[Cite as State v. Mott, 2020-Ohio-4979.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2019CA0116
NOEL NATHANIEL MOTT :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
2019CR0283
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 20, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOE SNYDER FELICE HARRIS
Assistant Prosecutor Harris Law Firm
Richland County 6031 E. Main Street, #187
38 South Park St., 2nd Floor Columbus, OH 43213
Mansfield, OH 44902
[Cite as State v. Mott, 2020-Ohio-4979.]
Gwin, P.J.
{¶1} Defendant-appellant Noel Nathaniel Mott [“Mott”] appeals his conviction and
sentence after a jury trial in the Richland County Court of Common Pleas.
Facts and procedural History
{¶2} On March 22, 2019, Mott was indicted on one count of Illegal Use of
Supplemental Nutrition or WIC Program Benefits in violation of R.C. 2913.46(B) & (D), a
felony of the fifth degree. The Indictment alleged that on or about November 14, 2018 in
Richland County, Ohio Mott knowingly possessed, bought, sold, used, altered, accepted,
or transferred supplemental nutrition assistance program benefits, WIC program benefits,
or any electronically transferred benefit in any manner not authorized by the Food and
Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or Section 17 of the “Child Nutrition Act of
1966,” 80 Stat. 885, 42 U.S.C. 1786 as amended in violation R.C. 2913.46(B) & (D).
{¶3} On August 13, 2019, trial counsel filed a Motion to Suppress alleging
Sergeant Morrow lacked reasonable suspicion for Mott's traffic stop. However, trial
counsel subsequently filed a motion to continue the suppression hearing on the grounds
that,
Mott has a matter in the Wood County, Ohio Court of Common
Pleas, Case No. 18 CR 0587, before Judge Matthew Reger that consists of
the identical facts and circumstances as the case at bar. In the referenced
case, a motion for suppression of evidence was filed on May 30, 2019.
Currently, Judge Reger’s Court has not rendered a decision on the merits
of Mott’s suppression motion.
Richland County, Case No. 2019CA0116 3
As the Wood County motion was filed first, Mott submits that the
suppression motion, and motion to continue filed herein are moot and
should be dismissed without prejudice.
Docket Entry 24. On September 19, 2019, the trial court filed a Judgment Entry that
granted Mott’s motion to withdraw his previously filed motion to suppression and tolled
time until “the decision in Case No. 18CR0587 of the Wood County Court of Common
Pleas has been rendered.” Docket Entry 25. On November 5, 2019, the trial court filed
a Judgment Entry to Remove the Stay noting that the Wood County Court of Common
Pleas had denied the motion to suppress that had been filed in that case. Docket Entry
31. The court removed the stay and left the matter set for a jury trial on November 12,
2019.
{¶4} A jury trial commenced on November 12, 2019.
{¶5} Susan Baker ("Baker") works in the Investigative Unit of the State Highway
Patrol. She investigates food stamp violations and testified, generally, that Ohio Direction
Card (SNAP) funds are based on household income and are for household member use.
Money is added monthly to the Ohio Direction Card which is used like a debit card and
accessed with a PIN code.
{¶6} Baker testified that on November 14, 2018, Miranda Hamilton sent a text to
Mott's cell phone, and approximately nine other cell phones, reading: "Hey, tryna see
about getting rid of some my food card. There 205 on it. I ain't got no cigs and could use
some cash." Approximately two hours later, Ms. Hamilton sent a second text, "So seeing
if anyone wants what I didn’t use." One minute later, a text from Mott's phone replied, "I'm
on Brickman." Hamilton responded, "On my way." (T. at 191-193). At 7:41 p.m. the next
Richland County, Case No. 2019CA0116 4
day, November 15, 2018, Mott purportedly texted, "I need the code, lol." Ms. Hamilton
responded with the pin code required to use her Ohio Direction (SNAP) Card. (T. at 194-
195; State's Ex. 7). On November 15, 2018, around 8:00 p.m. Ms. Hamilton's Direction
(SNAP) Card was used in transactions totaling approximately $153.00 at two separate
markets in the state of Michigan, (T. at. 205; State’s Exhibit 10; State’s Exhibit 11). The
state conceded that Mott did not use the cards. T. at 242. Miranda Hamilton asserted her
Fifth Amendment rights and declined to testify during Mott’s jury trial. T. at 226.
{¶7} Shortly after 11:15 pm on November 15, 2018, Sergeant Shane Morrow
("Morrow") of the State Highway Patrol noticed Mott's vehicle travelling southbound on I-
280 in Wood County, Ohio because it was travelling only 58 miles per hour in a 65 mile
per hour zone. As Mott's vehicle passed, Morrow noticed the rear brake lights remained
lit. Morrow, therefore, decided to follow Mott's vehicle. Mott exited the highway and
Morrow initiated a traffic stop for an equipment violation. Mott was asked for his license
and was identified as Noel Mott, 42, of 220 S. Adams Street in Mansfield, Ohio. There was
a female passenger, identified as Donjion Reese ("Reese"), 17, of Mansfield, Ohio. Mott
explained that he was not the owner of the vehicle that he was driving; however he had
permission to use the car. Sergeant Morrow then called for backup and United States
Border Patrol Agent Lalon and Trooper Lawson arrived on scene to assist. T. at 172.
