“The key is that the evidence must prove something other than the defendant’s disposition to commit certain acts. Thus, while evidence showing the defendant’s character or propensity to commit crimes or acts is forbidden, evidence of other acts is admissible when the evidence is probative of a separate, nonpropensity-based issue.”

Justice DeWine, Opinion of the Court

On September 22, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Hartman, Slip Opinion No. 2020-Ohio-4440. In a unanimous opinion written by Justice DeWine, in which Judge Sadler sat for Justice Stewart (who wrote the part of the 8^th district opinion which dealt with the issues directly involved in this appeal) the Court reversed Hartman’s rape conviction because of the improper admission of other-acts testimony.  In this case, and in the companion case of State v. Smith, Slip Opinion No. 2020-Ohio-4441, released the same day, the Court lays out a textbook analysis of the proper and improper use of other-acts evidence. (Read an analysis of the merit decision in Smith here. While the blog highlighted the Smith case rather than the Hartman case, both are must reads on the permissibility of other-acts evidence in a criminal case.)

Case Background

The Encounter

One weekend in October of 2015, E.W., an adult woman, took a trip to Ohio with her boyfriend Chris, and another couple, Jeremy and Stephanie. On the last night of the trip Mitchell Hartman, a friend of Jeremy’s, joined the group for drinks, first in the hotel, and later in a bar in downtown Cleveland. E.W. who admitted to five drinks, but not feeling drunk, described Hartman as flirtatious and coming on too strong.

E.W. decided to go back to the hotel room. Chris walked her there and then returned to join the others at the bar. E.W. went to bed and fell asleep. Hartman, claiming to have left a bookbag in the hotel room, went back to the hotel ostensibly to retrieve it, and was given a key to the room after the hotel clerk got permission from Stephanie to give it to him.  E.W. was awakened by Hartman’s penis in her mouth, which she later testified she thought was her boyfriend’s, but when she opened her eyes and realized it wasn’t, she screamed at Hartman to get out. Chris and Stephanie returned after a phone call to Chris, and enough arguing ensued that security was called, and E.W. reported the alleged rape to the police.

The defense theory of the case was that the encounter was consensual, and that the argument in the hotel room was because Chris thought E.W. had been unfaithful to him.

Ultimately, Hartman was charged with two counts of rape, and one count of burglary and kidnapping. He was convicted of the rape charges and acquitted of the others.

The Other-Acts Evidence at Trial

At Hartman’s rape trial, the state indicated its intent to call Hartman’s former stepdaughter B.T. as a witness. B.T. had been molested by Hartman as a child. It was the state’s position that both assaults happened while the victims were sleeping and thus amounted to a “behavioral fingerprint” identifying Hartman as the perpetrator, and also that the evidence was probative of Hartman’s “motive, intent, plan, or scheme and absence of mistake” (all permissible uses under Evid. R. 404(B)).

Hartman filed a motion in limine to exclude B.T.’s testimony as improper character evidence. The trial court issued a preliminary ruling permitting the evidence as probative of absence of mistake, and to show plan or scheme, in that both alleged incidents involved “vulnerable sleeping victims.” The trial court further determined that the probative value of the evidence was not outweighed by its prejudicial effect as long as the scope of B.T.’s testimony was properly limited, and the jury was given a limiting instruction about the purposes for which the jury could consider the evidence.

Defense counsel renewed his objection to B.T.’s testimony before B.T. took the stand, but the trial court ruled that the evidence was probative of nearly every one of the permissible purposes listed in Evid.R. 404(B). Before B.T. testified, the trial court instructed the jury that her testimony could not be considered to prove that Hartman had a propensity to assault sleeping females and had acted in conformity therewith, but could be considered only to show absence of mistake or accident, motive, opportunity or intent, purpose, plan or preparation, or identity. B.T. then testified as to the particulars of sexual incidents where Hartman came into her bedroom when she was 12.

The jury found Hartman guilty of the two rape counts and not guilty on the others. They also found Hartman to be a sexually violent predator. Hartman appealed.

The Eighth District reversed the convictions, finding that the evidence of Hartman’s abuse of B.T. in 2012 was inadmissible other-acts evidence under Evid.R. 404(B).

Key Statutes and Precedent

Ohio Evid.R.404(B) (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”)  

 Evid.R. 403(A) (“Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”)  

 Evid.R. 105 (“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request of a party, shall restrict the evidence to its proper scope and instruct the jury accordingly.”)  

 State v. Carter, 26 Ohio St.2d 79 (1971) (For the evidence to be admissible, there must be “substantial proof that the alleged similar act was committed by the defendant.”) 

State v. Curry, 43 Ohio St.2d 66 (1975) (“A hallmark of the American criminal justice system is the principle that proof that the accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused’s propensity or inclination to commit crime.”) 

State v. Gardner, 59 Ohio St.2d 14 (1979) (Held other-acts evidence admissible when it was “so closely related in nature, time and place to the offense charged” as to be probative of intent. For other-acts evidence to be probative of intent, it “’must have had such a temporal, modal and situational relationship with the acts constituting the crime charged’” that it “’disclosed purposeful action in the commission of the offense in question.’”)  

