State v. Ware

2024 Ohio 1105

• Court: Ohio Court of Appeals
• Decided: March 25, 2024
• Docket: 1-22-60
• Status: Published

Opinion

[Cite as State v. Ware, 2024-Ohio-1105.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, CASE NO. 1-22-60 PLAINTIFF-APPELLEE,

v.

CORNELIUS WARE, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2021 0314

Judgment Affirmed

Date of Decision: March 25, 2024

APPEARANCES:

William T. Cramer for Appellant

John R. Willamowski, Jr. for Appellee Case No. 1-22-60

HESS, J.

{¶1} Defendant-appellant, Cornelius Ware, Jr. (“Ware”), appeals from a

judgment of the Allen County Court of Common Pleas convicting him, following a

jury trial, of attempted rape and gross sexual imposition. Ware presents three

assignments of error asserting (1) his due process rights were violated by the

admission of other-acts evidence that he used illegal drugs; (2) his due process rights

were violated by a limiting instruction on other-acts evidence that was likely to

confuse and mislead the jury; and (3) indefinite prison terms imposed under the

Reagan Tokes Law violate the jury trial guarantee, the doctrine of separation of

powers, and due process principles under the federal and state constitutions. For the

reasons which follow, we overrule the assignments of error and affirm the trial

court’s judgment.

Facts and Procedural History

{¶2} In October 2021, Ware was indicted on: (1) Count One, rape in

violation of R.C. 2907.02(A)(1)(c) and (B); (2) Count Two, gross sexual imposition

in violation of R.C. 2907.05(A)(5) and (C)(1); and (3) Count Three, sexual battery

in violation of R.C. 2907.03(A)(2) and (B). He pleaded not guilty, and the matter

proceeded to a jury trial.

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{¶3} Sharon Thomas testified that Kashawnna Ware (“Kashawnna”) (no

relation to the defendant) and J.L. are her cousins. On September 1, 2020, Thomas

hung out with Kashawnna at her home at 413 South Collett. Around 9:00 or 10:00

p.m., some female friends joined them, and they drank and played games. By around

11:00 p.m. or 12:00 a.m., Thomas was drunk, and J.L., then age 16, came to the

home drunk. Thomas could not recall whether J.L. also drank at Kashawnna’s home

but thought she “mostly likely did.” J.L. “ended up being sloppy.” Around 2:00 or

3:00 a.m., J.L. “threw up on her shirt and on her bra and stuff,” and Thomas and

Kashawnna took her upstairs and put her in the bathtub. They took off her shirt and

pants and helped “get all the throw up off of her.” Thomas walked J.L. to

Kashawnna’s daughter’s bedroom, put bedding on the floor for J.L., and laid J.L.

down “with a towel wrapped around her and her bra still on.” Thomas thought J.L.

had underwear on but was not positive. When Thomas put J.L. in the bedroom, she

“was out of it. Like, she wasn’t even up for real. She was asleep, like, drunk passed

out.”

{¶4} At some point, Ware, Thomas’s friend with whom she had had sex “a

couple of times,” arrived at Kashawnna’s house. Thomas had sex with Ware.

Thomas thought they probably also drank together but was not sure. She initially

expressed uncertainty about Ware’s condition that night but later testified that he

was drunk like her. Thomas testified she was not aware of drugs at the home but

then testified there was “[p]robably” weed.

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{¶5} Thomas testified that Ware went upstairs to use the bathroom and was

gone for 20 to 30 minutes. Thomas went to Kashawnna’s daughter’s bedroom and

saw J.L. on her back on the floor where Thomas had left her with Ware “between

[her] legs.” J.L. did not move. She was “[l]aying down asleep. Like out of it. Not

up. Don’t know what’s going on [sic]. Her eyes were closed.” Thomas was not

sure if J.L. was wearing underwear. Thomas saw Ware on his knees “stroking,” by

which Thomas meant that “[i]t looked like he was penetrating her.” His jeans were

pulled down towards his knees, and he was “going back and forth.” Thomas did not

see Ware touch J.L.’s breasts, touch her inner thighs with his hands, or rub her

buttocks. Thomas did not recall seeing his penis or telling a detective that she did.

Thomas testified that she saw blood on a “cover” next to Ware’s cigarette and knew

J.L. was menstruating because she got a tampon from Kashawnna earlier. Ware

told Thomas “to get the fuck out.” Thomas had “Jock” get Ware out of the house.

Ware returned to the front porch crying and tried “to beg and tell” Thomas “that he

didn’t do anything and he was sorry.” Thomas told him to “get the fuck out of my

face.”

{¶6} Later that morning Thomas and Ware communicated via Facebook.

Ware wrote, “We didn’t do nothing was about too but I swear u wouldn’t even let a

nigga talk to u wen u was crying u my nigga always [sic].” Thomas wrote, “Fuck

you I hate you,” and “I caught you bro.” Ware wrote, “I’m mad asf u ain’t caught

shit u seen we was about to I respect u and u kno that[.] I didn’t mean to hurt ur

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feelings in no way I hurt my feelings[.] It take a man to apologize [sic].” Thomas

wrote, “Man you’re sick asf dawg I swear to god you are older than her mom dude

I’ll never fuck with u again [sic].” Ware wrote, “Whaat[.] We didn’t fuck [sic].”

Thomas wrote, “I caught you.” Ware wrote, “U ain’t caught shit u seen us bout to

but I’m beside dat[.] She just said cum hold her [sic].”

{¶7} J.L. testified that she arrived at Kashawnna’s house sober around 10:00

p.m. J.L. drank with everyone, and she and Thomas got “sloppy drunk.” Maybe an

hour after arriving, J.L. was “throwing up everywhere.” She fell asleep on the couch

and “woke up a little bit” laying in the bathtub, which was overflowing. She did not

recall how she got there or what she was wearing. Thomas got her out, wrapped her

in a towel, put her in Kashawnna’s daughter’s room, and closed the door. Then

“everything went black.” J.L. woke up wearing only a bra “with a whole bunch of

throw up in it.” She got clothes somewhere, Thomas told J.L. what she had seen,

and J.L. went to the hospital. The only men J.L. recalled seeing that night were

“Kashawnna’s ex-boyfriend, Kivante, and his friend.” J.L. testified that prior to

September 1, 2020, she never met Ware, and on September 2, 2020, she did not ask

anyone to hold her, kiss anyone, or consent to sexual activity. J.L. testified that she

was menstruating at the time but did not recall anyone giving her a tampon.

{¶8} Kashawnna testified that J.L. arrived at her home drunk and went

upstairs to take a bath. Someone told Kashawnna the bathtub was overflowing, and

the ceiling was leaking. She and Thomas went upstairs and found J.L. sitting naked

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in the overflowing bathtub. J.L. said she was drunk, and her speech was slurred.

She was “[k]ind of” able to stand up on her own, and Thomas wrapped her in a

towel and put her in Kashawnna’s daughter’s room. Kashawnna took J.L.'s clothes

to the basement to wash them and cleaned up the water. At that point, the only

people in the home were her, Thomas, and J.L. Kashawnna went to bed after her

uncle Jock came over and woke up when J.L. came to her door wrapped in a blanket

and asked where her clothes were. Kashawnna told J.L. they were in the washer

and let J.L. wear some of her clothes. Kashawnna did not testify that she saw Ware

during the relevant timeframe.

{¶9} A registered nurse examined J.L. on September 2, 2020, and did not

observe any injuries on J.L.’s body. Vaginal samples taken during the exam did not

contain a DNA profile foreign to J.L. Rectal samples contained a DNA mixture.

The major profile was consistent with J.L., and the remaining mixture came from at

least two male contributors. Ware could not be excluded as a contributor.

