Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Feb. 25, 2020

In re L.S. Jr., Case no. 2019-0054
Sixth District Court of Appeals (Ottawa County)

State of Ohio v. Elizabeth Floyd, Case no. 2019-0141
First District Court of Appeals (Hamilton County)

State of Ohio v. Fredrick M. Weber, Case no. 2019-0544
Twelfth District Court of Appeals (Clermont County)

State of Ohio v. Mitchell Hartman, Case no. 2019-0184
Eighth District Court of Appeals (Cuyahoga County)

Is Impaired-Consent Rape Law Constitutional when Applied to Teens?

In re L.S. Jr., Case no. 2019-0054
Sixth District Court of Appeals (Ottawa County)

ISSUE: Is R.C. 2907.02(A)(1)(c) unconstitutional as applied to two impaired and sexually-involved teens where one was charged with violating the law and the other was not?

In June 2016, L.S. Jr., then 16-years-old, and R.J., who was 17, were part of a group of friends who met up after school to smoke marijuana. Later, L.S. and R.J. began drinking alcohol. L.S. walked R.J. back to her home where the two sat at the kitchen table with R.J.’s mother, and a 20-year-old family friend Jordan Carrisales. R.J.’s mother and Carrisales testified that R.J. fell out of her chair, was slurring her speech, and left the room to vomit. Her mother put her to bed and allowed L.S. and Carrisales to sleep in the same room.

R.J. reported that she was blacking out and remembers L.S. on top of her. Carrisales said he saw the two having sex and that R.J. performed a sexual act on him. Carrisales said he then had sex with R.J. too and told authorities he knew it was wrong because of R.J.’s level of impairment. L.S. denied having sex with R.J.

The next day, at the encouragement of her aunt and others, R.J. reported the incident and went to the hospital for a sexual assault examination. L.S.’s DNA and Carrisales’ DNA were found in samples taken from R.J. and her clothing that indicated sexual contact.

Carrisales and L.S. were both arrested and prosecuted. Carrisales pleaded guilty to one count of gross sexual imposition and testified in L.S’s. juvenile proceedings.

The complaint were filed in Ottawa County Juvenile Court alleged that L.S. was delinquent
for crimes that if committed by an adult would be kidnapping, forcible rape, and impaired-consent rape. The juvenile court acquitted him of the forcible rape and kidnapping allegations. The court adjudicated him delinquent on the impaired-consent rape under R.C. 2907.02(A)(1)(c), which is a first-degree felony if committed by an adult. He was committed to the Ohio Department of Youth Services for one year, which was suspended as long as he agreed to other conditions, including treatment at the Juvenile Residential Center of Northwest Ohio.

L.S. appealed his adjudication and the Sixth District Court of Appeals affirmed it. He appealed the decision to the Ohio Supreme Court on several grounds. The Court agreed to consider only his argument that R.C. 2907.02(A)(1)(c), as applied to two sexually involved impaired teens where one is charged with violating the law and the other isn’t, is a violation of the charged teen’s constitutional rights.

Law Too Subjective to Punish Juveniles, Teen Argues
L.S. argues the law violates his rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article 1, Section 16 of the Ohio Constitution. He maintains the law is unconstitutionally vague and allows law enforcement to apply it in an arbitrary and discriminatory fashion.

R.C. 2907.02(A)(1)(c) states that no person shall engage in sexual conduct if “the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.”

L.S. maintains the law grants too much discretion to police and prosecutors to choose whom to prosecute when two minors both are substantially impaired. And in a case where there is no statement by L.S. about his own level of impairment, the law was applied based on the subjective views of R.J., R.J.’s mother, and Carrisales as to L.S.’s level of impairment. R.J.’s mother and Carrisales testified that R.J. was significantly impaired, but that L.S. didn’t display any signs of impairment as they conversed with him. L.S. notes that he was also drinking significantly during the time of the events.

He was prosecuted not based on any direct evidence that he knew R.J. was substantially impaired, but it was implied that he had “reasonable cause to believe” she couldn’t consent, L.S. asserts. He also argues the court rules wouldn’t allow him to introduce evidence of his impairment and that only the prosecution’s beliefs about his impairment and ability to consent to having sex with R.J. were considered. Where two teenagers are mutually and voluntarily impaired, and later engage in sexual conduct, the law contains no workable standard for discerning between them, he maintains. Without a fair standard, the law is subject to bias and arbitrary enforcement based on stereotypes that males are the aggressors and females are the victims when there is sexual conduct between two impaired teens, he concludes.

