Summary
In Graham, the Ohio Supreme Court held that the past history of sexual activity between the defendant and the victim is not a material issue of fact unless the defense of consent is raised.
Summary of this case from State v. YenserOpinion
No. 78-1278
Decided June 13, 1979.
Criminal law — Rape — Evidentiary hearing — Admissibility of victim's past sexual activity with accused — R.C. 2907.02(D), construed.
APPEAL from the Court of Appeals for Licking County.
On September 23, 1977, appellee, Jeff Graham, was indicted upon a charge that, on or about September 10, 1977, he purposely compelled an adult female to submit to sexual conduct with him by force or threat of force, in violation of R.C. 2907.02.
Pursuant to the provisions of R.C. 2907.02(E), an evidentiary hearing was held to determine the admissibility of evidence of alleged past sexual relations between the victim and appellee. Appellee proposed to testify at his trial that he engaged in sexual relations with the victim approximately one year before the alleged rape. The stated purpose of this evidence was to demonstrate that force would not have been necessary had appellee been involved in the commission of the crime. The admissibility of the evidence was contested by appellant on the ground that the absence of a relationship betwaen appellee and the victim for the year immediately preceding the alleged rape rendered the proposed evidence without probative value. The trial court agreed and ruled that the evidence would be inadmissible at trial.
Appellee's cause came to trial before a jury on January 4, 1978. The victim testified that around 12:30 a. m., on September 10, 1977, appellee invited her into his automobile as she was walking up the driveway of her home. Upon entering the vehicle, appellee asked her if she would like to go to Florida with him. The victim testified that when she declined appellee's offer and attempted to exit the vehicle, he prevented her departure by grabbing her clothing and driving away with her in the car. When appellee reached a home under construction along State Route 310, he pulled into the driveway and stated that he was going to "finally get what he wanted." The victim testified that appellee then forcibly removed her clothing and raped her.
Appellee testified that he did not even see the victim in the early morning hours of September 10, 1977. He stated that during the preceding evening, he had been drinking with friends. He testified that he had talked to the victim earlier that evening, at her home and at a football game, but denied seeing her after the game or having any sexual relations with her. Appellee testified further that by 12:45 a. m., on the morning of the alleged crime, he was at home with his wife.
The jury found appellee guilty as charged, and he was sentenced by the court to a term of from five to 25 years.
The Court of Appeals reversed appellee's conviction and remanded the cause for a new trial, finding that the trial court should not have excluded appellee's evidence of his prior sexual relations with the victim.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. David E. Lighttiser and Mr. Robert L. Becker, for appellant.
Messrs. Steiner, Berryhill, Wince Shaheen and Mr. John C. Berryhill, for appellee.
The sole inquiry presented by this cause is whether the trial court committed prejudicial error in excluding appellee's proposed evidence of his prior sexual conduct with the victim. The question of the constitutionality of the statute is not before us.
R.C. 2907.02(D) provides, in applicable part, that evidence of specific instances of the victim's past sexual activity with the accused is admissible at trial only where the court determines that "the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value." Division (E) of the statute requires the court to ascertain the admissibility of the evidence during a pretrial hearing conducted for that purpose.
The express language of R.C. 2907.02(D) purports to confer upon a trial court the function of determining the materiality and relevancy of evidence of past sexual activity between the victim and the accused. The court's duty in this regard is not changed by the statute. Therefore, upon appeal, such an evidentiary determination should not be disturbed absent a showing of an abuse of discretion which amounts to prejudicial error. See State v. Black (1978), 54 Ohio St.2d 304, 376 N.E.2d 948; State v. Barker (1978), 53 Ohio St.2d 135, 372 N.E.2d 1324.
The Court of Appeals found that the testimony in question was relevant under the facts of this cause. We disagree. Appellee has not asserted the defense of consent, which could well affect the materiality and relevancy of the disputed evidence. On the contrary, he defends by stating that he was not even present at the time and place of the alleged crime. In this posture, appellee's proffered evidence of his alleged past sexual relations with the victim did not tend to prove or disprove a disputed fact of consequence in the cause.
It is our conclusion that the trial court's exclusion of the proffered evidence did not constitute prejudicial error, and the judgment of the Court of Appeals is, therefore, reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, KERNS, SWEENEY, LOCHER and HOLMES, JJ., concur.
KERNS, J., of the Second Appellate District, sitting for P. BROWN, J.