State v. HartState v. Hart
On Oсtober 25, 1988, defendant, Henry Hart, was indicted on single counts of aggravated burglary, attempted rape, kidnapping, gross sexual imposition, and robbery. All of the counts included the specification that defendant had been previously convicted of rape in 1975. Defendant was convicted on all cоunts by the jury and of the specification by the court.
Since all of the counts were based upon a single incident, the state elected to have defendant sentenced on aggravated burglary, robbery, and attempted rape. Defendant was sentenced to fifteen to twenty-five years for aggrаvated burglary, twelve to fifteen years for robbery, and twelve to fifteen years for attempted rape, with all sentences to be served consecutively.
During the state’s presentation of evidence, Leann Moshier, a twenty-three-year-old college student, testified that on October 16, 1988 she was in the bedroom of her residence working on a term paper when she was confronted by a tall, thin black man. Upon seeing the man, Moshier started calling for
During this рeriod of time, Moshier’s two roommates had fled the apartment and sought help from neighbors. The police were called from a neighbor’s apartment. Two of the neighbors entered Moshier’s apartment and a scuffle ensued with the assailant. A third neighbor arrived, and the suspect was eventually subdued just оutside the apartment.
A Columbus police officer, Jonathan Little, arrived at the scene and handcuffed defendant. Officer Little testified that he recognized defendant as an employee of a local Burger King restaurant at which the officer occasionally ate while on duty. Moshier and the neighbors all identified defendant as the assailant. Following the altercation, defendant had asked for his glasses. Two police officers testified that they saw a pair of glasses on the floor in Moshier’s apartment. The glasses were recovered and handed to an officer in the cruiser wherе defendant was.
Moshier testified that $8 had been taken from her purse. Defendant was subsequently searched at police headquarters and $8.41 was removed from his clothing.
Defendant’s parole officer, Carol Lippert, conducted an investigation during which she interviewed Moshier and the three neighbors whо had subdued the suspect. Lippert obtained from them a description of Moshier’s assailant. The witnesses were shown a photo array of five individuals, and each witness chose defendant’s photograph.
Defendant testified on his own behalf, stating that he was walking home that evening when two black men ran tоwards him. Defendant testified that one of the men collided with him, knocking defendant to the ground. Defendant stated that he got up and proceeded in the direction that the men had run from out of curiosity. Defendant testified that he approached an open door to an apartment and was jumpеd and subdued by two white men and held until police arrived.
Defendant now appeals from the final judgment and sentence entered by the trial court, setting forth the following two assignments of error for review:
“1. The trial court erred whеn it allowed the alleged victim of an attempted rape to testify, over objection, with respect to her personal belief that the defendant was going to rape her.
“2. The state was improperly allowed to cross-examine the defendant’s character witness with respect of аn alleged 1969 arrest of the defendant for breaking and entering and two other misdemeanor arrests in 1972 and 1973 when the character witness had already testified that he had only known the defendant for the past year.”
Under his first assignment of error, defendant asserts that the trial court committed prejudicial error in allowing the victim, Moshier, to testify as to her belief that defendant was going to rape her. Defendant’s assigned error is predicated upon the following exchange between the prosecutor and Moshier on redirect examination:
“Q. Now, when the defendant was touching you with his fingers, what was he saying to you?
“A. Shut up and hold still.
“Q. Did he tell you what he wanted to do?
“A. No.
“Q. Did he tell you to do anything?
“A. Just hold still.
“Q. Where exactly was he touching you?
“A. Between my legs.
“Q. What was going through your mind at that point in time?
“Mr. Larson: Object.
“The Court: Overruled. I will allow it.
“The Witness: I thought he was going to rape me.”
Defendant contends that the statement of the witness indicating that she thought her assailant was going to rape her was inadmissible under
“ * * * [0]pinion testimony is not rendered inadmissible
per se
because it pertains to an ultimate issue. * * * ”
State v. Berry
(June 23, 1988), Franklin App. No. 87AP-924, unreported,
We agreе with defendant’s contention that the question posed by the prosecutor to the victim concerning what was going through her mind at the time of the incident was not relevant. However, defendant was not prejudiced as a result thereof.
The victim testified that defendant repeatedly hit her, wrapped a blanket over her head, pulled her dress up, ripped her underpants off, and inserted his fingers in her vagina. The victim’s ripрed underwear was collected as evidence. The evidence also included photographs of the victim taken shortly after the incident showing her face severely swollen.