Huddleston v. United States, 485 U.S. 681 (1988) (“The non-propensity purpose for which the evidence is offered must go to a “material” issue that is actually in dispute between the parties.”)  

State v. Williams, 2012-Ohio-5695 (Holding common plan evidence was admissible to refute defendant’s claims as to sexual preferences. “In every instance, the trial court must determine whether the proffered evidence— though admissible under Evid.R. 404(B)—is nevertheless more prejudicial than probative.”)  

United States v. Gomez, 763 F.3d 845 (7^th Cir. 2014) (It is “not enough for the proponent of the other-act evidence simply to point to a purpose in the ‘permitted’ list and assert that the other-act evidence is relevant to it.” To properly apply 404(B), courts must scrutinize the proponent’s logic to determine exactly how the evidence connects to a proper purpose without relying on any intermediate improper-character inferences.) 

State v. Smith, 2020-Ohio-4441 (Holding that when a defendant places intent at issue by claiming actions were accidental and not done with sexual intent, other-acts evidence of similar prior sexual-assault allegations are admissible.)  

Proposition of Law Accepted for Review

In sexual assault cases, other acts evidence offered to prove the intent of the offender or the offender’s plan is admissible pursuant to Evid.R. 404(B), even when the identity of the offender is not at issue.

Does the Court Adopt Hartman’s Proposed Proposition of Law?

The Court acknowledges that this is a correct statement of the law but holds in the case that the other-acts evidence was not admitted for any proper purpose.

Merit Decision

Analysis

Admissibility of Other-Acts Evidence

A first principle of our criminal justice system is that it is impermissible to use evidence of one crime to show that the accused committed another crime because the accused has a propensity to commit crimes. It’s too easy for a jury to think once a bad person, always a bad person. This common law prohibition is now embodied in Evid.R 404(B).

What is Permissible

Evid.R. 404(B) does allow evidence of past crimes for non-propensity purposes.  The rule lists those permissible purposes to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The admissibility of this evidence is a question of law, while the determination of whether to allow permissible other-acts evidence is one of discretion.

Opinion author DeWine acknowledges that courts have struggled with differentiating between permissible and impermissible evidence in this context. But it is not good enough for the party seeking admission of the other-acts evidence just to point to a permissible purpose.  Courts must scrutinize the chain of reasoning justifying the evidence.

Relevance

The basic relevance rules still apply here. What is key is to evaluate whether the evidence is relevant to the particular purpose for which it is offered and to an issue that is actually in dispute, and that there is substantial proof that the allegedly similar act was committed by the defendant.

Weighing Probative Value and Prejudicial Effect  

This is the text of Evid. R. 403:

“Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

DeWine presses trial judges to be robust in the necessary weighing in this context because of the natural human tendency to give extra weight to past criminal actions. The analysis required must be “fact specific and context driven.”  DeWine offers some guideposts for trial courts to help make these calls.  The first is the extent to which the other-acts evidence involves an issue that is actually in dispute. If it isn’t, it is likely the prejudicial effect will outweigh any probative value. Next is whether the state can present other evidence to prove the same fact in a less prejudicial manner, and whether the evidence bears on an essential element of the crime at hand.

Finally, when other-acts evidence is permitted, courts must minimize the risks of unfair prejudice by explaining the specific purpose for which the evidence may be considered, and why, and an appropriate narrowly tailored jury instruction given.

After these preliminary instructions, the Court turned to the facts of this case.

Evidence of Hartman’s Abuse of Stepdaughter Improperly Admitted

The Court reviews in turn each of the state’s reasons for admitting B.T.’s testimony about Hartman’s abuse.

• Modus Operandi

The state argued that Hartman’s alleged conduct in the incidents involving his stepdaughter and E.W. were “so similar as to be called a behavioral fingerprint,” thus demonstrating the permissible use of modus operandi.  Both showed “Hartman’s modus operandi to sexually assault females while they were asleep.” Modus operandi evidence is particularly relevant to prove identity, which was not at issue in this case. And the Court rejects this evidence as modus operandi evidence, noting “that both crimes were committed against a female sleeping in a bed is hardly unique to Hartman as a perpetrator.”

• Common Scheme or Plan

The Court begins by noting that litigants, including the state in this case, commonly use modus operandi and scheme/plan evidence synonymously, which is incorrect.

“The utility of modus operandi evidence comes from its connection with the current crime through shared characteristics that make the conduct unique to the perpetrator. In contrast, plan evidence need not share any common characteristics with the current crime; rather, the other acts are linked to the present crime because they are carried out in furtherance of the same overall plan, ” DeWine noted.

DeWine gives a useful example of plan/scheme evidence:

“For instance, in a prosecution for illegally manufacturing drugs under R.C. 2925.04, evidence that the defendant recently robbed a warehouse to steal a barrel of the ingredient methylamine could be admissible to show the defendant’s scheme to produce methamphetamine,” he noted.