Standard Too Low to Punish Juveniles, Teen Adds
Ohio recognizes four categories of mens rea, or state of mind, to determine the level of criminal culpability: purposely, knowingly, recklessly, and negligently, L.S. explains. The higher the level of mens rea, the greater the punishment. Negligence is the lowest level of mens rea, and where there is no direct evidence of the accused’s state of mind, the prosecution uses a subjective standard — has reasonable cause to believe — to meet this element of the crime. L.S. argues the negligence standard is too low to charge someone with a first-degree felony, and is too vague of a standard to apply to a criminal charge.

Further, he argues, the standard is wrongly applied to juveniles. Judges and juries are asked to assess whether someone like L.S. should have known R.J. was substantially impaired based on the standard of a “reasonable person.” The reasonable person standard is based on what an ordinary adult in a similar circumstance would believe. L.S. Jr. notes the U.S. Supreme Court has recognized children are different than adults and their ability to reason is not fully developed. If R.C. 2907.02(A)(1)(c) is constitutional, then juveniles should be assessed by a “reasonable child” standard, he asserts. The court should have assessed L.S. Jr. by what a reasonable teen in his circumstance would have known about his own impairment, R.J.’s impairment and her ability to consent, he argues. Under such a standard, a court likely wouldn’t have found him delinquent for the crime, he concludes.

Teen Not Similarly Impaired, Prosecutor Maintains
The Ottawa County Prosecutor’s Office explains that L.S. must demonstrate an “actual — not hypothetical — violation of his constitutional rights, and in this case he can’t.” The prosecutor notes the witnesses  described R.J.’s significant impairment, from her slurring and falling while L.S. didn’t show any signs of disorientation and was able to converse with them. R.J. also testified she was “blacking in and out” during her sexual encounter with L.S. and wasn’t sure until the next day if she had been sexually assaulted. The prosecutor claims L.S. was well aware of R.J.’s state and made sexual advances as he walked her home, and knew or should have known she was unable to resist or consent.

The prosecutor maintains the law has sufficient guidelines to prevent arbitrary enforcement, and seeks to protect those who are substantially impaired due to a mental or physical condition or advanced age. Because the law requires someone to be substantially impaired, law enforcement can distinguish between the offender and the victim, the prosecutor notes.

The mens rea standard of “reasonable cause to believe” appears in several criminal laws, the prosecutor adds. In many cases, the state of mind is proven by circumstantial evidence and inferences. A statute isn’t unconstitutionally vague for including a “reasonable cause to believe” element, the office asserts.

The prosecutor also rejects the need for a “reasonable child” standard. The office agrees with L.S.’s point that the U.S. Supreme Court has ruled that children are different than adults and need to be evaluated from a child’s point of view in many instances. However, the prosecutor explains the high court has indicated in cases where juveniles are engaged in “adult activities,” those acts can be viewed by a reasonable person standard. Sex is an adult activity, and it is reasonable for Ohio to use the adult standard to judge those charged with violating the impaired-consent rape law, the office concludes.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the L.S.’s position has been submitted jointly by the Cuyahoga County Public Defender’s Office, the Hamilton County Public Defender’s Office, and the National Juvenile Defender Center.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing L.S. Jr. from the Ohio Public Defender’s Office: Timothy Hackett, 614.466.5394

Representing the State of Ohio from the Ottawa County Prosecutor’s Office: James VanEerten, 419.734.6845

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Can Records of Dismissed Criminal Case Be Sealed When Applicant Serving Community Control?

State of Ohio v. Elizabeth Floyd, Case no. 2019-0141
First District Court of Appeals (Hamilton County)

ISSUE: For the purposes of sealing criminal records, is a term of community control part of a “pending criminal proceeding”?

Elizabeth Floyd was charged with three criminal misdemeanors in Hamilton County Municipal Court. Those charges were ultimately dismissed.

In September 2017, Floyd applied to have the three cases sealed under R.C. 2953.52. At the time of her request, she was serving a period of community control for a conviction that wasn’t related to the three cases she sought to seal. The period of community control had been extended until January 2020. The trial court denied her application to seal the records, stating that the law doesn’t allow for sealing when the requester is under a pending criminal proceeding.

Floyd appealed the decision to the First District Court of Appeals, arguing a term of community control isn’t part of a pending criminal proceeding. The First District overruled its 2018 State v. Blair decision and determined that while serving a term of community control is a criminal proceeding, it isn’t a “pending” criminal proceeding. The First District directed the trial court to consider Floyd’s request to seal the dismissed cases.