Trooper Lawson stayed with Reese while Sergeant Morrow and Agent Lalon searched the
vehicle.
{¶8} During the search of the vehicle, a black bag on the rear seat, was found.
In the black bag, two Ohio Direction (SNAP) cards were found and taken into evidence.
One of the cards belonged to a Miranda Hamilton, the other belonged to a Marshea Frank-
Richland County, Case No. 2019CA0116 5
Smith. Two cell phones were seized, one from Reese. The second cell phone was
acknowledged by Mott as belonging to him. T. at 174 – 175.
{¶9} A search warrant for the phones was obtained by METRICH Drug Task
Force for the contents of Reece's and Mott’s phones. On November 28, 2018, Sergeant
Morrow picked up the two cell phones and a copy of a CD disc, which contained the
extracted information for each cell phone. Baker received a Samsung Galaxy S9 cell
phone from Ohio State Highway Patrol Sergeant Shane Morrow on December 13, 2018
which contained information indicating it belonged to Mott.
{¶10} Baker testified that to the November 14 and 15, 2018 texts between
Hamilton and Mott. Baker also identified five texts. The first outgoing text to "Canesha"
read, "I need to come get girl card from you." (T. at 198). Over objection, the state
requested and Baker gave her interpretation of the text. (T. at. 198-200). Baker further
identified a sent text to "Donji' reading, "Let me know how much she spent off the card."
The next text to Donji read, "I was bout to go to Wal-Mart to get that game, but I'll wait on
you. Bring food card too." (T. at 201). The third text to "Donji" read, "Didn't want my babe
hungry, and the stamp card is there too." (T. at 202) Finally, Baker read an incoming text
from an unnamed person: "I'm at Wal-Mart getting groceries. My friend gave me her food
card, so as soon as I get home call you, okay? Won't be too much longer." (T. at 202).
{¶11} Baker further testified that a person with a card that has money on it that
wants drugs, could give it and the PIN number to someone else — in exchange for drugs
or money. (T. at 203). The state then introduced a text exchange between Hamilton and
Mott from July 3, 2018 wherein Hamilton texts, "I need some smoke. I got 10." Mott replies,
Richland County, Case No. 2019CA0116 6
"Smoke in." (T. at 203-204). Baker also testified Mr. Mott lived on Brickman Ave. in
Mansfield, Richland County, OH. (Tr. at 191-193; State's Ex. 8).
{¶12} During closing argument, the state admitted that Mott did not use the card;
rather, two women used Miranda Hamilton's card in Michigan. (T. at 242). The state
reiterated that that Mott did not use the card; rather, two women used Miranda Hamilton’s
card in Michigan in response to a juror’s request to, “Say that again.” (Id.).
{¶13} At the conclusion of the evidence, the state requested that the jury be given
an instruction on aiding and abetting. T. at 211. The trial court instructed the jury on aiding
and abetting with respect to the sole count of the Indictment. T. at 235.
{¶14} On November 13, 2019, Mott was found guilty as charged. The same day,
the court sentenced Mott to twelve months in prison with two days of jail time credit and
three years discretionary post-release control.
Assignments of Error
{¶15} Mott raises five Assignments of Error,
{¶16} “I. NOEL MOTT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR
TRIAL AS A RESULT OF THE STATE'S INTRODUCTION OF UNFAIRLY PREJUDICIAL
TESTIMONY AND PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT.
{¶17} “II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
ADMITTED OTHER ACTS EVIDENCE.
{¶18} “III. NOEL MOTT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶19} “IV. NOEL MOTT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A
FAIR TRIAL AS A RESULT OF THE CUMULATIVE ERRORS AT TRIAL.
Richland County, Case No. 2019CA0116 7
{¶20} “V. THE TRIAL COURT INCORRECTLY CALCULATED NOEL MOTT'S
JAIL TIME CREDIT.”
I.
{¶21} In his First Assignment of Error, Mott asserts that the state denied him a fair
trial by introducing unfairly prejudicial testimony1 and allowing prosecutorial misconduct
during closing argument.
Standard of Appellate Review – Plain Error.
{¶22} Because Mott did not object to the prosecutor’s closing argument in the trial
court our review is limited to the Plain Error standard of review.
{¶23} As the United States Supreme Court observed in Puckett v. United States
(2009), 556 U.S. 129, 134,129 S.Ct. 1423, 1428, 173 L.Ed.2d 266,
If an error is not properly preserved, appellate-court authority to
remedy the error (by reversing the judgment, for example, or ordering a new
trial) is strictly circumscribed. There is good reason for this; anyone familiar
with the work of courts understands that errors are a constant in the trial
process, that most do not much matter, and that a reflexive inclination by
appellate courts to reverse because of unpreserved error would be fatal.
(Internal quotation marks and citations omitted).
{¶24} [A]n appellate court may, in its discretion, correct an error not raised at trial
only where the appellant demonstrates that (1) there is an error; (2) the error is clear or
obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s
1 Mott asserts the statements as inadmissible in his Second Assignment of Error. Accordingly, we
will address Mott’s concern with the statements in our disposition of his Second Assignment of Error.
Richland County, Case No. 2019CA0116 8
substantial rights, which in the ordinary case means it affected the outcome of the district
court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus 560 U.S. 258, 262, 130 S.Ct.
