[Cite as State v. Zolikoff, 2025-Ohio-5040.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114660 v. :
MARK ZOLIKOFF, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED, VACATED, AND REMANDED RELEASED AND JOURNALIZED: November 6, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-686772-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Omar Siddiq, Assistant Prosecuting Attorney, for appellee.
Allison F. Hibbard, for appellant.
LISA B. FORBES, P.J.:
Mark Zolikoff (“Zolikoff” or “Defendant”) appeals his convictions for
two counts of gross sexual imposition (or “GSI”). For the reasons below, we reverse
the trial court’s decision, vacate Zolikoff’s convictions and prison sentence, and remand this case to the trial court for further proceedings consistent with this
opinion.
I. Facts and Procedural History
A. Before Trial
On November 22, 2023, Zolikoff was indicted on two counts of GSI, a
third-degree felony in violation of R.C. 2907.05(A)(4). The indictment alleged that,
“[o]n or about June 1, 2022 to January 4, 2023 . . . [Zolikoff] did have sexual contact”
with the alleged victim, V.S., by touching her vagina “over her clothing” and “under
her clothing, over her underwear.” V.S. was under the age of 13 at the time of the
acts alleged.
The case proceeded to a jury trial on November 12, 2024, eliciting the
following testimony pertinent to this appeal.
B. Trial Testimony
1. Shannon Hanrahan
State’s witness Shannon Hanrahan (“Hanrahan”) testified that she
worked for the Cuyahoga County Division of Children and Family Services
(“CCDCFS”) as a child protection specialist. She interviewed several individuals
regarding alleged sexual abuse of V.S.
Hanrahan interviewed V.S. twice. The State played videos of both
interviews for the jury, and the court admitted these videos into evidence. Hanrahan
testified that, during the first interview, V.S. claimed “that no one had touched her
inappropriately.” A video of the interview shows V.S. describe playing games with Zolikoff and his daughter, A.Z. V.S. said that they played in the basement of the
Zolikoff family’s house (“the House”), at times with the lights off. They would
sometimes pretend to sleep on mattresses in the basement. In the video, V.S. states
that Zolikoff would hug her “goodnight” during these games. She denied that he
touched her anywhere else on her body, including when Hanrahan asked about
V.S.’s “private parts.”
Hanrahan interviewed V.S. again on March 3, 2023. A video of the
interview shows V.S. state that Zolikoff had touched her “inappropriately” and “put
. . . his hand on my privates.” V.S. said that this occurred while A.Z., she, and Zolikoff
played “sleep” or “family.” V.S. also said that Zolikoff touched her both on top of her
pants and on top of her underwear. Hanrahan testified that V.S. “pointed to her
vagina,” during the interview when discussing where Zolikoff touched her.
On cross-examination, Hanrahan agreed that some of the questions
she asked V.S. did not comport with her training. Hanrahan agreed that, at one
point, she had asked V.S. multiple questions in a row without waiting for an answer.
These questions concerned whether V.S. was scared. Hanrahan agreed that she had
also asked V.S. multiple leading questions about where V.S. and Zolikoff had been
in the House when he touched her.
2. Officer Dan Nutaitis
State’s witness Officer Dan Nutaitis (“Ofc. Nutaitis”) testified that he
was a patrolman for the Olmsted Township Police Department. Ofc. Nutaitis
testified that, on February 22, 2023, V.S.’s father reported “[a] possible sexual assault” of V.S. Ofc. Nutaitis “opened a claim” with CCDCFS using its child abuse
phone hotline and provided information about the case to a detective “for follow-
up.”
3. Detective Howard Heathcoat
State’s witness Detective Howard Heathcoat (“Det. Heathcoat”)
testified that he investigated this case for the Olmsted Township Police Department.
He was present for both of V.S.’s interviews and photographed the House, including
the basement. His photos were admitted into evidence and depict a rock-climbing
wall, “cargo nets” hanging from the ceiling, and mattresses on the floor beneath
them.
