State v. Hartman

• Decision Date: 22 September 2020
• Docket Number: No. 2019-0184,2019-0184
• Citation: 161 Ohio St.3d 214,2020 Ohio 4440,161 N.E.3d 651
• Parties: The STATE of Ohio, Appellant, v. HARTMAN, Appellee.
• Court: Ohio Supreme Court

161 Ohio St.3d 214

161 N.E.3d 651

2020 Ohio 4440

The STATE of Ohio, Appellant,

v.HARTMAN, Appellee.

No. 2019-0184

Supreme Court of Ohio.

Submitted February 25, 2020

Decided September 22, 2020

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Daniel T. Van, and Maxwell Martin, Assistant Prosecuting Attorneys, for appellant.

Patituce & Associates, L.L.C, Joseph C. Patituce, and Megan M. Patituce, Cleveland, for appellee.

Russell S. Bensing, Cleveland, urging affirmance for amicus curiae, Ohio Association of Criminal Defense Lawyers.

DeWine, J. {¶ 1} Mitchell Hartman was accused of raping an adult female acquaintance in her hotel room after they had spent the evening out with a group of friends. He claimed that the hotel encounter was consensual. To counter his claim and support its version of events, the state presented "other acts" evidence that Hartman had sexually abused his stepdaughter when she was a child. A jury found Hartman guilty of the crimes, but the court of appeals reversed, concluding that the other-acts evidence should not have been admitted. We agree and affirm the judgment of the court of appeals.

I. Hartman Is Charged with and Convicted of Raping E.W. in 2015

A. The 2015 Incident

{¶ 2} Hartman was put on trial for the rape of E.W. based on an incident that happened in October 2015. E.W. had taken a weekend trip to Ohio with her boyfriend Chris and another couple, Stephanie and Jeremy. On the last night of their trip, Hartman, a friend of Jeremy's, joined the group in their hotel room for drinks, and then they all went out to a bar together in downtown Cleveland.

{¶ 3} According to E.W., Hartman started flirting with her and Stephanie at the bar. She described him as "touchy-feely" and coming on too strong. Though E.W. had consumed five drinks and was feeling "a little bit of a buzz," she said that she did not feel intoxicated. Because Hartman's behavior made her uncomfortable and because they had an early flight the next morning, she decided to leave the bar and return to the hotel room. Chris walked E.W. back to the room and then left to rejoin the others. E.W. climbed into bed and fell asleep.

{¶ 4} Later, Hartman returned to the hotel, purportedly to retrieve a bookbag that he had left in the room. (Jeremy confirmed that Hartman had a bookbag with him when he had first come to the hotel room for drinks.) Because Hartman's name was not on the reservation, the employee at the hotel desk spoke to Stephanie by telephone and obtained her permission to give him a room key.

{¶ 5} E.W. testified that she did not hear Hartman enter her room and was awakened by him putting his penis in her mouth. E.W. said that at first, she began to reciprocate the act, believing that the person standing next to the bed was her boyfriend Chris. When she opened her eyes and realized it was Hartman, she screamed, and he said, "What, you're not going to finish?" She told him to get out, and he left.

{¶ 6} Immediately after Hartman left the room, E.W. called Chris, who returned to the hotel with Stephanie. A heated argument took place in the hotel room. Ultimately, the disturbance brought hotel security to the room in response to a complaint from another guest. After hotel security arrived, E.W. reported the alleged rape to police.

{¶ 7} When he became aware of the situation, Jeremy sent Hartman a text message confronting him about what had happened between Hartman and E.W. Hartman responded with a voicemail saying that he had simply grabbed his bag and left the room.

{¶ 8} The defense's theory was that the encounter between Hartman and E.W. had been consensual and that E.W. had made up the rape allegation only after her boyfriend learned that she had cheated on him. In furtherance of this theory, the defense sought to highlight certain inconsistencies in E.W.'s testimony.

{¶ 9} The defense first tried to undercut E.W.'s account of her interactions with Hartman earlier in the evening. The defense cross-examined E.W. about the video footage captured by the bar's surveillance camera, attempting to establish that it did not show any inappropriate behavior by Hartman. In addition, on cross-examination, the defense elicited testimony from Jeremy that Hartman had told him that Hartman and E.W. had kissed while at the bar.

