Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 05-02-2021

Case Style:


Case Number: C-190476

Judge: Pierre H. Bergeron


Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney

Defendant's Attorney:

Criminal Defense Lawyer Directory


Cincinnati, Ohio - Criminal defense attorney represented Anthony McDaniel with a voyeurism charge.

{¶1} Sometimes, a case helps illustrate the wisdom of a familiar adage, like
don’t ask a question you don’t know the answer to. This is such a case. Defense
counsel pried from the victim, in cross-examination, damaging (and otherwise
inadmissible) testimony about the defendant’s prior convictions by asking her to
share any concerns she had about the defendant. With the door thrown open, the
trial court admitted certified copies of these prior convictions, which the state
portrayed as admissible under Evid.R. 404(B). As we explain below, we find that the
trial court impermissibly admitted this latter evidence, which is hallmark propensity
evidence in contravention of Evid.R. 404(B), as the Ohio Supreme Court has recently
explained. However, we ultimately find this error harmless because the jury already
had before it evidence of the prior convictions by virtue of the victim’s testimony,
blunting any prejudice that the defendant could claim. Therefore, we affirm the
{¶2} At the time of these events, defendant-appellant Anthony McDaniel
was living with his girlfriend and her roommate in a single family home. The
roommate testified that one morning, while in the bathroom preparing to shower,
she noticed a phone in the corner, partially obscured by some towels. She didn’t
think much about it and proceeded with her day. About a week later, however, she
again noticed the phone as she prepared to shower, raising her suspicions. Upon
further inspection, the roommate discovered that the phone was video recording.
She then accessed the phone’s previous recordings, finding, to her dismay, a 17-OHIO FIRST DISTRICT COURT OF APPEALS
minute video of her from several days earlier in the bathroom, in varying stages of
undress. The phone belonged to Mr. McDaniel.
{¶3} Shaken by this discovery, the roommate took the phone to her car to
investigate further, calling Mr. McDaniel’s girlfriend to confront her about the video.
In the meantime, Mr. McDaniel began looking for his phone and, after finding it with
the roommate outside, an altercation ensued where he recovered his phone from her.
Mr. McDaniel’s girlfriend soon returned, attempting to broker a détente about the
incident. Mr. McDaniel explained that the recording from several days earlier had
been an accident—he intended to record his girlfriend (allegedly with her consent),
rather than the roommate. Mr. McDaniel then relinquished his phone for
inspection, but the roommate testified that only the earlier 17-minute recording
remained on the phone—the video from that day had vanished. The roommate
obtained a copy of the video, which was admitted into evidence at trial.
{¶4} The state charged Mr. McDaniel with voyeurism under R.C.
2907.08(B), which provides: “No person, for the purpose of sexually arousing or
gratifying the person’s self, shall commit trespass or otherwise surreptitiously invade
the privacy of another to videotape, film, photograph, or otherwise record the other
person in a state of nudity.” Because it was undisputed that Mr. McDaniel recorded
the roommate, the only issue at trial was whether he intended to record her. The
resolution of this question boiled down to witness credibility. Evidence in Mr.
McDaniel’s favor consisted of his own claim of accidental recording, which his
girlfriend corroborated by testifying as to her consent to being recorded.
Counterbalancing that evidence was the roommate’s testimony that Mr. McDaniel
had recorded her a second time while his girlfriend was away from the house. OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Against this backdrop, additional evidence made it into the record at
trial that largely forms the basis of this appeal: Mr. McDaniel had two prior
convictions for public indecency. As relevant here, these convictions were
introduced in two stages. First, the roommate testified on cross-examination, upon
prompting from defense counsel, that Mr. McDaniel was on probation for exposing
himself to different people. Then the state presented certified copies of the two
convictions as other-acts evidence under Evid.R. 404(B). The stated purpose of
admitting these convictions was to show absence of mistake—that Mr. McDaniel had
intended to record the roommate. Ultimately, the jury sided with the state and found
Mr. McDaniel guilty of voyeurism.
{¶6} On appeal, Mr. McDaniel presents two assignments of error. He first
argues that his prior convictions constituted impermissible propensity evidence, and
second, he challenges his conviction as against the weight of the evidence. We
address each assignment of error in turn.
{¶7} As to Mr. McDaniel’s first assignment of error regarding his prior
convictions, we note that the separate presentations of that evidence affect our
analysis. We thus address each admission separately—the roommate’s testimony,
then the certified copies of the convictions.