4. J.S.
State’s witness J.S., V.S.’s mother, testified that V.S. was friends with
A.Z. V.S. and A.Z. played together at the House, “[e]very day.” J.S. had watched the
girls play, but not at the House with Zolikoff.
J.S. testified that, beginning in January 2023, V.S. stopped going to
the House. J.S. testified that V.S. “would sleep a lot” and seemed “nervous,
irritable.” Around the same time, Zolikoff would “look the other way” around J.S.’s
family and “would not say hi.”
In February 2023, J.S., V.S., and V.S.’s father attended a party at a
bowling alley. Zolikoff was present. V.S. was “very tense” and “started crying.”
J.S. testified that she took V.S. to both of her interviews with
Hanrahan. She brought V.S. back for a second interview because, during the first interview, “she did not declare” what had happened. “She did not say it.” J.S. did
not tell V.S. what to say during her interviews but instructed her to tell the truth.
5. V.S.
State’s witness V.S. testified that she was 11 years old and had been
nine when the alleged abuse occurred. She had been friends with Zolikoff’s
daughter, A.Z. V.S. and A.Z. had played together “[a]round every day,” in the
House’s basement or in A.Z.’s bedroom. Zolikoff was present “fairly often.” V.S.
testified that she, A.Z., and Zolikoff played games, including “family” or “kitchen.”
Zolikoff let V.S. play “one or two” phone games that her parents did not let her play.
He also occasionally bought her “toys,” “like really small things,” when they shopped
with A.Z.
Regarding whether Zolikoff touched her inappropriately, V.S.
testified as follows:
Q: Did anyone ever touch you on a private part?
A: (Indicating).
Q: Is that a yes?
A: Yes.
Q: And who did that?
A: The dad.
Q: And that would be Mark Zolikoff?
...
Q: And if I used the word vagina, would that be the correct area? A: Yes.
Q: How did he touch you?
A: His hands.
Q: And was that over the clothes, under the clothes . . .?
A: I’m not sure.
Q: Do you remember how many times it happened?
A: No.
Q: More than once?
V.S. testified that she “stopped going” to the House because Zolikoff
continued touching her. Eventually, V.S. told her parents that Zolikoff had touched
her inappropriately.
V.S. testified about her interviews with Hanrahan. She did not
disclose inappropriate touching during her first interview. She told her parents this
was because the cameras in the interview room made her uncomfortable. V.S.
testified that she told the truth in the second interview.
6. Isabella Zolikoff
State’s witness Isabella Zolikoff (“Isabella”) testified that she was a
college student and Defendant’s 22-year-old daughter. Before trial, a CCDCFS social
worker and a police officer interviewed Isabella. The State played a video recording of the interview and questioned Isabella about statements therein. The State did not
move for this video to be admitted into evidence.
Isabella returned to the House during academic breaks. She had seen
V.S. at the House but denied playing with her and Zolikoff in the basement. Isabella
denied that Zolikoff would meet her at the basement door if she tried to go down the
stairs. She admitted that she told the social worker and police officer that he had
done this. Isabella denied that she had seen V.S. and Zolikoff touching. She had
seen them lay in “proximity” “on opposite ends of the couch.” Isabella admitted that
she stated during her interview that she had seen V.S. put her head on Zolikoff’s
shoulder. Isabella attributed inconsistencies between her testimony and interview
statements to her difficult relationship with her father, discomfort during the
interview, mental-health issues, and misapplication of psychological concepts that
she was studying in college around the time she was interviewed.
Isabella also testified about Zolikoff’s behavior around her friends.
Some of these events occurred “like 14 years ago.” Regarding whether Zolikoff had
touched her friends, Isabella testified as follows:
Q: Do you remember any crossing of boundaries or lines that you witnessed as a child growing up from your father to your friends?
Q: So like touching, for instance. What you might consider a touch from your father to one of your friends that crossed a boundary or a line?
