COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60190 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL ENGLISH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 30, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-231983 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES GARY H. LEVINE Cuyahoga County Prosecutor 1200 Illuminating Building 8th Floor Justice Center 55 Public Square 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- ECONOMUS, J.: Defendant-appellant, Michael English, appeals his conviction for Gross Sexual Imposition. He argues that the trial court erred in admitting evidence of other acts and hearsay during the defendant's second trial for GSI. He also argues that the trial court erred in denying Appellant's motion for judgment of acquittal. For the reasons stated below, we reverse and remand for a new trial. Appellant was originally indicted for Gross Sexual Imposition and Rape, which was alleged to have occurred in the Fall of 1982. After Appellant's first trial, the jury reached a verdict of not guilty for Rape, but could not reach a verdict for Gross Sexual Imposition. The second jury trial which began on May 14, 1990, is the subject of this appeal. The State of Ohio's case presented the following: The victim, Megan Patton, who was fifteen at the time she testified was born in October of 1974. She testified that in the Spring of 1981, the appellant who was a neighbor, lured her into his home to look at a doll and touched her on her chest and between her legs over her clothes. In the Winter of 1981, Appellant touched her on her chest and between her legs but under her clothes. She further testified he touched her skin on her chest and vagina. In the Fall of 1982, he touched her again in the same way. In the Winter of 1982, she testified that he raped her by putting his penis in her vagina. She indicated that all of these incidents occurred around the noon hour on the weekdays. She did -3- not tell her parents immediately because Appellant told her that her parents would die in an accident, like her brother, if she told. The victim's mother, Sharon Patton, testified that while they were watching a television program on AIDS, her daughter became hysterical when the program's discussion turned to how one contracts AIDS. Then, she tried to calm her daughter by telling her that she had not done anything to contract AIDS. She further testified that her daughter reacted by becoming hysterical again and explaining that she had been raped by Appellant. Appellant objected to this testimony, but the objection was overruled. Detective Frank Eschweiler of the Parma Police Department was the final witness for the State of Ohio and he testified to the course of his investigation and the statement of the victim. At the close of all evidence, the appellant made a motion for judgment of acquittal pursuant to Crim. R. 29(A). The motion was denied. The appellant's case presented the following: Marilyn Probst testified on behalf of the appellant. She is the secretary at Clark Industrial Insulation Company and custodian of the company records. Her testimony authenticated the 1981 and 1982 employment records of the appellant at the company. Appellant testified on his own behalf. He explained that his employment records support his contention that he was working -4- full-time during 1981 and 1982. He also testified that he never came home for lunch and denies having any contact with the victim of a sexual nature. On May 16, 1990, the jury returned a verdict of guilty to Gross Sexual Imposition. On May 25, 1990, Appellant filed a motion for judgment of acquittal pursuant to Crim. R. 29(C). On June 13, 1990 the motion was denied and Appellant was sentenced to eighteen months incarceration. The sentence was suspended with three years of conditional probation. Thereafter, this notice of appeal was timely filed. Appellant's first assignment of error is not well taken and states: THE COURT ERRED TO THE PREJUDICE OF APPELLANT IN PERMITTING TESTIMONIAL EVIDENCE OF ALLEGED MATTERS BETWEEN APPELLANT AND THE COMPLAINING WITNESS BEYOND THE TIME LIMIT IMPOSED BY THE STATUTE OF LIMITATIONS. Evid. R. 404(B) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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. Evidence of other acts under Evid. R. 404(B) should not be so remote from the offense charged as to render them non- probative. State v. De Pina (1984), 21 Ohio App. 3d 91. Clearly, the probative value of other acts is the primary consideration. See, De Pina at 92. In this inquiry the other -5- acts proximity to the offense is of primary concern. State v. Curry (1975), 43 Ohio St. 2d 66, 72. In the instant case, the appellant was only charged with conduct that occurred in the Fall and Winter of 1982 and the uncharged other acts for which Appellant objected occurred in the Spring and Winter of 1981. The trial court allowed testimony of the victim to the events in the Spring and Winter of 1981 under Evid. R. 404(B) but never specified in his instructions to the jury the limited purpose for which it was being admitted. Without an instruction to the jury, the evidence would lead to the conclusion that Appellant's propensity was to commit G.S.I. We find plain error in the trial court's failure to instruct the jury on the purpose of other acts evidence. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Crim. R. 52. A jury instruction constitutes plain error when, but for the error, the outcome of the trial clearly would have been otherwise. See, E.g., State v. Long (1978), 53 Ohio St. 2d 91, 97. Therefore, this case must be reversed and remanded for a new trial on count two for gross sexual imposition. Appellant's second assignment of error states: THE COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING, OVER DEFENSE OBJECTION, A STATE WITNESS, SHARON PATTON, TO TESTIFY AS TO THE CONTENTS OF AN OUT-OF-COURT CONVERSATION BETWEEN HER AND HER DAUGHTER IN AUGUST OF 1988. Evid. R. 803(2) provides, as an exception to the hearsay Rule, an excited utterance: -6- A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. In State v. Wagner (1986), 30 Ohio App. 3d 261, this court concluded that there is a clear judicial trend in Ohio to "liberalize the requirements for an excited utterance when applied to young children victimized by sexual assaults." Id. at paragraph one of the syllabus. Consistent with this trend, the Supreme Court of Ohio, in State v. Wallace (1988), 37 Ohio St. 3d 87, recognized that: Continuing emotional or physical shock, loss of consciousness, persistent pain or unabated fright, isolation, and other factors may prolong the impact of a stressful event, making it proper to resort to Rule 803(2) despite long lapses of time. Sound decision have found lapses of such dimension insignificant when it comes to statements by victims of brutal or terrifying crimes, and by victims of kidnap or sexual assault, particularly when the victims are of tender years. Id. at 90-91, note 4, citing, 4 Louisell & Mueller, Federal Evidence (1980), at 506, Section 439. It is clear from the record, sub judice, that the AIDS program brought the victim out of her "unabated fright" and the emotional stress of the rape caused her hysterical outburst to her mother. Thus, there was no abuse of discretion in the trial court's finding that the outburst was an excited utterance under Evid. R. 803(2). Nonetheless, any error therefrom would be harmless. Williams, supra, p.5. Accordingly, Appellant's second assignment of error is not well taken. -7- Appellant's third and final assignment of error states: THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN OVERRULING THE MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE CONCLUSION OF THE STATE'S CASE PURSUANT TO CRIMINAL RULE 29(A) AND FURTHER IN OVERRULING THE MOTION FOR JUDGMENT OF ACQUITTAL MADE PURSUANT TO CRIMINAL RULE 29(C) AFTER VERDICT. Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261. Appellant suggests that the evidence he presented to prove that he was at work when the alleged incidents occurred vitiates the sufficiency of the victim's testimony. We disagree. Crim. R. 29 requires that the evidence be construed in the light most favorable to the State. Id. at 263. In doing so, this court finds sufficient evidence of each material element of the offense. Therefore, the trial court properly found that reasonable minds could reach different conclusions as to proof beyond a reasonable doubt. Accordingly, Appellant's final assignment of error is not well taken. Judgment reversed and remanded. -8- This cause is reversed and remanded. It is, therefore, considered that said Appellant recover of said Appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., and JOHN F. CORRIGAN, J., CONCUR. PETER ECONOMUS* JUDGE (*SITTING BY ASSIGNMENT: JUDGE PETER ECONOMUS, MAHONING COUNTY COMMON PLEAS COURT) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .