359 N.E.2d 87 | Ohio Ct. App. | 1976
The defendant, Wendall Asa Snowden, appellant herein, was tried and convicted before a jury on separate offenses of safe-cracking — a violation of R. C.
"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 *8 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 or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
It is proposed, therefore, first to review and restate the general principles announced by the Supreme Court to guide trial courts in the application of R. C.
As to the first of these tests — that of relevancy — we note that in State v. Curry, supra at 68, Chief Justice O'Neill began his discussion of the case with the observation that:
"[E]vidence which tends to show that an accused has committed another crime wholly independent of the offense for which he is on trial is generally inadmissible."
The court then quoted the language of State v. Burson, supra, that:
"`[E]vidence of other acts of a defendant is 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.'" (State v. Curry,supra at 69.) *10
In Burson, the defendant was on trial for first degree murder, and the other act sought to be shown involved an assault four years earlier in a dispute over money, where the defendant administered a beating to the prosecuting witness. TheBurson court, in holding that the testimony of the beating victim was inadmissible under the statute, stated:
"The other acts of the defendant must have such a temporal,modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question. The evidence is then admissible to the extent it may be relevant [material2] in showing the defendant acted in the absence of mistake or accident." (Emphasis added.) State v. Burson, supra at 159.
This threshold test, which we have chosen to denominate a relevancy test as opposed to the more particularized inquiry into materiality, expresses no more than a common sense conclusion that an act too distant in time or too removed in method or type has no permissible probative value to the charged crime. An act of arson, for example, has nothing in common with an otherwise unconnected crime of embezzlement, except perhaps a malevolent spirit; neither would an act of embezzlement removed some 20 years from the embezzlement for which the defendant is undergoing trial, have anything in common with the present charge — nor, arguably, an act of embezzlement so dissimilar in execution from the charged embezzlement that it becomes, in effect, a different crime although proscribed under the same statute.3 This, we believe, is what the Burson court meant by its reference to a "temporal, modal, and situational relationship" between the other act and the charged crime. *11
Obviously, it is not possible to predict all of the situations which will resolve the determination as to the relevancy of the other act. The question of temporal relationship, for instance, is clearly one of judgment under the particular facts of the case and is not susceptible to a rigid rule. This much may be ventured, however, with respect to the question of relevancy: it would be difficult for us to perceive the relevancy of the other act to the charged crime unless the former were either the same crime, or a lesser included offense within the charged crime, or an offense for which the charged crime is itself a lesser included offense. Thus, another act of aggravated murder may well be relevant (assuming the existence of the other criteria) to a charged crime of aggravated murder, or an act of murder relevant to a charge of aggravated murder, or an act of aggravated murder relevant to a charge of murder, but it is difficult and well nigh impossible to imagine the relevance of an act of embezzlement to a charge of murder.
The second, and more particularized test of admissibility is that of materiality, the shoal upon which the state foundered in both Burson and Curry. Here, the attention shifts from the nature of the other act sought to be introduced, its "temporal, modal and situational" nexus with the charged crime, to the charged crime itself, and the inquiry now addresses itself to the circumstances shown to surround the charged crime and, in particular, to the nature of the defense to that charged crime. As we perceive it, R. C.
As to the first of these tests of materiality, we note, preliminarily, our conclusion that the element of "intent" as envisioned by the statute is specific or "particular" intent (State v. Curry, supra at 71), rather than the generalized mensrea which is an element in all offenses, and that *12 the phrase "the absence of mistake or accident on his part" is not a separate category but merely a converse of the existence of a specific intent. Thus, in Curry, the charged crime of statutory rape carried with it no requirement of specific intent, and no "other acts" testimony would have been admissible as proof of the accused's intent to commit statutory rape, or, stating its converse, to negative defenses of mistake or accident. To justify the admissibility of other acts on this basis, an issue of particular intent to commit the act would have to be found present in the trial, and this, obviously, was not possible. Again referring to Curry, while the crime ofattempted statutory rape has a particularized intent element (viz., intent to have intercourse), the other act sought to be introduced — indecent liberties — did not share that particular intent element and was therefore, said the court, inadmissible as nonprobative. It stated:
"However, the prosecution's `other acts' testimony did not tend to prove the intent element of attempted statutory rape." (
We conclude that only where the defendant specifically places his particularized intent to commit the charged crime in issue, either by directly denying such intent or by asserting accident or mistake, is it material (and therefore admissible) to introduce otherwise relevent evidence of other acts of a similar nature as probative of the issue. Where this element is not a part of the crime (as in statutory rape), where it is not asserted as an issue at trial, or where the other act is not probative4 of the issue of particular intent, this ground for the admissibility of the evidence is unavailable.
