Corey Greene got in quite a bit of trouble in Tuscarawas County, Ohio in the summer of 2011. He was indicted on one count of aggravated possession of drugs (Oxycodone) and felony of the 2nd degree. That charge pretty much assured him a multi-year stay in the ODRC. My guess is the State never offered him a decent deal so he took his case to trial. And lost. He got 5 years in prison. It looks like he is going to get a new trial after the court of appeals reversed the trial court’s decision to allow a bunch of prejudicial evidence in against Mr. Greene. (State v. Greene (5th Dist.) 2012-Ohio-5624). This is rare to see.
Mr. Greene objected to the testimony of a passenger in the car in which the drugs and Mr. Greene were found. This witness, Mr. Frais, testified that Mr. Greene wanted to go to West Virginia, that he made frequent trips to West Virginia, and that he bragged about how much money selling Percocets. Mr. Greene’s lawyer objected to this line of questioning and answers. The judge gave the old curative instruction stating, “a prior criminal act may not be considered as a basis for an inference that the defendant acted in conformity with that . . . it may, however, be considered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The Fifth District Court of Appeals reversed finding that the trial court abused its discretion in permitting this testimony because the acts “do not establish a common scheme or plan. . . .a behavioral footprint.” Simply selling blue Percocet pills in West Virginia, the Court held, is insufficient to be a 404(B) exception. If the probative value does not outweigh the prejudicial value, the other bad acts cannot come in.
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So, in our cases, what do we do when a prosecutor wants to introduce evidence of our client’s previous or subsequent actions or conduct that are totally unrelated to the case in which he is on trial? Object. Other than objecting, the defense lawyer must back it up with something other than “it is not admissible and it is prejudicial”. Well, it may be admissible and the fact that it is prejudicial is exactly why the State thinks it is relevant. Let’s face it, 100% of what a prosecutor seeks to admit in its case-in-chief is prejudicial. Otherwise, why would they care?
This is the time when the defense lawyer has to have an auto-response to this type of irrelevant and prejudicial evidence. It is called 404(B) evidence. And, as a general rule 404(B) evidence is not admissible. Here’s what it says: “Other crimes, wrongs or acts. 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.” Quite frankly, this is one of those rules law students learn in Evidence class in law school and pray it is not on a law school exam.
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But, the defense lawyer has to bring up R.C. 2945.59: “In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system of doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.” Well, now that clears it all up. By the way, that is a 106 word sentence.
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404(B) evidence must establish a “unique, identifiable plan of criminal activity, sufficiently probative as to identify to warrant their admission”. This is called a “behavioral fingerprint”. The current Ohio Supreme Court case on 404(B) “behavioral fingerprint” evidence is State v. Jamison (1990), 49 Ohio St.3d 182. The defense lawyer’s objection must continue the argument by citing another Ohio Supreme Court case, State v. Broom (1988) 40 Ohio St.3d 277 that both 404(B) and 2945.59 “must be construed against admissibility and the standard for determining admissibility of such evidence is strict.” Also, Broom holds that 404(B) controls over R.C. 2945.49 since it was adopted subsequent to the statute.