2159, 176 L.Ed.2d 1012 (2010). (Internal quotation marks and citations omitted). The
Ohio Supreme Court has defined the ability of a court to reverse a conviction because of
structural error,
We have previously held that if the defendant had counsel and was
tried by an impartial adjudicator, there is a strong presumption that any other
constitutional[l] errors that may have occurred are subject to harmless-error
analysis. State v. Hill (2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274,
quoting Rose v. Clark (1986), 478 U.S. 570, 579, 106 S.Ct. 3101, 92
L.Ed.2d 460. Moreover, as we stated in State v. Perry, 101 Ohio St.3d 118,
2004–Ohio–297, 802 N.E.2d 643, [c]onsistent with the presumption that
errors are not structural, the United States Supreme Court ha[s] found an
error to be structural, and thus subject to automatic reversal, only in a very
limited class of cases. Johnson v. United States, 520 U.S. 461, 468, 117
S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S.
335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel));
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased
trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d
598 (1986) (racial discrimination in selection of grand jury); McKaskle v.
Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-
representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81
Richland County, Case No. 2019CA0116 9
L.Ed.2d 31(1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S.
275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt
instruction).
State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 16. [Citations
and internal quotation marks omitted].
{¶25} The Ohio Supreme Court pertinently addressed when structural error
analysis should be used in State v. Perry, supra:
We emphasize that both this court and the United States Supreme
Court have cautioned against applying a structural-error analysis where, as
here, the case would be otherwise governed by Crim.R. 52(B) because the
defendant did not raise the error in the trial court. See Hill, 92 Ohio St.3d
at 199, 749 N.E.2d 274; Johnson, 520 U.S. at 466, 117 S.Ct. 1544, 137
L.Ed.2d 718. This caution is born of sound policy. For to hold that an error
is structural even when the defendant does not bring the error to the
attention of the trial court would be to encourage defendants to remain silent
at trial only later to raise the error on appeal where the conviction would be
automatically reversed. We believe that our holdings should foster rather
than thwart judicial economy by providing incentives (and not disincentives)
for the defendant to raise all errors in the trial court-where, in many cases,
such errors can be easily corrected.
101 Ohio St.3d at 124, 802 N.E.2d at 649, 2004–Ohio–297 at ¶ 23.
{¶26} Thus, the defendant bears the burden of demonstrating that a plain error
affected his substantial rights and, in addition that the error seriously affect[s] the fairness,
Richland County, Case No. 2019CA0116 10
integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. at
725,734, 113 S.Ct. 1770(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d 643,
646(2004). Even if the defendant satisfies this burden, an appellate court has discretion
to disregard the error. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002);
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus;
Perry, supra, at 118, 802 N.E.2d at 646.
Issue for Appellate Review: Whether the prosecutor’s remarks during closing
argument affected Mott’s substantial rights and seriously affected the fairness, integrity,
or public reputation of the judicial proceedings.
{¶27} Allegations of prosecutorial misconduct implicate due process concerns, and
the touchstone of the analysis is the “‘fairness of the trial, not the culpability of the prosecutor.’”
State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, ¶ 92, quoting Smith v.
Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
If any misconduct occurred, the court must consider the effect it had on
the jury “in the context of the entire trial.” State v. Keenan, 66 Ohio St.3d 402,
410, 613 N.E.2d 203 (1993). With regard to each allegation of misconduct, we
must determine whether the conduct was “improper, and, if so, whether [it]
prejudicially affected substantial rights of the defendant.” State v. Smith, 14
Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[A] defendant's substantial rights
cannot be prejudiced when the remaining evidence, standing alone, is so
overwhelming that it constitutes defendant's guilt, and the outcome of the case
would have been the same regardless of evidence admitted erroneously.”
State v. Hicks, 194 Ohio App.3d 743, 2011-Ohio-3578, 957 N.E.2d 866, ¶ 30
Richland County, Case No. 2019CA0116 11
(8th Dist. 2011), citing State v. Williams, 38 Ohio St.3d 346, 349–350, 528
N.E.2d 910 (1988).
State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 109.
{¶28} Whether statements made by a prosecutor amount to misconduct and
whether such statements render a trial fundamentally unfair are mixed questions of law and
fact, which we review de novo. United States v. Carson, 560 F.3d 566, 574 (6th Cir. 2009
(citing United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999) (citing United States v. Clark,
982 F.2d 965, 968 (6th Cir.1993)).
{¶29} A prosecutor is entitled to a certain degree of latitude in closing arguments.
State v. Liberatore, 69 Ohio St.2d 583, 589, 433 N.E.2d 561(1982). Thus, it falls within
the sound discretion of the trial court to determine the propriety of these arguments. State
v. Maurer, 15 Ohio St.3d 239, 269, 473 N.E.2d 768(1984). A conviction will be reversed
only where it is clear beyond a reasonable doubt that, absent the prosecutor's comments,
the jury would not have found the defendant guilty. State v. Benge, 75 Ohio St.3d 136,
141, 1996-Ohio-227. Furthermore, "[i]solated comments by a prosecutor are not to be
taken out of context and given their most damaging meaning.” Donnelly v. DeChristoforo,
416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431(1974).
