[Cite as State v. Hartman, 2018-Ohio-2641.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105159
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MITCHELL HARTMAN
DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-600157-A
BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 5, 2018 ATTORNEYS FOR APPELLANT
Joseph C. Patituce Megan Patituce Catherine Meehan Patituce & Associates 26777 Lorain Road, Suite 1 North Olmsted, OH 44070
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
Maxwell Martin Mary Frey Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 PATRICIA ANN BLACKMON, J.:
{¶1} Defendant-appellant, Mitchell Hartman (“Hartman”), appeals his rape convictions
and accompanying sexually violent predator specifications. Because, in Part II of this opinion, the
majority of this panel finds that the cumulative effects of the improperly admitted other acts
evidence and the erroneous flight jury instruction were prejudicial to Hartman, the case is
reversed and remanded for a new trial on all counts.
{¶2} Judge Patricia Ann Blackmon delivers the opinion of the court as to part I
addressing the sufficiency of the evidence, as well as the jury instruction on minimal force, and
would affirm the convictions on those grounds. Presiding Judge Mary Eileen Kilbane joins that
opinion in full. Judge Melody J. Stewart concurs in part and dissents in part, with a separate
opinion.
{¶3} Judge Stewart delivers the opinion of the court as to part II addressing the remaining
assignments of error and finds reversible error based on the flight instruction and the introduction
of other acts evidence in violation of Evid.R. 404(B). Judge Kilbane joins that opinion in full.
Judge Blackmon dissents in part and concurs in part, with a separate opinion.
Part I.
{¶4} Mitchell Hartman (“Hartman”) appeals his rape conviction and assigns the following
errors for our review:
I. The admission of other acts evidence pursuant to Evid.R. 404(B) was an abuse of discretion and did not constitute harmless error. II. The trial court committed reversible error by including the flight and minimal force instructions, which cause[d] substantial prejudice that did not constitute harmless error.
III. Appellant’s conviction was against the manifest weight of the evidence.
IV. Appellant’s conviction was not supported by legally sufficient evidence.
For ease of discussion, the assignments of error will be addressed out of order. The apposite facts
follow.
{¶5} On October 11, 2015, E.W. was in Cleveland with her boyfriend Chris and another
couple, Stephanie and Jeremy. They were staying in a hotel downtown and, Hartman, who was
a friend of Jeremy’s, came to their hotel room for drinks. Just before 10:00 p.m., the group went
out to a bar and restaurant. After about an hour, E.W. wanted to go back to the hotel, because
she was tired and Hartman was being “touchy-feely” with her. At 10:57 p.m., Chris walked
E.W. back to the hotel, then left to rejoin the group. E.W. went to bed.
{¶6} Later that night, E.W. woke up to Hartman putting his penis in her mouth. E.W.
screamed and Hartman left her hotel room. E.W. called Chris, who returned to the hotel with
Stephanie. They went to the hotel’s security office and called the police.
{¶7} On December 10, 2015, Hartman was charged with: one count of forcible rape in
violation of R.C. 2907.02(A)(2), a first-degree felony, with a sexually violent predator
specification; one count of substantially impaired rape in violation of R.C. 2907.02(A)(1)(c), a
first-degree felony, with a sexually violent predator specification; one count of burglary in
violation R.C. 2911.12(A)(1), a second-degree felony; and one count of kidnapping in violation
of R.C. 2905.01(A)(4), a first-degree felony, with a sexual motivation specification.
{¶8} On September 26, 2016, a jury convicted Hartman of the two rape charges and the
sexually violent predator specifications. Hartman was acquitted of the remaining charges. On November 2, 2016, the court merged the two rape counts and sentenced Hartman on the forcible
rape to the mandatory minimum of life in prison with the possibility of parole after ten years.
Sufficiency of the Evidence
{¶9} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the
prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and
sufficiency of the evidence require the same analysis. State v. Taylor, 8th Dist. Cuyahoga No.
100315, 2014-Ohio-3134. “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” State v. Driggins, 8th Dist. Cuyahoga No. 98073,
2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541
(1997).
{¶10} The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Vickers, 8th Dist. Cuyahoga No. 97365,
2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
Forcible Rape
{¶11} In the case at hand, Hartman argues that the state presented insufficient evidence to
convict him of forcible rape in violation of R.C. 2907.02(A)(2), which states that “[n]o person
shall engage in sexual conduct with another when the offender purposely compels the other
person to submit by force or threat of force.” Specifically, Hartman argues that there was no
evidence he used force or threat of force against E.W. Force is defined in R.C. 2901.01(A)(1) as “any violence, compulsion, or constraint physically exerted by any means upon or against a
person or thing.”
Substantially Impaired Rape
{¶12} Hartman also argues that the state presented insufficient evidence of substantially
impaired rape in violation of R.C. 2907.02(A)(1)(c), which states that “[n]o person shall engage
in sexual conduct with another * * * when * * * [t]he other person’s ability to resist or consent is
substantially impaired because of a mental or physical condition * * *.” This court has
repeatedly held that sleep is a mental or physical condition that “substantially impairs” a victim
as envisioned by R.C. 2907.02(A)(1)(c). State v. Clark, 8th Dist. Cuyahoga No. 90148,
2008-Ohio-3358, ¶ 20. Specifically, Hartman argues that “E.W.’s testimony as to whether she
was asleep at the time was inconsistent.”1
Sexually Violent Predator Specification
{¶13} Hartman further argues that the state presented insufficient evidence to show that
he is a sexually violent predator. Pursuant to R.C. 2971.01(H)(1), a sexually violent predator is
“a person who * * * commits a sexually violent offense and is likely to engage in the future in
one or more sexually violent offenses.” Specifically, Hartman argues that there was no evidence
that his behavior was “chronic.”
{¶14} At trial, E.W. testified as follows about the events in question.
{¶15} E.W., her boyfriend Chris, and their friends Stephanie and Jeremy, visited Ohio for
a weekend in October 2015. They went to an Ohio State game on Saturday and spent Sunday
night in Cleveland. The plan was to meet up with Jeremy’s friend, Hartman, for “food and some
1 We note that appellate courts “do not consider the credibility of the witnesses when reviewing a sufficiency of the evidence claim.” In re C.A., 8th Dist. Cuyahoga No. 102675, 2015-Ohio-4768, ¶ 51. Nonetheless, we review Hartman’s assigned error in its entirety. drinks and then call it an early night for our flight the next day.” E.W. had met Hartman once
previously when he visited Stephanie and Jeremy in South Carolina.
{¶16} On the night in question, Hartman came to the hotel and the group “had a couple
drinks,” then went out to a bar. E.W. testified that she had one beer in the hotel room and “three
or four” vodka and Red Bulls at the bar. As to her interaction with Hartman at the bar, E.W.
testified as follows: “I did feel like some definite creepy vibes trying to flirt and stuff. He was
flirting with Stephanie and myself.” Asked what she meant, E.W. testified that
just the fact that I was there with my boyfriend and someone that I did not know too well just coming on a little strong. Just being a little bit touchy-feely maybe. Just, I always trust my gut instincts and I was just getting some creepy vibes. After about an hour or so I was ready to go home and remove myself from the situation. * * * I did not want to continue to have myself in a drinking situation where I felt uncomfortable. And I was also tired and knew we had a flight early the next day so I was ready to go to bed.
{¶17} E.W. testified that she “had a little bit of a buzz” but that she was not intoxicated.
Chris walked E.W. back to the hotel “[p]robably about 11:15” and put her to bed. “We walked
in. He tucked me in and kissed me good night and I said, ‘See you later.’” According to E.W.,
Chris was meeting up with Stephanie at the casino. She did not know what Jeremy and
Hartman’s plans were. E.W. fell asleep with her clothes on because the other three were
coming back to the room later. “I knew they were going to wake me up. I just figured I would
change into my night clothes then.”
{¶18} Barbara Noel testified that she is the “front desk agent” at the Westin hotel in
downtown Cleveland, which is where the events at issue in this case took place. According to
Noel, at approximately 1:00 a.m. on October 12, 2015, Hartman came up to the front desk and
asked for “a key to a specific room,” because “he needed to get his bags.” Noel testified that
Hartman’s name was not on the reservation and, under the hotel’s policy, she could not issue him a key. Noel and Hartman called “the person who had the reservation” and got authorization to
issue Hartman a key. Noel then gave Hartman a key to the room where the victim was sleeping.
Hartman took the key and Noel assumed he went to the room. Shortly after this, Hartman
“[j]ust dropped off the key at the desk and left.”
