Similar Acts Evidence

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Last Updated 3/3/2015

Evidence Rule 404(B) -- Other crimes, wrongs or acts
R.C. 2945.59 -- Proof of defendant's motive
4 O.J.I. 402.60 -- Limited purpose evidence (for use during trial)
4 O.J.I. 402.61 -- Other acts (for use during trial)
4 O.J.I. 405.23 -- Other acts (for inclusion in general charge)

Basics

State v. Morris, 132 Ohio St.3d 388, 2012-Ohio-2407, 985 N.E.2d 234 -- Testimony from defendant's adult stepdaughter, relating to incident during which defendant allegedly grabbed her waist and pulled her toward him and said, “You don't know what I would do to you but your mother would get mad,” was not admissible under other-act evidence rule to prove motive, intent, plan, or identity, and admission of the evidence was an abuse of discretion. Admission of additional testimony
that defendant kicked the family dog out of sexual frustration also constituted reversible error.
 
State v. Morris, 141 Ohio. St. 3d 299, 2014-Ohio-5052, ___N.E.3d___ -- On appeal from proceedings on remand in which the appellate court again ordered a new trial. Supreme Court affirmed judgment of the Court of Appeals vacating conviction and ordering a new trial.
 
Court held in syllabus that “[i]n determining whether to grant a new trial as a result of the erroneous admission of evidence under Evid.R. 404(B), an appellate court must consider both the impact of the offending evidence on the verdict and the strength of the remaining evidence after the tainted evidence is removed from the record.”
 
 
State v. Heyder, 10th Dist. Franklin No. 13AP-298, 2014-Ohio-1066
 
Trial court abused its discretion by allowing the state to refer to evidence of a knife that the victim testified was not the knife used during the commission of the robbery
 
State v. Roberts, 156 Ohio App. 3d 352, 2004-Ohio-962 -- Timely objection must be made. Defendant was prosecuted for felonious assault based on failure to disclose that he was HIV positive to sex partners. One alleged victim testified that her sexual activity with the defendant occurred before disclosure was required by law. Defendant claimed her testimony was improperly admitted as similar acts evidence. Opinion does not state whether the jury was instructed in this regard.
 
State v. Hector (1969), 19 Ohio St. 2d 167 -- Paragraphs one and four of the syllabus: "(1) As a general rule, the introduction of evidence tending to show that a defendant has committed another crime wholly independent of the offense for which he is on trial is prohibited. (4) The legal determination (by comparison of the incidents)...must be made without consideration of the of the fact that eyewitnesses have identified the same person as the perpetrator of both crimes."
 
Whiteman v. State (1928), 119 Ohio St. 285 -- Paragraph two of the syllabus: "Where other offenses of like character are committed by the same persons in the same locality within a period of time reasonably near to the offense on trial, and where the same plan, system and methods are followed, testimony of such other offenses is relevant to the issue of identity."
 
State v. Jamison (1990), 49 Ohio St. 3d 182 -- Syllabus: "Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid. R. 404(B). To be admissible these other acts must tend to show by substantial proof 'identity' or other enumerated purposes under Evid. R. 404(B). Although the standard for admissibility is strict, the other acts need not be the same or similar to the crime charged. (State v. Broom [1988], 40 Ohio St. 3d 277...State v. Flonnory [1972], 31 Ohio St. 2d 124...Whiteman v. State [1928], 119 Ohio St. 285, followed, State v. Hector [1969], 19 Ohio St. 2d 167...distinguished.)" Also see State v. Hill (1992), 64 Ohio St. 3d 313, 321-324 (bite marks and mutilation); State v. Pearson (1996), 114 Ohio App. 3d 168, 185-187; State v. Pearson (1997), 119 Ohio App. 3d 745, 757-758; State v. Bey (1999), 85 Ohio St. 3d 487, 489-491.
 
