State v. Burson

• Decision Date: 15 May 1974
• Docket Number: No. 73-822,73-822
• Citation: 311 N.E.2d 526,67 O.O.2d 174,38 Ohio St.2d 157
• Parties: , 67 O.O.2d 174 The STATE of Ohio, Appellee, v. BURSON, Appellant.
• Court: Ohio Supreme Court

Page 157

38 Ohio St.2d 157

311 N.E.2d 526, 67 O.O.2d 174

The STATE of Ohio, Appellee, v. BURSON, Appellant.

No. 73-822.

Supreme Court of Ohio.

May 15, 1974.

David D. Dowd, Jr., Prosecuting Atty., and Dale T. Evans, Massillon, for appellee.

Albert S. Rakas and Lawrence W. Vuillemin, Akron, for appellant.

PER CURIAM.

During the course of the trial, the prosecution called as a witness one Donald H. Hattery. Hattery testified, over objection, that approximately four years earlier, while at a bar known as the Texas Grill, he was approached by appellant and was asked for a sum of money which appellant claimed Hattery owed him. Hattery testified further that when he refused to give appellant any money, appellant severely beat him and took his money. As part of the testimony of Hattery, the prosecution introduced two photographs depicting the facial injuries suffered by Hattery as a result of the beating.

Appellant contends that the testimony of Hattery was inadmissible as it did not come within the scope of R.C. 2945.59, which permits, for limited purposes, proof of other acts of a defendant in a criminal case. The state maintains that Hattery's testimony was properly admissible under that statute, as tending to show appellant's absence of mistake or accident, his scheme or plan in committing robbery and his identity.

R.C. 2945.59 provides:

'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 in doing the act in question may be proved, whether they are contemporaneous with or prior to subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.'

This court has, thus far, permitted this statute to operate as an exception to the general rule that the introduction of evidence tending to show that the accused has committed any crime unconnected with the offense for which he is on trial is not permitted. State v. Hector (1969), 19 Ohio St.2d 167, 249 N.E.2d 912. Therefore, R.C. 2945.59 must be strictly construed against the state. See State v. Strong (1963), 119 Ohio App. 31, 196 N.E.2d 801.

Nowhere do the words 'like' or 'similar' appear in the statute. Prosecutors and trial courts should be particularly aware that evidence of other acts of a defendant if admissible only when it 'tends to show' one of the matters enumerated in the statute and only when it is relevant to proof of the guilt of the defendant of the offense in question. Such evidence is admissible, not because it shows that the defendant is crime prone, or even that he has committed an offense similar to the one in question, but in spite of such facts. Hector supra.

Where evidence of other acts of the defendant is sought to be introduced for the purpose of showing his identity, by his common scheme, plan, or system of committing an offense, the standard for determining admissibility is strict. In Hector, supra, Ohio St.2d at page 177, 249 N.E.2d at page 918, it is stated:

'The legal determination, by comprison of the plan, system, or method employed in a prior crime with the plan, system or method employed in the crime in question, of whether the former is relevant to the issue of identity of the perpetrator of the latter, must be made without consideration of the fact that eyewitnesses have identified the same person as the perpetrator of both crimes.

'There must be some similarity of methodology employed which itself would constitute probative evidence of the probability that the same person (whoever he might be) committed both crimes. In such event, eye-witness proof of the identity of the perpetrator of the prior offense is relevant proof on the issue of the identity of the perpetrator of the offense in...