{¶8} As already noted, evidence of Mr. McDaniel’s prior convictions
emerged in the midst of defense counsel’s cross-examination of the roommate. OHIO FIRST DISTRICT COURT OF APPEALS
DEFENSE COUNSEL: And anything that he did beside what happened
that disturbed you in any way as a roommate than what you already
talked about?
ROOMMATE: In hindsight, yes.
ROOMMATE: He is on probation from two different counties . . .
{¶9} Defense counsel immediately objected. But the court determined that,
because the attorney had “opened the door,” the roommate could finish answering
the question.
Yes, in hindsight, it’s uncomfortable that he was on probation in two
different counties for exposing himself on different occasions to
different people. At the time, I chose to believe [his girlfriend’s]
explanations for how it * * * wasn’t his fault. He didn’t mean anything
bad, but it’s an uncomfortable situation to be in. I chose to have faith
in my friend.
{¶10} Both sides agree that the roommate’s testimony was not independently
admissible. But despite acknowledging the inartfulness of defense counsel’s
questioning, Mr. McDaniel nonetheless maintains that the trial court committed
reversible error because his attorney objected immediately. However, he fails to
explain how the timeliness of the objection affects whether the roommate should
have been permitted to answer the question. Thus, we proceed to determine whether
defense counsel’s question “opened the door” to this testimony about his prior
{¶11} “The term ‘opening the door’ is based upon the doctrine of ‘invited
error’ * * * .” In re Bailey, 1st Dist. Hamilton No. C-990528, 2001 WL 477069, *1
(May 2, 2001). This doctrine “prohibits a party who induces error in the trial court
from taking advantage of such an error on appeal.” Id.; see also Hal Artz LincolnMercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502
N.E.2d 590 (1986), paragraph one of the syllabus (“A party will not be permitted to
take advantage of an error which he himself invited or induced.”). And “the doctrine
of invited error prevents [a] defendant from asserting an error arising from the
disclosure of a prior conviction as a result of his cross-examination of the witness.”
State v. Scott, 6th Dist. Sandusky No. S-19-030, 2020-Ohio-4854, ¶ 27.
{¶12} Here, Mr. McDaniel does not cite any case undermining this textbook
application of invited error. Indeed, the case law points in the opposite direction.
See State v. Cephas, 1st Dist. Hamilton No. C-180105, 2019-Ohio-52, ¶ 24 (holding
that invited error allowed the admission of victim’s statements (who did not testify)
because defense counsel asked the detective about those statements, also permitting
the state to further examine the statements on redirect examination); State v.
Pennington, 1st Dist. Hamilton Nos. C-170199 and C-170200, 2018-Ohio-3640, ¶
54–55 (holding that invited error allowed the admission of pathologists’ statements
(who did not testify) because defense counsel asked the testifying expert if she had
consulted other pathologists before coming to her conclusion). Here, defense
counsel asked the roommate an open-ended question about whether Mr. McDaniel
had done anything to disturb her, even encouraging her with “go on.” Nor was this
an episode of a witness going rogue and injecting nonresponsive details. Defense
counsel asked the question; it was hers to answer. Thus, we cannot find that the trial OHIO FIRST DISTRICT COURT OF APPEALS
court abused its discretion in refusing to strike the roommate’s testimony or by
allowing her to finish responding.
{¶13} But just because a door creaks open, it does not allow a parade to
march through. “It has been observed that ‘opening the door is one thing. But what
comes through the door is another. Everything cannot come through the door.’ ”
State v. Bronner, 9th Dist. Summit No. 20753, 2002-Ohio-4248, ¶ 72, quoting
United States v. Winston, 447 F.2d 1236, 1240 (D.C.Cir.1971). “ ‘[T]he doctrine is to
prevent prejudice and is not to be subverted into a rule for injection of prejudice.’ ”
(Emphasis sic.) Id. at ¶ 73, quoting Winston at 1240. And this brings us to the state’s
effort to admit the prior convictions.
{¶14} Soon after the roommate testified, the state renewed a motion it
previously made to admit certified copies of Mr. McDaniel’s prior convictions. And
the trial court ruled that the convictions would go to the jury, reasoning that “under
the [roommate’s] testimony, * * * the 404(B) evidence, absence of mistake * * * has
been met * * * .” Mr. McDaniel frames this issue on appeal as a violation of Evid.R.
404(B). We agree.
{¶15} As we recently explained: “Evid.R. 404(B) exists to guard against the
‘propensity’ inference—in other words, wielding past bad acts to prove action in
conformity therewith, which facilitates a conviction based on prior conduct rather
than the evidence at hand.” State v. O’Connell, 2020-Ohio-1369, 153 N.E.3d 771, ¶ 1
(1st Dist.). However, Rule 404(B) does permit the admission of other acts for limited
purposes, “such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B). OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Although it may seem easy enough in theory to distinguish between