{¶30} Mott cites the following statements as improper,
But I also think that, we touched on some of it, that it's admitted in
the texts that are in there, there were some of them you could see, it is kind
of a sad situation, but, I mean, these cards are essentially the currency of
the poor, and they can be exploited, and I think that's what has happened
here. And you heard Ms. Baker. What happens to these things? People
Richland County, Case No. 2019CA0116 12
in bad situations, like Ms. Hamilton, whether knowingly or willingly or
wantonly, sell what's supposed to be used for something good for be it drugs
or smoke or whatever was in those texts that he was giving out.
The most important thing is knowingly. I think when you view those
texts, when you go over the content of those texts, this is essentially a
system. You saw it on there. The texts blasted out to like ten people, "The
smoke's in.” I hope I don't need to tell you what "the smoke's in" means.
And multiple references to different people about getting cards, bringing
cards, transferring cards, paying for cards. That's what this is and that's
what this code section is designed to prevent and punish and stop, to stop
the abuse of the system and this money being used for things it was never
meant to be used for and by people like the defendant that it was never
meant to be used by.
T. at 243-244.
{¶31} Miranda Hamilton declined to testify at trial asserting her Fifth Amendment
rights. T. at 2262. The state cites to no evidence in the record that Miranda Hamilton
exchanged an Ohio Direction (SNAP) card for drugs. The state cites to no evidence in the
record that Mott accepted an Ohio Direction (SNAP) card in exchange for drugs. The text
exchange clearly shows Mott did not solicit Miranda Hamilton to sell or exchange her Ohio
Direction (SNAP) card; rather, Miranda Hamilton sent out a text to nearly ten people
offering to exchange the card for money. Further, the Ohio Direction (SNAP) card can only
2 In fact, R.C. 2913.46(B) prohibits the transfer of SNAP benefits in any manner not authorized by
the law. Thus, Ms. Hamilton could be charged with the same offense that Mott was charged with in this
case.
Richland County, Case No. 2019CA0116 13
be used to purchase approved items; it cannot be indiscriminately used to purchase
contraband, cigarettes, or alcohol. In her text message Miranda Hamilton is asking for
money because, “I ain’t got no cigs and could use some cash.” T. at 191-193. In addition,
the text message concerning “smoke in” was sent in July 2018 some four months before
Miranda Hamilton sent the text message offering to sell her Ohio Direction (SNAP) card
for cash. T. 203-204.
{¶32} The statements made by the prosecutor were therefore an improper
suggestion that Mott deals in drugs and accepts Ohio Direction (SNAP) cards as payments
when there record contains no competent, credible evidence to support that statement.
{¶33} We do find that the prosecutor’s statements regarding Mott’s alleged sale
or exchange of drugs was irrelevant and improper. In our disposition of Motts Second
Assignment of Error, we find the “smoke in” text message was not admissible for any
purpose under Evid.R. 404(B) and the purported rational relied upon by the court either
invited an improper character reference or was irrelevant to a material issue in the case.
II.
{¶34} In his Second Assignment of Error, Mott argues that the trial court
committed error by admitting text messages under the “other acts” exception to the
hearsay rule.
Standard of Appellate Review.
{¶35} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991).
Richland County, Case No. 2019CA0116 14
Issue for Appellate Review: Whether the admission of texts messages under the
“other acts” exception to the hearsay rule was an abuse of discretion.
{¶36} Evid.R. 404(A) provides that evidence of a person’s character is not
admissible to prove the person acted in conformity with that character. Evid.R. 404(B)
sets forth an exception to the general rule against admitting evidence of a person’s other
bad acts. The Rule states as follows: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”
{¶37} Recently, the Ohio Supreme Court clarified the standard under which a
prosecutor may introduce evidence of a defendant’s prior bad acts in a trial for a new
crime. In State v. Hartman, Oh.Sup.Ct. No. 2019-0184, 2020-Ohio-4440, 2020 WL
5637596 (Sept. 22, 2020), the Court affirmed the Eight District Court of Appeals decision
overturning the rape conviction of Hartman for allegedly assaulting a female acquaintance
in her hotel room after they had spent the evening out with a group of friends.3 Hartman,
¶1. Hartman claimed the hotel encounter was consensual. Hartman, ¶8. To counter his
claim and support its version of events, the state presented “other acts” evidence that
Hartman had sexually abused his stepdaughter when she was a child.
{¶38} Prior to trial Hartman’s counsel attempted to exclude the “other acts”
evidence as too distinct from the case on trial so that it had no probative value. Hartman,
3 We recognize that the decision in Hartman was issued after the decision by the trial court in Mott’s
case, and after briefs were filed in this Court. However, Hartman does not change the law; rather, Hartman
simply clarifies existing law and precedents.
Richland County, Case No. 2019CA0116 15
¶12. The state argued that both assaults had occurred while the victims were sleeping and
that this amounted to a “behavioral fingerprint” identifying Hartman as the perpetrator. The
state further asserted that the evidence was probative of Hartman’s “motive, intent, plan
or scheme and absence of mistake.” Hartman, ¶12. The state contended that the fact that
Hartman had molested his stepdaughter while she was sleeping provided evidence that
Hartman’s motive for returning to the hotel room was to assault the victim in the current
case. Id. In the alternative, the state argued that the evidence rebutted any “mistaken
impression that this was consensual sexual activity”. Id.