{¶19} E.W. continued her testimony about what happened next as follows: “After I fell
asleep I woke up to Mr. Hartman putting his penis in my mouth. And I screamed, ‘What are you
doing?’ And he said, ‘What, you’re not going to finish?’ And I screamed at him to get out.
And he left quickly.”
{¶20} E.W. testified that she did not hear Hartman come into her hotel room, she did not
know that Hartman was coming into her hotel room, and she did not want him there. Asked
how Hartman was able to put his penis in her mouth as she slept, E.W. answered as follows: “I
was laying on the side of the bed and I always lay like this. So I guess my mouth was a little bit
open. * * * After I fell asleep I woke up to Mr. Hartman putting his penis in my mouth.” E.W.
testified that her “mouth was penetrated” by Hartman’s penis, which was “partially erect.”
Asked “[w]ho caused the penis to be in your mouth,” the victim answered Hartman. Asked
“how far it penetrated your mouth,” E.W. stated, “[p]robably about halfway * * *.”
{¶21} E.W. testified that she “was dead asleep when it happened,” but she woke up
abruptly. “Well, my mouth was penetrated and then I looked up and it was just a man putting
his penis in my mouth.” E.W. testified that this was not something that she wanted and that it
was not consensual. After the incident, E.W. immediately called Chris and told him what
happened. “I was in hysterics. * * * I just was crying uncontrollably, freaking out, in shock,
and so I called Chris because I needed him to be back and everyone to be back.” E.W. estimated
that it was “probably about 1:00 in the morning.” {¶22} Upon review, we find that this testimony is sufficient to show that E.W. was
substantially impaired, i.e., asleep, when Hartman put his penis in her mouth. See State v.
McCall, 8th Dist. Cuyahoga No. 104479, 2017-Ohio-296, ¶ 10 (substantially impaired rape
conviction supported by sufficient evidence when victim testified that she woke up to the
defendant’s mouth on her vagina).
{¶23} Additionally, this testimony is sufficient to show that Hartman used the requisite
force to establish rape under R.C. 2907.02(A)(2). The Ohio Supreme Court has held that “force
can be inferred from the circumstances surrounding sexual conduct * * *.” State v. Schaim, 65
Ohio St.3d 51, 55, 600 N.E.2d 661 (1992). This court has held that “[i]n the situation where the
victim is sleeping and thus not aware of the defendant’s intentions, only minimal force is
necessary to facilitate the act.” Clark, 8th Dist. Cuyahoga No. 90148, 2008-Ohio-3358, at ¶ 17.
See also State v. Fortson, 8th Dist. Cuyahoga No. 92337, 2010-Ohio-2237, ¶ 75 (“Although there
was no evidence * * * that defendant removed or manipulated the rape victim’s clothing while
she was sleeping, we find that a rational trier of fact could have inferred that defendant must have
used minimal force to facilitate sexual conduct with a sleeping [person]”).
{¶24} Furthermore, the evidence is sufficient to convict Hartman of the sexually violent
predator specification under R.C. 2941.148(A). Factors to consider in determining whether an
offender is likely to commit sexual offenses in the future include whether “[t]he person has been
convicted two or more times, in separate criminal actions, of a sexually oriented offense or a
child-victim oriented offense. For purposes of this division, convictions that result from or are
connected with the same act or result from offenses committed at the same time are one
conviction * * *.” R.C. 2971.01(H)(2)(a). In 2012, Hartman pled guilty to abduction and
attempted felonious assault in relation to an incident with B.T., his former stepdaughter, who was 12 years old at the time of the offenses. State v. Hartman, Cuyahoga C.P. 12-CR-566789 (Oct.
21, 2013). Hartman’s 2012 convictions involve a child victim, and his convictions in the case at
hand are of sexually oriented offenses.
{¶25} Upon review, we find that there is sufficient evidence to convict Hartman of
forcible rape, substantially impaired rape, and the sexually violent predator specifications.
Hartman’s fourth assigned error is overruled.
Minimal Force Instruction
{¶26} In the instant case, the court also instructed the jury as follows: “If you find E.W.
was sleeping and thus not aware of the defendant’s intentions, only minimal force is necessary to
facilitate the act of rape.” Hartman argues that this instruction was improper, because there was
no evidence of force. We addressed this issue under Hartman’s sufficiency of the evidence
argument and found that a jury could reasonably infer that minimal force was used from E.W.’s
testimony that she woke up with Hartman’s penis in her mouth. The same reasoning applies,
and we find no abuse of discretion in the court’s instructing the jury regarding minimal force.