Reviewing the record as a whole, and setting aside the objectionable testimony, we find that there is substantial evidenсe by which a jury could reasonably conclude that defendant had engaged in conduct which, if successful, would have resulted in, or constituted, rape. See, e.g., State v. Burton (Feb. 14, 1980), Franklin App. No. 79AP-248 (testimony of victim that she was forced to disrobe, fondled by assailant, and ordered to get in back seat of car with assailant, аlong with other evidence, was sufficient for jury to conclude that defendant was guilty of attempted rape).
Accordingly, defendant’s first assignment of error is overruled.
During direct examinatiоn, Grant testified that he had known defendant for approximately one year as a patron of the bar where Grant was employed as a bartender. Grant further testified during direct examination that he believed that defendant was a truthful man, that he was not a troublemaker, and that he did not believe that dеfendant was capable of committing any of the crimes he was charged with.
During cross-examination, the state asked Grant whether he was aware that defendant had been previously arrested for assault to rape, indecent exposure, and breaking and entering. Defendant’s counsel objected on the basis that the questions pertained to arrests rather than being limited solely to prior convictions. The trial court overruled counsel’s objection. The witness denied knowing of defendant’s prior arrest record and stated that his opinion of defendant would not change even if it were true.
The stаte contends that questions concerning defendant’s prior arrests were offered to impeach the character witness's testimony and that under
“ * * * In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as tо reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct." (Emphasis added.)
In
State v. Sims
(1981),
In
Sims,
the court rejected the defendant’s argument, holding that such inquiry is permissible under
“ * * * In the case at bar * * * the evidence of prior arrests was not offered to prove the character of the accused. Both
Wagner v. State
[ (1926),
The
Sims
court noted that “ * * * [t]his result would have been reached even prior to the enactment of the Rules of Evidence, under the authority of
State v. Elliott
(1971),
“A character witness may be cross-examined as to the existence of reports of particular acts, vices, or associations of the person concerning whоm he has testified which are inconsistent with the reputation attributed to him by the witness — not to establish the truth of the facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given his testimony. Such inconsistent testimony tends to show either that the witness is unfamiliar with the reputation concerning which he has testified, or that his standards of what constitutes good repute are unsound.”
The United States Supreme Court has held, under such circumstances, that a prosecutor may question a character witness as to an arrest, whether or not it culminated in a conviction.
Michelson v. United States
(1948),
As one commentator has noted, the prаctice of allowing such information to be brought before a jury “ * * * possesses the potential for abuse. * * * ” Giannelli, Ohio Evidence Manual (1982), Author’s Comment § 405.05. Consequently, courts have placed two important limitations upon judicial discretion in permitting inquiries relating to such prior misconduct:
“ * * * [F]irst, a requirement that the prosecution have some good-faith factual basis for the incidents inquired about * * *; and second, a requirement that the incidents inquired, about are relevant to the character traits involved at the trial. * * * ”
United States v. Wells
(C.A.5, 1976),
In the present case, defendant contends that the motive of the prosecutor was nоt to impeach the witness, but to prejudice defendant by allegations of prior arrests. Defendant maintains that the prosecutor’s bad faith is apparent based upon the fact that the character witness testified that he had only known defendant for a year while the arrests inquired about allegеdly occurred in 1973, 1972, and 1969. Defendant argues that even had defendant
Courts have previously rejected the nоtion that the ten-year limitation under
“In this case the trial judge exercised his discretion and allowed cross-examination as to * * * [defendant’s] 1950 conviction and arrests, weighing the relevancy of the evidence as opposed to prejudice to the defendant. [Defendant] * * * argues that Rule 609(b) * * * should be read in conjunction with Rule 405(a) * * *. We cannot agree. Allowing evidence of convictions under Rule 609(b) is meant to impeach the witness with respect to his truth and veracity and also the limiting of the time for use of convictions allows for rehabilitation of that witness. But allowing cross-examination of character witnesses as to their having heard of prior convictions or arrests of a defendant shows whether he has knowledge of defendant’s reputation and whether that knowledge influences his opinion in any way.” Id. at 367.
We note, however, that under
In the present case, even assuming any error on the trial court in allowing inquiry into possible arrests of defendant, we find any such error to be harmless beyond a reasonable doubt. Assuming that the evidence was erroneous, the question becomes whether the jury convicted defendant based upon these other acts or upon the conduct alleged under the facts of this case. Based upon the overwhelming nature of the evidence against the accused, we find it unlikely that testimony regarding prior arrests contributed to defendant’s conviction. See
State v. Lytle
(1976),
Defendant’s second assignment of error is not well taken and is overruled.
Judgment affirmed.
Notes
.
" * * * Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction * * * unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. * * * ”