{¶10} Detective Brian Snyder of the Lima Police Department interviewed

Ware in August 2021. The state played a roughly 45-minute long video and audio

recording of the interview. Ware says Thomas1 invited him to Kashawnna’s home

for “drinking or whatever.” Ware says something about “everybody doing powder”

and “pills.” He says that he arrived at the home around 12:15 a.m., there were about

eight or nine people there, and everybody was drinking and “already fucked up”

1 In the recording, Ware refers to Thomas as “Sharon Thompson” and “Sharon.”

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when he got there. Ware says, “I’m just buzzin, you know I had took a few e pills

and a drunk a few beers at the time [sic].” Ware says he drank liquor after he arrived

and that “we was drinking until about three [sic].” Ware says that he “was fucked

up” because he was “off e pills already before I came there,” and he explains that “e

pills” are ecstasy.

{¶11} Around 2:00 a.m., he had to go to the bathroom because he was

throwing up the “e pills and liquor,” had “to poop,” and “had the runs.” He went

upstairs. The “girl” people said he had the “situation with” was in the shower. He

used the bathroom anyway and threw up in the toilet. Kashawnna told him to help

the girl out of the tub, and Ware was “like shit I’m fucked up I can’t.” He went

downstairs to smoke. He told Thomas to get the girl because she was “too heavy”

for him, and he was “drunk as hell.” Thomas refused. Ware went back upstairs and

told Kashawnna to get the girl out of the bathroom because he had to “finish

throwing up and shitting or whatever.” Ware said that he and the girl were “both

shitting on ourselves.” Ware says, “I don’t know, I think they had some ecstasy in

our drinks,” and “Whatever they had in the drink, it, it fucked my stomach up.”

Detective Snyder asks Ware if the girl was “drunk drunk.” Ware says, “I couldn’t

remember because we all fucked up [sic].” He says, “I’m off ecstasy. I don’t know

what she’s on.” Detective Snyder says, “But to say, to say that she was fucked up

would probably be on par with everybody else?” Ware says, “Everybody’s drunk.

The whole house is fucking drunk.” Ware says that everybody was “fucked up”

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when he got there. Ware later says that he “didn’t even know what was going on

that night. We all fucked up [sic].”

{¶12} Ware tells Detective Snyder that Kashawnna helped the girl out of the

shower and told him to bring a garbage bag upstairs. He went downstairs and went

to the store to get cigarettes. When he returned, Thomas “wanted to fuck,” but he

was “like I gotta go upstairs to help baby baby [sic].” Thomas said the girl was

“alright” and that he did not need to go up there, but he wanted to make sure she

was “alright or whatever.” He went upstairs smoking a cigarette. The girl was

wearing a t-shirt or a towel and said, “Lay down. Hold me. Make sure I’m ok

baby.” He laid down and held her, and she started “kissing on” him. Ware says,

“I’m a man, I kiss back.” Ware then says that to “make a long story short,” all he

remembers is Thomas coming in “like oh, so ya’ll fucking or whatever when you’re

supposed to be downstairs fucking me.” Ware says he is not sure how long he was

upstairs because “we probably been dozed off [sic].” Ware says the girl’s uncle

came and asked what they were doing. The girl said, “Nothing unc [sic].” Ware

was “like shit we just layin’ down or whatever [sic].” Later Thomas talked about

going to the police, and Ware’s “attention was oh, I must have fucked a young girl

[sic].” Ware says, “I didn’t know how old she was,” and “You know, to my

attention, she was older cause everybody was drinking, you feel me. And this was

basically what we do is cocaine at the time. I don’t do it no more. But at the time

we was doing cocaine, ecstasy, and all that stuff, you feel me [sic].” Ware thought

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Thomas was either mad because he did not “fuck her” or because the girl was

“underage.”

{¶13} Detective Snyder asks how far Ware and J.L. went. Ware says, “We

fucked up.” He remembers bringing a bag in and laying with her. They kissed, he

held her, and he “woke up” when his cigarette burnt his finger, and Thomas was

“right there cussing us out.” Ware denies that his pants were down when Thomas

came in the room and says he was wearing basketball shorts. He then admits it is

possible he slipped the shorts down. Detective Snyder asks if any part of Ware’s

body touched J.L.’s vagina, buttocks, or breasts. Ware says, “I’m sure my hands

did probably touch all on her breasts.” Detective Snyder again asks about her

vagina, and Ware says, “I can’t. We fucked up [sic].” Detective Snyder asks if

Ware got his “dick in her.” Ware says that he cannot remember and that “we’re

fucked up.” Detective Snyder asks Ware, “What if there was DNA that was found?”

Ware says, “All I can say is I was fucked up.” He says that once J.L. told him to

lay down with her, he probably “dozed off.” He was “off ecstasy and cocaine.”

Ware later says that he drinks “a lot,” that his “body can hold it,” and that he has

never “shit on” himself and thrown up.

{¶14} Detective Snyder asks Ware if he and J.L. had sex or there was just

foreplay, and Ware says that he cannot remember and that “we was fucked up [sic].”

He says that after he gave her “the best lay down hold me tight shit,” he just

remembers waking up with a cigarette burn on his hand, and Thomas right there.

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Later, Detective Snyder asks Ware whether it is plausible he had sex with J.L. Ware

says that he “could of” but does not know. Ware later says that “everybody was

fucked up,” that he and Thomas “do cocaine,” and that he does not know what “the

other person was off of because everybody was already fucked, this whole house is

fucked up. Some people do e pills, some people don’t. Some people was doing

coke, some people didn’t [sic].” Ware then says, “I [inaudible] do coke or e pills at

the time.” Ware later says, “I do cocaine,” and that was the “only thing at the time,

that’s the only thing that makes me run to the bathroom.” Ware says that was “my

drug of choice,” and he would “never go back to that type of lifestyle. Drinking,

smoking, doing e pills. Just because of this situation.” Ware later tells Detective

Snyder that Thomas was trying to “fuck” him when he “first came through the

door,” but he was “too busy trying to get drunk and smoke and do all the cocaine.”

{¶15} Detective Snyder asks if Ware’s DNA could have been on J.L.’s

“privates,” and Ware says that he does not know and that it “could have.” Ware says

that he thought J.L. was “old enough if ya’ll had doing e pills and drinking with

your cousin or niece or whoever she was to them [sic].” Detective Snyder asks

Ware, “If you could say something to that girl right now what would you say?”

Ware says that he would apologize for what happened and say her family should

not have been drinking and doing pills with her. At one point, Detective Snyder

asks if Ware wants to write something to her. Ware indicates that he does and writes

a note stating:

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To whom it may concern my name is Cornelius Kiyon Ware Jr. I need to let you know I have children 9 girls 9 boys. I will tell them everyday since I seen I had a warrant for Attempted rape that the[y] should not consume drugs nor Alcohol. I want you to know I found out how old you actually are. Through Tayonna Jones which is Brooke Jones Niece, but nene Brooke Jones Daughter. Said ya’ll was cousi[n] I instantly felt hurt like why would they be drinking with a minor. I have kids myself. At the time I did multiple drugs. Today I do None because the situ-ation im in today. I was there drinkin[g] doing drugs and partying with everyone else Sharon wanted to have sex I was just making sure we both was ok I was in the bathroom throwing up and using the restroom why’ll doing that I remember us both saying we fucked up I feel so terrible after hearing your a few years older than my child and if I was sober this could never happen. I can remember Sharon saying what was yall doing you didnt come fucking lay with me. Then your uncle came like bro let’s go I couldn’t realize at the time why people was so mad I can remember calling Sharo[n] that morning asking who you where why was she mad, she just saying it’s cool I got you Im taking her to police station at first Im thinking she trying to set me up cause I wouldnt fornicate with her, but no[w] that I found out your correct age I need to say I apologize for whatever happened that day. I ask that you please forgive me for even coming to you as intoxicated as we was I usually just goto sleep but I remember this day forever, because I would never consume drugs and just being to friendly and helpful being intoxicated wanting to get out the house if I stayed hom[e] instead of coming outside drunk or high off of drugs. I just figured not to do none at all. I promise I was just being a peer thinking you where my age or atleast near it. Hoping you can understand[d] I apologize and If I wasn’t intoxicated this would not happened. I have kids of my own. Please forgive me and do not drink with fam nor friends. To the the point we do not know how or whats going on.2

{¶16} Following Detective Snyder’s testimony, the court instructed the jury:

There was evidence in that testimony of the Detective and specifically in that interview that was played for you, evidence of the use of Ecstasy and the use of Cocaine by the defendant. If you believe that

2 The state introduced a copy of the note into evidence instead of the original, and it appears some of the note

was cut off in the copying process. We have transcribed the note verbatim except for bracketed material we added to complete some of the words that appeared to be cut off.