{¶27} Accordingly, Hartman’s second assigned error is overruled in part.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS; MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION ATTACHED) MELODY J. STEWART, J., CONCURRING IN PART, AND DISSENTING IN PART:
{¶28} Although I agree that the state offered sufficient evidence to sustain the rape
charge in Count 2 relating to substantial impairment, I disagree that the state proved that
Hartman acted with force sufficient to sustain a conviction for the rape charge in Count 1. I
would therefore vacate the forcible rape conviction.
{¶29} Count 1 of the indictment charged Hartman with rape in violation of R.C.
2907.02(A)(2). That section states that no person shall engage in sexual conduct with another
“when the offender purposely compels the other person to submit by force or threat of force.”
“Force” is defined as “any violence, compulsion, or constraint physically exerted by any means
upon or against a person or thing.” R.C. 2901.01(A). The force element of R.C. 2907.02(A)(2)
is the extrinsic force used to compel the victim’s submission to sexual conduct; it is not the
sexual conduct itself.
{¶30} The state offered no evidence of force of any kind to sustain a rape conviction
under R.C. 2907.02(A)(2). In some rape cases, force is obvious. See, e.g., State v. Shadoan,
4th Dist. Adams No. 03CA764, 2004-Ohio-1756, ¶ 9 (defendant inserted his penis in victim’s
mouth and put his hands on her head, moving her head in an up-and-down motion). In other
cases, force is more subtle. See, e.g., Clark, 8th Dist. Cuyahoga No. 90148, 2008-Ohio-3358, at
¶ 17 (force element in a case of digital rape of a sleeping victim was established by removing or
manipulating the victim’s clothing in order to gain access to her vagina). But see State v. Wine,
3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 48 (“we are not persuaded” to follow the line
of cases holding that manipulation of a sleeping victim’s body or clothing is sufficient force
under R.C. 2907.02(A)(2)). {¶31} The victim in this case testified that she had been sleeping on her side with her
mouth open. She awoke to find a penis in her mouth and, thinking that the person in the room
was her boyfriend, she slightly opened her mouth to receive him. It was only after doing so that
she realized the person in the room was Hartman and not her boyfriend. There was no testimony
that her clothing, the bedding, or her body had been disturbed or manipulated in any way prior to,
or during Hartman’s engaging in sexual conduct with her. The victim’s testimony on
cross-examination confirmed the lack of force:
Q. Then your testimony was that at some point you’re awoken to a penis going into your open mouth?
A. Yes, sir.
Q. And your testimony further is that you do not believe that the person who had done this had moved you or shifted your body in any way? Other than putting his penis into your mouth?
Q. And he didn’t move your body from one side of the bed to the other?
A. No, sir.
Q. You have no reason to believe he had rolled you over?
Q. Taken your covers off?
Q. Taken any clothing off?
Q. During this event did Mitchell Hartman threaten you in any way?
A. No, sir. Q. Did he then threaten to use force upon you in any way?
Q. Were you given the impression if you did not continue he would use force upon you?
Q. Did he — again, I do apologize. But did he hold you while the fellatio was performed? In other words, did he hold your head or anything like that?
A. I don’t remember.
Q. You have no reason to believe that he had moved your head or moved your neck or your body in any way?
A. I don’t think so. No, sir.
Tr. 670-671.
{¶32} Additionally, there was no evidence of any inherent coercion. See, e.g., State v. Garner, 8th Dist. Cuyahoga No. 89840, 2008-Ohio-1949, ¶ 29 (as live-in boyfriend of victim’s mother, defendant possessed parental authority over victim, so inherent coercion was present in his instructions despite no evidence of physical force).
{¶33} A conviction on a count of rape under R.C. 2907.02(A)(2) requires both sexual
conduct and the use of force or the threat of force. The state offered no evidence at trial, and
likewise points to none on appeal, to show that Hartman used force or the threat of force,
physical or coercive, to compel the victim to submit to the offense.
{¶34} The cases the majority cites to in support of its analysis are not compelling. Those
cases stand for the proposition that even a minimal amount of force necessary to facilitate the
offending conduct satisfies the force element of the statute, but not the offending conduct itself.