The Hamilton County Prosecutor’s Office, joined by the City of Cincinnati Law Department, opposed Floyd’s sealing request, and appealed the First District’s decision to the Ohio Supreme Court, which agreed to hear the case.

Community Control Is Pending Proceeding, Prosecutors Argue
Filed separately, briefs from the Hamilton County and Cincinnati prosecutors make similar arguments against permitting Floyd to petition for the sealing of her misdemeanor criminal charges that were dismissed. The prosecutors note that R.C. 2953.32(C) requires trial courts to determine that no criminal proceedings are pending against an applicant seeking to have a conviction sealed. And they note that R.C. 2953.52(B)(4) requires the court to determine there are no criminal proceedings against an applicant seeking to have the records of a dismissal, acquittal, or a grand jury’s decision not to indict a suspect.

The prosecutors explain that Ohio revised its criminal sentencing laws and did away with probation as a reduction in the length of a criminal sentence. Probation was deemed to be a civil procedure, and a  violation of probation was a civil matter. Probation is now one component of community control, which is a criminal sentence imposed by a trial court, the prosecutors note. Violation of community control conditions are a crime, the offices state. The prosecutors point to prior Ohio Supreme Court decisions, which state that “pending” has been defined as “begun, but not yet completed.” In its 2008 Maynard v. Eaton Corp. decision, the Court stated a legal action is pending from its “inception until the rendition of a final judgment .”

The prosecutors argue the First District wrongly associates “final judgment” with a final, appealable order, which is the point after convictions when the defendants can appeal their convictions. The two aren’t the same, the prosecutors argue. The criminal matter is pending until it is completed.  Since Floyd’s community control sanction was ongoing at the time of her request, her sentence wasn’t complete and her matter was still pending, the offices note. The prosecutors argue a court can refuse to consider a request to seal the record of a dismissed case until all the criminal proceedings against the sealing requestor are completed, including community control.

Community Control Not Pending Proceeding, Applicant Argues
Floyd maintains the First District correctly concluded that a criminal matter is “pending” on a court’s docket until a sentence is imposed and the entry journalized. At that point the case is terminated, she states. Community-control violations aren’t infractions of a pending criminal matter, but are separate crimes and start a new matter, Floyd maintains. Since she wasn’t in violation of her community control at the time of her request, there wasn’t a pending criminal matter before any court when she requested the records be sealed, she asserts.

Floyd notes the legislature used two distinct terms when considering sealing requests for dismissed charges and convictions. Under R.C. 2953.32(C), a request to seal a conviction can’t be considered until at least one year after the “final discharge” of all cases on a person’s record. Under that scenario, community control must be completed to request the sealing of a conviction, Floyd explains. In contrast, R.C. 2953.52 are requests to seal dismissals and acquittals and can be sought at any time. “Final discharge” in these cases isn’t required as a condition to request records be sealed, but only that there are no pending criminal proceedings. The absence of the term “final discharge” from the statute seeking sealing of dismissals indicates the legislature intended to treat sealing of dismissals differently than sealing convictions, she argues.

Floyd also notes that her lack of a pending criminal proceeding doesn’t guarantee her request for sealing her records would be granted. The trial court must consider other factors, too, including any objection from the state, and whether the interest in sealing the record outweighs the legitimate needs to maintain the records.

Sealing also can be denied if the trial court determines the applicant hasn’t been sufficiently rehabilitated, and in Floyd’s case, the court could have ruled that she hadn’t been rehabilitated during her unfinished term of community control, she states. The underlying criminal action that led to her community control is no longer pending, she argues. Any violation of community control doesn’t revive the closed case, but starts a new case, she maintains, and her term of community control isn’t a pending criminal proceeding.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Scott Heenan, 513.946.3227

Representing the City of Cincinnati Law Department: Jonathon Vogt, 513.352.4710

Representing Elizabeth Floyd from the Hamilton County Public Defender’s Office: Sarah Nelson, 513.946.3665

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Is Law that Bans Carrying or Using Firearm While Intoxicated Constitutional?

State of Ohio v. Fredrick M. Weber, Case no. 2019-0544
Twelfth District Court of Appeals (Clermont County)


  • Is the statute that prohibits using a weapon while intoxicated unconstitutional as applied to the facts of this case?
  • When a statute is challenged as unconstitutionally impinging on the right to bear arms, is strict scrutiny the appropriate legal standard of review?
  • Under any legal standard of scrutiny, is a prohibition on carrying or using a firearm while intoxicated in the home unconstitutional?