using other-acts evidence to show propensity and using the same evidence for a
legitimate purpose, it’s much more difficult to apply the distinction in practice. The
Ohio Supreme Court recently acknowledged the point: “Courts have long struggled
with differentiating between the two types of evidence.” State v. Hartman, 161 Ohio
St.3d 214, 2020-Ohio-4440, 161 N.E. 3d 651, ¶ 23. And in an effort to “clear up some
of the confusion,” the Hartman Court set forth “a road map for analyzing the
admission of other-acts evidence.” Id. at ¶ 19.
{¶17} In reviewing Rule 404(B) other-acts evidence, we follow a three-step
framework: (1) the evidence must be relevant to the particular purpose for which it is
offered, Evid.R. 401; (2) the other acts must be offered for a legitimate purpose and
not to show propensity to criminal conduct, Evid.R. 404(B); and (3) the danger of
unfair prejudice must not substantially outweigh the probative value of that
evidence, Evid.R. 403. See State v. Graham, Slip Opinion No. 2020-Ohio-6700, ¶
72, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶
20. We review these three prongs under a mixed standard of review: the first two
pose legal questions that we review de novo, and the third constitutes a judgment call
which we review for abuse of discretion. Hartman at ¶ 22 (“The admissibility of
other-acts evidence pursuant to Evid.R. 404(B) is a question of law.”), citing
Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events,
Section 4.10 (2d Ed.2019); Hartman at ¶ 22 (noting that although the trial court is
precluded from allowing improper evidence, it nonetheless has discretion whether to
admit permissible evidence), citing Williams at ¶ 17. OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Here, the state stumbles at the outset of our analysis—whether the
prior convictions are relevant. To be sure, the relevance inquiry often proves vexing
because “[i]t is almost always true that propensity evidence will have some
relevance.” Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E. 3d 651, at ¶ 25;
see Evid.R. 401 (“ ‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”). “Indeed,
[propensity] evidence is excluded ‘not because it has no appreciable probative value
but because it has too much.’ ” Hartman at ¶ 25., quoting 1A Wigmore, Evidence,
Section 58.2, at 1212 (Tillers Rev.1983). For this reason, the relevance inquiry does
not ask whether the other acts ultimately render the defendant’s guilt more or less
likely. Id. at ¶ 26. Instead, the inquiry considers “whether the evidence is relevant to
the particular purpose for which it is offered.” (Emphasis sic.) Id. As we have
noted, the state admitted Mr. McDaniel’s public indecency convictions for the
particular purpose of showing that he intended to record the roommate. Thus, for
Mr. McDaniel’s convictions to be relevant, they must “tend[] ‘to show, by similar acts
or incidents, that the act in question was not performed inadvertently, accidentally,
involuntarily, or without guilty knowledge.’ ” Id. at ¶ 52, quoting McCormick,
Evidence, Section 190, at 804 (4th Ed.1994).
{¶19} Elucidating how other acts may be relevant to intent, the Court in
Hartman offered a helpful illustration:
Say, for instance, the fourth wife died from a gunshot wound at the
hand of her husband during a hunting trip, and he defends against the
murder charge by claiming that the shooting was accidental. Evidence OHIO FIRST DISTRICT COURT OF APPEALS
that he shot his other wives under similar circumstances might be
probative of his intent to kill. The inference is that because it is so
unlikely that the defendant accidentally shot four women under
similar circumstances, it is highly likely that he acted with the intent to
Id. at ¶ 53.
{¶20} But as the Hartman Court acknowledged, the difference between using
other acts to show intent versus propensity is often “thin.” Id. at ¶ 57. “Evidence
that a husband shot three previous wives in ‘hunting accidents’ does allow a jury to
(permissibly) reason that it is unlikely that the fourth shooting was committed
accidentally, but it also enables a jury to (impermissibly) reason that he likely killed
his fourth wife because he is a killer.” Id. Thus, using “other-acts evidence to prove
the defendant’s state of mind ‘flirts dangerously with eviscerating the character
evidence prohibition’ altogether.” Id., quoting Leonard, The New Wigmore:
Evidence of Other Misconduct and Similar Events, Section 7.4 (2d Ed.2019).
{¶21} Cognizant of these pitfalls, the Court clarified the permissible
inference: “ ‘ “the oftener a like act has been done, the less probable it is that it could
have been done innocently.” ’ ” (Emphasis added.) Hartman, 161 Ohio St.3d 214,
2020-Ohio-4440, 161 N.E. 3d 651, at ¶ 56, quoting State v. Evers, 139 Wis.2d 424,
437, 407 N.W.2d 256 (1987), quoting 2 Weinstein & Berger, Weinstein's Evidence,
Section 404[12], at 404-84 to 404-87 (1985). The difference, then, between
permissible and impermissible evidence turns on whether it is more probative of the
defendant’s intent to commit the charged act or of the defendant’s inclination to
commit similar crimes. Id. at ¶ 58. And the answer flows from this underlying OHIO FIRST DISTRICT COURT OF APPEALS
