Ohio Supreme Court Permits “Character” Evidence

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?