Login | October 23, 2020

Court clarifies rule on admissibility of ‘other-acts’ evidence

DAN TREVAS
Supreme Court
Public Information Office

Published: October 5, 2020

In two criminal cases, the Ohio Supreme Court recently clarified the standards under which a prosecutor may introduce evidence of a defendant's prior bad acts in a trial for a new crime.
The Court’s opinion stated the decisions are meant to help Ohio courts and attorneys by clearing up “some of the confusion that exists regarding the use of ‘other-acts evidence’ ” under the Ohio Rules of Evidence.
Writing for a unanimous Court, Justice R. Patrick DeWine stated the decisions will “provide trial courts with a road map” for analyzing whether “other-acts evidence” can be used at trial and directed courts on how to instruct juries about the proper consideration of such evidence. The opinions provided several examples, including one drawn from the television show “Breaking Bad.”
In State v. Smith, the Court affirmed the conviction of Michael Smith by the Hamilton County Common Pleas Court of gross sexual imposition related to the alleged molestation of his granddaughter in 2016.
In State v. Hartman, the Court affirmed an Eighth District Court of Appeals decision overturning the rape conviction of Mitchell Hartman for allegedly assaulting a female acquaintance in a hotel in 2015.
In Hartman, Tenth District Court of Appeals Judge Lisa L. Sadler joined the majority opinion, sitting for Justice Melody J. Stewart, who did not participate in the case.
Supreme Court Analyzes Use of Other-Act Evidence
In the Hartman decision, Justice DeWine explained that under Ohio Evid.R. 404(B), evidence of other “crimes, wrongs, or acts” cannot be admitted to prove the accused has the “propensity” or the natural tendency to behave in a particular way. The rule is meant to prevent a jury from concluding that because the accused has acted in a similar way in the past, the person must be guilty of the currently alleged crime.
While other-acts evidence cannot be used to prove a person’s tendency to commit crime, the rule does allow a court to admit the evidence for several other purposes, such as proof of motive, intent, plan, or identity, or that the act was not a mistake or accident.
The opinion stated the courts have “long struggled with differentiating” whether the evidence is being used for a purpose on the “permitted list” or being used improperly in trying to prove the accused’s guilt based solely on past behavior. The Court outlined a process for trial courts to follow when determining whether other-acts evidence can be admitted and explained ways that the courts can better instruct juries about how to consider the evidence if it is used.
Evidence Admission Process Explained
The Court explained that the trial court first must determine that the evidence is relevant not only to the case but also to the particular purpose for which the state is offering it, such as to prove motive or intent. The trial court should also ensure that the evidence is being used to address a matter that is actually in dispute between the parties. For instance, it would be improper for a court to allow other-acts evidence to be used to identify the defendant as the perpetrator when the defendant has admitted being involved, but instead claims another defense to the crime.
The Court provided examples of the most common uses of other-acts evidence. One type is “modus operandi” evidence, which is relevant to prove identity. The opinion explained that modus operandi evidence is evidence of “signature, fingerprint-like characteristics” unique enough to suggest that the prior act and the current crime were committed by the same person.
Another common use of other-acts evidence is to show that the prior act and the current crime were part of the same overarching “plan” or “scheme.” This evidence may be used to identify the accused as the perpetrator or to explain the accused’s motive or reason for committing the current crime. Using an episode of the television show “Breaking Bad” as an example, the Court explained that in a prosecution for illegally manufacturing drugs, evidence that a defendant recently stole the ingredient methylamine from a warehouse could be admissible to show the defendant’s scheme to produce methamphetamine.
Finally, the Court explained that other-acts evidence can be used to show that the defendant’s conduct was not accidental or the result of a mistake. This is relevant to establish that the accused acted with criminal intent.
Once the trial court determines that the evidence can be admitted under Evid.R. 404(B), it must conduct a balancing test under Evid.R. 403(A) and consider whether the benefit of the evidence outweighs the risk of it being unfairly prejudicial to the defendant.
The Court explained that trial courts should document their analysis so that reviewing courts can follow the logic behind the court’s decision to admit or exclude the evidence.
The Court also said that the trial court’s instructions to juries must be tailored to the facts of the case and explain, in plain language, the purpose for which the other-acts evidence may or may not be considered. The Court noted the jury instructions in both Hartman’s and Smith’s cases related to the jurors that the evidence could be considered for every purpose on the “permitted list,” even inapplicable ones, and did not explain the different terms.
To tell a jury a certain piece of evidence can be considered as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake” imparts “nothing meaningful,” the opinion stated, noting it is “akin to telling the jurors that the evidence may be considered for any purpose.”
State Uses Evidence of Prior Criminal Conduct against Hartman
In October 2015, a woman identified in court records as E.W. was on a weekend trip to Ohio with her boyfriend and another couple. Mitchell Hartman was a friend of one of the men on the trip and joined the four in the group’s hotel room in downtown Cleveland. Hartman and the four then went to a bar for drinks.