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evidence that would be evidence of potentially other bad acts, or, other criminal behavior. Evidence of other crimes or wrongs is not admissible to prove the character of a person in order to show that he acted in conformity with that character. In other words, you can’t consider that evidence, if you believe that evidence of other wrongs, such as using Ecstasy or Cocaine, you can’t consider that to prove the character of Mr. Ware in order to show that he acted in conformity with that character. Now, that kind of evidence, however, is admissible and you can consider that type of evidence to prove other things, such as, well, in this case preparation, opportunity, intent, knowledge. But it can’t be used for any other purpose. Okay?

Later, the court admitted the interview recording and a copy of the note into

evidence and instructed the jury:

Now, evidence was received about the defendant using Cocaine and Ecstasy which is evidence of crimes or wrongs other than the offenses with which the defendant is charged in this trial. The evidence about the commission of crimes or wrongs other than the offenses with which the defendant is charged in this trial cannot be considered for any other purpose than the purposes I will identify. It was not received, and you may not consider it, to prove the character of the defendant in order to show that he acted in conformity with that character. It does not follow from the defendant’s past acts that he committed the particular crimes that are charged in this case. The State has the burden of proving each element of the particular crimes currently at trial beyond a reasonable doubt. The State cannot satisfy its burden merely by implying that the defendant committed these crimes because his other acts suggest a propensity to commit crime.

The evidence of other acts was received only for the limited purposes of proving any of the following. Opportunity. You may consider the evidence of other acts to show the defendant being at 413 South Collett, using Cocaine or Ecstasy, showed that the defendant had the opportunity to commit the offenses with which he is charged in this case. Or, intent. You may, but are not required to, infer from the evidence of other acts by the defendant that it is more probable than not that the defendant intended to commit the offenses charged in this case. The question is whether, under the circumstances, the detailed facts of the charged offenses and other acts strongly suggest

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that an innocent explanation is not plausible. Or, preparation. You may consider the evidence of other acts to determine whether it shows that the defendant prepared to commit the offenses with which he is charged in this case. Before you can consider the evidence of other acts for purposes of showing the defendant prepared to commit the offenses charged, the evidence must show the defendant’s prior preparatory acts were either part of the same transaction as the offenses for which the defendant is on trial or that the other acts were part of a sequence of events leading up to the commission of the offenses in question. Or, knowledge. You may consider evidence of the other acts to determine whether or not it shows the defendant had knowledge that [J.L.’s] ability to resist or consent was substantially impaired because of a mental or physical condition.

The evidence of other acts cannot be considered for any other purpose.

{¶17} On Count One, the jury found Ware not guilty of rape but guilty of the

lesser included offense of attempted rape. The jury found him guilty of Count Two,

gross sexual imposition. On Count Three, the jury found him not guilty of sexual

battery but guilty of the lesser included offense of attempted sexual battery. The

trial court found Counts One and Three merged, and the state elected to proceed to

sentencing on Count One. The court sentenced Ware to five to seven and a half

years in prison for attempted rape and 18 months for gross sexual imposition, and

the court ordered that the sentences run concurrently.

Assignments of Error

{¶18} Ware presents three assignments of error:

Assignment of Error Number One: Appellant’s rights to due process were violated by the admission of other-acts evidence that appellant used illegal drugs.

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Assignment of Error Number Two: Appellant’s due process rights were violated by a limiting instruction on other-acts evidence that was likely to confuse and mislead the jury.

Assignment of Error Number Three: Indefinite prison terms imposed under the Reagan Tokes Law violate the jury trial guarantee, the doctrine of separation of powers, and due process principles under the federal and state constitutions.

First Assignment of Error

{¶19} In the first assignment of error, Ware contends that his due process

rights were violated by the admission of other-acts evidence that he used illegal

drugs.

Legal Principles

{¶20} “ ‘A hallmark of the American criminal justice system is the principle

that proof that the 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.’ ” State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-

4440, 161 N.E.3d 651, ¶ 20, quoting State v. Curry, 43 Ohio St.2d 66, 68, 330

N.E.2d 720 (1975). “This common-law principle is embodied in Evid.R. 404(B).”

Id. at ¶ 21. Evid.R. 404(B)(1) states: “Evidence of any other crime, wrong, or act

is not admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” “In other words, [‘]

“evidence which tends to show that the accused has committed other crimes or acts

independent of the crime for which he stands trial is not admissible to prove a

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defendant’s character or that the defendant acted in conformity therewith.” [’] ”

State v. Bruce, 2023-Ohio-3298, 224 N.E.3d 715, ¶ 18 (3d Dist.), quoting State v.

Wendel, 2016-Ohio-7915, 74 N.E.3d 806, ¶ 21 (3d Dist.), quoting State v.

Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-Ohio-6779, ¶ 24. Evid.R.

404(B)(2) provides that such evidence “may be admissible for another purpose, such

as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” However, “[t]he exceptions allowing the

evidence ‘must be construed against admissibility, and the standard for determining

admissibility of such evidence is strict.’ ” State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 61, quoting State v. Broom, 40 Ohio St.3d 277,

533 N.E.2d 682 (1988), paragraph one of the syllabus.

{¶21} The Supreme Court of Ohio has set forth a three-part analysis for

determining the admissibility of other-acts evidence, stating that

to be admissible, (1) the evidence must be relevant, Evid.R. 401, (2) the evidence cannot be presented to prove a person’s character to show conduct in conformity therewith but must instead be presented for a legitimate other purpose, Evid.R. 404(B), and (3) the probative value of the evidence cannot be substantially outweighed by the danger of unfair prejudice, Evid.R. 403.

State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 72, citing

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20,

reconsideration granted, 133 Ohio St.3d 1512, 2012-Ohio-6209, 979 N.E.2d 1290

(court of appeals ordered to address remaining assignments of error). “The

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admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a question of

law.” Id., citing Hartman at ¶ 22. “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.” Id., citing Hartman at ¶ 22.

“[T]he trial court’s weighing of the probative value of admissible evidence against

the danger of unfair prejudice to the defendant pursuant to Evid.R. 403(A) involves

an exercise of judgment and will be reviewed for an abuse of discretion.” State v.

Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 117, citing

Hartman at ¶ 30.

{¶22} However, Ware concedes that he has forfeited all but plain error

because the record does not indicate his trial counsel objected to the drug use

evidence. See Graham at ¶ 64. “For plain error to apply, the trial court must have

deviated from a legal rule, the error must be plain, i.e., an obvious defect in the

proceeding, and the error must have affected the defendant’s ‘substantial rights.’ ”

State v. Keith, 3d Dist. Marion No. 9-22-28, 2023-Ohio-3428, ¶ 9, quoting State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “ ‘[T]o demonstrate that

the trial court’s error affected a substantial right, the defendant must establish that

there is a reasonable probability that, but for the trial court’s error, the outcome of

the proceeding would have been otherwise.’ ” Id., quoting State v. Sutton, 3d Dist.