Unlike the cases cited by the majority, the victim’s testimony in this case not only fails to
demonstrate any use of force or threat of force to compel the victim to submit to the offense, the
victim’s testimony clearly establishes that no force or threat of force whatsoever was used against her. In finding that Hartman’s sexual conduct against the victim, in and of itself, is enough to
satisfy the force element of the statute, the majority has in effect made every act of rape a
violation of R.C. 2907.02(A)(2).
{¶35} Because I find that there was insufficient evidence to sustain a forcible rape
conviction, I find it was error to give the minimal force instruction to the jury in this case and
would sustain the second assignment of error on this issue also.
Part II.
MELODY J. STEWART, J.:
Other Acts Evidence
{¶36} Over objection and with a cautionary instruction to the jury regarding other acts
evidence, the court allowed Hartman’s former stepdaughter to testify that in the course of a single
night some more than four years earlier, when she was 12 years old, Hartman entered her room
three different times on one evening and, while she pretended to be asleep, touched her chest,
attempted to touch her vagina, and put her hand on his penis. Hartman argues that the testimony
violated Evid.R. 404(B) because it was dissimilar to the acts alleged in this case and offered only
to show that he had the propensity to commit rape.
{¶37} “Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith.” Evid.R. 404(B). Such evidence
may, however, be admissible for other purposes, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B).
[O]ther acts [evidence] is admissible if it is offered for a purpose other than to prove the character of a person in order to show action in conformity with that character, Evid.R. 404(B), it is relevant when offered for that purpose, Evid.R. 401, and the danger of unfair prejudice does not substantially outweigh its probative value, Evid.R. 403. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 68, citing State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.
{¶38} Courts must use a three-step analysis when considering whether to admit other acts
evidence: (1) is the other acts evidence relevant to making any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence; (2) is
the evidence of other crimes, wrongs, or acts presented to prove the character of the accused in
order to show activity in conformity therewith or is the other acts evidence presented for a
legitimate purpose; and (3) is the probative value of the other acts evidence substantially
outweighed by the danger of unfair prejudice. Williams at ¶ 20.
{¶39} Although there are several uses for other acts evidence, it is typically applied to
questions of identity — that evidence of an act is so similar to the act underlying the charged
offense that the defendant’s involvement in one is inferred from his involvement in the other.
Even though the state claimed that it offered the other acts evidence in this case to show scheme,
plan, or system, its argument truly centered on identity. The state claimed that “[t]he offered
other acts evidence is evidence which shows not that Defendant is the type of person who might
commit the indicted offenses, but rather evidence which shows that Defendant is the person who
committed these offenses, and that it was his specific intent to commit rape.” (Emphasis added.)
State’s notice of intent to use other acts evidence at 4. In addition, the state told the court that
“[h]ere, the other acts evidence is related to and shares common features with the crimes in
question, reflecting a modus operandi or behavioral fingerprint identifiable with Defendant.”
(Emphasis added.) Id. The term “modus operandi” means the method of operating or the
manner of procedure and is attached to the identity purpose of Evid.R. 404(B). See State v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), paragraph one of the syllabus (“To be
admissible to prove identity through a certain modus operandi, other acts evidence must be
related to and share common features with the crime in question.”). See also State v. Jamison,
49 Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus.
{¶40} The problem with the state’s use of the other acts evidence to prove identity is that
Hartman’s identity was never at issue; he conceded engaging in sexual conduct with the victim.
The primary issue at trial was consent — Hartman maintained that he and the victim engaged in
consensual sexual conduct, but that she later claimed that she had been raped in order to calm her
boyfriend’s anger after the fact. Evidence that Hartman sexually assaulted his stepdaughter had
no relevance to the one fact of consequence — whether the victim consented.
{¶41} The state also maintained that the other acts evidence would show motive: “the
State intends to use other acts evidence to show Defendant’s motive, specifically, sexual
gratification.” This was a self-evident proposition — sexual gratification is almost always the
motive behind a sexual offense and requires no additional proof.
{¶42} The state also represented in its notice of intent to use other acts evidence that
Hartman “targeted females who were vulnerable, alone, were either asleep or otherwise unaware
of his presence, and who he could easily isolate and control.” Notice of intent to use other acts
evidence at 4. That the victims in both cases were sleeping did not go to motive; the state made
no argument that Hartman was a somnophiliac.
