State v. Mann

• Decision Date: 09 August 1985
• Docket Number: No. 84-1615,84-1615
• Citation: 19 Ohio St.3d 34,482 N.E.2d 592
• Parties: , 19 O.B.R. 28 The STATE of Ohio, Appellee, v. MANN, Appellant.
• Court: Ohio Supreme Court

Page 34

19 Ohio St.3d 34

482 N.E.2d 592, 19 O.B.R. 28

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

No. 84-1615.

Supreme Court of Ohio.

Aug. 9, 1985.

Syllabus by the Court

1. Prosecution evidence that a defendant has committed other crimes, wrongs or acts independent of the offense for which he is on trial is not generally admissible to demonstrate that the defendant has a propensity for crime or that his character is in conformity with the other acts. Evid.R. 404(B).

2. A videotape which shows the actual events immediately prior to defendant's arrest is relevant in defense against a charge of resisting arrest and is admissible provided the probative value is not substantially outweighed by the grounds for exclusion set forth in Evid.R. 403.

On October 13, 1982, Edward Mann, appellant herein, participated in a labor demonstration held in front of Trumbull Memorial Hospital in support of striking hospital employees. A large crowd had gathered for the rally and a number of Warren city police officers were present in riot gear. The police ordered the demonstrators to leave the area. The crowd did not rapidly disperse, so the police proceeded towards the crowd and several officers took hold of appellant. Mann was then arrested and held in jail. He was charged with aggravated riot in violation of R.C. 2917.02 and resisting arrest in violation of R.C. 2921.33. The grand jury subsequently refused to return an indictment on the aggravated-riot charge.

Prior to trial on the resisting-arrest charge, appellant filed a motion in limine seeking to prevent the prosecution's introduction of evidence pertaining to appellant's alleged previous violation of a court-ordered civil injunction limiting picketing. The trial court overruled appellant's motion as well as his objection to the evidence during trial.

In defense against the resisting-arrest charge, appellant sought to introduce into evidence a videotape of the events which took place leading up to the time of his arrest. ¹ The trial court refused to admit the videotape into evidence. Appellant also sought to present evidence that the charge of aggravated riot had been "no billed" by the grand jury, to support his claim that the arrest was unlawful. Again the trial court refused to admit the evidence.

Appellant was found guilty by the jury. He appealed his conviction to the Court of Appeals for Trumbull County.

The court of appeals rejected appellant's assignment of error that evidence of the civil injunction should not have been admitted. The court concluded that the evidence was admissible during cross-examination to impeach appellant. The court of appeals also agreed with the lower court's decision to exclude the videotape. The court reviewed the tape and found that it did not contradict the testimony of the arresting officer and was not material to the charge of resisting arrest.

Likewise, the court of appeals held that the ultimate disposition of the aggravated-riot charge was not relevant to the offense of resisting arrest. Accordingly it concluded the trial court properly excluded appellant's evidence relative to the grand jury's rejection of the riot charge.

Having disposed of appellant's assignments of error, the court of appeals, in a divided decision, affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Daniel N. Gerin, City Prosecutor, for appellee.

Mark S. Gervelis, Jefferson, and Michael S. Harshman, Youngstown, for appellant.

CELEBREZZE, Chief Justice.

I

Our first inquiry concerns the trial court's admission, over objection, of evidence which demonstrated appellant's earlier violation of a court-ordered civil injunction which limited picketing at the hospital. Appellant's counsel filed a pretrial motion in limine which requested the court to exclude "[e]vidence of or reference to any Civil injunctions or restraining orders issued by any court with regard to the strike at Trumbull Memorial Hospital that may have been in effect on October 13, 1982." The stated basis of defense counsel's motion was to prevent bias, prejudice and confusion of the jury. The motion was overruled as was defense counsel's trial objection when the prosecutor cross-examined appellant relative to his knowledge and violation of the injunction. ²

The court of appeals held the testimony concerning the injunction was proper for purposes of impeachment and to attack appellant's credibility. The prosecution's stated purpose in raising appellant's alleged violation of the injunction was "that it goes to the fact of his violating the law in general" and because "it shows a tendency on his part to disregard the law."