Seneca No. 13-21-11, 2022-Ohio-2452, ¶ 50. “This in turn requires the defendant

to show ‘ “that the probability of a different result is ‘sufficient to undermine

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confidence in the outcome’ of the proceeding.” ’ ” Sutton at ¶ 50, quoting State v.

Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 130, quoting

United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d

157 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). We take “[n]otice of plain error * * * with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage

of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three

of the syllabus.

Pertinent Statutes

{¶23} Ohio’s rape statute prohibits engaging “in sexual conduct with another

who is not the spouse of the offender” when “[t]he other person’s ability to resist or

consent is substantially impaired because of a mental or physical condition * * *,

and the offender knows or has reasonable cause to believe that the other person’s

ability to resist or consent is substantially impaired because of a mental or physical

condition * * *.” R.C. 2907.02(A)(1)(c). The sexual battery statute prohibits

engaging “in sexual conduct with another, not the spouse of the offender,” when

“[t]he offender knows that the other person’s ability to appraise the nature of or

control the other person’s own conduct is substantially impaired.” R.C.

2907.03(A)(2). The gross sexual imposition statute prohibits having “sexual contact

with another, not the spouse of the offender,” when “[t]he ability of the other person

to resist or consent * * * is substantially impaired because of a mental or physical

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condition * * *, and the offender knows or has reasonable cause to believe that the

ability to resist or consent of the other person * * * is substantially impaired because

of a mental or physical condition * * *.” R.C. 2907.05(A)(5). “ ‘Sexual conduct’

means vaginal intercourse between a male and female; anal intercourse, fellatio, and

cunnilingus between persons regardless of sex; and, without privilege to do so, the

insertion, however slight, of any part of the body or any instrument, apparatus, or

other object into the vaginal or anal opening of another.” R.C. 2907.01(A). “

‘Sexual contact’ means any touching of an erogenous zone of another, including

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a

female, a breast, for the purpose of sexually arousing or gratifying either person.”

R.C. 2907.01(B).

Relevance

{¶24} Ware contends that evidence he used drugs was not relevant for any

of the purposes for which the trial court instructed the jury it could use the evidence.

Ware maintains that his “use of cocaine does not make it more likely that he had an

opportunity to rape [J.L.], unless maybe it kept him awake.” Ware claims that he

“took the drugs before he came to the party, long before he knew [J.L.] was even

there,” so “the drug use could not have been a part of any preparation for raping

[J.L.] and would not tend to show that he intended to rape [J.L.].” In addition, Ware

asserts that his drug use had “no tendency to prove that he had knowledge of [J.L.’s]

level of impairment because there was no evidence that [he] used cocaine or other

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illegal drugs with [J.L.]” The state asserts there is evidence Ware “did ecstasy and

cocaine with the victim (as one of the people at the party that he claims were all

doing ecstasy and cocaine),” and that evidence was “relevant to show knowledge of

the victim’s impairment.”

{¶25} “ ‘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.” Evid.R.

401. “Evidence which is not relevant is not admissible.” Evid.R. 402. “It is almost

always true that propensity evidence will have some relevance. Indeed, such

evidence is excluded ‘not because it has no appreciable probative value but because

it has too much.’ ” Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d

651, at ¶ 25, quoting 1A Wigmore, Evidence, Section 58.2, at 1212 (Tillers

Rev.1983). “But in Evid.R. 404(B) cases, the inquiry is not whether the other-acts

evidence is relevant to the ultimate determination of guilt. Rather, the court must

evaluate whether the evidence is relevant to the particular purpose for which it is

offered.” (Emphasis sic.) Id. at ¶ 26, citing Curry, 43 Ohio St.2d at 73, 330 N.E.2d

720. “That is to say, the other-acts evidence must be probative of a ‘purpose other

than the person’s character or propensity to behave in a certain way.’ ” Id., quoting

United States v. Gomez, 763 F.3d 845, 860 (7th Cir.2014) (en banc). “Trial courts

must keep in mind that it is not enough to say that the evidence is relevant to a

nonpropensity purpose. The nonpropensity purpose for which the evidence is

-19- Case No. 1-22-60

offered must go to a ‘material’ issue that is actually in dispute between the parties.”

Id. at ¶ 27, quoting Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496,

99 L.Ed.2d 771 (1988).

{¶26} Opportunity. The trial court instructed the jury that it could consider

evidence that Ware used drugs “to show the defendant being at 413 South Collett,

using Cocaine or Ecstasy, showed that the defendant had the opportunity to commit

the offenses with which he is charged in this case.” Contrary to what Ware asserts,

there is evidence that he used drugs at Kashawnna’s home. For instance, his note

states, “I was there drinkin[g] doing drugs and partying with everyone else.”

However, we do not see how Ware’s drug use showed he had the opportunity to

commit the charged offenses, and the state has offered no plausible explanation for

how it did so. Moreover, opportunity was not a material issue in dispute. Ware

admitted that he was at the home, that he had an encounter with J.L., that he probably

touched her breasts, and that it was possible he had sex with her. Thus, we conclude

evidence that Ware used illegal drugs was not relevant to show opportunity.

{¶27} Intent. The trial court instructed the jury that it could infer from the

evidence that Ware used drugs that it was “more probable than not” that Ware

intended to commit the charged offenses. It is not apparent how Ware’s drug use

made it “more probable than not” that he intended to commit the charged offenses,

and the state has offered no explanation for how it did so. Ware’s statements suggest

his drug use made it less probable that he intended to commit the charged offenses

-20- Case No. 1-22-60

because he lacked the capacity to form such an intent. But as the trial court

instructed the jury, “[v]oluntary intoxication may not be taken into consideration in

determining the existence of a mental state that is an element of a criminal offense.”

See R.C. 2901.21(E). Thus, we conclude evidence that Ware used illegal drugs was

not relevant to show intent.

{¶28} Preparation. The trial court instructed the jury it could consider the

evidence of Ware’s drug use “to determine whether it shows that” he “prepared to

commit” the charged offenses. We do not see how Ware’s drug use showed that he

prepared to commit rape, sexual battery, or gross sexual imposition, and the state

has offered no explanation for how it did so. Thus, we conclude evidence that Ware

used illegal drugs was not relevant to show preparation.

{¶29} Knowledge. The trial court instructed the jury that it could consider

evidence that Ware used drugs to determine whether it showed Ware had knowledge

that J.L.’s “ability to resist or consent was substantially impaired because of a

mental or physical condition.” The jury could not find that Ware lacked such

knowledge due to his drug use because, again, as the trial court instructed the jury,

“[v]oluntary intoxication may not be taken into consideration in determining the

existence of a mental state that is an element of a criminal offense.” See R.C.

2901.21(E). And evidence that Ware used illegal drugs before he went to

Kashawnna’s home was not relevant to whether he had the requisite knowledge

because there is no evidence that Ware used those drugs with J.L.

-21- Case No. 1-22-60

{¶30} However, there is also evidence Ware used drugs with J.L. at the

home. Although Ware stated that he did not know what J.L. was “on” or “off of,”

he also stated, “You know, to my attention, she was older cause everybody was

drinking, you feel me. And this was basically what we do is cocaine at the time. I

don’t do it no more. But at the time we was doing cocaine, ecstasy, and all that

stuff, you feel me [sic].” Ware claims he was just noting that “he would generally

do cocaine, ecstasy, and ‘all that stuff.’ ” But when his statement about “doing

cocaine, ecstasy, and all that stuff” is read in context, one can infer that Ware was

saying he thought J.L. was older than she was because they used cocaine and ecstasy

together. Evidence that Ware used drugs with J.L. makes it more probable that he

knew her ability to resist or consent was substantially impaired because of a mental

or physical condition. His knowledge was a material issue in dispute given the

conflicting evidence about J.L.’s condition at the time of Ware’s encounter with her.

Thus, we proceed to the next step of the three-part analysis with respect to that

evidence.