A: I did report that in my statement, yes. Isabella further testified, “I only had one friend that said . . . that
[touching] happened between my dad and her.” Isabella also observed an
underaged girl sitting with Zolikoff and “her leg was on his thigh.” “I didn’t ask any
questions. I left the room. I was uncomfortable.” She denied having seen Zolikoff
put his hand on one of her friend’s “butts.” Isabella admitted that, during her
interview, she claimed that he had done this.
Isabella testified about whether Zolikoff had played games with her
friends during her childhood. Isabella stated that Zolikoff would “h[a]ng out
downstairs in the basement” with them. He did not play “family.” Isabella admitted
telling the social worker and police officer that Zolikoff played other games with her
and her friends. Isabella denied that these games “often” took place in the dark but
said “there were occasions.” She did not remember stating during her interview that
“all the games were played in the dark” but testified, “If [the video] said that I said
it, then yes, to them I said all the games were played in the dark.” She testified that
the rock wall in the basement was built around January 2023, after she was in
college.
Isabella testified about whether Zolikoff had given gifts to her friends.
She explained that “my dad traveled a lot” and “would bring home gifts for me” and
“I could give those out to my friends as needed or as wanted . . . .” At trial, Isabella
initially did not recall that Zolikoff had purchased gifts for her friends without also
doing so for her. She later acknowledged that this had happened. Isabella testified about whether Zolikoff had interacted with her
friends by phone. She testified that Zolikoff did not have a Snapchat account “to
[her] knowledge.” She denied seeing a Snapchat conversation between Zolikoff and
any of her friends but testified that “[a] friend told me about it.” She admitted that
she told the social worker and police officer that she had seen a Snapchat
conversation between Zolikoff and a friend of hers.
7. Defendant
Testifying in his own defense, Zolikoff described his relationship with
Isabella. During Isabella’s childhood, Zolikoff had worked for a “large . . . staffing
firm” that required him to travel “very frequently,” including to trade shows. He and
Isabella “really had no bond because I wasn’t around.” Zolikoff gave Isabella and
his other children gifts that he collected while traveling. These gifts included “a
keychain from every state, every country that I went to” and items that he received
at trade shows, including “shirts, keychains” and other “free stuff.” He denied giving
these items to friends of Isabella or friends of his other children.
Zolikoff testified about his relationship with Isabella’s friends. He did
not recall taking Isabella and a friend to shop at Target. He also denied having a
Snapchat account. Zolikoff interacted with Isabella’s friends in the House’s
basement “if they needed help or needed something set up” but did not remember
playing “family” or other games with them. He denied that he had allowed a friend
of Isabella’s to sit with her leg on his thigh. He also denied touching one of Isabella’s
friend’s buttocks. Zolikoff also testified about his relationship with V.S. He denied
playing “role-playing games” with her and A.Z. “[I]f they would ask me for help or
ask me to set up a game or ask to play, then I may participate.” He lent his cell phone
to V.S. and A.Z. “[o]ccasionally.” A.Z. had “one of our old phones” so that she could
play “Roblox,” a video game. If the children “want[ed] to play [Roblox] together, we
may let them use one of our phones.”
Zolikoff testified about an incident regarding V.S.’s use of his cell
phone that occurred in November 2022. V.S. and A.Z. asked Zolikoff to give them
his phone so that they could use it to play Roblox. He gave the children his phone
and ate dinner with his wife. Later, Zolikoff went to retrieve the phone. He “saw
that [V.S.] had my phone in her hand” and “her other hand inside of her jeans.”
Zolikoff “grabbed the phone,” which displayed “[t]wo women engaging in a sexual
activity.” He then told V.S. “to leave.” V.S. “started crying, got up, and left quickly.”
Zolikoff and his wife did not “make a decision that [V.S.] could no longer play with
[A.Z.],” but he “never saw [V.S.]” come back to the House. Zolikoff did not discuss
this incident with V.S.’s parents.