Prosecution evidence that a defendant has committed other crimes, wrongs or acts independent of the offense for which he is on trial is not generally admissible to demonstrate that the defendant has a propensity for crime or that his character is in conformity with the other acts. Evid.R. 404(B); State v. Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137 , paragraph three of the syllabus, vacated in part on other grounds (1978), 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. ³ As we observed in State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623 [2 O.O.3d 495], at 401-402, vacated in part on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154:

"Generally, the prosecution is forbidden to introduce initially evidence of the accused's bad character, unless and until the accused gives evidence of his good character. Although character is not irrelevant, the danger of prejudice outweighs the probative value of such evidence. The danger of prejudice is at its highest when character is shown by other criminal acts, and hence the rule that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some purpose other than to show a probability that the individual committed the crime on trial because he is a man of criminal character. * * * "

Evid.R. 404(B) specifically allows for admission of such evidence for certain other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Cf. State v. Curry (1975), 43 Ohio St.2d 66, 330 N.E.2d 720 (to demonstrate similar scheme, plan or system and to prove identity). As such, other-act 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. * * * " State v. Burson (1974), 38 Ohio St.2d 157, 158, 311 N.E.2d 526 .

In this case we believe the state was impermissibly allowed to show that appellant had a propensity to commit crimes, i.e., to infer from the fact that he had previously violated a civil injunction that he had likewise committed the crime charged. See Curry, supra, 43 Ohio St.2d at 73-74, 330 N.E.2d 720; Carter v. Simpson (1984), 16 Ohio App.3d 420, 423-424, 476 N.E.2d 705. ⁴

Accordingly, the judgment of the court of appeals is reversed on this issue.

II

The second issue before this court concerns whether the trial court erred in excluding a videotape recording from evidence. Appellant sought to introduce a videotape which showed his conduct at the scene up to the time of his arrest, as well as that of the police and others present. Appellant sought to introduce the tape as an actual depiction of the incident which was relevant and admissible under Evid.R. 401 and 402.

Appellant argues that the tape is consistent with his testimony, demonstrates that the police singled him out from the crowd, and that he was not resisting arrest. Appellant contends that the true value of the tape is its tendency to support his version of the events and its conflict with the testimony of the arresting officer. The prosecutor asserted the videotape was not relevant and would be confusing to the jury. The court of appeals affirmed the trial court's exclusion of the tape, holding that the evidence "was not material to the charge of resisting arrest, it was properly excluded. * * * "

At the outset, we note that the state's challenge did not concern authentication or identification under Evid.R. 901 nor the best evidence rule (Evid. R.1002). Rather, our inquiry is to ascertain whether the videotape evidence is relevant and admissible. Evid.R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ⁵

"Under Evid.R. 402 and 611(A), the admission of photographs is left to the sound discretion of the trial court. * * * " State v. Maurer (1984), 15 Ohio St.3d 239, 264, 473 N.E.2d 768. ⁶ As such, " * * * '[t]he trial court has broad discretion in the admission * * * of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere.' * * * " Maurer, supra, at 265, 473 N.E.2d 768, quoting State v. Hymore (1967), 9 Ohio St.2d 122, 128, 224 N.E.2d 126 .

In this case, appellant was accused of resisting arrest in violation of R.C. 2921.33. ⁷ This statute does not require that a defendant be found guilty of the offense for which he was arrested. As we shall discuss infra, appellant's contention that the police lacked probable cause to arrest him is an unpersuasive defense to the charge of resisting arrest. Columbus v. Fraley (1975), 41 Ohio St.2d 173, 324 N.E.2d 735 , paragraph three of the syllabus.

Rather, the relevancy of the videotape centered on its tendency to show that the conditions present at the time negated a finding that appellant violated the resisting arrest statute and/or were consistent with his claims of bad conduct by the police officers. We believe the tape was both illustrative of defense...