Purpose

{¶31} The state did not present evidence that Ware used drugs with J.L. to

prove Ware’s character to show conduct in conformity therewith. The state

presented the evidence for a legitimate other purpose—showing his knowledge.

Although the state did not explicitly assert that it was presenting the evidence for

that purpose at trial, the state did not object to the court’s limiting instructions.

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Probative Value Versus Unfair Prejudice

{¶32} Ware contends that the prejudicial impact of evidence of his drug use

“far outweighed any minimal probative value.” Ware claims the evidence “had little

to no evidentiary value because it did not tend to prove anything of consequence.”

He claims the prejudice from the evidence was “immense” because evidence of

involvement in drugs is highly prejudicial and indicates not only a propensity to use

drugs but also a willingness to break laws. He asserts the prejudice was heightened

in this case because there was no evidence that he had a criminal record or had

engaged in other illegal behavior apart from the charged offenses. Therefore, the

drug use evidence muddied his image as an otherwise law-abiding citizen. Ware

acknowledges a limiting instruction “may help mitigate the prejudicial impact of

other-acts evidence,” but citing United States v. Bell, 516 F.3d 432, 446-447 (6th

Cir.2008), he asserts an instruction “that directs the jury to use evidence for a

purpose for which it is not probative does nothing to abate the prejudicial impact,

and actually enhances prejudice by causing confusion and misleading the jury into

erroneously relying on such evidence.”

{¶33} Evid.R. 403(A) states: “Although relevant, evidence is not admissible

if its probative value is substantially outweighed by the danger of unfair prejudice

* * *.” The Supreme Court of Ohio has explained:

“Exclusion on the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair prejudice simply meant prejudice, anything adverse to a litigant’s case would be excludable under Rule

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403. Emphasis must be placed on the word ‘unfair.’ Unfair prejudice is that quality of evidence which might result in an improper basis for a jury decision. Consequently, if the evidence arouses the jury’s emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence appeals to the jury’s emotions rather than intellect.”

Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001),

quoting Weissenberger’s Ohio Evidence, Section 403.3, at 85-87 (2000).

{¶34} “The trial court’s analysis under [Evid.R. 403(A)] should be robust,

and courts should be mindful of ‘[t]he natural and inevitable tendency * * * to give

excessive weight to the vicious record of crime thus exhibited and either to allow it

to bear too strongly on the present charge or to take the proof of it as justifying a

condemnation, irrespective of the accused’s guilt of the present charge.’ ” (Second

alteration and ellipsis sic.) Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161

N.E.3d 651, at ¶ 29, quoting 1A Wigmore, Evidence, Section 58.2, at 1212.

“[I]mportant considerations” are “the extent to which the other-acts evidence is

directed to an issue that is actually in dispute,” “whether the prosecution is able to

present alternative evidence to prove the same fact through less prejudicial means

and whether the other-acts evidence is probative of an essential element of the crime

or an intermediate fact in the case.” Id. at ¶ 31-32. “Because other-acts evidence

‘almost always carries some risk that the jury will draw the forbidden propensity

inference,’ it will often present the dangers that Evid.R. 403(A) seeks to protect

against.” Id. at ¶ 33, quoting Gomez, 763 F.3d at 857. “Thus, when such evidence

-24- Case No. 1-22-60

is only slightly probative of a nonpropensity theory but has a high likelihood of

unfairly prejudicing the defendant or confusing or misleading the jury, the evidence

must be excluded.” Id.

{¶35} Although evidence that Ware used drugs with J.L. was prejudicial,

Ware has not demonstrated that the danger of unfair prejudice was such as to warrant

its exclusion. The evidence was directed to an issue in dispute—whether Ware

knew that J.L.’s ability to resist or consent was substantially impaired because of a

mental or physical condition. Although the prosecution had other evidence to prove

that fact, Ware knowing or having reasonable cause to believe that J.L.’s ability to

resist or consent was substantially impaired because of a mental or physical

condition was an essential element of the rape and gross sexual imposition offenses.

R.C. 2907.02(A)(1)(c); R.C. 2907.05(A)(5). Such knowledge was also relevant to

an essential element of the sexual battery offense—that Ware knew J.L.’s ability to

appraise the nature of or control her own conduct was substantially impaired. R.C.

2907.03(A)(2). In addition, the fact that Ware used drugs did not appeal to the jury’s

emotions rather than intellect. His drug use does not tend to arouse emotional

sympathies, evoke a sense of horror, or appeal to an instinct to punish.

{¶36} Contrary to what Ware asserts, the trial court reduced any danger of

unfair prejudice by issuing limiting instructions to the jury. Ware’s reliance on Bell

is misplaced. In that case, the defendant was charged with possession of crack

cocaine and marijuana with intent to distribute and possession of a firearm by a

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convicted felon. Bell, 516 F.3d at 437. A federal district court admitted into

evidence the defendant’s four prior state court convictions—two for possession of

cocaine base with intent to distribute and two for possession of marijuana with intent

to distribute—under Fed.R.Evid. 404(b) for the purpose of proving intent and

absence of mistake or accident. Id. at 437-439. The court instructed the jury it could

only consider the evidence for those purposes and that it should keep in mind that

the defendant “is on trial here only for the offenses that he is charged with in this

indictment,” that the government had “to prove its case beyond a reasonable doubt,”

and that “the defendant is not on trial for any previous act, but only for those that

are charged here in this indictment.” Id. at 439. The court gave additional similar

instructions before the jury deliberated. Id. The jury found the defendant guilty as

charged. Id.

{¶37} The Sixth Circuit Court of Appeals held that the district court erred in

concluding the evidence at issue was admissible to prove absence of mistake or

accident because the case did not present an issue of mistake or accident. Id. at 442.

The circuit court also held that the district court erred in concluding the evidence

was admissible to prove intent because the evidence was not probative of whether

the defendant intended to possess and distribute drugs in the instant case. Id. at 444.

The circuit court also found that even if the evidence had some probative value on

the issue of intent, the value was slight, and the prejudicial impact was significant.

Id. at 445-446. The circuit court found that the limiting instructions “did little to

-26- Case No. 1-22-60

abate this prejudicial impact.” Id. at 446. The circuit court explained that the

instructions “did remind the jury that [the defendant] was on trial only for the

charged offenses and not for his prior bad acts.” Id. “However, by directing the

jury to consider these acts for the purpose of ascertaining [the defendant’s] intent,

the court was implicitly approving the kind of reasoning which would suggest that

because [he] was a drug distributor in the past, the jury should consider him to have

distributed drugs in the present case.” Id. The instructions also “created the

possibility for an even greater prejudicial impact by directing the jury to consider

the evidence of [the] prior convictions for the purpose of absence of mistake, a

matter which was not even at issue in the case.” Id. at 446-447. The circuit court

found that “[s]uch confusion of the purpose of this other acts evidence was likely to

create more rather than less prejudice.” Id. at 447. Therefore, the circuit court found

that even if the prior convictions were properly admissible to demonstrate intent,

the district court erred “when it found that the highly prejudicial impact of the

evidence did not substantially outweigh the slight, if any, probative value it may

have provided.” Id. at 447.

{¶38} Like the instructions in Bell, the instructions in this case were overly

broad because they indicated the jury could consider evidence of Ware’s drug use

for purposes for which it was not relevant. However, unlike the district court in

Bell, the trial court in this case explained to the jury that it could not use the drug

use evidence “to prove the character of Mr. Ware in order to show that he acted in

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conformity with that character.” Prior to deliberations, the court again told the jury

it could not consider the evidence “to prove the character of the defendant in order

to show that he acted in conformity with that character.” The court then elaborated

on this concept, explaining that it did “not follow from the defendant’s past acts that

he committed the particular crimes that are charged in this case,” that the state had

the burden to prove each element of the crimes on trial beyond a reasonable doubt,

and that the state could not “satisfy its burden merely by implying that the defendant

committed these crimes because his other acts suggest a propensity to commit

crime.” These instructions are consistent with those recommended by Hartman.

See Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, at ¶ 71.

{¶39} Given these instructions, even if the jury was confused about how the

drug use evidence related to purposes for which we have found it irrelevant, there

could be no confusion that the jury could not consider the evidence to prove Ware’s

character in order to show that he acted in conformity with that character. “[A] jury

is presumed to follow the court’s instructions.” State v. Scott, 3d Dist. Shelby No.

17-21-10, 2022-Ohio-2723, ¶ 40, citing State v. Garner, 74 Ohio St.3d 49, 59, 656

N.E.2d 623 (1995). And the fact that the jury acquitted Ware of rape and sexual

battery suggests the guilty verdicts were not the result of improper consideration of

the drug use evidence. See generally State v. Jackson, 2023-Ohio-2193, 220 N.E.3d

868, ¶ 73 (3d Dist.) (defendant’s contention that he was prejudiced by admission of

other-acts evidence undermined by jury’s acquittal on one of the charges).

-28- Case No. 1-22-60

{¶40} For the foregoing reasons, we conclude the trial court did not err when

it admitted evidence that Ware used drugs with J.L. for the purpose of proving

Ware’s knowledge. However, we must still consider the impact of the court’s

decision to admit evidence of Ware’s drug use for other purposes for which we

found it was not relevant.

Invited Error

{¶41} The state contends that Ware invited any error in the admission of

evidence of his drug use. “The doctrine of invited error specifies that a litigant may

not ‘take advantage of an error which he himself invited or induced.’ ” State v.

Garrett, 171 Ohio St.3d 139, 2022-Ohio-4218, 216 N.E.3d 569, ¶ 203, quoting Hal

Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 590

(1986), paragraph one of the syllabus. For the doctrine to apply, the complaining

party “must have been ‘ “actively responsible” for the trial court’s error.’ ” State v.

McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 220, quoting

State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000), quoting State

v. Kollar, 93 Ohio St. 89, 91, 112 N.E.196 (1915). The Supreme Court of Ohio “

‘has found invited error when a party has asked the court to take some action later

claimed to be erroneous, or affirmatively consented to a procedure the trial judge

proposed.’ ” Garrett at ¶ 203, quoting Campbell at 324. “ ‘[M]ere “acquiescence

in the trial judge’s erroneous conclusion” ’ will not support a finding of invited

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error.” McAlpin at ¶ 220, quoting Campbell at 324, quoting Carrothers v. Hunter,

23 Ohio St.2d 99, 103, 262 N.E.2d 867 (1970).

{¶42} The state asserts that “it was the clear strategy of defense counsel to

claim that no one knew what happened that night, including the defendant, because

everyone was consuming alcohol and illicit drugs.” The state directs our attention

to the following. During opening statements, defense counsel stated that

“[e]verybody, unfortunately, was intoxicated – some using alcohol, some using

Cocaine, some Ecstasy. People were using lots of drugs and alcohol and it was out

of control.” During its direct examination of Thomas, the state asked her about

marijuana, and on cross-examination, defense counsel said, “[b]ut, it was pretty

much more than weed?” During closing arguments, defense counsel told the jury,

“More importantly, you don’t even know what went on that night and no one else

does, either.” The state also asserts that the evidence about cocaine and ecstasy

came from Ware’s interview and that when the state “sought to publish the video of

the interview, it was noted in a sidebar that defense counsel had reviewed the video,

that portions were removed, and that defense counsel had been provided a copy of

the edited video since at least the week prior to trial.” The state maintains that under

these circumstances, “it becomes clear that if any error occurred, it was invited as a

defense strategy.”

{¶43} Ware did not invite the trial court’s error in admitting evidence of his

drug use to prove opportunity, intent, or preparation and did not invite the court’s

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error in admitting evidence of his pre-party drug use to prove knowledge. The fact

that the evidence at issue came from Ware’s interview is irrelevant. Moreover,

defense counsel did not invite or induce the court to admit Ware’s statements for

irrelevant purposes by reviewing the interview footage and tacitly consenting to the

redaction of certain content. The record does suggest that part of defense counsel’s

strategy was to argue that no one knew what happened due to intoxication from

alcohol and/or drugs. But defense counsel did not induce or invite the trial court to

admit evidence of Ware’s drug use for irrelevant purposes by making a general

reference to people using drugs in opening statements, asking a question about drugs

which did not elicit any testimony that Ware used them, and arguing that no one

knew what happened during closing arguments. Ware merely acquiesced in the trial

court’s erroneous conclusion that evidence of his drug use was admissible for

purposes for which we have found it irrelevant.

Substantial Rights

{¶44} Ware claims the improper admission of evidence of his drug use

affected his substantial rights. Ware asserts that “[t]he key issue in this case was

credibility because this was, effectively, a he-said, she-said case” between him and

Thomas. Ware asserts that Thomas “had a motive to twist the evidence due to her

sexual relationship” with him and “was caught in numerous obfuscations during her

testimony.” Ware asserts that “[a]gainst that backdrop, the improper evidence of

drug use unfairly prejudiced [his] credibility by indicating that he was someone

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willing to engage in illegal activities for pleasure.” He asserts that under these

circumstances, there is a “reasonable probability that the improper evidence of drug

use affected the outcome of the trial.”

{¶45} Even if the trial court’s error in admitting evidence of Ware’s drug use

for some purposes for which it was not relevant was obvious, Ware has not shown

that there is a reasonable probability that, but for the trial court’s error, the outcome

of the proceeding would have been otherwise. As we explained above, the trial

court properly admitted evidence that Ware used cocaine and ecstasy with J.L. to

show his knowledge that J.L.’s ability to resist or consent was substantially impaired

because of a mental or physical condition. Thus, even if the trial court had not erred

by admitting evidence of Ware’s drug use for purposes for which it was not relevant,

the jury still properly heard evidence that Ware used cocaine and ecstasy under the

knowledge ruling.

{¶46} Moreover, as the state points out, the trial court could have admitted

the drug use evidence apart from Evid.R. 404(B) because it was intrinsic to the

charged offenses. “ ‘Evid.R. 404(B) only applies to limit the admission of so-called

‘other acts’ evidence that is ‘extrinsic’ to the crime charged.’ ” State v. Grant, 2023-

Ohio-2720, 223 N.E.3d 1, ¶ 57 (3d Dist.), quoting State v. Gawron, 7th Dist.

Belmont No. 20 BE 0009, 2021-Ohio-3634, ¶ 43. “ ‘In other words, “Evid.R.

404(B) does not apply when the acts are intrinsic as opposed to extrinsic, i.e., the

acts are part of the events in question or form part of the immediate background of

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the alleged act which forms the basis for the crime charged.” ’ ” Id., quoting

Gawron at ¶ 43, quoting State v. Wainscott, 12th Dist. Clermont No. CA2015-07-

056, 2016-Ohio-1153, ¶ 19. We have stated:

“When other acts are ‘inextricably intertwined’ with [an] offense, those acts are said to be intrinsic to the alleged crime. In other words, acts that are ‘inextricably intertwined’ aid understanding by ‘complet(ing) the story of the crime on trial.’ United States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008). ‘Evidence of other crimes is admissible when evidence of the other crime is so blended or connected with the crime on trial as the proof of one crime incidentally involves the other crime, or explains the circumstances, or tends logically to prove any element of the crime charged.’ State v. Long, 64 Ohio App.3d 615, 617, 582 N.E.2d 626 (9th Dist. 1989).”

(Alterations and emphasis sic.) Id., quoting State v. Stallworth, 11th Dist. Lake No.