State v. Broom (1988), 40 Ohio St. 3d 277 -- Paragraph one of the syllabus: "Because R.C. 2945.59 and Evid. R. 404(B) codify an exception to the common law with respect to evidence of other acts of wrongdoing, they must be construed against admissibility, and the standard for determining admissibility is strict. (State v. Burson [1974], 38 Ohio St. 2d 157, 158-159...State v. DeMarco [1987], 31 Ohio St. 3d 191, 194, followed.) The rule and the statute contemplate acts which may or may not be similar to the crime at issue. If the other act does not in fact 'tend to show' by substantial proof any of those things enumerated, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, then evidence of the other act may be admissible. (State v. Flonnory [1972], 31 Ohio St. 2d 124, 126...followed.)"
 
State v. Lowe (1994), 69 Ohio St. 3d 527 -- 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." Name of victim of an unsolved homicide appeared on a list found in defendant's trash claimed to be his agenda for deviant sexual activity. State was properly prevented from calling others on list as witnesses where indications were that contacts with those subjects shared no characteristics with the homicide.
 
State v. Hesson (196), 110 Ohio App. 3d 845, 855-857 -- Though the court could find no cases applying Evid. R. 404(B) to witnesses, there is no authority holding otherwise, and court proceeds to apply rule in resolving issue whether evidence concerning prior bad acts of state's witness should have been received.
 
State v. Williams (1969), 21 Ohio App. 2d 184 -- Testimony that homicide defendant, who had killed his wife, had been deceitful in various ways was not properly admissible as similar acts evidence, and undermined the presumption of innocence. At P. 188: "Suspicion, no matter how well founded in the mind, cannot be permitted to supplant proof." Compare State v. Banks (1986), 31 Ohio App. 3d 57, 61-62 where the other acts evidence concerned acts of violence by the defendant against his wife.
 
State v. Burson (1974), 38 Ohio St. 2d 157, 158-159 -- "Prosecutors and trial courts should be particularly aware that evidence 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." The standard for determining admissibility of such evidence is strict.
 
State v. Crafton (1968), 15 Ohio App. 2d 160 -- Court is obligated to instruct the jury as to the limited purpose for which similar acts testimony is received, even if counsel does not request such an instruction. Failure to do so is reversible as plain error.
 
State v. Piggott (1964), 1 Ohio App. 2d 22 -- Error to imply other acts were crimes absent proof of conviction or admission by the defendant. Upon request, the court is to instruct the jury that similar acts evidence is not substantive proof of the crime charged and as to the limited purpose for which such evidence is admitted. Also see State v. Hirsh (1956), 101 Ohio App. 425.
 
State v. Flonnory (1972), 31 Ohio St. 2d 124 -- While evidence of participation in two other robberies was properly admitted as showing the defendant's intent to rob and intent to kill, such evidence must not be considered by the jury as any proof whatsoever that the accused did any act alleged in the indictment.
 
State v. Smith (1977), 59 Ohio App. 2d 194 -- Headnote: "Where the state presents testimony, without limitation, against an accused pertaining to his commission of other crimes, for which he has not been indicted, and the crimes bear no relevance to an element of the offense with which he is charged, the court's admission of such evidence is prejudicial error."
 
State v. Snowden (1976), 49 Ohio App. 2d 7 -- Similar acts evidence is material and admissible only when an issue as to which it is relevant has been raised by the defense. Generally, similar acts evidence belongs in rebuttal. For it to be admissible during the prosecution's case in chief, an issue must be raised through the assertion of matters such as alibi or an affirmative defense. Also see State v. Harris (January 20, 1994), Franklin Co. App. No. 93APA08-1154, unreported (1994 Opinions 79, 83).
 
State v. Howard (1978), 57 Ohio App. 2d 1 -- Defendant has the right to be present at an in camera hearing to determine the admissibility of evidence as to other wrongful acts.
 
State v. Eaton (1969), 19 Ohio St. 2d 145, 153-154 -- State may still present witness to offer similar acts testimony, notwithstanding defendant's offer of stipulation he committed the other offense.
 
