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State v. Hawn6/30/2000
dent.
Evid.R. 404(B) operates as an exception to the strict requirements of Evid.R. 404(A), which excludes evidence of a defendant's "bad character" or propensity to engage in bad conduct when it's offered by the State in its case-in-chief to prove that the defendant committed the crime alleged. The reason for that exclusion is that the inference which evidence of the propensity permits, that the defendant probably committed the crime with which he is charged because the conduct alleged is consistent with his particular propensity, is too speculative to be fair and reasonable. Evid.R. 404(B) creates an exception for such evidence when it is, nevertheless, also probative of certain matters identified in the Rule. However, the matter concerned must genuinely be in issue. State v. Smith (1992), 84 Ohio App.3d 647. Further, the other act or acts offered as probative of the matter must themselves be temporally and circumstantially connected to the operative facts of the offense alleged. State v. Burson (1974), 38 Ohio St.2d 157; State v. Curry (1975), 43 Ohio St.2d 66; Smith, supra.
In response to Hawn's objection that the evidence which the State's witnesses would offer was irrelevant to prove the criminal conduct the State had alleged, the State argued that the evidence was admissible per Evid.R. 404(B) to prove identity. We addressed that issue in Smith, supra.
In Smith, supra, the defendant was alleged to have "groped" a young boy when the boy slept over at the defendant's home. The defendant and the alleged victim were alone in the home. The boy testified that the event took place. The defendant denied that it occurred at all. The State offered "other act" evidence of the defendant's alleged prior sexual conduct with other young boys, arguing that the evidence of those other acts was admissible per Evid.R. 404(B) to prove identity. We rejected that claim because identity was not in issue, stating:
Identity is in issue when the fact of the crime is open and evident but the perpetrator is unknown and the accused denies that he committed the crime. In that event other act evidence tends to show the defendant's identity as the perpetrator by showing that he committed crimes of a similar methodology within a period of time reasonably near to the offense on trial, which itself would constitute probative evidence of the probability that the same person, whoever he or she may be, committed both crimes. State v. Curry, supra; State v. Hector (1969), 19 Ohio St.2d 167, 48 O.O.2d 199, 249 N.E.2d 912; State v. Shedrick (1991), 61 Ohio St.3d 331, 574 N.E.2d 1065. If the other act evidence tends to establish the identity of the accused it is competent evidence, no matter what else it may prove. Barnett v. State (1922), 104 Ohio St. 298, 135 N.E. 647. However, the identity of the perpetrator must be in dispute to permit use of other act evidence for this purpose.
In this case the fact of the crimes is not open and evident, but is clearly in issue. However, if from the evidence the crimes are determined to have taken place, there is no dispute concerning the identity of the perpetrator. No person other than defendant Smith could have committed the criminal acts alleged. Because the identity of the perpetrator is not in issue from the operative facts of the offenses alleged and demonstrated by the state's evidence, other act evidence is not admissible to prove identity. Id. at 666-667.
Here, as in Smith, whether the crime alleged actually occurred was not open or evident but was directly in issue. However, the identify of the perpetrator of that crime was not in issue. According to the theory of the State's case and the evidence it presented, if the alleged c
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