{¶39} In rejecting the state’s arguments, the Ohio Supreme Court first noted, that
“other acts evidence must be relevant not to the ultimate determination of guilt, but to the
particular purpose for which it is offered.” Hartman, ¶26 (emphasis added). The Court
cautioned, “Trial courts must keep in mind that it is not enough to say that the evidence is
relevant to a nonpropensity purpose. The nonpropensity purpose for which the evidence
is offered must go to a “material” issue that is actually in dispute between the parties.” Id.
at ¶27 (emphasis added)(citations omitted). The trial court must in every case weigh the
probative value and the danger of unfair prejudice under Evid.R. 404(B). Id. at ¶29.
Further, if the trial court decides the evidence is admissible, it must take steps to minimize
the risks of unfair prejudice by explaining and instructing the jury the specific purpose for
which the evidence may be considered and the rational for its admission. This must be
done on the record. Hartman, ¶34.
{¶40} In rejecting the state’s “modius operandi” argument for the admission of the
prior acts, the Court noted,
Richland County, Case No. 2019CA0116 16
Here, B.T.’s testimony did not provide evidence of a modus operandi.
There is nothing fingerprint-like about molesting a child in a bed during the
night. Nor do the circumstances of the child molestation in this case contain
any idiosyncratic features also present during the alleged rape. That both
crimes were committed against a female sleeping in a bed is hardly unique
to Hartman as a perpetrator.
Furthermore, as the court of appeals correctly noted, identity was not
an issue at trial. This is an acquaintance-rape case. E.W. knew who
Hartman was before the assault. And during opening statements,
Hartman’s attorney made clear that the theory of the defense was that the
sexual encounter between Hartman and E.W. had been consensual. Thus,
even if B.T.’s testimony could have been labeled modus operandi evidence,
it still would not have been admissible because identity was not an issue in
this case.
Hartman, ¶38 (emphasis added). The Court further rejected the state’s arguments that
the evidence was admissible to show a common scheme or plan. The Court noted that
many litigants mistakenly use the concepts of “modus operandi” and common scheme or
plan largely synonymously. Hartman, ¶40. The Supreme Court noted,
[T]hese two sometimes permissible uses of other-acts evidence are
distinct concepts. The utility of modus operandi evidence comes from its
connection with the current crime through shared characteristics that make
the conduct unique to the perpetrator. In contrast, plan evidence need not
share any common characteristics with the current crime; rather, the other
Richland County, Case No. 2019CA0116 17
acts are linked to the present crime because they are carried out in
furtherance of the same overall plan. Evidence of a plan or common design
“refers to a larger criminal scheme of which the crime charged is only a
portion.” Barbour, 106 Ill. App.3d at 999, 62 Ill. Dec. 641, 436 N.E.2d 667.
Thus, while modus operandi evidence is “most useful in showing that
the accused is the perpetrator of the crime charged,” id., evidence of a
common design will more often be relevant to show the motive for the crime
charged, see McCormick, Evidence, Section 190, at 448-449 (2d Ed.1972).
Common-plan evidence generally concerns events that are “inextricably
related” to the crime charged. Weissenberger at Section 404:18; Curry, 43
Ohio St.2d at 73, 330 N.E.2d 720. The other acts form the “immediate
background” of the present crime: they are typically either part of the “same
transaction” as the crime for which the defendant is on trial or they are part
of “a sequence of events” leading up to the commission of the crime in
question. Weissenberger at Section 404:18. As one authority has
explained, this type of other-acts evidence is admitted
[t]o prove the existence of a larger, continuing plan,
scheme, or conspiracy, of which the present crime on trial is
a part. This will be relevant as showing motive, and hence the
doing of the criminal act, the identity of the actor, and his
intention, where any of these is in dispute.
McCormick at 448-449. Thus, plan evidence generally supports one of the
following possible conclusions: “(1) the occurrence of the act in issue; (2)
Richland County, Case No. 2019CA0116 18
the identity of the person who committed the act; or (3) the existence of the
required mental state in the actor.” Leonard at Section 9.1.
A defendant’s plan might be demonstrated through evidence of “prior
preparatory acts,” such as the prior theft of an instrumentality used in the
commission of the current crime. 1 Imwinkelried et al., Courtroom Criminal
Evidence, at Section 907. For instance, in a prosecution for illegally
manufacturing drugs under R.C. 2925.04, evidence that the defendant
recently robbed a warehouse to steal a barrel of the ingredient methylamine
could be admissible to show the defendant’s scheme to produce
methamphetamine. See “A No-Rough-Stuff-Type Deal,” Breaking Bad,
AMC (Mar. 9, 2008). Or consider a case in which the defendant is slated to
inherit an estate if two other heirs are no longer living. See 1 Imwinkelried
et al. at Section 907. In a trial for the murder of one heir, evidence showing
that the defendant killed the other would not be admissible to demonstrate
that he was a cold-blooded killer, but it could be admitted to show that he
had a plan to kill the other heirs to attain the inheritance. See id.
Here, the evidence plainly does not fit into the common
understanding of plan evidence. Hartman’s alleged assault of his
stepdaughter was not part of a larger scheme involving the rape of E.W.