State v. Carter (1971), 26 Ohio St. 2d 79 -- Identity of the accused as the perpetrator of the similar act must be substantial, but need not be beyond a reasonable doubt.
 
State v. Shedrick (1991), 61 Ohio St. 3d 331 -- Similar acts testimony is barred if the same witness offered the same testimony against the same defendant in a juvenile court proceeding. R.C. 2151.358(H) applied. Also see State v. Bayless (1976), 48 Ohio St. 2d 73, paragraph four of the syllabus; State v. Hall (1989), 57 Ohio App. 3d 144, 147 -- "...(W)hen a child admits the allegations of a juvenile complaint, evidence of the acts which underlie the allegations is not admissible against the child in a subsequent case or proceeding, except as provided in R.C. 2151.358(H)."
 
State ex rel. Paige v. Lisotto (1997), 118 Ohio App. 3d 418 -- Neither mandamus nor prohibition lies to prevent admission of similar acts evidence. Appeal is generally the remedy for denial of a pretrial motion.
 
State v. Martin (1987), 37 Ohio App. 3d 213 -- Headnote: "Evidence of other crimes which is permitted to come before the jury due to defense counsel's neglect, ignorance or senseless disregard of the defendant's rights and which bears no reasonable relationship to a legitimate trial strategy may be sufficient to render the assistance of counsel ineffective."

Theft, Robbery and Burglary Cases

State v. Goines (1996), 111 Ohio App. 3d 840 -- Tenant was convicted of breaking and entering for having broken through the door of an apartment he had been evicted from. Plain error for the prosecutor to have questioned the defendant concerning two burglary convictions, which were remote in time and were not sufficiently similar for admission under R.C. 2945.59 and Evid. R. 404(B).
 
State v. Coleman (1988), 37 Ohio St. 3d 286, 291-292 -- Seven similarities among series of robberies warranted admission of similar acts evidence. Also see State v. Brown (1986), 31 Ohio App. 3d 86.

Homicide, Assault and Domestic Violence

State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-6266 – In a capital case the mother of a four year old was convicted of causing his death, then setting a house fire to cover up. Evidence came in that she was not a good parent and may have been tired of motherhood and was out socially after the funeral. The ruling on a motion in limine would have kept out some of this testimony, but counsel failed to object. Other testimony was relevant, or at least marginally relevant.
 
State v. Crosby, 186 Ohio App. 3d 453, 2010-Ohio-1584 – Error, albeit harmless, to admit testimony that the defendant in a shooting case was known to go armed with a 9mm gun. Nothing linked being armed to the circumstances of the shooting or identification of a recovered weapon.
 
State v. Sims, 191 Ohio App. 3d 622, 2010-Ohio-6228 – Defendant thumped semi-estranged wife when he learned she was having an affair. Trial court admitted as similar acts evidence testimony as to four prior acts of domestic violence claiming they went to the victim’s state of mind, relying upon State v. Kelly (1993), 89 Ohio App. 3d 320. In Kelly the rationale was that the prior incidents of domestic violence went to the victim’s state of mind, explaining why she did not try to escape. Reversed. The court is critical of the rationale followed in Kelly, which amounted to stacked inferences. Here, the defendant did try to escape. Moreover, the testimony did not go to any of the matters enumerated in Evid. R. 404(B).
 
State v. Anderson, 183 Ohio App. 3d 522, 2009-Ohio-3900, ¶74-98 – Aggravated robbery indictment was joined for trial with two other indictments relating to a high speed chase and a second confrontation with officer, but that indictment was dismissed after it had been mentioned during jury selection. No error in refusal to begin again with a new venire. Nor was there an Evid. R. 404 violation when witnesses made reference to the robbery as it went to the defendant‘s state of mind during the incidents in question.
 