This case has drawn the interest of a group of six Ohio cities as well as two national nonprofit organizations – the Giffords Law Center to Prevent Gun Violence and the Brady Center to Prevent Gun Violence. In separate amicuscuriae briefs, the cities and the centers support the constitutionality of a state law that makes it a misdemeanor for an intoxicated individual to carry or use a firearm. They maintain that the law doesn’t infringe on a person’s right to bear arms.

At approximately 4 a.m. on Feb. 17, 2018, a deputy and a sergeant from the Clermont County Sheriff’s Office were dispatched to Fredrick Weber’s home in Felicity. They were responding to a 911 call from Weber’s wife that Weber was intoxicated and had a firearm.

When the officers arrived, Weber’s wife said that everything was all right and Weber had put away the firearm. She allowed the officers inside. The officers saw Weber come through a doorway holding a shotgun by the stock with the barrel pointed down. Weber said the shotgun was unloaded and he had unloaded it to wipe it down. The officers took the gun to check that it was unloaded.

While talking with Weber, the officers noticed he smelled of alcohol, his eyes were bloodshot and glassy, his speech was slurred, and he was unsteady on his feet. He wasn’t able to complete a field sobriety test and stated several times that he was drunk. The officers described Weber as “very” and “highly” intoxicated.

Law Bars Carrying or Using Weapon While Drunk
Weber was charged with a violation of R.C. 2923.15, which prohibits carrying or using a weapon while intoxicated, a first-degree misdemeanor. A trial was held before a judge in the Clermont County Municipal Court. In June 2018, the court found Weber guilty of the charge and sentenced him to 10 days in jail – all suspended – and one year of community control.

Weber appealed to the Twelfth District Court of Appeals, which upheld the conviction. He filed an appeal with the Ohio Supreme Court, which agreed to review three issues.

Man Argues for Right to Possess Weapon in Home While Intoxicated
R.C. 2923.15 states, “No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.”

Weber maintains he had an unloaded shotgun in his home and he wasn’t carrying or using it. He argues he merely possessed the gun, and no evidence demonstrated that he had committed, was committing, or was about to commit any criminal offense. He contends that, given these facts, the statute is unconstitutional as applied to his case.

To support his arguments, he points to the U.S. Supreme Court’s decision in District of Columbia v. Heller (2008), which stated:

“The District [of Columbia]’s total ban on handgun possession in the home amounts to a prohibition on an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster.”

Although acknowledging that R.C. 2923.15 reflects a compelling state interest in public safety and preventing gun violence, Weber argues there’s no compelling state interest in preventing the possession of weapons in the home after someone consumes alcohol.

Weber also asks the Court to use the “strict scrutiny” standard of review in this case because the issue involves a restriction on the fundamental constitutional right to bear arms. Strict scrutiny requires the state to show a compelling interest for a law and that the law is the least-restrictive means to further that interest. However, based on Heller, Weber also maintains that under any standard of review, Ohio’s law still is unconstitutional.

“Should any citizen in this state choose to maintain an armory in the home and, from time to time, consume alcohol or otherwise become intoxicated in that home, such conduct should not be a violation of law,” his brief states.

State Maintains Law Serves Interests of Protecting Public
The Clermont County Prosecutor’s Office counters that both the U.S. Supreme Court and Ohio Supreme Court have recognized that the right to bear arms isn’t unlimited.

Weber was wielding his shotgun while highly intoxicated, and his wife felt enough fear and danger that she decided to call the police, the prosecutor states, arguing that Weber wasn’t exercising his right to bear arms in a “virtuous manner.” Instead, the prosecutor maintains, Weber was putting other citizens in danger.

When enacting the prohibition against carrying or using a firearm while intoxicated, the legislatureexplained that it created the law because carrying or using a firearm while in that condition is a danger as great as driving while intoxicated, the office notes. The prosecutor also maintains that Ohio and other courts have concluded the danger is the same whether handling a firearm while intoxicated takes place inside or outside the home.

While Weber points out that the gun was unloaded, the prosecutor states that Weber had unloaded it to clean it, meaning the gun had been loaded while he handled it in a highly intoxicated state and there was ammunition readily available to him. Weber shouldn’t be protected by the U.S. or Ohio constitutional rights to bear arms because R.C. 2923.15 isn’t a complete ban, the prosecutor argues. The office points out that Weber was prohibited from carrying or using the firearm only while intoxicated and he simply had to sober up or avoid becoming drunk before handling his gun.