E.W. returned to the hotel room early and went to sleep. Later, Hartman returned to the hotel, purportedly to retrieve a bookbag he left in the hotel room. Hartman then engaged E.W. in sexual activity. E.W. said she had believed that she was with her boyfriend and that as soon as she discovered it was Hartman, she screamed and told him to stop. She reported to police that Hartman had raped her.
Hartman was charged with two counts of rape, one count of burglary, and kidnapping. As part of his defense, he argued that he and E.W. engaged in consensual activity and that she made up the rape allegation only after her boyfriend learned she had cheated on him.
Cuyahoga County prosecutors asked the trial court to allow Hartman’s former stepdaughter to testify in the case. The woman, identified as B.T., explained that around 2012, when she was 12 years old, Hartman began coming into her bedroom at night while she was sleeping and would touch her in a sexually inappropriate manner. Based on the allegations, Hartman pleaded guilty to abduction and attempted felonious assault.
The prosecutors asserted the evidence that he had assaulted B.T. while she was asleep amounted to a “behavioral fingerprint” that proved Hartman’s motive for returning to the hotel room was to assault E.W. while she was asleep. The prosecutors maintained this evidence would rebut any “mistaken impression that this was consensual sexual activity.”
Hartman’s attorney objected to allowing B.T. to testify, but the trial court permitted it. Hartman was convicted of the two rape charges and was designated a sexually violent predator. He was acquitted of the other charges.
Hartman appealed his sentence to the Eighth District, arguing that B.T.’s testimony was improperly admitted and prevented him from receiving a fair trial. The Eighth District agreed and ordered a new trial. The prosecutors appealed to the Supreme Court.
Stepdaughter’s Testimony Impermissible
The Court explained that the prosecutors in Hartman’s case had argued that the stepdaughter’s testimony was admissible as modus operandi evidence. The Court explained that the evidence could not be used for this purpose because Hartman’s identity was not in dispute. Hartman did not deny engaging in the sexual activity, but instead claimed that it was consensual.
The Court stated the prosecutors essentially argued that because Hartman had previously abused his stepdaughter it is unlikely that his sex with E.W. was consensual. The Court found the incidents were too dissimilar to show that the inappropriate touching of his stepdaughter proved Hartman entered E.W.’s hotel room with the intent to rape her.
The Court stated that the fact that both acts occurred at night in the victims’ sleeping quarters is not enough to show intent. Rather, the evidence implies “Hartman preys on sleeping or impaired women and girls,” which is precisely the type of inference the rule forbids, the Court stated.
Allegation of Prior Sexual Conduct with Smith’s Daughters Raised
In 2016, Michael Smith’s three granddaughters spent the night at his home. At bedtime, the three girls climbed into Smith’s bed to watch a cartoon. The eldest child, identified as R.E., said the bed was making her itch, and Smith began to rub baby oil on her. At some point he began to rub R.E. in sexually inappropriate areas of her body.
After the younger children fell asleep, Smith put a pornographic film on the television. The next morning, R.E. felt Smith rubbing against her and starting to pull down her underwear before she moved herself away. R.E. told her mother about the incident, and her mother reported Smith to the police.
R.E.’s mother called Smith from the police station on a recorded line, and Smith admitted to putting baby oil on R.E. but denied touching her inappropriately. He insisted that any improper contact was accidental. He also denied playing a pornographic movie, and stated that R.E. may have seen a few seconds of a sexual scene in an R-rated movie that he accidentally began playing.
Smith was indicted for rape, gross sexual imposition, and disseminating matter harmful to a juvenile. At trial, Smith reiterated his claim that he had no intention of touching his granddaughter sexually and that he did not show the girl pornography.
Hamilton County prosecutors sought to present evidence of a 1986 sexual battery charge against Smith regarding his daughter, identified as V.M., when V.M. was a minor. Smith was acquitted of the charge. The prosecutors notified the trial court that they intended to have V.M. and another of Smith’s daughters testify during his trial for the incident involving his granddaughter. The two daughters would describe how, when they were young girls, Smith molested V.M. and made them both watch pornography.
Smith’s attorney objected to allowing the testimony, but the trial court allowed it. The jury convicted Smith of the gross sexual imposition and harmful-matter dissemination charges, and acquitted him of rape. Smith appealed the decision to the First District, arguing the admission of the daughters’ testimony about acts in the 1980s deprived him of a fair trial.
The First District affirmed the trial court, and Smith appealed to the Supreme Court.
Daughters’ Testimony Proved Act Was No Mistake
The Court noted the prosecutors in Smith’s case argued the testimony of his daughters about the 1986 charge was admissible to prove a “common plan or scheme” by Smith to molest children, and to rebut his claim that sexually touching R.E. was an accident.
The Court found that Smith’s alleged molestation of his daughter 30 years earlier was not part of an overarching plan to molest his granddaughter, and the testimony could not be used for that reason.
However, because Smith claimed that any improper contact with his granddaughter was inadvertent, his daughters could testify to show that he acted with the intent of sexual gratification, the opinion stated. Because the prior allegations showed that his actions were not accidental, the evidence was properly admitted and Smith’s convictions stand, the Court concluded.
The cases are cited 2019-0184. State v. Hartman, Slip Opinion No. 2020-Ohio-4441 and 2018-1831. State v. Smith, Slip Opinion No. 2020-Ohio-4440.


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