State v. Griffin (2001), 142 Ohio App. 3d 65 -- (1) At p. 72: "The threshold question in determining the admissibility of other-acts evidence under Evid. R. 414(B) is whether any of the matters of proof (motive, opportunity, scheme, etc.) are at issue in the case. If not, then other-acts evidence is not admissible, no matter how telling, and regardless of whether an accused's past behavior constitutes a 'behaviorist fingerprint.'" (2) A defendant does not place his intent at issue merely by entering a plea of not guilty. (3) Other acts of violence by the defendant towards his wife in the trailer park where they lived were admissible to prove identity in a murder vs. suicide case. Compare State v. Hawn (2000), 138 Ohio App. 3d 449, 462. (4) Where drug and alcohol use was not at issue in regard to the homicide, testimony concerning prior incidents was improperly admitted, as was a supposed threat to one of those witnesses. (5) Victim's hearsay statements explaining she was afraid of the defendant because he had held a knife to her throat in the middle of the night were not admissible. Defense did not open the door to comparable inquiry when it backed away from further questioning after a witness said the victim was in the habit of bringing the family steak knives to work.
 
State v. Mardis (1999), 134 Ohio App. 3d 6, 20-23 -- In a homicide case arising against a background of drug activity, testimony concerning other drug activity was improperly admitted as other acts evidence, thought the error was harmless.
 
State v. Hawn (2000), 138 Ohio App. 3d 449 -- Though noting the apparent conflict between State v. Apanovitch (1987), 33 Ohio St. 3d 19, and State v. Greer (1988), 39 Ohio St. 3d 236, the court feels compelled to follow Apanovitch, finding Evid. R. 803(3) made testimony concerning victim's fear of the defendant admissible. But specifics of prior incidents of domestic violence were not relevant within the confines of Evid. R. 404(B), since they did not bear upon disputed issues, leading to reversal.
 
State v. Carusone, Hamilton App. No. C-010681, 2003-Ohio-1018 -- Evidence that the defendant had previously fired a gun served none of the enumerated purposes in relation to claim gun was fired accidentally during the struggle at issue. Only purpose for its introduction was to portray the defendant as a violence prone individual. Error also found in introduction of defendant's statement to the police with regard to the prior incident and in the prosecutor's argument with regard to the prior incident.
 
State v. Watson (1971), 28 Ohio St. 2d 15 -- Paragraph one of the syllabus: "Where the state is required to show possession of a murder weapon by defendant in order to establish its case it is permissible to allow in evidence proof of other criminal acts committed by defendant which tend to establish such possession, even though such evidence incidentally tends to prove commission of crimes other than the one with which the defendant is charged."
 
State v. Parrish (1991), 71 Ohio App. 3d 659 -- Evidence that guns were seized from premises where the defendant rented a room two months after the homicide charged was improperly admitted since was remote in time. Defendant had denied ownership of a gun and claimed it was produced by the victim. Aggravated murder conviction reversed. Also see State v. Lancaster (1971), 25 Ohio St. 2d 83.
 
State v. Lytle (1976), 48 Ohio St. 2d 39 -- Admission of portions of confession relating to other crimes committed earlier in the day was improper as they were not inextricably related to the homicide being tried.
 
State v. Alexander (March 14, 1995), Franklin Co. App. No. 94APA04-593, unreported (1995 Opinions 893, 900) -- In a kidnapping prosecution arising from the 1993 Lucasville riot, testimony concerning the defendant's involvement in battering in a safewell door, and mention that his was the first case from the riot to come trial, served to set the background of the case and did not constitute inadmissible similar acts testimony.
 
State v. McCornell (1993), 91 Ohio App. 3d 141 -- Wife initially reported that her husband shot her on purpose after she had suggested that he look for a job. At trial she claimed the shooting was accidental. Held that evidence that she was stabbed by her husband seven months earlier, and recanted initial claim it was done on purpose, was properly admitted, supposedly to impeach her testimony that the shooting was accidental.
 
State v. Van Sickle (1993), 90 Ohio App. 3d 301 -- Evidence relating to an abuse of a corpse charge was not admissible as similar acts evidence bearing on the related homicide as it served none of the purposes enumerated in R.C. 2945.59. (Issue was whether counts had been prejudicially joined.)
 
