Sex cases and 404(B)
If you're defending a client charged with 61 counts of rape, kidnapping, and gross sexual imposition of a 14-year-old boy, you've got a tough case on your hands. It gets immeasurably tougher if the State is allowed to introduce evidence that your client had a consensual sexual relationship with a 16-year-old boy some twelve years earlier.
Van Williams' lawyer realized this, and fought tooth and nail to keep the evidence out. When the State filed its motion seeking to admit the evidence under EvidR 404(B), he filed a motion to exclude it, and asked for an evidentiary hearing. He renewed that request on the day of trial, arguing that he needed to know whether the evidence was going to come in before the trial started. The judge denied it and began voir dire. The lawyer again renewed the motion the next day, asking the court to rule on it before opening statements. The judge denied that, too. An evidentiary hearing was conducted at certain points during the trial, just prior to the testimony of the pertinent witnesses, and the judge eventually allowed all the evidence in. Unsurprisingly, Williams' was convicted, and sentenced to 20 years in prison.
The surprise came in the 8th District. Two of them, actually: first, the court sua sponte decided to consider the case en banc, and secondly, in State v. Williams, the court reversed.
The 8th has been pretty good in 404(B) cases, but the opinion begins by noting that "there is perhaps no more muddled area of evidence law than that surrounding EvidR 404(B) and its application to crimes of sexual assault," and finds that there are numerous conflicting decisions within the district on that point. That's the purpose of the en banc procedure -- to sort all that out. And so the court does.
It begins by noting that the "rape shield" statute also works in the defendant's favor. It generally precludes evidence of a defendant's prior sexual activity, with one big exception: if it's admissible under RC 2945.59 of the revised code, the statutory counterpart to 404(B). The court indicates that "because of the severe social stigma attached to crimes of child molestation," admission of such evidence "poses a higher risk of influencing the jury." There's some great language in the opinion about how, for that reason, the trial court should begin with the presumption that such evidence is inadmissible, and further cautions that even if the evidence falls within the rule, the court is required to engage in an analysis under EvidR 403(A): it should still be excluded if its probative value is outweighed by the danger of unfair prejudice.
That out of the way, the court looks to the two exceptions advanced by the State to allow admission of the evidence: proof of intent, and proof of a "scheme, plan, or system." The State's argument on the former was simple: the other acts evidence would show that Williams' intent was sexual gratification, it would show Williams' motive, and it would refute the defense argument that Williams was not attracted to males. The court rejects the latter contention, noting that the evidence came in during the State's case-in-chief, not in refutation to any evidence the defense had put on. As to the first two, the court's opinion is a little thin here, but so is the State's argument: if someone has sex with somebody else, you shouldn't have to spend a whole lot of time figuring out what the the intent and motive for having sex was.
The opinion is much more thorough on the "scheme, plan or system" exception. Relying on the Supreme Court's 1975 decision in State v. Curry, the court concludes that such evidence is admissible only in two situations: to show the background of the alleged crime, or to show identity. A 12-year-old incident obviously didn't fall within the first category.
The "identity" issue is more problematic, especially because the 8th has issued numerous decisions -- many cited in the opinion -- which have allowed the evidence to come in under that exception. The reason for that is there's a tendency to think that the "scheme, plan, or system" evidence is itself an exception: if the defendant had sex with one of his nephews, that's admissible to prove that he had sex with another nephew, because of the commonality. That's not the case, though, according to the court; the scheme, plan, or system evidence has to demonstrate some other factor, such as identity. Here, Williams' identity was never at issue: the question was whether he did it, not who did it.
Whether the court is correct in this conclusion is somewhat unclear. The reason there's a tendency to think that "scheme, plan, or system" evidence is itself an exception is because the statute defines them separately: it refers to the "defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system." But it's not clear from the case law that this is removed from the question of identity. There are numerous cases which hold that the evidence is admissible if the scheme, plan, or system is sufficiently idiosyncratic as to constitute a "behavioral fingerprint." For example, the fact that the defendant is charged with burglary in which a window was broken out doesn't make admissible evidence that he'd been convicted of other burglaries in which windows had been broken; that's a common method of committing a burglary. But it might be otherwise if the other burglaries all occurred at the same time of the night, it was a basement window broken each time, and they occurred in the same neighborhood. The "behavioral fingerprint, as the name implies, goes to show identity.
On the other hand, there are numerous cases holding that such similarity, such as "grooming" child sexual victims by giving them gifts, etc., is admissible, despite the fact that it has nothing to do with proving identity: it's based on the notion that if a defendant committed a particular crime in a very particular fashion on one occasion, it's more likely that he committed that crime in the same particular fashion on another. That doesn't cut it for the court:
In cases that deal with sexual assault, the Ohio Supreme Court has carved out no exceptions based on a defendant's filial relationship with the victim, a defendant's propensity to "groom" his victim, or a defendant's pattern of purchasing gifts for his victim.
In other words, scheme or plan can only be used if the identity of the perpetrator is at issue. Here it wasn't: "the state never claimed that the perpetrator's identity was at issue. If a crime occurred in this case, Williams was the perpetrator." And that rendered the evidence inadmissible:
The state's argument relies on the very inferential pattern that Evid.R. 404(B) prohibits; evidence that Williams previously molested a teenage boy was introduced only to compel the same inference -- he did it before so he must have done it again.
The opinion concludes by analyzing the second step of the 404(B) issue: whether the probative value of the evidence was outweighed by its prejudicial effect. This part of the opinion is again a bit problematic, because it appears that what the court is actually doing is determining whether the error in the admission of the evidence was harmless. That's not unusual, though, because there's good reason to question whether there actually is a two-step analysis: I have yet to see an opinion in which the appellate court concludes that the evidence was properly admissible under the statute or the rule, but nonetheless reverses because it determines that the evidence shouldn't have been admitted because it was unduly prejudicial. The short version: if you lose in the first step, you're not going to win in the second.
One other note of significance: the court finds itself "troubled by the trial court's decision to wait until mid-trial to rule on the Evid.R. 404(B) motion." The upshot: if you're defending a case like this, you're going to be entitled to an evidentiary hearing on the question, and the judge would be well-advised to rule on it before trial.
It's hard to understate the significance of Williams. Only one judge dissented; three other judges would have found that the evidence was admissible to show intent, but agreed that it was error to admit it in the State's case-in-chief. That makes it an 8-4 decision out of the largest appellate district in the state. If you've got a case involving 404(B) evidence, Williams is absolutely essential reading.