Regarding whether he touched V.S. inappropriately, Zolikoff testified
as follows:
Q: [D]id you ever touch [V.S.]’s —
Q: — vagina?
A: No. Q: Did you ever touch her vagina on the outside of her clothes?
Q: Did you ever touch her vagina over the underpants, but underneath her pants?
C. After Trial
On November 15, 2024, the jury found Zolikoff guilty of both counts
of gross sexual imposition.
On November 19, 2024, the trial court sentenced Zolikoff to 48
months in prison on both counts of GSI, to run concurrently with each other for an
aggregate prison term of 4 years. The court also advised Zolikoff of his duty to
register as a Tier II sex offender.
Zolikoff appealed, raising the following assignments of error:
1. The trial court erred in permitting the video interviews of the alleged victim to be played to the jury and admitted into evidence.
2. The trial court erred in permitting hearsay testimony pursuant to Evid.R. 803(4).
3. The trial court erred in permitting 404(B) evidence.
I. Law and Analysis
We begin and end our analysis with Zolikoff’s third assignment of
error, because it is dispositive of this case. We render no opinion on Zolikoff’s other
assignments of error. A. Assignment of Error No. 3 — Admission of Isabella’s Testimony About Zolikoff’s “other acts” Violated Evid.R. 404(B)
The trial court erred by admitting Isabella’s testimony about
Zolikoff’s interactions with her friends. Isabella’s testimony concerned Zolikoff’s
“other acts” under Evid.R. 404(B)(1) and was not admitted for a permissible purpose
under Evid.R. 404(B)(2). Admission of her testimony affected Defendant’s
substantial rights under Crim.R. 52(A), requiring a new trial.
“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.” Evid.R. 404(B)(1). “[P]roof 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, 2020-Ohio-4440, ¶ 20, quoting State v. Curry, 43 Ohio St.2d 66,
68 (1975).
“Evid.R. 404(B) provides a nonexhaustive list of the permissible
nonpropensity purposes for which other-acts evidence may be introduced.”
Hartman at ¶ 26. Such evidence may be admitted to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Evid.R. 404(B)(2).
“[I]t is ‘not enough for the proponent of the other-act evidence simply
to point to a purpose in the “permitted” list and assert that the other-act evidence is
relevant to it.’” Hartman at ¶ 23, quoting United States v. Gomez, 763 F.3d 845,
856 (7th Cir. 2014) (en banc) (applying Fed.R.Evid. 404(b), which is substantively analogous to Ohio’s Evid.R. 404(B)). “The rule is concerned not only with the
ultimate justification for admitting the evidence but also ‘with the chain of reasoning
that supports the non-propensity purpose for admitting the evidence.’” Id., quoting
id. “To properly apply the rule, then, courts must scrutinize the proponent’s logic to
determine exactly how the evidence connects to a proper purpose without relying on
any intermediate improper-character inferences.” Id., citing id.
“The admissibility of other-acts evidence pursuant to Evid.R. 404(B)
is a question of law.” Hartman, 2020-Ohio-4440, at ¶ 22. “[C]ourts apply a de novo
standard when reviewing issues of law.” Johnson v. Abdullah, 2021-Ohio-3304,
¶ 38. “‘De novo review encompasses an independent examination of the record and
law without deference to the underlying decision.’” Torres v. Concrete Designs, Inc.,
2019-Ohio-1342, ¶ 48 (8th Dist.), quoting Gateway Consultants Group, Inc. v.
Premier Physicians Ctrs., Inc., 2017-Ohio-1443, ¶ 22 (8th Dist.).
Once a proponent of other-acts evidence has shown that the evidence
is admissible, i.e. offered for a permissible purpose, “the trial court must determine
whether the proffered evidence . . . is nevertheless more prejudicial than probative.”
Hartman at ¶ 29, citing State v. Williams, 2012-Ohio-5695, ¶ 20. Other-acts
evidence is excluded when its probative value “‘is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the jury.’”
