No. Ohio Rule of Evidence 404(B) outlines a limited set of circumstances during which a prosecutor can attempt to introduce prior bad acts. A prosecutor cannot use a accused’s prior bad act to show the accused has a tendency to act wrongfully and from that, attempt to prove the accused therefore must have engaged in wrongful conduct that gave rise to the crime at issue. Instead, a prosecutor may, with the court’s permission, use evidence of a prior bad act where the prior bad act would attempt to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Recently, the Ohio Supreme Court explained this evidentiary rule and applied it a set of facts involving sexual assault.
State v. Hartman: The Ohio Supreme Court Clarifies When Past-Acts Evidence is Admissible
In State v. Hartman (accessible here), Mitchell Hartman was accused of raping an adult female acquaintance in her hotel room after having spent the evening out with a group of friends. Hartman claimed the sexual encounter in the hotel room was consensual. To rebut this, the State presented other-acts evidence that Hartman sexually abused his stepdaughter when she was a child. A jury found Hartman guilty of rape but the court of appeals reversed, holding the trial court should not have permitted the State to introduce testimony of the prior sexual abuse involving Hartman’s stepdaughter. Last week, the Ohio Supreme Court issued its decision and agreed with the court of appeals.
Justice DeWine explained courts have long struggled with distinguishing whether evidence of prior bad acts presented by a prosecutor is being used for a legitimate evidentiary purpose as outlined in Ohio Rule of Evidence 404(B) or being used improperly in trying to prove the accused has a tendency to engage in wrongful conduct and is therefore guilty based solely on that past misconduct. The Court outlined a method for trial courts to follow when deciding whether past-acts evidence can be admitted and explained how trial courts can better instruct juries about how to consider past-act evidence if it is used.
Ohio Supreme Court Explains Past-Acts Evidence Admission Process
The Court explained a trial court must initially determine whether the past-acts evidence is relevant to the case and specifically, a particular permitted purpose under Ohio Evidence Rule 404(B), such as to prove identity, motive, or intent. The trial court should then determine whether that permitted purpose is actually in dispute. For example, it would be improper for a trial court to permit a prosecutor to use past-acts evidence in an attempt to identify the accused as the perpetrator of the alleged crime when the accused is admitting to being involved, but instead claims another defense to the crime. For instance, in an assault case, perhaps the accused is not necessarily arguing he didn’t assault the person, but is arguing he assaulted the person by exercising legitimate self-defense; or, perhaps in a sexual assault case, the accused is not arguing he did not have sexual activity with the alleged victim, just that the sexual activity was consensual.
The Court outlined common examples of past-acts evidence. Modus operandi evidence, for instance, is relevant to prove identity. The Court explained modus operandi evidence is evidence of signature, fingerprint-like characteristics unique enough to suggest the prior act and the current crime were committed by the same person. Here, you may recall the robbers in the classic Christmas movie, Home Alone, where the two antagonist burglars, aka “The Wet Bandits,” left the water running in every home after they burglarized it. If the wet bandits were on trial for burglarizing a home, it would be improper for a prosecutor to introduce evidence of a prior burglary they committed to show they have a tendency to burglarize houses and therefore, they’re guilty of the one in question. However, by using a prior burglary containing modus operandi evidence to show the wet bandits’ identity, it would be proper for a prosecutor to introduce a prior burglary-specifically, by using evidence of the manner in which the burglary was committed. Evidence of a prior burglary where The Wet Bandits left the water running in a home would be admissible as modus operandi evidence in a prosecution involving the burglary for which they are on trial where the water was left running. This is the signature, fingerprint-like evidence, which tends to demonstrate their modus operandi and thus, their identity, which is a permitted use of such evidence under Ohio Evidence Rule 404(B).
Another common use of past-acts evidence is to show the prior act and the current crime were a 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 for committing the crime in question. Using another example from Hollywood, consider the show, Breaking Bad, which the Court referenced in its opinion. Consider a trial where the State is prosecuting an accused for illegally manufacturing drugs. Evidence that the accused recently stole the ingredient methylamine from a warehouse could be admissible to show the defendant’s scheme to manufacture meth. Of course, it could not be used to show that the defendant is a thief, and therefore a bad person, and therefore, someone who makes drugs.
Lastly, the Court explained past-acts evidence could also be used to demonstrate an accused’s conduct was not accidental or the result of a mistake. This is relevant to show the accused acted with criminal intent.