Hartman, ¶40-44. Nor did the Court accept the state’s contention that the evidence was
admissible pursuant to State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983
N.E.2d 1278. The Ohio Supreme Court stated,
Richland County, Case No. 2019CA0116 19
While the other-acts evidence in Williams tended to show that the
defendant, who had been charged with the rape of a 14-year-old boy, had
a pattern of grooming teenage boys to take advantage of them sexually,
that fact alone is not what overcame the propensity bar. Rather, the result
in Williams turned on the state’s use of the other-acts evidence for the
purpose of refuting the defendant’s claims that he was not sexually attracted
to teenage boys and establishing that the defendant had acted with the
specific intent of achieving sexual gratification. Id. at ¶ 22, 25.
Hartman, ¶45. The Court further addressed the intent or absence of mistake component
of Evid.R. 404,
To determine whether other-acts evidence is genuinely probative of
the intent of the accused to commit the charged crime, rather than merely
the accused’s propensity to commit similar crimes, the question is whether,
“under the circumstances, the detailed facts of the charged and uncharged
offenses strongly suggest that an innocent explanation is implausible.”
(Emphasis in original.) Id. at Section 7.5.2. Or to put it another way, the
other-acts evidence “must be so related to the crime charged in time or
circumstances that evidence of the other acts is significantly useful in
showing the defendant’s intent in connection with the crime charged.” 1
Wharton’s Criminal Evidence at Section 4:31.
Hartman, ¶58. The Court further found that the trial court’s limiting instructions to the jury
did not cure the prejudicial effect of the other acts evidence.
“Other Acts” Evidence in this case.
Richland County, Case No. 2019CA0116 20
{¶41} In a prosecution for using, acquiring, etc., food stamps in any manner not
authorized by statute or regulation, the government must prove that the defendant knew
that his acquisition or possession of food stamps was in a manner unauthorized by statute
or regulation. As in any other criminal prosecution requiring mens rea, the government
may prove by reference to facts and circumstances surrounding the case that defendant
knew that his conduct was unauthorized or illegal. Liparota v. United States, 471 U.S.
419, 422; 434 105 S.Ct. 2084, 85 L.Ed.2d 434(1985). The mens rea requirement for
R.C. 2913.46(B) is “knowingly.” R.C. 2901.22(B) sets forth the definition of how and when
a person acts knowingly,
{¶42} Whether a person acts knowingly can only be determined, absent a
defendant’s admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Johnson, 56 Ohio St.3d 35, 38,381 N.E.2d 637(1978) citing
State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313(1936): State v. Rojas, 64 Ohio St.3d
131, 139, 592 N.E.2d 1376(1992); State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d
695(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he test for whether a defendant acted
knowingly is a subjective one, but it is decided on objective criteria.” Id. citing State v.
Adams, 4th Dist. Ross No. 94 CA 2041, 1995 WL 360247(June 8, 1995) and State v.
Paidousis, 10th Dist. Franklin No. 00AP–118, 2001 WL 436079 (May 1, 2001). See also,
State v. Butler, 5th Dist. Holmes No. 2012–CA–7, 2012–Ohio–5030, ¶ 25.
{¶43} In the case at bar, Mott has cited to several instance where the state
introduced “other acts” evidence.
June 3, 2018 text message from Miranda Hamilton.
Richland County, Case No. 2019CA0116 21
{¶44} Mott first cites to the testimony of Susan Baker. The state called a sidebar
to introduce a June 2018 text to Mott wherein "Miranda [Hamilton] identifies that number
as hers.” Defense counsel objected as the text was "too remote in time.” The court
overruled the objection. (T. at 187) Thereafter, the testimony was as follows:
STATE: Was that message sent on June 3, 2018?
BAKER: Yes.
STATE: And does it come in as an incoming message?
BAKER: Yes.
STATE: What does that message say?
BAKER: "Hey, it's Randa. Whenever we go to leave, would you
let me drive there so I can make at least 100 or something? Trying to figure
out how to make something before we leave, because we don’t have a
dollar to our name right now, and Tony gonna need diapers, just more cigs,
food along the way. Once we get there, you know, but if and you would or
could do that, there is some stuff from the Dollar Store I wanted to get before
you left if you don’t care about that to just let me know. Trying to figure out
something out. My dad was bullshitting me. He just got paid, but probably
all gone, and that’s why he bullshitting.”
T. at 188-189. Though the text message was five months before the event that is the
subject of this proceeding, the Court allowed it to introduce the phone numbers of Mott
and Miranda Hamilton. T. at 187. Miranda did not testify at trial. No response from Mott
to this message was presented by the state during the trial.
Richland County, Case No. 2019CA0116 22
{¶45} The state’s stated asserted purpose for presenting this text message to the
jury was to show the phone number belonged to Miranda Hamilton. T. at 187. However,
far more hearsay was admitted then necessary to fulfill the state’s stated purpose. In
addition, other means existed for the state to show the jury that the number belonged to
Miranda Hamilton, such as testimony or records from the cell phone provider. The
statements made in the text message are not relevant to any material issue that is actually
in dispute in the case.
October 18, 2018 text message sent to Canesha.
{¶46} The state introduced the following text messages,
STATE: So this would be a text from the defendant’s phone?
BAKER: Correct.
STATE: And what is the text of that message?
BAKER: “I need to come get girl card from you.”
T. at 197-198. Mott’s counsel did object to this text; however, the trial court overruled the
objection. This message was sent October 18, 2018; however, Miranda did not send it.