Hartman, quoting Evid.R. 403(A). The trial court has discretion whether to admit
other-acts evidence that is offered for a permissible purpose. Id. at ¶ 30. Evidence that a defendant “committed a prior sexual abuse ‘is
precisely the propensity inference that 404(B) forbids’ in a subsequent sexual abuse
case.” State v. Kramer-Kelly, 2023-Ohio-1031, ¶ 75 (8th Dist.), quoting Hartman
at ¶ 63. The defendant in Hartman was charged with rape. Hartman at ¶ 1. The
trial court improperly admitted testimony that, four years prior, the defendant had
molested his former stepdaughter. Hartman at ¶ 15, 18.
Like Hartman, this case concerns sexual abuse allegations and
testimony that Defendant had touched other children, years in the past. During the
State’s case-in-chief, Isabella testified about Zolikoff touching her friends. Some of
these events occurred “like 14 years ago,” before V.S. was born. A friend told Isabella
that Zolikoff had touched her inappropriately. Isabella observed an underaged girl
sitting with “her leg on [Zolikoff’s] thigh,” which made her “uncomfortable.” Though
at trial she did not recall seeing Zolikoff put his hand on one of her friend’s “butts,”
she admitted that she told the social worker and police officer that this had
happened.
Isabella also testified regarding other aspects of Zolikoff’s
relationship with her friends. Zolikoff played games with Isabella’s friends and gave
them gifts. Isabella admitted that she reported during her interview that Zolikoff
had interacted with her friends using social media.
The State argues that Isabella’s testimony was properly admitted for
the purpose of showing preparation or plan, motive, or lack of mistake or accident,
which Evid.R. 404(B)(2) allows. We disagree. 1. Isabella’s Testimony was not Admissible for any Permissible Purpose Under Evid.R. 404(B)(2)
a. Preparation or Plan
Isabella’s testimony was not admissible to show that Zolikoff
prepared or planned to abuse V.S. Evidence is admissible for these purposes where
defendant’s “other acts are linked to the present crime because they are carried out
in furtherance of the same overall plan.” Hartman, 2020-Ohio-4440, at ¶ 40. “The
other acts . . . are typically either part of the ‘same transaction’ as the crime for which
the defendant is on trial or they are part of a ‘sequence of events’ leading up to the
commission of the crime in question.” (Citations omitted.) Hartman at ¶ 41. “A
defendant’s plan might be demonstrated through evidence of ‘prior preparatory
acts,’ such as the prior theft of an instrumentality used in the commission of the
current crime.” (Citations omitted.) Hartman at ¶ 42.
In Hartman, evidence that the defendant molested his stepdaughter
was inadmissible to show preparation or plan to rape a different person. Hartman
at ¶ 47. “[Defendant’s] molestation of his stepdaughter four years prior was not
linked to any overarching plan to commit rape against [the latter alleged victim].”
Id.
Similarly, Zolikoff’s alleged touching of and close relationships with
Isabella’s friends did not further an overall scheme to abuse V.S. Nothing in the
record shows that Zolikoff planned or prepared to develop a relationship with V.S.
by spending time with Isabella’s friends. V.S. was friends with A.Z., not with
Isabella. The events Isabella described happened as many as 14 years prior to trial, at which point V.S. had not been born. Isabella’s testimony was not admissible to
show that Zolikoff planned or prepared to abuse V.S. through relationships he had
with Isabella’s friends years before the acts for which he was convicted.1
b. Motive
Isabella’s other-acts testimony was not admissible to show Zolikoff’s
purported motive to abuse V.S. “Motive evidence establishes that the accused had a
specific reason to commit a crime.” Hartman, 2020-Ohio-4440, at ¶ 48. “For
instance, ‘if the state argues that a defendant committed murder to cover up an
earlier crime, evidence of that earlier crime may be admitted to show the motive
behind the murder.’” Id., quoting State v. Cobia, 2015-Ohio-331, ¶ 19 (1st Dist.).
