Character evidence is not admissible against a defendant in a criminal trial if it is introduced to show that the defendant acted in conformity with it. However, if the prosecutor calls the same evidence it "prior bad acts" under Evid.R. 404(B) and requests a limiting instruction from the judge, that exact same evidence is coming in under the banner of proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Just 3 days ago (12/6/12), The Ohio Supreme Court greatly expanded the flow of damaging character evidence, I mean "prior bad acts", into a jury trial. State of Ohio vs. Van Williams --December 6, 2012 (2012-Ohio-5695). Mr. Williams was on trial for rape and related charges of a teenage boy. The prosecution brought in evidence that Mr. Williams had a prior sexual relationship with another teenage boy a decade before.

The State called this boy (now in his late 20's) to the stand in Mr. Williams' jury trial over the objection of the defense. This witness described the "grooming" that took place in the 1990's which, the State contended, showed a proclivity to groom teenage boys. This, to me, is certainly character evidence. So, the trial court gave the jury the cautionary instruction that this witness and evidence cannot be considered for character and that Mr. Williams acted in that character.

Naturally, once the jury heard that this was not Mr. Williams' first time around the "grooming" block, he was convicted and sentenced to 20 years in prison. The Court of Appeals reversed and the State appealed to the Ohio Supreme Court. And won.

Here is the problem for defense attorneys. Evidence that an 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 or that he acted in conformity with bad character. The General Assembly, however, has codified certain exceptions to the common law regarding the admission of evidence of other acts of wrongdoing. Those exceptions are contained in R.C. 2945.59:

While both the statute and the rule adopted the common law rule, they also carve out exceptions to that common law, and some differences exist between the statute and the rule. The statute affords the trial court discretion to admit evidence of any other acts of a defendant in cases where motive or intent, absence of mistake or accident, or scheme, plan, or system in doing an act is material. This certainly sounds like character evidence to me. (The Ohio Supreme Court went to Black's Law Dictionary (9th Ed.2009) for the definition of "material" -- [h]aving some logical connection with the consequential facts.)

The Court held that 404(B) affords broad discretion to the trial judge regarding the admission of other acts evidence. Evidence of other crimes, wrongs, or acts of an accused tending to show the plan with which an act is done may be admissible for other purposes, such as those listed in Evid.R. 404(B)—to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

However, for "other acts" evidence, trial courts must now conduct a 3 step analysis for admissibility:

Step 1: The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the act more or less probable than it would be without the evidence. (Evid.R. 401)

Step 2: The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B).

Step 3: The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R 403.

Isn't evidence of past grooming really just character evidence by a different name? In the Williams case, the State state offered the testimony of a past victim to demonstrate the motive, preparation, and plan of the accused to target teenage males who had no father figure and to gain their trust and confidence for the purpose of grooming them for sexual activity with the intent to be sexually gratified. Isn't this character evidence by a different name?

Then, when you get to Step 3 of the analysis, the fact that the State wants it in simply means it is prejudicial to the defendant. How can a prosecutor credibly stand in front of a judge and argue that "prior bad acts" is (a) not character evidence nor (b) prejudicial. That is exactly what it is. Otherwise, the State would not want it introduced to the jury in the first place. Of course, the prosecutor gets to remind the judge that, "Your Honor, you can certainly instruct the jury that this evidence cannot be considered to show that the defendant had acted in conformity with a character trait." Grooming teenage boys is not a character trait? Then, the Court waived its magic wand and instructed the jury not to consider this evidence as character evidence and that the defendant would have acted in conformity of that.

Evid.R. 404(B) via State v. Williams now permits admission of evidence of defendant's prior bad acts, but that evidence is not character evidence, because it goes to prove motive, preparation, and plan. I don't see the difference or the distinction. Any prejudice to the defendant can be lessened by the cautionary instruction that the jury is not to consider this evidence as character evidence. Huh?