The prosecutor maintains that the law is narrowly tailored to serve a compelling state interest of protecting people from the increased dangers caused when an intoxicated individual handles a gun.

“This statute … does not, as [Weber] suggests, prevent someone from drinking to the point of intoxication in their own home while they own a gun – section 2923.15 does not contain the words ‘have,’ ‘own,’ or ‘possess.’ [Weber’s] slippery slope specter of the responsible gun owner drinking in their own home where a gun is safely stored and waking up to find themselves facing a misdemeanor charge will simply never materialize,” the office’s brief states.

The office believes the law falls under a standard of legal review called “intermediate scrutiny,” which requires that the law is narrowly tailored to serve a significant government interest. Even under the higher strict scrutiny standard of legal review, though, the prosecutor maintains the law still is constitutional because there is no less-restrictive way to achieve the government’s interest.

Cities and Nonprofit Groups Speak to Dangers of Guns and Alcohol
In their amicus brief, the cities of Akron, Cincinnati, Columbus, Dayton, Lima, and Toledo state that their police officers are the first to respond to domestic violence incidents, interpersonal gun violence, gun suicides, and unintentional shootings – which all become more lethal when there’s a combination of guns and alcohol. Noting recent gun violence and public support for common-sense gun regulations, they argue the law is reasonable and ask the Supreme Court to uphold it.

The Giffords center and the Brady center submitted their brief to share research about the “unique dangers” that result from the combination of heavy alcohol use can access to firearms. The groups argue for Ohio to have the “flexibility allowed by law to tailor common-sense safety regulations to the needs of its residents.”

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Fredrick M. Weber: Gary Rosenhoffer, 513.732.0300

Representing the State of Ohio from the Clermont County Prosecutor’s Office: Nicholas Horton, 513.732.8175

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Was Victim’s Testimony about Man’s Prior Conviction Properly Admitted in Rape Case?

State of Ohio v. Mitchell Hartman, Case no. 2019-0184
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: In sexual assault cases, is evidence of other acts admissible when introduced to prove the offender’s intent or plan even when the offender’s identity isn’t at issue?

A woman, identified in court documents as E.W., visited Cleveland in October 2015 and stayed in a hotel with friends. On Oct. 11, Mitchell Hartman met the group and went with them to a downtown bar. A while later, E.W. told her boyfriend that she wanted to leave. After returning to the hotel, E.W. went to bed, and her boyfriend left to go to a casino.

E.W. said she awoke to Hartman sexually assaulting her. She screamed at Hartman to get out, and he left the room and the hotel. She called her boyfriend, who returned to the hotel. Hotel security and the police were called. A hotel employee later testified that Hartman had asked for a room key at the front desk, and the staff got authorization to give Hartman the key from E.W.’s friend who was staying in the same room.

Man’s Stepdaughter Testifies about His Conduct in 2012
Hartman was charged with rape, burglary, and kidnapping. Hartman maintained that he and E.W. had a consensual sexual encounter. At trial, the court permitted testimony from a teenager identified as B.T., who is Hartman’s former stepdaughter. She testified that in 2012 when she was 12, Hartman was living with her mom and her, and he came into her bedroom multiple times and touched her inappropriately and in a sexual manner. Hartman pled guilty to abduction and felonious assault in that case.

The court in E.W.’s case instructed the jury about the limits on how it could consider B.T.’s testimony. The jury found Hartman guilty of rape, and acquitted him of burglary and kidnapping. The court sentenced him to 10 years to life in prison.

Hartman appealed to the Eighth District Court of Appeals, which reversed his conviction and remanded the case for a new trial. The appellate court determined that the admission of B.T.’s testimony as well as a jury instruction related to whether Hartman fled the scene were improper. The combined errors warranted a new trial, the court stated.

The Cuyahoga County Prosecutor’s Office appealed to the Ohio Supreme Court, which accepted the case.

Criminal Rules Permit Other-Acts Evidence for Certain Purposes
In Ohio, Rule 404(B) of the state’s Rules of Evidence generally prohibits evidence of other “crimes, wrongs, or acts” if used to prove a person’s character in order to show conduct that conforms with that character. But this type of evidence is allowed when it’s “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In State v. Williams (2012), the Ohio Supreme Court set out a three-part analysis to determine whether other-acts evidence was properly admitted in a trial.