In Hartman, evidence that the defendant molested his stepdaughter
was inadmissible to show motive. Hartman at ¶ 49. Defendant’s prior “molestation
of his . . . stepdaughter d[id] not reveal a specific reason for raping [the latter alleged
victim] and thus d[id] not provide evidence of any motive to commit rape beyond
that which can be inferred from the commission of any rape.” Id., citing Curry, 43
1 The State does not argue that Isabella’s testimony was admissible to show Zolikoff’s
modus operandi. However, noting that “preparation or plan” and “modus operandi” are often conflated, the Hartman Court analyzed both. Hartman at ¶ 40. Modus operandi evidence shows “shared characteristics” between acts “that make the conduct unique to the perpetrator.” Id. The record does not demonstrate that Zolikoff employed a unique method of abuse against both Isabella’s friends and V.S. Isabella denied that Zolikoff played “family” with her friends and did not testify that inappropriate touching of her friends resulted from playing games in the basement with Zolikoff. Her testimony also demonstrates that the climbing area — which included the mattresses on which Zolikoff allegedly laid with V.S. — was built after any alleged inappropriate conduct between Zolikoff and Isabella’s friends. Ohio St.2d at 71 (“A person commits or attempts to commit statutory rape for the
obvious motive of sexual gratification. . . .”).
As in Hartman, evidence that Zolikoff touched and had close
relationships with Isabella’s friends showed no motive to abuse V.S. “beyond that
implicit in the commission of the offense itself” — i.e., sexual arousal or gratification.
Hartman at ¶ 50. See R.C. 2907.01(B) defining “sexual contact” for purposes of GSI
as “touching of an erogenous zone of another . . . for the purposes of sexually
arousing or gratifying either person.” See also State v. Tate, 2013-Ohio-370, ¶ 18
(8th Dist.), quoting State v. Astley, 36 Ohio App.3d 247, 250 (10th Dist. 1987)
(Sexual contact for purposes of GSI “‘contemplate[s] any touching of the described
areas’” in R.C. 2907.01(B), “‘which a reasonable person would perceive as sexually
stimulating or gratifying.’”). Isabella’s testimony was not relevant to any specific
reason Zolikoff had to engage in inappropriate conduct with V.S. other than that
inherent to GSI. Her testimony was, therefore, inadmissible as evidence of
Defendant’s motive.
c. Lack of Mistake or Accident
Isabella’s testimony was also inadmissible to show that Zolikoff’s
alleged abuse of V.S. was not a mistake or accident. “[A]bsence-of-mistake evidence
is often closely linked to intent; to be probative of intent, such evidence must be
sufficiently similar to the crime charged.” State v. Smith, 2020-Ohio-4441, ¶ 45,
citing Hartman, 2020-Ohio-4440, at ¶ 53. “The logical theory on which such evidence is premised is that when circumstances arise often enough, it becomes
substantially less likely that they have arisen by chance.” Id.
The Ohio Supreme Court has stated that, where a defendant admitted
touching his daughter’s buttock while giving her a backrub but denied doing so for
the purpose of sexual gratification, “testimony from an older daughter that her
father’s backrubs were a pretext for sexual fondling was relevant to show that the
defendant had touched his younger daughter for the purpose of sexual gratification.”
Smith at ¶ 46, discussing State v. Schaim, 65 Ohio St.3d 51 (1992).
Similarly, in Smith, the Court compared defendant’s alleged
molestation of his granddaughter to testimony that he had previously molested his
daughter, finding the latter admissible to show lack of mistake under
Evid.R. 404(B). The Court found that the defendant’s “relationship to the victims,
the manner in which he touched them, the location and environment in which the
abuse occurred, and his priming of the children by showing them pornography
depicting oral sex — were so similar as to strongly suggest that an innocent
explanation is implausible.” (Cleaned up.) Id.