question: “whether, ‘under the circumstances, the detailed facts of the charged and
uncharged offenses strongly suggest that an innocent explanation is implausible.’ ”
(Emphasis sic.) Id., quoting Leonard at Section 7.5.2. In other words, the other acts
“ ‘must be so related to the crime charged in time or circumstances that evidence of
the other acts is significantly useful in showing the defendant’s intent in connection
with the crime charged.’ ” (Emphasis added.) Id., quoting 1 Wharton’s Criminal
Evidence, Section 4:31 (15th Ed.2019).
{¶22} Distilling these principles to this case, we must decide whether Mr.
McDaniel’s prior convictions are probative of his intent when recording the
roommate or of his predisposition to commit sexual offenses. And to answer that
question, we ask whether the detailed facts of this voyeurism charge and his prior
convictions strongly suggest that he intended to record the roommate. They do not.
The circumstances of the prior convictions for self-exposure are not related in time
or circumstance to this voyeurism charge. In fact, the only connection between the
two is that both are sexual in nature, establishing nothing more than a
(impermissible) propensity inference. See Hartman at ¶ 62 (holding that evidence
defendant previously molested his stepdaughter did not support the inference that
he entered adult victim’s hotel room intending to rape her because the two acts had
no similarity “other than being sexual in nature.”). If Mr. McDaniel’s prior
convictions were also for voyeurism, and he invoked mistake as a defense, those
convictions might well be appropriate for rebutting that defense. But the prior
convictions were for self-exposure, not voyeurism. And nothing about the prior
convictions sheds any light on whether he intended to record the roommate. We
thus conclude that Mr. McDaniel’s prior convictions were not relevant for the OHIO FIRST DISTRICT COURT OF APPEALS
purpose of showing absence of mistake. And of course, our conclusion that the trial
court should not have admitted this evidence obviates our need to proceed with the
balance of the inquiry. See Graham, Slip Opinion No. 2020-Ohio-6700, at ¶ 72
(“The court is precluded from admitting improper character evidence under Evid.R.
404(B), but it has discretion to allow other-acts evidence that is admissible for a
permissible purpose.”).
{¶23} However, even though we find error, we must measure that against the
harmless error standard:
(1) “There must be prejudice to the defendant as a result of the
admission of the improper evidence at trial”; (2) “an appellate court
must declare a belief that the error was not harmless beyond a
reasonable doubt,” i.e., that there was “no reasonable possibility that
the testimony contributed to the accused's conviction”; and (3) “in
determining whether the error is harmless beyond a reasonable doubt,
the court must excise the improper evidence from the record and then
look to the remaining evidence.”
State v. Benson, 1st Dist. Hamilton No. C-180128, 2019-Ohio-3255, ¶ 23, quoting
State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153 ¶ 24, 27–29;
O’Connell, 2020-Ohio-1369, 153 N.E.3d 771, at ¶ 31 (applying harmless error analysis
after finding Evid.R. 404(B) error).
{¶24} We acknowledge that propensity evidence is inherently prejudicial.
And in a case that turns on credibility, such as this one, evidence that impermissibly
suggests that the defendant is sexually deviant can easily tip the scale in the state’s
favor. Nonetheless, we do not believe that the copies of Mr. McDaniel’s prior OHIO FIRST DISTRICT COURT OF APPEALS
convictions contributed to his guilty verdict because the jury permissibly knew of the
convictions from the roommate’s testimony. Even excising the impermissible copies
of his convictions, Mr. McDaniel’s prior behavior still remained in play. It is not as if
the state brought in new witnesses to dwell on the details of his prior convictions—it
just sought admission of the certified copies of the convictions, and these were not
read to the jury. Taking into account the context of this case, we simply fail to see
how the challenged evidence added much to the mix. Thus, we are confident that the
trial court’s error was harmless, and we overrule this assignment of error.
{¶25} In his second assignment of error, Mr. McDaniel characterizes his
conviction as against the manifest weight of the evidence. As we have explained, this
case was mainly a credibility determination, and we chronicled the relevant evidence
above. “ ‘When conflicting evidence is presented at trial, a conviction is not against
the manifest weight of the evidence simply because the trier of fact believed the
prosecution testimony.’ ” State v. Robinson, 12th Dist. Butler No. CA2018-08-163,
2019-Ohio-3144, ¶ 29, quoting State v. Lunsford, 12th Dist. Brown No. CA2010-10-
021, 2011-Ohio-6529, ¶ 17. We see nothing in the record to draw into question the
integrity of the trial or to convince us that a manifest injustice occurred, and we
therefore overrule Mr. McDaniel’s second assignment of error.

Outcome: In light of the foregoing analysis, we overrule Mr. McDaniel’s two
assignments of error and affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case