State v. LaFreniere (1993), 85 Ohio App. 3d 840, 851-852 -- In a shooting case, it was error to admit evidence of other occasions when the defendant pointed a gun at someone but did not fire.
 
State v. Smith (1990), 49 Ohio St. 3d 137 -- Syllabus: "...(E)vidence of 'other acts' to prove intent to commit a crime and the identity of the perpetrator is admissible where two deaths occur under almost identical circumstances." Also see State v. Harvill (1984), 15 Ohio App. 3d 94.

Drug Cases

State v. Ben, 185 Ohio App. 3d 832, 2010-Ohio-238 – Police executed a warrant at the home of a suspected marijuana dealer. The defendant and the suspect were in the living room watching “Scarface” with the suspect’s two year old and a tray of marijuana between them and the TV. Both men were charged with trafficking in Ecstasy and cocaine found elsewhere in the house. The state was erroneously allowed to introduce evidence that the defendant had twice before been present when a raid on someone else’s place turned up Ecstasy. None of the purposes listed in Evid.R. 404(B) were served. ¶21: “Although his stated reason for being there (to smoke marijuana) and his explanation of the $1,220 dollars in his pocket were unbelievable, that does not provide a door through which the state may introduce the prior incidents of the defendant being found in the same place as MDMA.”
 
State v. Goodson, 192 Ohio App. 3d 246, 2011-Ohio-722 – The defendant’s fourteen prior arrests for drug activity were erroneously admitted as similar acts evidence because those incidents were remote “and not shown to be closely related in nature, time, and place to the offense charged.” (¶24.) Error harmless in light of other evidence.
 
State v. Agner (1999), 135 Ohio App. 3d 286 -- Testimony as to other drug sales by the defendant was not admissible as similar acts evidence, but was admissible to rebut character evidence to the effect that the defendant was not known to engage in the sale of drugs.
 
State v. Wilkinson (1980), 64 Ohio St. 2d 308, 314-320 -- Tapes were played of conversations between defendant and undercover agent which mentioned activities other than sale charged. To the extent these conversations formed part of the immediate background of the charged offense, they were admissible as relating to scheme, plan or system. References to other unlawful activities should have been excised.
 
State v. Hill (1987), 37 Ohio App. 3d 72 -- Evidence of drug transactions involving the defendant and the victim, and evidence concerning the defendant's lifestyle were properly admitted to place homicide in context and to establish had been motivated by a theft of drugs. Also see State v. Bobo (1989), 65 Ohio App. 3d 685, 692-694.
 
State v. Sutherland (1994), 92 Ohio App. 3d 840 -- Defendant was a passenger in a truck where marijuana was found under the hood and inside the spare tire. Testimony as to specifics of his prior drug offense conviction were improperly admitted. Since the issue was his knowledge that the marijuana was present, the prior incident was of no relevance.
 
State v. Pierson (1998), 128 Ohio App. 3d 255 -- Witness relied upon to prove charged drug transaction was improperly permitted to testify concerning other transactions. Identity and criminal purpose were not issues, and insofar as modus operandi, the witness was not an independent source.

Sex Offenses

State v. Crotts, 104 Ohio St. 3d 432, 2004-Ohio-6550 -- Though generally disparaging the introduction of evidence suggesting homosexuality, the court ultimately sides with the trial court's ruling that challenged exhibits and testimony were admissible to show motive.
 
State v. Smith, Clark App. No. 2003-CA-23, 2004-Ohio-665, ¶49-76 -- Reversal on hybrid similar acts/rape shield claim where court allowed testimony that the defendant wanted to use a van to engage in other sexual activity.
 
State v. Wilkins (1999), 135 Ohio App. 3d 26 -- Testimony concerning a 1985 rape was improperly admitted at trial for a rape committed in 1997. Identity was not at issue in the latter case, nor was the earlier incident a part of the immediate background of the crime charged permitting admission to show scheme, plan or system.
 