By contrast, Zolikoff’s behavior around Isabella’s friends was not so
similar to that alleged by V.S. that it is admissible to show that the latter conduct did
not occur by mistake or accident. V.S. claimed that Zolikoff touched her in the
basement while playing “family” or “sleep.” Isabella denied that Zolikoff played this
game with her and her friends. She did not testify that her friends playing games in
the basement with Zolikoff led to inappropriate touching. She also testified that the climbing area — which included the mattresses on which Zolikoff allegedly laid with
V.S. — had been built in January 2023, after any alleged inappropriate conduct
between Zolikoff and Isabella’s friends.
Further, the “nonpropensity purpose for which [other-acts] evidence
is offered must go to a ‘material’ issue that is actually in dispute between the parties.”
Hartman, 2020-Ohio-4440, at ¶ 27, quoting Huddleston v. United States, 485 U.S.
681, 686 (1988). Intent is not a material issue for other-acts purposes unless it is
genuinely disputed. Hartman at ¶ 55. “[I]ntent evidence is not admissible . . . when
intent is not in issue at all, such as when the defense theory is that the act never
occurred.” Id.
Zolikoff’s intent to touch V.S. was not at issue. Zolikoff did not argue
that he touched V.S.’s vagina by accident or mistake; rather, he testified that he had
not done so at all. Isabella’s testimony was, therefore, inadmissible to negate the
possibility that Zolikoff had touched V.S. by mistake or accident. See State v.
Thompson, 2020-Ohio-5257, ¶ 40 (8th Dist.) (“[Criminal defendant] did not claim
that the harm done . . . was a result of a mistake or accident; thus, the other acts were
not admissible to demonstrate intent.”).
The trial court erred by admitting Isabella’s other-acts testimony,
which served no permissible purpose under Evid.R. 404(B). Because we have
determined that the other-acts evidence was inadmissible, we do not reach the
question of whether the trial court abused its discretion in admitting the evidence
pursuant to Evid.R. 403. 2. Admission of Isabella’s Prejudicial Testimony Deprived Zolikoff of Substantial Rights Under Crim.R. 52(A)
Having found that the trial court erred by admitting Isabella’s other-
acts testimony, we next determine whether doing so affected Zolikoff’s substantial
rights, requiring a new trial. We find that it did. Under Crim.R. 52(A), “[a]ny error,
defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.” We decide whether erroneous admission of evidence affected a
defendant’s substantial rights and requires a new trial using the following test:
“‘First, it must be determined whether the defendant was prejudiced by the error, i.e., whether the error had an impact on the verdict. Second, it must be determined whether the error was not harmless beyond a reasonable doubt. Lastly, once the prejudicial evidence is excised, the remaining evidence is weighed to determine whether it establishes the defendant's guilt beyond a reasonable doubt.’”
(Cleaned up.) State v. Mills, 2022-Ohio-4010, ¶ 68 (8th Dist.), quoting State v.
Harris, 2015-Ohio-166, ¶ 37.
“‘[W]hile courts may determine prejudice in a number of ways and
use language that may differ, . . . both the nature of the error and the prejudice to
the defendant (the measure of how the error affected the verdict) are important.’”
State v. Jones, 2023-Ohio-380, ¶ 141 (8th Dist.), quoting State v. Morris, 2014-
Ohio-5052, ¶ 25, 33. “Error in the admission of evidence is harmless beyond a
reasonable doubt when there is no reasonable possibility that the improperly
admitted evidence contributed to the conviction.” (Cleaned up.) Lakewood v.
Smith, 2025-Ohio-2447, ¶ 16 (8th Dist.). See State v. McKelton, 2016-Ohio-5735,
¶ 192. “[T]he cases where imposition of harmless error is appropriate must
involve either overwhelming evidence of guilt or some other indicia that the error
did not contribute to the conviction.” (Cleaned up.) Morris at ¶ 29. The reviewing
court’s role in considering the remaining evidence “is not to sit as the supreme trier
of fact, but rather to assess the impact of . . . erroneously admitted testimony on the
jury.” Id.