T. at 197. The individual who received that text message, Canesha, did not testify at trial.
No response to this text message was presented by the state. The state did not allege
that Mott had obtained Miranda Hamilton’s Ohio Direction (SNAP) card until November
14, 2018 and the PIN to use the card until November 15, 2018, almost one month after
this text message. Accordingly, the text cannot be referring to that card.
{¶47} The state informed the trial court that this text and others were “cards from
multiple people demonstrating this isn’t a one-time accident or mistake.” T. at 199.
Richland County, Case No. 2019CA0116 23
However, nowhere in the record does the state cite to evidence where Mott ever in fact
obtained the “girl card.”
{¶48} More troubling is that the state is unable to point to any evidence in the
record before this Court that Mott was referring to an illegal or improper act when he
referred to “girl card.” However, in Huddleston v. United States, the United States
Supreme Court observed when a trial court reviews the record to find support of the “other
acts” evidence,
We emphasize that in assessing the sufficiency of the evidence
under Rule 104(b), the trial court must consider all evidence presented to
the jury. “[I]ndividual pieces of evidence, insufficient in themselves to prove
a point, may in cumulation prove it. The sum of an evidentiary presentation
may well be greater than its constituent parts.” Bourjaily v. United States,
483 U.S. 171, 179–180, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987).
485 U.S. 681, 690-691, 108 S.Ct. 1496, 99 L.Ed.2d 771(1988). In the case at bar, when
combined with the information in other text messages the state admitted, the inference
becomes more apparent that what Mott is referencing is a food stamp card.
November 3 and 4, 2018 text messages.
{¶49} Next the state introduced the following text message,
STATE: This text here, this is November 3rd. Again this is a number,
not Miranda's, but it is someone's number. Does it have a name associated
with it?
BAKER: Donji.
STATE: And is that a "Sent" one?
Richland County, Case No. 2019CA0116 24
BAKER: Yes.
STATE: And what is the text of that sent message to Donji?
BAKER: "Let me know how much she spent off the card."
STATE: And what would that appear to you as an investigator to
indicate?
BAKER: How much was spent on that particular card.
T. at 200-201. The state continued,
STATE: November 4th at 7:50, is this another message to Donji?
BAKER: Yes.
STATE: Is it sent from the defendant?
BAKER: Yes.
STATE: What is the text of that message?
BAKER: "I was bout to go to Wal-Mart to get that video game, but
wait on you. Bring food card too."
STATE: So that 11/4 date would be within 2 weeks that the defendant
was found with these two cards in his possession, too. Is that right?
BAKER: Yes.
November 8, 2018 text messages.
STATE: November 8th at 3:44, is this another text to Donji?
BAKER: Yes.
STATE: Sent from the defendant? Is it sent from the defendant's
phone?
BAKER: Yes.
Richland County, Case No. 2019CA0116 25
STATE: What's the text of that message?
BAKER: "Didn't want my babe hungry, and the stamp card is there
too."
November 11, 2018 text messages.
STATE: This number here, November 11, 2018, at 3:52, is that a
number different than Miranda's as well?
BAKER: Yes.
STATE: And is it a "Sent" message?
BAKER: It is an "Incoming" message.
STATE: What is the text of that message?
BAKER: "I'm at Wal-Mart getting groceries. My friend gave me her
food card, so as soon as I get home I'll call you, okay? Won't be too much
longer."
STATE: So in addition to Miranda, is there discussion with two to
three other people about using various food cards?
BAKER: Correct.
T. at 201-202. Prior to the admission of the aforementioned texts, the trial court overruled
defense counsel's objection, noting, "The state is entitled to bring the evidence out to
show there is a lack of mistake in this matter as a course of conduct. The defendant at
this point in time was doing something that he is well aware that he was doing. So the
court is going to find that the probative value is much greater than any prejudicial value
and the court is going to allow that.” (T. at 200). None of the participants to the text
messages testified at trial. The state presented no response to the text from Mott.
Richland County, Case No. 2019CA0116 26
{¶50} When combined with the previous text messages it is apparent that the state
is seeking to use the text messages to negate Mott’s “innocent intent.” Since Mott had
discussed getting the card, how much was left on the card, bring the card when you meet
me and I left the food card there because I didn’t want you to be hunger, the jury could
reasonably find from looking at the text messages as a whole, rather than individually, Mott
had used Ohio Direction (SNAP) cards in the past in a manner not authorized by law, thus
tending to negate any innocent explanation for being in possession of Miranda Hamilton’s
card on November 15, 2018. This is a permissible purpose and those text messages were
properly admitted.
July 3, 2018 text message.
{¶51} The following text message from July 3, 2018 was also admitted,
STATE: What is the text of that?
BAKER: "I need some smoke. I got 10."
STALE: Is this Miranda's number again?
BAKER: Yes.
STATE: Is this a "Sent" message?
BAKER: Yes.
STATE: What did the defendant send to Miranda?
BAKER: "Smoke in."
