Ohio Supreme Court rules on when evidence of earlier crimes can be used in criminal trials

Marc KovacThe Columbus Dispatch

In separate decisions Tuesday, state’s high court sought to clarify when prosecutors can introduce evidence of past crimes during crim trials on new charges.

In one case, the Ohio Supreme Court sided with Cleveland man convicted of rape after evidence of a prior and unrelated assault was introduced during his jury trial.

In the other, justices sided with prosecutors in a Hamilton County case involving a man convicted of molesting a young girl, after evidence was presented of earlier assault allegations.

Both decisions were unanimous, with justices hoping “to help clear up some of the confusion that exists regarding the use of other-acts evidence,” Justice R. Patrick DeWine wrote. “Thus, we endeavor to provide trial courts with a road map for analyzing the admission of other-acts evidence and guidance as to appropriate instructions for the jury when such evidence is admitted.”

The first case involved, Mitchell Hartman, 40, who was convicted of rape following an Oct. 2015 incident involving a woman in a hotel room following an evening of drinking.

The woman, identified in court documents by the initials “E.W.,” said Hartman entered the room and initiated the unwanted sexual activity. Hartman argued that the activity was consensual, according to court documents.

During the resulting jury trial, prosecutors called Hartman’s former stepdaughter to testify about an earlier assault involving the defendant entering her bedroom at night.

The trial court allowed the evidence, and the jury returned guilty verdicts to two rape counts against Hartman but not-guilty verdicts on additional counts of burglary and kidnapping. The jury also designed Hartman as a sexually violent predator, according to documents. He’s currently serving a sentence of 10 years to life.

But the Eight District Court of Appeals reversed the convictions, saying the stepdaughter’s testimony should not have been admitted.

The facts of that case “had nothing to do with any fact in evidence or any fact that was being contested before… Mr. Hartman’s trial,” Joseph Patituce, Hartman’s attorney, said during oral arguments earlier this year. “The prejudicial effect is overwhelming. Once the jury hears it, this case is over, and that’s exactly what happened here.”

The Ohio Supreme Court upheld the appeals court ruling, stating that, while evidence of other criminal acts can be admitted in some cases, the admission was not proper in Hartman’s case.

“Here, Hartman’s molestation of his stepdaughter four years prior was not linked to any overarching plan to commit rape against E.W.,” DeWine wrote. “The incidents are wholly distinct …  the other-acts evidence in this case contains few similarities to the crimes charged. Thus, the evidence was not relevant to show a common scheme or plan.”

The other ruling Tuesday involved Michael Smith, 65, who was charged following a January 2016 incident involving his young granddaughter.

During his trial, testimony was allowed describing comparable crimes allegedly committed by Smith against his daughters decades earlier, with prosecutors arguing that “the conduct was similar in both situations,” according to documents. “Smith had shown scenes of oral sex to minors and had abused a minor who was asleep in the same bed as him.”

He was charged in 1986 as a result but acquitted. His defense counsel during the new trial argued “that presenting evidence of crimes for which Smith had been acquitted 30 years before would force Smith to defend himself against those charges a second time, in addition to defending against the present allegations.”

Smith was convicted of gross sexual imposition and disseminating matter harmful to juveniles in the newer case, however, and is serving a 9-year sentence.

An appeals court upheld the conviction, and justices agreed in their ruling Tuesday.

DeWine wrote, “The detailed facts of Smith’s molestation … his relationship to the victims, the manner in which he touched them, the location and environment in which the abuse occurred, and his priming of the children by showing them pornography depicting oral sex — were so similar as to ‘strongly suggest that an innocent explanation is implausible.’ …

“Because Smith placed his intent at issue by claiming that his actions were accidental and not done with sexual intent, the evidence was properly admissible to show absence of mistake — or to put it another way, that he committed the acts not accidentally, but with the intent of sexual gratification.”

Justice Michael P. Donnelly praised the decisions Tuesday, saying in a statement that the ruling “will surely provide guidance and clarity to our trial and appellate courts on the proper introduction of other acts evidence in a criminal trial. The requirement that criminal charges against the accused be proven beyond a reasonable doubt along with the presumption of innocence are cornerstones of our criminal justice system.”

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Cincinnati’s 2001 riots offer lessons for today: Pat DeWine Posted Jun 12, 2020 By Guest Columnist, cleveland.com

Cincinnati’s 2001 riots offer lessons for today: Pat DeWine
Posted Jun 12, 2020
By Guest Columnist, cleveland.com

CINCINNATI — On April 9, 2001, I sat in Cincinnati City Council chambers as a group of irate citizens pressed in demanding answers following the shooting of an unarmed man by a police officer. It was the latest in a series of 15 deaths of black males in Cincinnati police encounters over the past six years. Council provided few answers — certainly not the ones the audience was looking for.

After the group left City Hall, riots broke out that continued for another four days. Ultimately, a curfew was instituted and the National Guard called in. It was, at the time, the largest urban disturbance in the United States since the 1992 Los Angeles riots.

Of course, today all this sounds unsettlingly familiar — some might even see it as a reminder of our country’s lack of progress in the area of police-community relations.

But the reality is that Cincinnati did take steps following the riots — many of which worked a real improvement. At the same time, it made mistakes that had unfortunate consequences.

What worked: increased accountability, transparency and collaboration.
After the riots, there was a huge push for reform — certainly from those who had been protesting but also from corporate types and others who had previously shied away from the messy world of city politics. It wasn’t easy, but Cincinnati made some lasting reforms.

A longstanding criticism of the police force was that it was too insular, that it was led by a small clique that fostered a culture often at odds with the city it protected, and that it was unaccountable. Part of the problem were rigid civil service rules, which mandated that promotions to the upper echelons of the police force, including the chief, could only come from within.