Testimony Demonstrated Man Targeted Sleeping Women, State Argues
Applying the first factor in Williams regarding relevancy, the Cuyahoga County prosecutor argues B.T.’s testimony was relevant to a consequential fact in deciding Hartman’s guilt in E.W.’s case. The prosecutor maintains that B.T.’s testimony showed that Hartman targeted victims he believed were asleep and vulnerable, initially unable to escape or resist.

The legitimate purpose of this evidence – the second Williams factor – was to counteract Hartman’s defense that the interaction was consensual and to establish that he had a plan and intent for obtaining access to E.W.’s hotel room, the prosecutor states. The office adds that the evidence also addressed the primary issue at the trial, which was whether there was consent.

The prosecutor maintains that, contrary to the Eighth District’s decision, the other-acts testimony was allowable even though Hartman’s identity as the perpetrator wasn’t at issue. In Williams, the prosecutor notes, the Court ruled that other-acts evidence may be admissible to prove intent or plan, even when the accused’s identity isn’t at issue.

The Eighth District concluded that B.T.’s testimony couldn’t be introduced to establish a plan because the state didn’t argue that Hartman was a somnophiliac (a person who becomes sexually aroused by someone who is sleeping or unconscious), and the testimony couldn’t show Hartman’s intent to rape the sleeping E.W. because “sexual gratification is almost always the motive behind a sexual offense and requires no additional proof.”

The prosecutor’s brief counters that dismissing Hartman’s actions because evidence wasn’t presented that he was a somnophiliac ignores “the predatory nature of his conduct and the motivation behind sexual assaults.” Noting that sexual crimes are a violation of another’s will, the prosecutor writes, “Sexual gratification is not the sole motivation of rape; at its root is control, dominance, and dehumanization.” The other-acts evidence showed Hartman’s intent to seek sexual gratification through sexual conduct with impaired victims against their will, the office argues.

The prosecutor contends that the Eighth District is wrongly refusing to consider other-acts evidence across sexual assault cases when the perpetrator’s identity isn’t at issue. In this case, the prosecutor maintains that the trial court carefully considered the potential prejudice of B.T.’s testimony to Hartman and gave the jury a limiting instruction. The probative value of the testimony outweighed the prejudice to Hartman, the office concludes.

Cases Were Too Dissimilar, Testimony Was Prejudicial, Man Maintains
Hartman responds that the other-acts evidence wasn’t relevant to the current case. The state “grossly overstates” the similarities between B.T.’s case and E.W.’s allegations, his brief argues. It states that B.T. said she was awake during most of the visits from Hartman, while E.W. gave inconsistent testimony about whether she was awake or asleep; B.T. was a minor – 12 years old, while E.W. was a 23-year-old adult; the events in B.T.’s case took place in Hartman’s home, while he was accused of burglarizing a hotel room in this case; and the relationships between Hartman and B.T. and Hartman and E.W. were distinctly different.

Nor was the evidence presented for a legitimate purpose, Hartman argues. Instead, he maintains, the purpose of B.T.’s testimony was to assert that he is a pedophile who rapes sleeping women. His brief contends that the prosecutor made several arguments that the testimony would be used to demonstrate that Hartman was the person who committed these offenses and that there was a “behavioral fingerprint.” Hartman counters, however, that there was no evidence that the crimes reflected a distinct, identifiable scheme, plan, or system. He concludes that the testimony met none of the criminal rule’s exceptions for allowing evidence.

“[T]he two allegations simply do not have the temporal, modal and situational relationship necessary to permit the introduction of B.T.’s testimony as a mean to prove purposeful action in the commission of the alleged offense against E.W.,” his brief states.

Beyond attempting to bolster E.W.’s testimony with the dissimilar facts from B.T.’s case, the probative value of the other-acts testimony couldn’t possibly outweigh the harm caused by being labeled a child molester in front of the jury, Hartman argues.

The brief also charges that the Eighth District’s decision aligns with Williams and with decisions from all the other districts in the state, and it cites cases in each. Hartman contends that the admission of the other-acts evidence fails to meet any of the three Williams factors.  

“What the State is asking this court to do is to change the holding in Williams to make an exception for sexual crimes which would sweep so much in scope that any prior sexual act would be admissible as evidence,” Hartman’s brief states. “Any change such as this would sew discord among the districts and create an immense burden on the judiciary.”

Criminal Defense Group Files Brief
An amicus curiae brief supporting Hartman’s position has been submitted by the Ohio Association of Criminal Defense Lawyers.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Mary Frey, 216.443.5074

Representing Mitchell Hartman: Joseph Patituce, 440.471.7784

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