Further, if the trial court determines the past-acts evidence may be admitted under Ohio Evidence Rule 404(B), it must then decide pursuant to Ohio Evidence Rule 403(A), whether the probative value of the evidence outweighs any danger of unfair prejudice to the accused. The Court went further, instructing trial courts to document their analysis so reviewing courts could follow the trial court’s underlying rationale in admitting or excluding the past-acts evidence.
In its decision, the Court also noted a 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 past-acts evidence may or may not be considered (if it determines it can be considered in the first place). The Court explained that simply reciting the language of the evidentiary rule by telling a jury a certain piece of evidence can be considered as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake” has no meaning to the jury and is, “[A]kin to telling the jurors that the evidence may be considered for any purpose.” This, the Court warned, should be avoided.
State Uses Evidence of Prior Bad Act Against Hartman
A summary of the relevant facts in State v. Hartman are as follows:
A woman whose initials are 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 group then went to a bar for drinks.
E.W. returned to the hotel room early and fell asleep. According to Hartman, he later went to the hotel to retrieve a backpack he left inside. When Hartman went back into the room, he and E.W. then engaged in sexual activity. E.W. said she initially believed she was with her boyfriend but immediately upon discovering it was Hartman, she screamed and told him to stop. She then reported to police Hartman raped her.
The State indicted Hartman with two counts of rape, one count of burglary, and one count of kidnapping. Hartman’s defense was he and E.W. engaged in consensual activity and that she lied about the rape allegation only after her boyfriend learned she had cheated on him.
Prosecutors asked the trial court to allow Hartman’s former stepdaughter to testify in the case to explain that around 2012, when she was only 12 years old, Hartman came into her bedroom at night while she was sleeping and would touch her in a sexually inappropriate manner. While Hartman was never convicted of a sexual offense, he was criminally charged based on these allegations and ultimately pled guilty to abduction and attempted felonious assault in that case.
The prosecutor argued the sexual assault he committed years ago against his former stepdaughter while she was asleep constituted a behavioral fingerprint that proved Hartman’s motive for returning to the hotel room was to assault E.W. while she too was asleep. The prosecutor maintained this evidence would rebut any mistaken impression that this was consensual sexual activity.
Over Hartman’s attorney’s objection, the trial court permitted the prosecutor’s use of Hartman’s former stepdaughter’s testimony about the prior sexual assault against her. Hartman was convicted of the two rape charges and was designated a sexually violent predator, though acquitted of the other charges.
Hartman appealed the trial court’s decision in permitting the use of the past-acts evidence, arguing his former stepdaughter’s testimony was improperly admitted and deprived him of a fair trial. The Eighth District Court of Appeals agreed and ordered a new trial. The prosecutors appealed to the Supreme Court.
The Ohio Supreme Court Holds Hartman’s Former Stepdaughter’s Testimony is Not Permitted
The Ohio Supreme Court explained there was no legitimate basis for the use of Hartman’s former stepdaughter’s testimony under Ohio Evidence Rule 404(B). The Court noted the prosecutor’s use of the evidence at trial was for the specific purpose of establishing Hartman’s modus operandi in committing the sexual assault. However, modus operandi evidence is used to prove identity-i.e., to show the accused is the individual who committed the crime in question. But as the Court explained, the evidence could not be used for this purpose because Hartman’s identity was not even in dispute. Hartman did not deny engaging in sexual activity with E.W.-instead, he simply claimed the sexual activity with E.W. was consensual. Therefore, any modus operandi evidence to show identity was irrelevant as identity was not at issue in the case.
Further, the Court explained the fact that both acts occurred at night in the victims’ sleeping quarters is not sufficient to prove intent. Instead, the Court noted, the past-acts evidence here implies, “Hartman preys on sleeping or impaired women and girls,” which is precisely the type of inference the rule prohibits.
The Ohio Supreme Court, therefore, agreed with the trial court and ordered a new trial.
The Ohio Supreme Court made the correct decision in this case. We have seen firsthand, in our own trials, courts permit this prior-acts evidence against our clients over our respectful objection. This decision offers an excellent roadmap and guideline for trial courts struggling to decide whether to admit past-acts evidence and an excellent tool for criminal defense attorneys to rely upon in attempting to keep harmful evidence out of a trial.
If you or someone you know would like to speak to one of our many experienced criminal defense attorneys at Rittgers Rittgers & Nakajima, please do not hesitate to contact us at our office for your free consultation.