Here, though, the evidence did not support any plan evidence. Hartman’s alleged molestation of his stepdaughter had absolutely  nothing to do with any larger plan involving the rape of E.W.

• Motive

Motive evidence establishes the specific reason for the commission of a crime. To be admissible, there does not need to be any similarly between the other-acts evidence and the crime at hand.  Here, though, the evidence obviously was not admissible to establish motive. Hartman’s molestation of his then-stepdaughter shows nothing at all about his reason for raping E.W.

• Intent and Absence of Mistake

The Court considers intent and absence of mistake together (for a thorough analysis of this propensity evidence, see the companion case of State v. Smith, Slip Opinion No. 2020-Ohio-4441).

The prosecution’s theory was that Hartman’s prior conduct with his stepdaughter was probative and relevant to prove that Hartman intended to rape E.W., and that he did not believe E.W. consented to a sexual encounter.

The Court considers intent and absence of mistake together here. One way in which a defendant can raise the claim of accident is to challenge the fact that any criminal act occurred at all.  Another way is to deny that the defendant acted with any criminal intent, which is what is at issue here. There is no dispute about the sexual act that occurred; the issue in the case is whether it was consensual. DeWine observes that normally intent, which is an element of most crimes, is not a significant issue for other-acts purposes unless it is disputed, which it was in this case.  DeWine gives specific examples of all of these, which are very helpful in understanding the entire opinion, and readers are advised to review these.

Courts are admonished to be especially careful in deciding whether to admit other-acts evidence to show intent or absence of mistake because the potential for prejudice is so high.  

In this case the state’s position was that because Hartman had abused his stepdaughter in the past, it is unlikely that the sex with E.W. was consensual. The Court agrees that because Hartman’s defense was that sex with E.W. was consensual, Hartman put his intent at issue. But while Hartman’s intent was material, it does not follow that his stepdaughter’s testimony about Hartman’s conduct with her was probative of his intent in this case.

The Court spends some time distinguishing this case from Gardner, in which it allowed evidence of prior acts to show intent because in that situation the evidence of those prior acts was “so closely related in nature, time, and place to the offense charged” that it was probative of intent in the underlying case.  In this case, the other-acts evidence was not relevant in a permissible way.

The two incidents in this case simply are not related in any consequential way. One victim was a child relative, the other an adult acquaintance. The acts each victim was allegedly forced to perform were dissimilar. The fact that both occurred at night, and in the victims’ beds is not the degree of similarity required from which intent can be inferred. Rather, what the state wanted in this case was for the jury to infer that Hartman preys on sleeping or impaired girls and women—a no-no under Evid. R. 404(B).

Bottom Line on Admissibility

The trial court erred in admitting the other-acts evidence in this case. Because this evidence was improperly admitted, there is no need for the Court to do further weighing under Evid.R. 403.

Jury Instructions Were Not Curative

The state argued that the cautionary instructions given by the trial court—before and after B.T.’s testimony and in its final instructions—cured any prejudicial effect of the other-acts evidence. The Court disagrees, and rejects the notion that a limiting instruction cures all prejudicial concerns.

The main take away from this part of the Court’s opinion is that limiting instructions must be specifically tailored to the case at hand, and not just a laundry list of all permissible purposes under Evid.R 404(B). In this case, the trial court’s instruction fell into the impermissible laundry list category, and therefore was pretty much meaningless. While acknowledging that distinguishing which types of evidence are permissible and which are not under Evid. R. 404(B) can be difficult, it is also useless simply to list them all and leave it to the jurors to sort it out.

 “Going forward, courts should explain, in plain language, the purposes for which the other acts may and may not be considered. Rather than recounting to the jury every purpose listed in Evid.R. 404(B), our pattern jury instructions direct trial courts to state the specific purpose for which the other-acts evidence is being admitted in that case. See Ohio Jury Instructions, CR Section 401.25. It is important that judges do so,” DeWine wrote. Furthermore, trial courts are encouraged to explain to the jurors that the reason for the rule is because in our criminal justice system just because a defendant committed bad acts in the past does not mean the defendant committed the crime charged in the case at hand, and improperly allows the state to meet its burden of proof with the inference that bad acts in the past mean the defendant committed the crime at hand.

Failure to Object Does Not Change Outcome

The defendant in this case did not object to the trial court’s instructions to the jury, and the Court found no plain error.  But the Court held that the jury instruction that was given was so generic that it did not cure the erroneous admission of the other-acts evidence.

Bottom Line

The other-acts evidence was not admitted for any proper purpose under Evid. R. 404(B), and the jury instructions did not cure the prejudicial effect of the evidence.

Case Disposition

Court of Appeals judgment affirmed.

Trial Court Judge (Reversed)

Cuyahoga County Common Pleas Court Judge Peter J. Corrigan

Eighth District Court of Appeals (Affirmed)

Then-judge Melody Stewart authored the pertinent part of opinion that was affirmed here, joined by Judge Mary Eileen Kilbane.  Judge Patricia Blackmon dissented.