{¶43} Finally, the admitted evidence was highly prejudicial to Hartman. Although the
court instructed the jury on other acts evidence immediately before and after the stepdaughter
testified, that instruction was insufficient to cure the error in admitting the evidence. Even
though the state offered the evidence to prove identity, the court’s instruction was not tailored to that purpose. It told the jury that it could consider the other acts evidence to prove that Hartman
acted in the absence of mistake or accident; that it could prove Hartman’s motive, opportunity, or
intent to commit the rape; that it could prove his purpose, preparation, or plan to commit the
rape; and that it could prove Hartman’s knowledge of the circumstances surrounding the rape
charge. The instruction thus allowed the jury to consider the evidence for purposes that even the
state did not claim existed in this case.
{¶44} This was error — the instruction should have articulated the specific basis upon
which the jury could consider the other acts evidence. See United States v. Crenshaw, 359 F.3d
977, 998 (8th Cir.2004) (government “offered a variety of hypothetical uses under Rule 404(b)
for this evidence, but gave no concrete reason for admission” and “never clearly articulated the
basis upon which it admitted [the other acts evidence].”); United States v. Ward, 190 F.3d 483,
488 (6th Cir.1999). Because the court allowed the jury to determine for itself whether the other
acts evidence went to proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident, it created the risk that the jury considered the other acts
evidence for a purpose that had no basis in evidence.
{¶45} There is no question that the stepdaughter’s testimony was highly prejudicial to
Hartman: it not only portrayed him as a repeat sex offender, but as a pedophile too. The
prejudice substantially outweighed the probative value of the evidence for purposes of Evid.R.
403(A) and the jury instruction did not cure the prejudice. We conclude that the court abused its
discretion by admitting the other acts evidence. Flight Instruction
{¶46} The court instructed the jury that testimony had been admitted showing that
Hartman “fled the scene” and that although that fact does not raise a presumption of guilt, his act
of fleeing “may tend to indicate the defendant’s consciousness of guilt” and that it consider that
evidence in deciding Hartman’s guilt. Hartman complains that the flight instruction was
unwarranted.
{¶47} “Flight from justice” means “some escape or affirmative attempt to avoid
apprehension.” State v. Wesley, 8th Dist. Cuyahoga No. 80684, 2002-Ohio-4429, ¶ 19. To
escape from or avoid apprehension means more than just leaving the scene of a crime because it
would be unrealistic to expect persons who commit crimes to remain on the scene for ready
apprehension. State v. Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30.
“Flight in this context requires the defendant to appreciate that he has been identified as a person
of interest in a criminal offense and is taking active measures to avoid being found.” State v.
Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 28.
{¶48} We have been critical of flight instructions given in circumstances where a
defendant has merely left the scene of a crime as opposed to actively avoiding apprehension by
the police. See, e.g., Ramos; State v. Potts, 8th Dist. Cuyahoga No. 104482, 2017-Ohio-4435, ¶
50; State v. Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-4062, ¶ 58. The same holds true
here — there was no evidence that Hartman was actively trying to avoid apprehension by the
police. The court erred by giving the jury a flight instruction.
{¶49} The court’s error in giving the instruction in this case is particularly puzzling
because the state’s request for the flight instruction specifically noted that Hartman left the
victim’s room because the victim demanded that he leave — when she realized that it was Hartman and not her boyfriend who was engaging in sexual conduct with her, she “screamed at
him to get out of the room.” When requesting the flight instruction, the assistant prosecuting
attorney told the court that “[t]here was testimony in evidence that the defendant fled when he
was confronted by the victim as she awoke and told him to leave. And he did leave in a hurry
apparently.” By the state’s own representation, Hartman obeyed the victim’s demand to leave
the room.
{¶50} The frequency with which flight instructions issues are being raised on appeal is
troubling. Although a number of recent decisions from this court have made it clear that the
flight instruction is often being wrongly given, the state keeps requesting it in cases where the
instruction is unwarranted. And even though the instructions are requested by prosecuting
attorneys, the error lies with the trial court continuing to give the flight instruction without regard
to our established precedent.
{¶51} In all of our recent cases finding error in giving the flight instruction, the cases
have been affirmed because the error was harmless beyond a reasonable doubt. See, e.g, Ramos,
8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, at ¶ 30; Potts, 8th Dist. Cuyahoga No.