The second test comes into play when the defendant's "scheme, plan or system" in doing an act becomes material. This can occur during trial in either of two ways: either it is material because the other acts form part of the *13 immediate background of the charged crime, forming part of the foundation thereof (e. g., the theft of a getaway car prior to and in aid of an armed robbery)5 or, more commonly, where the identity of the criminal is placed in issue. As stated by Chief Justice O'Neill in Curry:
"Identity of the perpetrator of a crime is the second factual situation in which `scheme, plan or system' evidence is admissible. One recognized method of establishing that the accused committed the offense set forth in the indictment is to show that he has committed similar crimes within a period of time reasonably near to the offense on trial, and that a similar scheme, plan, or system was utilized to commit both the offense at issue and the other crimes." (
Obviously, evidence of a common modus operandi between criminal acts is immaterial and inadmissible where the defendant concedes his identity as the actor in question, and defends on some other grounds. A defense of self-defense to a charge of murder, which concedes the question of identity, would thus make evidence of a common scheme, plan or system in an earlier act of homicide inadmissible, although it could well be material (and therefore admissible) as to the issue of particular intent.
In the separate trial for safecracking, where an other act of theft of a car battery was introduced, there was evidence adduced from which the jury could have concluded that the purpose of the safecracking was to commit the offense of theft — viz., to deprive the owner of the contents of a bag of money which had been secreted within the safe. Arguably, therefore, the other act of theft, a felony of the fourth degree, could have been a lesser included offense within the charged crime of safecracking, a felony of the third degree (State v. Nolton
[1969],
The problem here, however, is not one of elemental relevancy, but rather of materiality. The record reveals no affirmative defense offered by the defendant; rather, he admitted his presence at the scene of the safecracking and admitted having picked up the bag of money, but denied opening the safe or any purpose to commit an offense. Identity not having been made an issue nor, for that matter, any question of the other act forming part of the background of the safecracking, the other act evidence was immaterial to show scheme, plan, or design.
Also, there was no evidence presented from which a question of accident or mistake could have been inferred to have made the evidence of the other act of theft material to an issue of intent.6 *15
Again, we conclude that the court prejudicially erred in admitting testimony of other acts of theft in the trial of the safecracking offense.
Here, no alibi or other affirmative defense was offered or suggested by the defendant in either case, and, properly, no attempt to anticipate any defense was made by the state by attempting to introduce evidence of other acts in chief. However, in the theft trial, following defendant's direct testimony, the prosecutor was permitted to inquire into the defendant's "past record," and the defendant was required to answer questions which showed that he had been "charged for * * * a theft offense," and, among other things, that he was "presently under indictment" for safecracking. In the safecracking trial, the issue was again raised on the cross-examination of the defendant with the question "[h]ave you ever committed the same or similar act for the offense for which you are indicted here today?" He was required to respond to that question and answered affirmatively, reciting "aiding to the theft of a car battery," and adding, under further questioning, a "breaking and entering" on September 11, 1974, and a 1973 vehicular "joy-riding" offense.
The improper form of the questions called for the defendant to draw a legal conclusion as to what constitutes a "same or similar act," a question which courts have had difficulty answering with precision. In addition to obvious Fifth Amendment problems arising from forcing defendants to testify as to other criminal acts for which they have not been convicted, and other procedural problems arising from this procedure, the records here demonstrate clearly the inappositeness of this technique for adducing competent and admissible testimony of other acts under R. C.
In view of the foregoing, we find the appellant's second assignment of error in case No. 602 and first assignment of error in case No. 603 to be well taken and grant the same.
The judgment is reversed and both causes remanded for further proceedings consistent with this opinion.
Judgment reversed.
SHANNON, P. J., and KEEFE, J., concur.
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