2013-L-122, 2014-Ohio-4297, ¶ 38. “ ‘Stated differently, * * * “other acts”

evidence is inextricably intertwined with charged conduct when testimony about the

other acts is “necessary to give the complete picture of what occurred.” ’ ” (Ellipsis

sic.) Id., quoting State v. Sinclair, 2d Dist. Greene No. 2002-CA-33, 2003-Ohio-

3246, ¶ 35, quoting State v. Wilkinson, 64 Ohio St.2d 308, 318, 415 N.E.2d 261

(1980).

{¶47} Ware’s drug use was an integral part of his version of events. Ware

suggested the charged offenses did not happen because his drug use caused him to

fall asleep during the encounter. Thus, his drug use went directly to whether rape,

sexual battery, and gross sexual imposition occurred. Ware also claimed that his

drug use affected his ability to recall key information about his encounter with J.L.

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The fact that he was under the influence of drugs bore on the credibility of his

statements to law enforcement. See generally State v. Wilson, 2d Dist. Montgomery

No. 29349, 2023-Ohio-27, ¶ 64 (evidence of defendant’s drug use “was

appropriately admitted for credibility and believability purposes” because “jury was

entitled to consider extent to which [his] drug use affected his ability to recall events,

which, in turn, impacted his believability and credibility”). And as the state

suggested during closing arguments, the fact that Ware was able to recall numerous

details about what occurred but claimed he could not recall key information, like

whether he had sex with J.L., suggested that he was lying about his level of

intoxication to protect himself. See generally State v. Brodbeck, 10th Dist. Franklin

No. 08AP-134, 2008-Ohio-6961, ¶ 44, quoting State v. Robinson, 6th Dist. Lucas

No. L-06-1182, 2008-Ohio-3498, ¶ 202 (“ ‘lies told by an accused are admissible

evidence of consciousness of guilt, and thus of guilt itself’ ”). Thus, evidence of

Ware’s drug use was inextricably intertwined with the charged offenses and could

have been admitted apart from Evid.R. 404(B).

{¶48} Ware’s suggestion that there is a reasonably probability that the jury

found him guilty of offenses because it improperly inferred from the drug use

evidence that he was willing to engage in illegal activities for pleasure is not well-

taken. As discussed above, the trial court gave detailed instructions explaining that

the jury could not use the drug use evidence as propensity evidence. And we

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presume the jury followed those instructions. Scott, 3d Dist. Shelby No. 17-21-10,

2022-Ohio-2723, at ¶ 40, citing Garner, 74 Ohio St.3d at 59, 656 N.E.2d 623.

{¶49} We also observe that Ware fails to address the fact that several of his

own statements support the jury’s findings of guilt. Ware made a statement from

which one could infer that he used drugs with J.L., and he admitted that he saw J.L.

defecate on herself in the bathtub, that she needed help to get out of the bathtub, and

that she was “fucked up.” Ware told Detective Snyder that he probably touched

J.L.’s breasts, and Ware sent Thomas messages indicating that he was about to have

intercourse with J.L. when Thomas came to the bedroom.

{¶50} Ware has not shown that, had the trial court not admitted evidence of

his drug use for some improper purposes, the probability of a different result is

sufficient to undermine confidence in the outcome of the trial. Therefore, Ware has

not met his burden to show that the trial court’s error affected his substantial rights.

Summary

{¶51} The trial court did not err when it admitted evidence that Ware used

drugs with J.L. for the purpose of showing he knew that her ability to resist or

consent was substantially impaired because of a mental or physical condition. The

trial court did err when it admitted evidence of Ware’s drug use for the purpose of

showing opportunity, knowledge, and intent, and admitted evidence of his pre-party

drug use for the purpose of showing knowledge. However, this error did not rise to

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the level of plain error because Ware has not shown it affected his substantial rights.

Accordingly, we overrule the first assignment of error.

Second Assignment of Error

{¶52} In the second assignment of error, Ware contends that his “due process

rights were violated by a limiting instruction on other-acts evidence that was likely

to confuse and mislead the jury.” Ware maintains that the first limiting instruction

“was confusing and likely to mislead the jury because it merely listed several

permissible uses for the evidence of drug use without being tailored to the case.”

Ware claims that the second limiting instruction, while longer than the first, “was

actually more confusing and likely to mislead the jury on its substance.” Ware

asserts that the second instruction “again listed too many permissible uses to provide

the jury with any guidance” and was akin to telling the jury it could consider the

drug use evidence for any purpose. He asserts that the instruction “provided very

little in the way of specific tailoring” because the trial court did not explain how the

evidence might be probative of intent, preparation, or knowledge. He asserts that

the trial court “made an attempt at tailoring” with respect to the issue of opportunity.

However, he claims that the opportunity instruction was unsupported by the

evidence, which was that he used drugs before going to Kashawnna’s home, and

that opportunity “was not even an issue in the case” because it was undisputed that

he was at the home Ware claims there is “a reasonable probability that the improper

evidence of drug use affected the outcome of the trial” because, as he argued under

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the first assignment of error, “credibility was key to this case and the improper

evidence of drug use unfairly attacked [his] credibility by indicating that he was

someone willing to engage in illegal activities for pleasure.”

{¶53} “ ‘[T]he trial judge is in the best position to gauge the evidence before

the jury and is provided the discretion to determine whether the evidence adduced

at trial was sufficient to require an instruction.’ ” State v. Rentschler, 2023-Ohio-

3009, 223 N.E.3d 957, ¶ 70 (3d Dist.), quoting State v. Fulmer, 117 Ohio St.3d 319,

2008-Ohio-936, 883 N.E.2d 1052, ¶ 72. “Thus, we generally review alleged errors

in jury instructions for an abuse of discretion.” Id., citing State v. Blanton, 2015-

Ohio-4620, 48 N.E.3d 1018, ¶ 55 (3d Dist.), citing State v. Guster, 66 Ohio St.2d

266, 271, 421 N.E.2d 157 (1981). In reviewing jury instructions, “ ‘a sole

instruction must be viewed within context of the whole set rather than in isolation.’

” Id., quoting State v. Moore, 3d Dist. Putnam No. 12-06-18, 2007-Ohio-5905, ¶

26.

{¶54} Crim.R. 30(A) states that “[o]n appeal, a party may not assign as error

the giving or the failure to give any instructions unless the party objects before the

jury retires to consider its verdict, stating specifically the matter objected to and the

grounds of the objection.” When a defendant fails to object to an instruction, the

defendant forfeits all but plain error. State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-

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2470, 3 N.E.3d 135, ¶ 29. Ware’s trial counsel did not object to the jury instructions,

and Ware concedes plain error review applies.

{¶55} The Supreme Court of Ohio has explained that when a court issues a

limiting instruction with respect to other-acts evidence, “it is not realistic to simply

list all the permissible uses and expect jurors to go through each one and determine

the use for which the evidence is properly considered.” Hartman, 161 Ohio St.3d

214, 2020-Ohio-4440, 161 N.E.3d 651, at ¶ 69. “To tell the jury that a certain piece

of evidence may be considered as evidence of ‘proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident,’ Evid.R.

404(B), imparts nothing meaningful and is akin to telling the jurors that the evidence

may be considered for any purpose.” Id. “[T]he instruction should be tailored to

the facts of the case.” Id. at ¶ 70. “[C]ourts should explain, in plain language, the

purposes for which the other acts may and may not be considered.” Id. “Rather

than recounting to the jury every purpose listed in Evid.R. 404(B), our pattern jury

instructions direct trial courts to state the specific purpose for which the other-acts

evidence is being admitted in that case.” Id., citing Ohio Jury Instructions, CR

Section 401.25 (2008).