State v. McMillin, Union App. No. 14-03-25, 2003-Ohio-6989 -- It was error to allow a detective to testify to other sexual misconduct by the defendant he had investigated. The court also erred by not permitting questioning of a juror who indicated she may have known one of the prior victims.
 
State v. Davis (1989), 64 Ohio App. 3d 334 -- In a rape trial, evidence concerning prior sexual contact between the defendant and his daughter was properly admitted as other acts evidence, but testimony concerning his drinking and temperament was not.
 
State v. Schaim (1992), 65 Ohio St. 3d 51 -- Sex offense charges involving three different victims should have been severed. Evidence would not have been admissible as similar acts evidence. Evidence younger daughter was fondled would have been inadmissible at trial for rape of older daughter.
 
State v. Knight (1998), 131 Ohio App. 349 -- Police officer traded looking the other way for sexual favors, leading to indictment for bribery and sexual battery. Though counts were severed, testimony as to other incidents was admissible as similar acts testimony.
 
State v. Strobel (1988), 51 Ohio App. 3d 31 -- After defendant denied he would touch a family member in a sexual manner, state called stepdaughter and niece who described incidents 13 and 26 years in the past. (1) Defendant's denial on cross did not open the door for impeachment in this manner. (2) Incidents were too remote in time to be admissible as other acts evidence. Also see State v. Henderson (1991), 76 Ohio App. 3d 290. Compare State v. Banks (1991), 71 Ohio App. 3d 214 -- Different result where defendant made comparable assertion during direct.
 
State v. DePina (1984), 21 Ohio App. 3d 91 -- Use of only slightly similar pretexts to get victim alone, leading to rape, not rendered too remote in time by a five year interim.
 
State v. Patton (1991), 74 Ohio App. 3d 224 -- Marysville guard convicted of rape. Appeals court not troubled by admission of testimony concerning salacious remarks made by the guard on numerous occasions.
 
State v. Thompson (1981), 66 Ohio St. 2d 496 -- Other acts evidence is admissible only when relevant to a disputed factual issue falling within one of the enumerated categories. Thus, evidence of other acts of fondling was improperly admitted when identity was not an issue and the only question was whether the act charged fell before victim's 13th birthday.
 
State v. Curry (1975), 43 Ohio St. 2d 66 -- Court improperly admitted evidence of an unrelated incident of sexual misconduct. Admissibility is limited to matters enumerated in the statute and only where such evidence relates to a disputed issue.
 
State v. Eubank (1979), 60 Ohio St. 2d 183 -- After the victim's testimony was shaken, the state was erroneously allowed to present evidence of sexual activities involving the defendant and others. Identity was not an issue, nor was mistake or accident. The other acts were not inextricably related to the act charged so as to be a part of the same scheme, plan or system. Error harmless since case was tried to the bench.
 
State v. Gardner (1979), 59 Ohio St. 2d 14 -- Evidence of other rape at gunpoint, one night before incident charged, was admissible under R.C. 2945.59 and tended to prove intent to commit forcible rape.
 
State v. Lewis (1990), 66 Ohio App. 3d 37 -- Evidence of another anal rape occurring four years in the past was improperly admitted.
 
State v. Stewart (1996), 111 Ohio App. 3d 525, 531 -- In the prosecution of a mother for sex offenses where her daughter was the victim, evidence concerning an unrelated display of a former boyfriend's genitals to the victim to show mother's "sexual predilections" did not fall within the scope of Evid. R. 404(B).
 
State v. Clemons (1994), 94 Ohio App. 3d 701 -- In a GSI and rape prosecution, testimony concerning the defendant's "problem" with masturbation was not admissible under the rape shield law, as it did not involve the origin of semen, pregnancy or disease, or of the defendant's past sexual activity with the victim. Nor was it admissible as similar acts evidence. Opinion contains good discussion of admissibility under R.C. 2945.59 and Evid. R. 404(B).
 