This court has found the introduction of evidence that a defendant
previously pled delinquent to gross sexual imposition to be prejudicial in a rape case.
In re C.T., 2013-Ohio-2458, ¶ 35 (8th Dist.) (vacating adjudication of delinquency
for rape where court erred in admitting other-acts evidence under Evid.R. 404(B)).
This court stated:
Both parties in this case testified that sexual activity occurred. C.T. testified that K.W. consented. K.W. testified she did not. This is a classic “he said she said” case, and the entire case hinges on the parties’ credibility. The admission of evidence showing C.T. had previously engaged in unconsented sexual conduct certainly tips the scales of credibility in favor of the prosecution’s claim.
We cannot say that there is no reasonable possibility that the
improperly admitted evidence contributed to Zolikoff’s conviction. Isabella testified
that, during her childhood, she observed Zolikoff touch her friends and heard
rumors that he had done the same. There is a reasonable possibility that Isabella’s
testimony contributed to Zolikoff’s conviction here for similar conduct – touching a
child. Again, nothing in the record indicates that Zolikoff’s purported acts regarding Isabella’s friends showed his motive, preparation or plan, or lack of accident or
mistake in relation to V.S. Absent such purposes, the only inference the jury could
have drawn from Isabella’s testimony was that which Evid.R. 404(B) prohibits –
that Zolikoff had a propensity to touch children improperly and likely did so here.
As in In re: C.T., this case was a “he said, she said” that turned on the
jury’s assessment of the complaining witness and the defendant. Zolikoff denied
that he touched V.S.’s vagina. Isabella’s erroneously admitted testimony that he had
touched her friends likely damaged the jury’s view of his credibility on that claim.
A reasonable jury could have found that the State’s case — less
Isabella’s testimony — did not prove Zolikoff’s guilt beyond a reasonable doubt. V.S.
denied that anyone had touched her inappropriately during her first interview,
which was admitted into evidence. None of the other State’s witnesses testified that
they had observed Zolikoff touch V.S.’s vagina.
The State argues that Isabella’s other-acts testimony was of limited
prejudicial effect. The State points out that the prosecution told the jury during
closing arguments that the only purpose of this testimony was to show absence of
mistake or accident and motive. We do not agree. The State’s commentary did not
cure the prejudicial impact of Isabella’s testimony, and even a limiting instruction
from the court might not have. “In a case where the evidence is of a particularly
inflammatory nature, a curative instruction may be insufficient to cure the
prejudicial effect.” Mills, 2022-Ohio-4010, at ¶ 71 (8th Dist.), quoting State v.
Hernandez, 2019-Ohio-5242, ¶ 37 (8th Dist.). And regardless of the State’s closing argument, the court did not issue a limiting instruction concerning Isabella’s other-
acts testimony.
Accordingly, Zolikoff’s third assignment of error is sustained.2
Because Isabella’s other-acts testimony was admitted erroneously
under Evid.R. 404(B) and affected Zolikoff’s substantial rights under Crim.R. 52(A),
Zolikoff is entitled to a new trial. On remand, the trial court may not permit Isabella
to provide the other-acts testimony addressed above.
Having sustained Zolikoff’s third assignment of error, his other
assignments of error are rendered moot, pursuant to App.R. 12(A)(1)(c).
Judgment reversed, convictions and sentence vacated, and case
remanded to the trial court for a new trial consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
2 Having found that the court erred by admitting Isabella’s testimony regarding
Zolikoff’s other acts, we decline to address Zolikoff’s argument that the State failed to provide reasonable notice of intent to introduce other-acts evidence, which Evid.R. 404(B)(2)(a)-(c) requires. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, PRESIDING JUDGE
MARY J. BOYLE, J., and DEENA R. CALABRESE, J., CONCUR