To remedy this, we placed a charter amendment on the ballot that reformed civil service rules to allow the best person to be hired for top city positions. The police union and chief waged a vigorous campaign against the measure — but, ultimately, it passed. As a result, the city has hired chiefs from outside the city, the culture inside the force has improved, and the level of accountability has increased.

At the same time, the city entered into a Collaborative Agreement with the Fraternal Order of Police, the ACLU, and the Black United Front. The agreement forced the police and longtime critics of the department to work together to develop strategies to protect public safety. This led to a significant revamping of use-of-force policies, greater transparency and accountability for police conduct, and a more community-oriented policing philosophy.

What didn’t work: not enforcing the law.
But there was a downside. The period following the riots was an incredibly contentious time. Police officers, who were risking their lives every day, often felt unsupported by the politicians. Not surprisingly, law enforcement activities dropped dramatically after the riots; arrests fell by over 50%. City leaders were reluctant to do, or say, anything. Crime soared. In a two-year period, Cincinnati’s homicide rate leapt from below the national average to three times the national average.

And as crime spiked, the neighborhoods that were hit hardest by the riots were victimized again. The historic Over-the-Rhine neighborhood was at the center of the unrest. Before the riots, that neighborhood was revitalizing itself with new businesses and homeowners. But the damage done first by the riots and then by the crime surge brought that renaissance to an abrupt stop.

The Cincinnati experience offers obvious lessons. Smart city leaders will focus on collaborative efforts that increase accountability and transparency. But the objective has to be better policing, not less policing. To succeed, our cities must master the difficult task of creating an environment in which citizens both trust their police and live and work in safe neighborhoods.

Justice Pat DeWine is currently a member of the Ohio Supreme Court. Prior to becoming a judge, he served as a member of Cincinnati City Council from 1999 to 2005 and was chairman of council’s law committee following the Cincinnati riots.

COVID-19 crisis presents opportunities for our courts The Columbus Dispatch | by Justice Pat DeWine Opinion

COVID-19 crisis presents opportunities for our courts

The Columbus Dispatch | by Justice Pat DeWine

There is no sugarcoating it. This is a tough time for our court system.

Our work at the Ohio Supreme Court goes on — we have been able to hold oral arguments via video conferencing with attorneys and justices at remote locations. And because most of our other work involves reading briefs, researching legal issues and writing opinions, we have been able to function fairly efficiently with justices and staff working from home.

But at the trial court level, it is a different story. Jury trials have pretty much come to a halt. Many hearings have been delayed for months. Understandably, litigants are frustrated by their inability to get disputes resolved. Things will certainly get better as our society begins to reopen. But even when our courts are fully back to business, they will struggle to catch up with backlogs. And most likely, they will have to do so with fewer resources because of budget challenges at the state and local level.

It is not all bad news, though. During this strange time, many courts across the state have embraced technology and come up with innovative ways to continue to provide justice. Going forward, we need to look at what has worked and figure out how to incorporate what we have learned into our court system.

Start with remote technology. Across the state, judges are conducting hearings remotely. In Hamilton County, for example, Probate Judge Ted Winkler is finalizing adoptions and Domestic Relations Judge Amy Searcy is offering family mediation services through remote technology. Since the crisis started, the Ohio Supreme Court has awarded $6 million in remote technology grants to 277 courts in 87 counties.

This technology ought to be a permanent part of our judicial system. The average civil or criminal case includes numerous preliminary hearings and conferences before final disposition. As a practicing attorney, I often traveled to courthouses for status conferences that lasted only 5-10 minutes. Think of the savings in litigation costs that could be achieved by doing such conferences remotely.

And not only these kinds of routine matters could benefit from remote technology. Rather than fly in witnesses for hearings, why not consider whether remote testimony would be just as effective? Oftentimes, prisoners are transported across the state to attend hearings that last only a few minutes. How many of these could be conducted just as effectively via videoconference?

Certainly, in many cases there is great value to in-person testimony and interaction. But judges and lawyers need to think about when such in-person proceedings are worth the cost and efforts and whether remote technology might allow for a preferable substitute.

The possibilities for improvement go beyond remote conferencing. Although many Ohio courts already allowed for the e-filing of documents, the crisis has led to the expansion of e-filing. Every court should develop the capability to allow litigants to file pleadings without a trip to the courthouse.

The crisis has also led to increased use of other types of online services that help make our system more efficient. Last year the General Assembly passed legislation allowing for the electronic notarization of documents — a service that has proven to be of great benefit in recent weeks.

Finally, concerns about the virus have led judges in many counties to work with their local sheriffs to determine who really needs to be in jail and who could safely be confined in a different setting, for example via in-home monitoring with GPS technology. Jail beds are much more expensive than the alternatives, and it only makes sense for judges and sheriffs to continue to work together to make sure that jail spaces are assigned to those who truly need to be there.

Our legal system — indeed the entire idea of the rule of law — is built upon tradition and precedent. This is a strength of our system. But sometimes it can also be a weakness; as judges and lawyers we are not always the first to embrace innovation and technology.

We should look at this unprecedented time as an opportunity. When this all ends, we will have some tough times ahead in our court system. But we also have a chance to take some of what we have learned during this crisis and use it to improve our system in a way that benefits litigants and taxpayers.

Justice DeWine Addresses New Attorneys in Ohio Theatre Ceremony

Justice DeWine addressed over 600 new attorneys  welcomed to the Ohio bar on November 14, 2017.

Read more about his remarks and the ceremony held at the Ohio Theatre from Court News Ohio.


Justice DeWine Participates in Q&A Session with Teen Leaders

Justice DeWine met with teen leaders who were participating in the Ohio Attorney General’s Teen Ambassador Program.

Read more about the Q&A session.