In a decision announced September 7, the First District Court of Appeals vacated the conviction of a Cincinnati man for possession of criminal tools based on a finding that the trial court improperly admitted “other acts” testimony by a police officer about the officer’s previous arrest of the same defendant for possession of stolen property.

In a decision authored by Judge Penelope R. Cunningham, the court of appeals overturned the conviction of Dionte Dorsey for possession of criminal tools.  Dorsey was stopped by Cincinnati Police Officer Ron Schultz after midnight on October 27, 2010 while walking with his brother shortly after Schultz received a radio call that two male suspects matching the brothers’ descriptions had just stolen food items from a nearby convenience store.

Schultz testified at trial that when Dorsey saw the officer approaching, he dropped on the ground food items including a bag of chips, and also discarded  a roofer’s hammer. After placing Dorsey under arrest, Schultz searched his pockets and found two screwdrivers.  Dorsey admitted that he had discarded the food items, but denied throwing down the hammer and declined to answer Schultz’s questions as to why he was carrying the screwdrivers. Dorsey was charged with theft and possession of criminal tools. 

Appearing as the state’s only witness at trial, Schultz testified that in many automobile thefts that he had investigated through the years, a screwdriver had been shoved into the stripped steering column and used to start the car, and a hammer had been found on the floor board. Schultz also testified, over Dorsey’s objection, that he had had contact with Dorsey sometime in the summer of 2010, when he had “charged” him with receiving stolen property for being in a stolen automobile with a stripped steering column. The officer admitted on cross -examination that he had not observed Dorsey breaking into an automobile on October 27, 2010, that he was not aware that an automobile theft had been attempted or had occurred on that date, and that he had never known anyone to use a screwdriver or hammer to steal food from a store shelf.

After Schultz’s testimony, Dorsey moved for acquittal.  The trial court overruled his motion and convicted him of possessing criminal tools. Dorsey appealed, arguing that the trial court had erred by admitting Schultz’s challenged testimony about his prior arrest for a crime unrelated to the convenience store theft. Dorsey also asserted that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence.

In a 3-0 decision, the First District noted that under Ohio Evidence Rule 404, evidence or testimony disclosing a defendant’s “other acts, crimes or wrongs” is not admissible in a subsequent criminal trial except under limited circumstances not present in this case.

Judge Cunningham wrote: “At trial, the state argued that the other-acts testimony was probative of Dorsey’s intent to use the hammer and screwdrivers for a criminal purpose—an element of the offense of possessing criminal tools—and, therefore, admissible as an exception set forth in Evid.R. 404(B). The trial court implicitly agreed and admitted the evidence over Dorsey’s objection.”

“But the challenged testimony was not probative of the statutory inference set forth in R.C. 2923.24(B)(3), because it did not demonstrate the circumstances under which Dorsey possessed the hammer and screwdrivers in late October 2010. Further, the testimony involved Dorsey’s mere presence in a stolen automobile with a stripped steering column one-to-four months before Schultz found him in possession of the hammer and screwdrivers. Dorsey was not ‘charged’ with automobile theft at that time and there was no testimony that anyone, including Dorsey, had used a screwdriver or hammer to steal that automobile. At best, the state’s theory of relevance involved an impermissible inference upon an inference.”

“As such, it was not admissible to demonstrate Dorsey’s intent or for any of the purposes recognized in Evid.R. 404(B), especially without any nexus between those facts and Dorsey’s possession of the articles in late October 2010. From the record before us, we are unable to discern a sound reasoning process to support the trial court’s admission of Schultz’s testimony. Therefore, we conclude that the court’s decision to admit the challenged testimony was unreasonable and an abuse of discretion.”

The court went on to find that, absent Schultz’s improper other-acts testimony, the state had not produced evidence sufficient to show beyond a reasonable doubt that on the night of his arrest Dorsey possessed the hammer and screwdrivers with a purpose to commit any crime. Accordingly, Judge Cunningham concluded: “We reverse the judgment of conviction, and we discharge Dorsey from further prosecution for possession of criminal tools.”

State v. Dorsey, 2012-Ohio-4043
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2012/2012-ohio-4043.pdf Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Defendant Discharged
Date of Judgment Entry on Appeal: September 7, 2012

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