Opinion
No. 83-1661
Decided June 20, 1984.
Criminal law — Evidence — Rebuttal testimony concerning credibility of defense witness improper, when — Specific instances of conduct relating only to credibility may not be proven by extrinsic evidence, when.
APPEAL from the Court of Appeals for Madison County.
Irving S. Leuin, appellee herein, was indicted by the Clark County Grand Jury on two counts of gross sexual imposition in violation of R.C. 2907.05, two counts of sexual imposition in violation of R.C. 2907.06, and six counts of illegal processing of drug documents in violation of R.C. 2925.23.
A change of venue moved the proceeding from Clark County to Madison County. Prior to trial, the drug charges were severed from the sex-related charges. At the beginning of trial the two counts of gross sexual imposition were severed from the two counts of sexual imposition and the cause proceeded to the jury trial on the charges of gross sexual imposition. Testimony at trial indicated that appellee, a dentist, had undertaken the care of one Jane M. Shaw. Shaw had been referred to appellee by another dentist for the purpose of performing the extraction of several teeth. Accompanied by her mother, Shaw arrived at appellee's Springfield office for her second office visit with appellee. She was placed under general anesthesia by appellee who proceeded to extract several teeth.
Appellee has been acquitted of the drug charges.
R.C. 2907.05 provides, in part:
"(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons, to have sexual contact when any of the following apply:
"* * *
"(2) For the purpose of preventing resistance, the offender substantially impairs the other person's, or one of the other person's, judgment or control by administering any drug or intoxicant to the other person, surreptitiously or by force, threat of force, or by deception.
"* * *
"(B) Whoever violates this section is guilty of gross sexual imposition. * * *"
Shaw testified that as the anesthesia was wearing off, she became aware that appellee was standing next to her and was rubbing her arm. According to Shaw, appellee then placed his hand underneath her blouse and began fondling her breasts. He also rubbed her genitalia over her clothing. Shaw was then escorted by appellee to a recovery area. At that point, Shaw testified that appellee began rubbing her genitalia underneath her clothing. Appellee proceeded to masturbate to orgasm in Shaw's presence and thereafter took Shaw's hand and placed it on his penis through his pants.
With respect to the second count, one Marion A. Atherton testified that she had been a patient of appellee. During the course of her treatment, it was determined that Atherton required a lancing of her gum necessitating that she be placed under general anesthesia. When Atherton awoke from the anesthesia, according to her testimony, appellee had his hand under her blouse and was fondling her breasts.
Appellee did not testify but several witnesses were called on his behalf. Rita Williams, employed as an assistant in appellee's office, testified as to the layout of the office and to the general office procedures. Williams also testified that she and appellee never had sexual relations at the office, that appellee was not her "boyfriend," that appellee did not provide Williams with expensive, personal gifts, and that appellee did not keep pornographic slides or movies at the office.
The state offered the testimony of several witnesses in rebuttal. Patty L. Gearhart, a former employee of appellee, testified that appellee had invited her into his office one afternoon to view a pornographic movie. Gearhart also testified that she had inadvertently observed appellee and Williams engaged in sexual activity in appellee's office and that appellee had furnished Williams with gifts of jewelry and clothing.
The next rebuttal witness, Beverly Gebhart, also formerly employed by appellee, testified that Williams had intercepted and had worn a necklace that appellee had purchased as a gift for his wife.
The final rebuttal witness for the state was Richard Ruef, a member of the Springfield Police Department. Ruef testified that during the course of investigating the incidents involving appellee, one of appellee's employees, Karen Douglas, stated that she recalled an occasion that appellee had shown another employee slides of nude women and that such other employee had remarked that the pictures were "gross." However, Karen Douglas, on cross-examination, had earlier denied that the term "gross" was used.
The jury returned a guilty verdict on each count and appellee was sentenced to concurrent prison terms of one to five years. The court of appeals reversed appellee's convictions and ordered a new trial. The court of appeals ruled that the trial court improperly allowed rebuttal testimony concerning the credibility of Williams, a defense witness. Although such matters were appropriate on cross-examination of Williams, the court of appeals held that impeachment through specific instances of conduct may not be established by extrinsic evidence.
The cause is now before the court pursuant to the allowance of a motion for leave to appeal.
Mr. James A. Berry, prosecuting attorney, and Mr. James W. Skogstrom, for appellant.
Mr. Horace W. Baggott, Sr., and Mr. Daniel J. O'Brien, for appellee.
The question presented by this appeal is whether specific instances of conduct may be proved by extrinsic evidence to establish or attack the credibility of a witness. Evid. R. 608(B) provides that:
"Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."
From the foregoing rule, it is apparent that specific instances of conduct, relating only to the credibility of a witness, may not be established by extrinsic evidence. If this were not the rule, trials could potentially become bogged down in an interminable parade of witnesses called to testify as to specific instances of conduct of a prior witness in an attempt to contradict the prior witness' testimony on a purely collateral matter. The case at bar presents a textbook illustration.
The following example appears in McCormick, Evidence (2d Ed. Cleary Ed. 1972) 97-98, Section 47. Witness One observes a crime and testifies that the day was windy and cold and that he was wearing a green sweater. Witness Two may not then be called to testify that the day was warm and that Witness One was in shirtsleeves. It is explained that:
"To permit a dispute * * * about such extraneous or `collateral' facts as the weather and the clothing of Witness One, that are material only for `testing' the witness, by allowing the attacker to call other witnesses to disprove them is not practical. Dangers of surprise, of confusion of the jury's attention, and of time-wasting are apparent."
