What's Up in the 8th
If you're a prosecutor up here in Cuyahoga County, you might want to think twice about trying to admit 404(B) evidence in a rape case. And if you're a trial judge here, you might want to think twice about admitting it. Last week, for the second time in a month, the 8th District reversed a rape conviction because of improper "other acts" testimony.
In State v. Hartman, the earlier case, we learn, as we suspected all along, that putting one's penis in the mouth of a sleeping woman is rape; sleep, for that purpose, constitutes "substantial impairment." Hartman argues that the woman wasn't sleeping, and is claiming rape because she doesn't want her boyfriend to know that she was fooling around. That's a pretty tough sell in light of some other evidence, but the State nonetheless decides to bolster its case by presenting the testimony of Hartman's former stepdaughter. She tells the jury that four years earlier, when she was 12, Hartman came into her room and, while she pretended to be asleep, touched her breasts, attempted to touch her vagina, and put her hand on his penis.
While normally the State can't introduce evidence of similar acts by a defendant, EvidR 404(B) allows it to in certain circumstances: to refute a defense of accident or mistake, to prove identity, to show the defendant's motive, opportunity, or intent to commit the crime, or to demonstrate a purpose, preparation, or plan to commit the crime. The State argues identity, motive, and plan.
None of this works with the majority. (Hartman seemingly defies the laws of mathematics: the three judges produce four opinions, two of which are majority opinions. Go figure.) Identity was never at issue; Hartman claimed the sex was consensual, not that someone else did it. It doesn't take too much to figure out what the motive is for a sexual assault: sex. The common plan or scheme doesn't go anywhere, either; the majority notes that this is relevant to identity, if the details in both cases are sufficient to show a "behavioral fingerprint." But again, identity isn't at issue.
The opinion's probably strongest in the last part of the required analysis for 404(B) evidence: whether the probative value is outweighed by the prejudicial effect. As the majority points out, not only does the other evidence paint Hartman as a repeat sex offender, but as a pedophile as well.
There's another takeaway from Hartman that is especially significant. In its instructions on how to use 404(B) evidence, the court told the jury that it could use it to show any of the enumerated purposes in the rule. That's error, says the majority: "the instruction should have articulated the specific basis upon which the jury could consider the other acts evidence ... it created the risk that the jury considered the other acts evidence for a purpose that had no basis in evidence."
Last week's decision in State v. Hart gave the State an oh-for-two. Hart was charged with taking a 15-year-old girl down in a basement and raping her, and the State wanted to introduce evidence that, two decades earlier, Hart had taken a 15-year-old girl down in a basement and tried to rape her.
The State makes much the same argument -- identity, motive, intent -- that it did in Hartman, with much the same result. The State would seem to have better argument on the "scheme or plan" exception; even the panel admits that the earlier assault is "strikingly similar" to the latter one. The court essentially decides that it's not evidence of a plan because there was no plan: Hart met both girls by chance.
I like the results in both cases, and I have no trouble reaching the same conclusion. That's because I'm a criminal defense lawyer, and those are good decisions for defendants. But I call them as I see them, and I have trouble with Hart. The problem I have is that a judge's decision on 404(B) is reviewed under an abuse of discretion standard, not de novo. That means the panel has to find that the judge's decision is unreasonable, arbitrary, or capricious, and I'm really not seeing that, given the panel's concession on the similarities between the two incidents.
Hartman also presents an interesting side issue, the flight instruction. The evidence supporting the instruction was that when the woman screamed at him, Hartman fled from the room.
Many of my Cassandra-like wailings over the past several years have been directed at the flight instruction, which for a while was given any time the defendant didn't have the good grace to hang around the crime scene until the police got there. The 8th District and some other courts are moving away from that, noting that more is required than just leaving the scene;
the defendant [has] to appreciate that he has been identified as a person of interest in a criminal offense and is taking active measures to avoid being found.
In those cases, though, the courts found it to be harmless error, on the grounds that the instruction didn't tell the jury that the defendant fled, only to consider the evidence in deciding whether he did.
Not this time. When we vote on the Favorite Paragraph of an Opinion at the end of the year, my nomination is paragraph 50 of Hartman:
The frequency with which flight instructions issues are being raised on appeal is troubling. Although a number of recent decisions from this court have made it clear that the flight instruction is often being wrongly given, the state keeps requesting it in cases where the instruction is unwarranted. And even though the instructions are requested by prosecuting attorneys, the error lies with the trial court continuing to give the flight instruction without regard to our established precedent.
I remember a case from another district a few years ago. There was apparently an overly aggressive prosecutor down there, and on three prior occasions, the court had found prosecutorial misconduct, but declared it -- altogether now: -- "HARMLESS ERROR." The fourth time ended with court of appeals giving the defendant getting a new trial. And if there was any doubt about the court's message, it was dispelled by this line from the opinion: "Perhaps reversal will accomplish what admonition has not."
If there wasn't a memo out of the prosecutor's office about flight instructions after Hartman, somebody really missed the boat.
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