State v. Cotton (1996), 113 Ohio App. 3d 125 -- Rape shield law required hearing in chambers on admissibility of evidence. Bench conference was not sufficient. Evidence in question did not go to origin of semen, pregnancy, disease, or the defendant's past sexual activity with the victim, nor did it qualify as similar acts evidence. Concurring opinion states material was no more than unfounded personal beliefs or unsubstantiated accusations.
 
State v. Price (1992), 80 Ohio App. 3d 35, 40-41 -- Trial court erroneously allowed testimony as to the defendant's sexual relations with another stepdaughter. Was not admissible as an exception under R.C. 2907.02(D) since was not offered to prove the source of semen, pregnancy or disease, nor was it evidence of the defendant's past sexual activity with the victim. Nor was it admissible under R.C. 2945.59 or Evid. R. 404(B) since was not connected with acts charged, nor did it explain the circumstances of those acts.
 
State v. Smith (1992), 84 Ohio App. 3d 647 -- Evidence concerning another incident of child sexual abuse was improperly admitted as it did not meet one of the purposes enumerated in Evid. R. 404(B) or R.C. 2945.59.

Other Circumstances

State v. Davis (1992), 81 Ohio App. 3d 706 -- Testimony of probation officer as to absconder status properly admitted under Evid. R. 404(B) to explain motive for escape.
 
State v. Flaherty (1992), 78 Ohio App. 3d 718 -- Error to have introduced evidence intended to paint the defendant as a bad person, but irrelevant to the ultimate issue of guilt or innocence.
 
State v. Penland (1998), 132 Ohio App. 3d 176 -- Intoxication was not relevant to charges of CCW and weapon under a disability. Thus, testimony and photos rebutting defendant's claim he was not intoxicated were improperly admitted.
 
State v. Herbert (1936), 44 Ohio App. 87 -- In an embezzlement prosecution where the defendant has admitted the receipt of funds and the only issue is whether it was as a legitimate real estate commission, it was prejudicial error to admit evidence of more than ninety comparable transactions as evidence of the plan or scheme of the accused.
 
State v. Adams (1978), 53 Ohio St. 2d 223, 229-230 -- Allowing officer to quote defendant as saying he was on parole was an improper reference to other criminal acts. Also see State v. Mann (1985), 19 Ohio St. 3d 34 -- Improper reference to defendant's violation of a civil injunction improperly invited inference he was crime prone.
 
State v. Greer (1981), 66 Ohio St. 2d 139, 142-143 -- In prosecution of liquor agents for accepting bribes, evidence of other incidents was properly admitted to prove motive, plan and intent.
 
State v. Marinos (1975), 45 Ohio App. 2d 312 -- Where the defendant was prosecuted for multiple counts of fraud arising from the conduct of his business, he was entitled to introduce similar acts evidence supporting his claimed lack of fraudulent intent.
 
State v. Burke (January 21, 1982), Franklin Co. App. No. 81AP-466, unreported (1982 Opinions 57, 60-61) -- Court accepts proposition that defendant may attempt to show mistaken identity through proof of similar acts by a third party. Also see State v. Ward (February 15, 1983), Franklin Co. App. No. 82AP-451, unreported (1983 Opinions 332, 347-350).
 
State v. Jacocks (1990), 64 Ohio App. 3d 713, 715-717 -- Error to allow testimony concerning threat by defendant against a third party prior to the incident charged.
 
State v. Matthews (1984), 14 Ohio App. 3d 440 -- Evidence of other prostitution offenses was not admissible as similar acts evidence as: (1) Motive behind prostitution is obvious and not in issue. (2) prostitution is not a specific intent crime, thus intent is irrelevant. (3) Scheme, plan or system must be inextricably linked to offense charged and not chronologically and factually separate, or identity must be at issue.
 
State v. Savage (1980), 1 Ohio App. 3d 13 -- Though evidence of other criminal acts is generally inadmissible to show predisposition, when the defense of entrapment has been raised the prosecution in rebuttal may introduce evidence of other acts to show predisposition. Also see Columbus v. Corne (1982), 7 Ohio App. 3d 344.
 

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