{¶ 10} The defense also focused on discrepancies in E.W.'s account of the assault itself. At first, she said she was sleeping with her mouth open and woke up to the penis in her mouth, but she later explained that she had thought it was her boyfriend Chris, so she opened her mouth and began to reciprocate. On direct examination, E.W. testified that she had not heard Hartman enter the room. On cross-examination, though, she conceded that she had initially told police that she had been awakened by someone entering the room and she had thought it was Chris.

{¶ 11} There was also some dispute about what happened next. E.W. initially testified that police interviewed her about the incident before she was able to see Chris. But during cross-examination, she conceded that Chris and Stephanie had come up to the hotel room before the police were called. The defense theorized that the argument that took place in the hotel room was the result of Chris believing that E.W. had been unfaithful. But Chris said that he had been upset with himself for leaving E.W. alone in the hotel room and denied that he had thought that E.W. had cheated on him. E.W. said that she had been worried that Chris would not believe her and thought he was angry at her.

B. The Other-Acts Evidence

{¶ 12} The state's final witness was B.T., who had been victimized by Hartman—her former stepfather—as a child. (Hartman's conduct with B.T. had resulted in a plea agreement in which Hartman pleaded guilty to abduction and attempted felonious assault.) Prior to the start of trial, defense counsel sought to have B.T.'s testimony excluded as improper character evidence. He argued that the allegations involving B.T. were too distinct from those involved in the current case to have any probative value. The state countered that both assaults had occurred while the victims were sleeping and that this amounted to a "behavioral fingerprint" identifying Hartman as the perpetrator. The prosecutor also asserted that the evidence was probative of Hartman's "motive, intent, plan or scheme and absence of mistake." The crux of the state's argument was that the fact that Hartman had molested his stepdaughter while she was sleeping provided evidence that Hartman's motive for returning to the hotel room was to assault E.W. Alternatively, the state contended that the evidence rebutted any "mistaken impression that this was consensual sexual activity."

{¶ 13} The trial court issued a preliminary ruling allowing the state to present the evidence. The court concluded that because both allegations involved "vulnerable, asleep victims," B.T.'s testimony was probative to show absence of mistake, Hartman's plan or scheme, and that he acted with criminal intent in this instance. The court considered the prejudicial effect of the evidence but determined that its impact could be reduced by limiting both the scope of B.T.'s testimony and the purposes for which the jury could consider the evidence.

{¶ 14} Defense counsel renewed his objection to B.T.'s testimony prior to her taking the stand. He again asserted that the purpose of the evidence was to create an impermissible character inference that Hartman has a propensity to assault sleeping females. This time, the court concluded that the evidence was probative of virtually every one of the permissible purposes listed in Evid.R. 404(B) ; the court cited the relevance of the evidence to "the defendant's motive, opportunity, intent, absence of mistake, purpose, preparation, plan to commit the offense, [and] knowledge of the circumstances surrounding the offense." Before B.T. testified, the court explained to the jury that her testimony could not be considered as evidence of Hartman's character or that he acted in conformity with that character, and the court further instructed:

If you find that this evidence of other acts is true, and that the defendant committed them, you may consider that evidence only for the purpose of deciding whether it proves these limited things: A, the absence of mistake or accident; or B, the defendant's motive, opportunity, intent; or C, purpose, preparation or plan to commit the offense charged in this trial, or knowledge of circumstances surrounding the offense charged in this trial; or D, the identity of the person who committed the offense in this trial. That evidence cannot be considered for any other purpose.

{¶ 15} B.T. then took the stand. She explained that Hartman is her mother's ex-husband. Roughly four years earlier, when she was 12, Hartman began coming into her bedroom at night while she was sleeping. On one occasion, he started touching her chest and woke her up. Another time, he entered the room and began touching her vagina. And in one instance, he pulled his pants down and forced her to touch his penis with her hand. When this happened, she asked him, "[W]hat are you doing?" He responded, "[W]hat are you doing?" And then he left.

C. Conviction and Reversal on Appeal

{¶ 16} Following B.T.'s testimony, the state rested its case and the trial court again instructed the jury that her testimony was offered for a limited purpose. Hartman did not testify or present any witnesses. The trial court then gave the jury its final instructions—providing for a third time the same instruction it had previously given about the other-acts evidence. Four counts were presented to the jury: rape by force in violation of R.C. 2907.02(A)(2), with a sexually-violent-predator specification; rape of a substantially impaired person in violation of R.C. 2907.02(A)(1)(c), with a sexually-violent-predator specification; one count of burglary pursuant to R.C. 2911.12(A)(1) ; and one count of kidnapping under ...