{¶56} The Supreme Court of Ohio has also stated that “jury instructions

should be tailored to better enable jurors to understand the prohibition on the use of

other-acts evidence to make inferences about the defendant’s disposition to commit

criminal acts.” Id. at ¶ 71. “ ‘Lay people are capable of understanding the

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foundational principle in our system of justice that “we try cases, rather than

persons.” ’ ” Id., quoting Gomez, 763 F.3d at 861, quoting People v. Allen, 429

Mich. 558, 566, 420 N.W.2d 499 (1988). “Rather than simply telling jurors that

they may not consider certain evidence ‘to prove the character of the defendant in

order to show that he acted in conformity with that character,’ Ohio Jury

Instructions, CR Section 401.25, the court may explain that the reason for this rule

is that ‘it does not follow from the defendant’s past acts that he committed the

particular crime charged in this case,’ Gomez at 861.” Id. “And jurors would be

well served by guidance connecting the limiting instruction to the state’s burden of

proof: the government has the burden of proving each element of this particular

crime beyond a reasonable doubt, and its burden is not satisfied by an inference that

the defendant committed this crime because his past acts suggest a propensity to

commit crimes.” (Emphasis sic.) Id., citing Gomez at 861.

Analysis

{¶57} In our discussion of the first assignment of error, we found that the

trial court did not err when it admitted evidence that Ware used drugs with J.L. to

prove knowledge. Consistent with Hartman, the trial court instructed the jury in

plain language that it could consider evidence of Ware’s drug use to determine

whether it showed he knew that J.L.’s ability to resist or consent was substantially

impaired because of a mental or physical condition. Thus, we find no error in the

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trial court’s instructions to the extent they indicated the jury could consider evidence

that Ware used drugs with J.L. to prove knowledge.

{¶58} In our discussion of the first assignment of error, we also found that

the trial court erred when it admitted evidence of Ware’s drug use to prove

opportunity, intent, and preparation, and admitted evidence of his pre-party drug use

to prove knowledge. Undoubtedly, a limiting instruction “should be given as to the

correct permissible use” of evidence. (Emphasis sic.) State v. Carlson, 2d Dist.

Champaign No. 2021-CA-43, 2022-Ohio-4548, ¶ 20. Thus, the court erred when it

instructed the jury it could consider evidence of Ware’s drug use to prove

opportunity, intent, and preparation and implied the jury could consider evidence of

his pre-party drug use to prove knowledge.

{¶59} However, even if this error was obvious, it did not rise to the level of

plain error because Ware has not shown it affected his substantial rights. Although

the instructions were overly broad, they were not akin to telling the jurors the drug

use evidence may be considered for any purpose. The trial court did not tell the jury

it could use the evidence for any of the nine purposes specifically identified in

Evid.R. 404(B). Rather, it is evident that the court tried to follow Hartman by

stating the four specific purposes for which it was admitting the evidence. Even

though the court erroneously admitted the evidence for some purposes, consistent

with Hartman, the trial court gave the jury detailed instructions explaining that it

could not use the drug evidence as propensity evidence. Therefore, even if the jury

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was confused about how the drug use evidence related to purposes for which we

have found it irrelevant, there could be no confusion that the jury could not consider

the evidence to prove Ware’s character in order to show that he acted in conformity

with that character. And as we previously explained, the jury is presumed to follow

the court’s instructions, and there is no indication it did not do so in this case.

{¶60} For the foregoing reasons, we overrule the second assignment of error.

Third Assignment of Error

{¶61} In the third assignment of error, Ware contends that indefinite prison

terms imposed under the Reagan Tokes Law violate the jury trial guarantee, the

doctrine of separation of powers, and due process principles under the federal and

state constitutions. Ware concedes his trial counsel did not raise this issue, so plain

error review applies. Ware also acknowledges his constitutional arguments are

similar to those previously rejected by this court and being considered by the

Supreme Court of Ohio in two cases which were pending at the time he filed his

appellate brief.

{¶62} The Supreme Court of Ohio has since resolved those cases in State v.

Hacker, ___ Ohio St.3d ___, 2023-Ohio-2535, ___ N.E.3d ___. The court held that

the Reagan Tokes Law does not implicate the right to a jury trial or violate the

separation-of-powers doctrine. Hacker at ¶ 25, 28. Given Hacker’s determination

of these issues, we reject Ware’s jury trial and separation-of-powers arguments.

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{¶63} Hacker also rejected the due-process challenge to the law but confined

its discussion to the Due Process Clause of the Fourteenth Amendment to the United

States Constitution because the defendants had not “mounted a separate challenge

under Ohio’s Due Course of Law Clause, Article I, Section 16 of the Ohio

Constitution.” Id. at ¶ 29, fn. 3. In this case, Ware asserts that the Reagan Tokes

Law violates both clauses. We reject Ware’s due process challenge under the

Fourteenth Amendment because Hacker is directly dispositive of it, but we must

still evaluate his due-process challenge under Article I, Section 16 of the Ohio

Constitution.

{¶64} This court has previously considered and rejected due-process

challenges to the Reagan Tokes Law based on both the Fourteenth Amendment and

Article I, Section 16 of the Ohio Constitution. See, e.g., State v. Marshall, 3d Dist.

Allen No. 1-22-70, 2023-Ohio-3751, ¶ 5-9; State v. Boedicker, 3d Dist. Allen Nos.

1-22-03, 1-22-04, 2022-Ohio-2992, ¶ 8, 23-28. “ ‘We have invariably concluded

that the indefinite sentencing provisions of the Reagan Tokes Law do not facially *

* * infringe on defendants’ due process rights.’ ” Marshall at ¶ 7, quoting State v.

Ball, 3d Dist. Allen No. 1-21-16, 2022-Ohio-1549, ¶ 59. However, it does not

appear that we have explicitly addressed whether the Fourteenth Amendment and

Article I, Section 16 of the Ohio Constitution provide equivalent protection in

considering these challenges.

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{¶65} “The Ohio Constitution is a document of independent force.” Arnold

v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the

syllabus. However, “ ‘[s]ince 1887, [the Supreme Court of Ohio] has equated the

Due Course of Law Clause in Article I, Section 16 of the Ohio Constitution with

the Due Process Clause of the Fourteenth Amendment to the United States

Constitution.’ ” Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, at

¶ 77, fn. 2, quoting State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d

883, ¶ 15. The court has stated that “[t]he ‘due course of law’ provision is the

equivalent of the ‘due process of law’ provision in the Fourteenth Amendment to

the United States Constitution.” State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504,

73 N.E.3d 448, ¶ 11. The court has also stated that it has “not held that Article I,

Section 16 of the Ohio Constitution provides broader due-process protections than

the Fourteenth Amendment to the United States Constitution.” Worley at ¶ 77, fn.

2. But see Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d

307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 34 (lead opinion) (stating that in State v.

Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶ 23-24, the court held

that Ohio’s “ ‘due course of law’ provision afforded a juvenile a broader right to

counsel than that afforded by the Due Process Clause of the United States

Constitution”).

{¶66} Ware does not argue the Due Course of Law Clause provides greater

protection than the Fourteenth Amendment Due Process Clause in the context of the

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Reagan Tokes Law. Given the Supreme Court of Ohio’s statements in Worley,

Aalim, and Hand, we conclude they are equivalent. Consequently, Hacker is

indirectly dispositive of Ware’s due-process challenge under Article I, Section 16,

of the Ohio Constitution, and we reject it.

{¶67} Indefinite prison terms imposed under the Reagan Tokes Law do not

violate the jury trial guarantee, the doctrine of separation of powers, or due process

principles under the federal and state constitutions. Therefore, Ware has not shown

that the trial court erred, let alone committed plain error, when it imposed an

indefinite prison term on Count One under the Reagan Tokes Law. Accordingly,

we overrule the third assignment of error.

Conclusion

{¶68} Having overruled the assignments of error, we affirm the trial court’s

judgment.

ZIMMERMAN and MILLER, J.J., concur.

/hls

**Judge Michael D. Hess of the Fourth District Court of Appeals, sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.

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