Williams testified on direct examination that she never had sex with appellee at the office and that she had not received gifts of jewelry and clothing from appellee. On cross-examination by the prosecutor, Williams again denied receiving gifts from appellee and denied that appellee kept any pornographic slides or movies at the office. On rebuttal, the state produced witnesses who contradicted Williams' testimony by testifying that Williams and appellee did engage in sex at the office, that Williams did receive various gifts from appellee, and that appellee did keep pornographic movies and slides at the office. The state's rebuttal testimony, by the state's own admission, was offered solely in an attempt to impeach the testimony of Williams. This is precisely the mischief that Evid. R. 608(B) was intended to prevent. The court of appeals therefore correctly concluded that the admission of such testimony over appellee's objection was error.
That is not to say, however, that the state was prohibited from questioning Williams on cross-examination as to these specific instances of conduct. Evid. R. 608(B) allows, in the court's discretion, cross-examination on specific instances of conduct "if clearly probative of truthfulness or untruthfulness." Nevertheless, if the answers received on cross-examination do not satisfy the examiner, it is said that the examiner is bound by or "stuck" with the responses. See, e.g., State v. Gardner (1979), 59 Ohio St.2d 14, 19 [13 O.O.3d 8].
Here, the prosecutor was permitted to, and did to an extent, confront Williams on cross-examination with specific instances of her conduct which tended to contradict her testimony on direct examination. Notwithstanding Williams' denials of those specific instances of conduct on cross-examination, the prosecutor is not permitted to attempt to establish that conduct by extrinsic evidence. We hasten to add that the conduct that the state attempted to prove by extrinsic evidence in the case at bar was intended only to discredit Williams' testimony. This case does not present the situation where the evidence sought to be excluded by Evid. R. 608(B) was on a non-collateral matter or, in other words, was relevant to a material issue in the case.
We are further of the opinion that the error committed at the trial level was not harmless beyond a reasonable doubt. The erroneously admitted rebuttal testimony related to an alleged extramarital affair between appellee and one of his employees as well as the existence of certain pornographic material. Inasmuch as the charges against appellee were also sexually related, we are unwilling to say that the admission of the state's rebuttal testimony did not contribute to appellee's conviction. Furthermore, upon review of the record, we must conclude that the evidence against appellee, consisting virtually entirely of the testimony of the victims themselves, was not so overwhelming as to warrant sustaining appellee's conviction even in light of the error. See State v. Ferguson (1983), 5 Ohio St.3d 160, 166, at fn. 5.
Accordingly, this judgment of the court of appeals is affirmed and the cause is remanded to the trial court for a new trial.
Judgment affirmed and cause remanded.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.
HOLMES, J., dissents.
I dissent from the majority in that it has misconstrued the pertinent rules of evidence as they apply to the facts presented.
Under Evid. R. 607, the credibility of a witness may be attacked by an opposing party disclosing a contradiction in statements. There are two methods of impeachment by contradiction. One, self-contradiction involves the use of a prior statement made by the witness to contradict present testimony. Two, contradictions may involve the testimony of one witness which conflicts with a previous statement made by another witness. In either case it is for the trier of fact to determine the credibility of each witness.
A witness may not be impeached by evidence that merely contradicts his testimony on a matter that is entirely collateral to the case. Byomin v. Alvis (1959), 169 Ohio St. 395 [8 O.O.2d 420]. See, also, State v. Cochrane (1949), 151 Ohio St. 128 [38 O.O. 575]. However, the problem arises in determining what constitutes a collateral matter which is thereby deemed to be inadmissible extrinsic evidence.
This court has long recognized that extrinsic evidence is admissible when the matter offered in contradiction of one's testimony is in any way relevant to the issue at hand, or tends to show prejudice or interest with respect to the parties. Kent v. State (1884), 42 Ohio St. 426, 431. See, also, 3A Wigmore, Evidence (Chadbourn Rev. 1970), Section 1003. In addition, Evid. R. 401 defines relevant evidence as "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."
In my view, the testimony of Patty L. Gearhart and Beverly Gebhart sufficiently attacks the credibility of Rita Williams by contradicting her testimony and showing her interest in a party to the action as alluded to in Kent, supra. After Williams stated that she and Dr. Leuin did not have a sexual relationship, Gearhart testified that she observed the couple engaged in intercourse in appellee's office. The remaining testimony of Gearhart and Gebhart established that Williams and appellee were more than casual acquaintances and that Leuin had on numerous occasions invited staff personnel to view pornographic material in his office.
Such testimony is relevant to the issues presented for two reasons. First, it discredits Williams' testimony which was a substantial portion of appellee's defense. Second, the testimony concerned acts which took place in appellee's office, the very location in which the alleged crimes were committed.
The court of appeals committed error when it reversed the trial court's ruling. The admissibility of evidence rests within the sound discretion of the trial judge and should not be disturbed in the absence of a clear abuse of discretion. O'Brien v. Angley (1980), 63 Ohio St.2d 159 [17 O.O.3d 98]. As noted by this court in Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 223 [24 O.O.3d 322], "close evidentiary questions are within the domain of the trial court."
It is my opinion that evidence of contradiction should be admitted in situations where such evidence is critical to determine the credibility of a witness' story. Here, there was a sufficient amount of conflicting testimony to allow the trier of fact to determine the credibility of each witness.
Accordingly, I would reverse the judgment of the court of appeals.