104482, 2017-Ohio-4435, at ¶ 51; Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-4062, at ¶
59; State v. Shepherd, 8th Dist. Cuyahoga No. 102951, 2016-Ohio-931, ¶ 26; State v. Halstead,
8th Dist. Cuyahoga No. 102723, 2016-Ohio-290, ¶ 16; State v. Dunn, 8th Dist. Cuyahoga No.
101648, 2015-Ohio-3138, ¶ 56; State v. Jackson, 8th Dist. Cuyahoga No. 100125,
2014-Ohio-3583, ¶ 50. For our purposes here, however, the error in giving the flight instruction
was not harmless in light of the court’s error in admitting the other acts evidence under Evid.R.
404(B). The cumulative effect of the two errors is such that Hartman did not receive a fair trial.
Manifest Weight {¶52} Because the matter is being remanded for a new trial, Hartman’s argument that his
convictions are against the manifest weight of the evidence are rendered moot. State v.
Hardman, 8th Dist. Cuyahoga No. 102600, 2016-Ohio-498, ¶ 46.
{¶53} The first assignment of error is sustained and the second assignment of error is
sustained in part. The third assignment of error is overruled as moot.
{¶54} Judgment reversed and remanded for a new trial excluding the inadmissible other
acts evidence and flight instruction.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common
Pleas to carry this judgment into execution. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS; PATRICIA ANN BLACKMON, J., DISSENTS IN PART AND CONCURS IN PART (WITH SEPARATE OPINION ATTACHED)
PATRICIA ANN BLACKMON, J., DISSENTING IN PART, AND CONCURRING IN PART:
{¶55} I respectfully dissent from the majority’s opinion regarding the admission of other
acts evidence and the prejudicial effect of instructing the jury regarding flight from justice.
Accordingly, I would affirm Hartman’s rape convictions. {¶56} First, in my opinion, the court did not abuse its discretion by admitting evidence
that Hartman molested his former stepdaughter while she was sleeping. Prior to trial, the court
held a hearing on this other acts evidence at which the state argued that the stepdaughter’s
testimony was admissible to show Hartman’s motive, intent, plan, scheme, and absence of
mistake. Contrary to the majority’s opinion, the state did not offer this evidence to show the
identity of the offender. Hartman’s identity is not in question. Rather, the notice the state filed
in the trial court and the arguments the state made at the hearing show that the state’s purpose in
introducing these acts was to prove Harman’s “motive, intent, plan, and scheme.”
{¶57} The state argued that Hartman’s conduct “has become a behavioral fingerprint and
404(B) evidence is appropriate to prove motive, opportunity, intent, preparation, knowledge, or
absence of mistake.” The state further argued that the “404(B) evidence would act to expressly
rebut [the] anticipated offense of consent * * *.” In other words, Hartman was not under the
mistaken impression that the sexual encounter was consensual, because the other acts evidence
shows his modus operandi is to sexually assault sleeping women.
{¶58} Testimony in the record is consistent that Hartman knew which room E.W. was in,
and he knew that E.W. was asleep and alone.
{¶59} The hotel’s front desk manager testified that, on the night in question, Hartman
asked for “a key to a specific room,” because “he needed to get his bags.” Hartman’s name was
not on the reservation and, under the hotel’s policy, the manager could not issue him a key. The
manager and Hartman called “the person who had the reservation” and got authorization to issue
Hartman a key. According to the manager, Hartman took the key to the room where E.W. was
sleeping, and shortly after this, Hartman “[j]ust dropped off the key at the desk and left.” {¶60} With this evidence in mind, the testimony from the stepdaughter that Hartman
sexually assaulted her while she was sleeping is relevant to whether Hartman sexually assaulted
E.W. while she was sleeping. The stepdaughter’s testimony shows Hartman’s “motive, his
intent, his plan, or scheme, and his absence of mistake” in entering the victim’s hotel room —
namely to sexually assault E.W. while she was sleeping, and not, as the defense suggested, to
retrieve a bag he allegedly left in the hotel room.
{¶61} Additionally, I would find that the probative value of this evidence was not
outweighed by the danger of unfair prejudice, and therefore, conclude that the court did not abuse
its discretion by admitting this evidence at trial.
{¶62} Additionally, while I agree with the majority that the court erred by giving the jury
a flight from justice instruction, I would find this error harmless and would conclude that
Hartman received a fair trial.
{¶63} Finally, I would overrule the third assignment of error on the merits because I find
that Hartman’s convictions are not against the manifest weight of the evidence.