jury

with a limiting instruction as part of its final jury instructions. Specifically, the trial court

instructed the jury before the questioning and the playing of the recorded conversation

began, as follows:

The court believes that – and ladies and gentlemen, you'll hear some testimony of a call – a phone call he made from the jail. And the evidence rule allows the Court to allow this – or it gives the Court the discretion to allow the introduction of this evidence not for the purpose of showing that the Defendant acted in conformity with this type of behavior, but to show a plan. And the Court has heard this, and my ruling is that this is admissible under 404(B) for the limited purpose * * * perhaps to show the plan of the Defendant [or] absence of a mistake. It is evidence of another wrong, and the Court has ruled on its admissibility.

The trial court provided the jury a similar instruction in its final instructions, which limited

admissibility for the purpose of showing intent, plan, or absence of mistake. There is a

presumption "that the jury has followed the instructions given to it by the trial court." State v.

Jones,

,

. The record in this case does not reflect

any indication that the jury did not follow the trial court's instructions.

{¶ 18} Finally, we find that the trial court did not err in determining that the prejudicial

-7- Clermont CA2015-12-101

effect of the evidence did not outweigh its probative value. Mills argues that the evidence

lacks any real probative value, while carrying a significant risk that Mills acted in conformity

with a character trait of violence, and therefore, is unfairly prejudicial. Unfairly prejudicial

evidence is not merely unfavorable evidence; rather, it is evidence, which might result in an

improper bias for a jury decision. State v. Bowman,

(12th

Dist. 2001), citing Oberlin v. Akron Gen. Med. Ctr.,

(2001). We find

the evidence is not unfairly prejudicial because the trial court properly admitted the evidence

as relevant to Mills' intent to demonstrate an absence of mistake. Moreover, the trial court

lessened any possible prejudice by providing a limiting instruction to the jury before

presenting the evidence and again before submitting the case to the jury. Ward, 2014-Ohio-

1990 at ¶ 37 (finding the trial court minimalized any potential prejudice by providing a limiting

instruction before testimony and again before submitting the case to the jury).

{¶ 19} Nonetheless, Mills further argues that the evidence was not admissible because

his claim of self-defense did not raise any questions regarding his identity, as he admitted

punching Dearing. Again, Mills cites to Curry to support this argument. However, as noted

above, the proper framework is under the Ohio Supreme Court's decision in Williams, which

permits the admissibility of such evidence under Evid.R 404(B), even if the identity of the

accused is not at issue.

. Therefore, Mills' arguments are without merit and

overruled.

{¶ 20} We find no abuse of discretion in the trial court's decision to admit the evidence

pursuant to Evid.R. 404(B). Accordingly, Mills' sole assignment of error is overruled.

{¶ 21} Judgment affirmed.

S. POWELL and PIPER, JJ., concur.

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