This February, the Ohio Supreme Court heard oral argument in State v. Hartman, a case dealing with admissibility of other acts of the defendant under Evidence Rule 404(b). Evidence of a Defendant’s other criminal acts is always damaging at trial. Making matters worse, this evidence is often admitted with only superficial scrutiny of the State’s theory of admissibility. Any plausible assertion that the evidence falls under one of the proper purposes in 404(b) is often sufficient for admission, even if those purposes are not relevant to any material issue. This case presents the Supreme Court with an opportunity to curb this practice.
The defendant was charged with rape in Cuyahoga County. The State alleged he had entered the victim’s hotel room and sexually assaulted her as she slept. At trial, the State admitted, over defense’s objection, evidence of the defendant’s prior sexual abuse of his minor stepdaughter. This abuse also allegedly took place while the victim slept. The State offered this evidence to show identity by way of modus operandi, because the incidents had the common feature of a sleeping victim. The State also argued that it showed defendant’s motive of sexual gratification.
A divided panel of the Court of Appeals for the 8th District reversed. It held the evidence could not be admissible to show identity, since identity was never at issue. Defendant admitted he was the person present in the hotel room, but asserted the defense of consent. The Court also held that the evidence was not admissible to show a motive of sexual gratification, stating, “This was a self-evident proposition — sexual gratification is almost always the motive behind a sexual offense and requires no additional proof.” The court of appeals correctly recognized that evidence which falls under one of the 404(b) purposes is not necessarily relevant.
The State appealed the decision, and the Supreme Court accepted review on the issue of whether the trial court properly admitted other-acts evidence.
The State changed its tack somewhat on appeal. Instead of identity or motive, the State argued that the defendant’s other acts showed he either had the intent or the plan to sexually assault women in their sleep, because of their vulnerability.
This new argument shows another potential problem with 404(b) evidence. The State has presented a superficially proper purpose for the evidence. But, upon closer examination, this argument relies on an unstated inference of criminal propensity. The State’s argument is that when Defendant committed the earlier sexual abuse, he had the intent or plan to carry out his attack on a sleeping woman. Therefore, the argument continues, when he engaged in sexual activity in the present case, he must have also had the intent to perpetrate a sexual assault on the victim while she slept, rather than an intent to engage in consensual activity. This is propensity evidence. The fact that the State has creatively reframed the argument to revolve around the defendant’s mental state does not remove it from the prohibition of rule 404(a).[i]
The case is a good opportunity for the Supreme Court to reel in the use of other acts evidence in criminal cases. The Court could accomplish this by placing the burden on the State to show not just that the evidence serves a permissible purpose under 404(b), but also to show a coherent theory of relevance to any material fact that does not rely on an inference of propensity.[ii]
While I am predicting a victory for the defense, the opinion might stop short of a broad ruling about other-acts evidence. The defense has disputed whether the record in fact shows that the victim was asleep in either case, so I can imagine a decision that focuses more on this fact than the underlying flaw in the State’s theory of admissibility. The Court could also issue a holding focused on balancing of probative value with prejudicial effect under Rule 403, without deciding whether the State’s theory of admissibility is valid to begin with. Also, the Court could hold that the State waived its argument that the evidence was admissible to show intent or plan, since it did not raise those arguments at trial or an appeal to the 8th District. However, given the frequency with which other-acts evidence is admitted, and how seriously it can hurt a defendant at trial, I am hoping the Supreme Court seizes this opportunity to issue more stringent guidelines concerning 404(b) evidence.
You can watch the oral argument in this case here.
[i] For a more thorough treatment of this issue, see Edward Imwinkelreid, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 576 (1990).
[ii] Or, in the words of the Federal Court of Appeals for the 3rd Circuit, “The proponent must clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to commit the crime charged.” U.S. v. Morley, 199 F.3d 129, 133 (3rd Cir. 1999).