T. at 203-204. This testimony was not objected to at trial. The record seems to suggest
that the state presented this evidence to support their contention that individuals will
exchange their Ohio Direction (SNAP) cards for drugs. [Appellee’s brief at 6-7]. Miranda
did not testify at trial. The state points to no evidence in the record that Miranda has ever
Richland County, Case No. 2019CA0116 27
exchanged an Ohio Direction (SNAP) card for drugs. The state points to no evidence in
the record that Mott received an Ohio Direction (SNAP) card from Miranda, or anyone
else, in exchange for drugs. The text exchange concerning Miranda’s Ohio Direction
(SNAP) card clearly shows Mott did not solicit Miranda Hamilton to sell or exchange her
Ohio Direction (SNAP) card; rather, Miranda Hamilton sent out a text to nearly ten people
offering to exchange the card for money. In her text message Miranda Hamilton is asking
for money because, “I ain’t got no cigs and could use some cash.” T. at 191-193. In
addition, the text message concerning “smoke in” was sent in July 2018 some four months
before Miranda Hamilton sent the text message offering to sell her Ohio Direction (SNAP)
card for cash. T. 203-204.
{¶52} The danger of unfair prejudice is that the jury will see Mott as a drug dealer
and therefore it is likely he committed the crime in the case at bar. The state failed to
establish a permissible nonpropensity purpose for the admission of this text message. In
other words this text message was not probative of a purpose other than to impugn Mott’s
character and was irrelevant to a material issue in the case. Hartman, ¶73.
Failure to give the jury a limiting instruction.
{¶53} Mott next argues that the trial court committed plain error because it did not
give the jury a limiting instruction concerning the other acts evidence.
{¶54} In State v. Hartman, the Ohio Supreme Court observed,
The court must give a limiting instruction upon request. Evid.R. 105.
But that does not mean the court should sua sponte issue such an
instruction any time other-acts evidence is used. Depending on the nature
of the other-acts evidence and the context in which it is used, defense
Richland County, Case No. 2019CA0116 28
counsel may as a matter of strategy wish to avoid highlighting the evidence
for the jury. State v. Schaim, 65 Ohio St.3d 51, 61, 600 N.E.2d 661 (1992),
fn. 9 (“the decision not to request a limiting instruction is sometimes a
tactical one, and we do not wish to impose a duty on the trial courts to read
this instruction when it is not requested”).
Hartman, 2020-Ohio-440, ¶67. Because trial counsel did not request a limiting
instruction, the trial court was not required to give the jury a limiting instruction concerning
the other acts evidence.
Unredacted video of traffic stop and CD of the entire contents of Motts cell
phone.
{¶55} In the case at bar, the traffic stop by Sergeant Morrow was recorded in its
entirety by his dashcam cruiser cam.(State’s Exhibit 1). On November 8, 2019, trial
counsel filed a Motion in Limine to exclude the dashcam video of the traffic stop. (Docket
Entry Number 35). The entire dashcam video of the traffic stop was not played to the jury.
Rather, it appears from the record that the state played the video through Sergeant
Morrow's approach to the vehicle. The CD was then fast-forwarded to show Officer Lalon
presumably placing Ohio Direction Cards on the hood of Morrow's vehicle, Morrow testified
regarding these two portions of the dashcam video. (T. at 169-173). While a Motion in
Limine was filed to restrict jury view to the relevant portions of the dashcam video, it
appears the entire, unredacted dashcam CD was provided to the jury. T. at 215; 260.
{¶56} According to Morrow's dashcam video, Morrow approached Mr. Mott,
informed him of the brake light issue and requested Mr. Mott's license. Mott provided his
license, said he lived on Adams and explained the vehicle was not his. Morrow then
Richland County, Case No. 2019CA0116 29
ordered Mr. Mott out of the vehicle and patted him down. Morrow stated the car smelled
like marijuana and Mott admitted smoking marijuana earlier that day in Michigan. Morrow
asked a litany of questions, including where Mr. Mott was heading, where he was coming
from, what he had done that day, and the nature of his relationship with the female
passenger, Donjion Reese. (State's Exhibit 1). After placing Mr. Mott in his cruiser, Morrow
asked the same questions of the passenger, Ms. Reese.
{¶57} Ms. Reese confirmed the two were coming from Mr. Mott's mother's home,
had gone shopping that day, and had bought a coat. Morrow then requested backup due
to supposed discrepancies between Mr. Mott and Ms. Reese's answers. In addition,
Morrow stated Mott's car smelled "like raw weed" and he needed a place to put the
passenger while searching the vehicle. (State's Exhibit 1).
{¶58} Because marijuana debris was found in the passenger seat during the
vehicle search, Sergeant Morrow decided to search the passenger. The passenger
removed a large number of oxycontin pills from her bra during the search of her person.
Shortly thereafter, the voice of an unknown officer says, "I assume you're gonna try and
hook the male driver," Sergeant Morrow responds, "Am I gonna try to what? Yeah, I'm
gonna try to get the male driver. I gotta talk to him. I haven't said one word." (State's Exhibit
1). Although Morrow expressed concern that Mott might have discarded something in the
cruiser, both Mr. Mott and the cruiser were searched and no drugs were found. However,
Mott was charged with Aggravated Trafficking and Possession of Drugs in Wood County
based upon the oxycontin pills found on the passenger, Donjion Reese.
{¶59} State’s Exhibit 7 is the entire download of Mott’s cellphone. T. at 182. The
state used the Exhibit to admit several of the test messages referred to above. However,
Richland County, Case No. 2019CA0116 30
the jury was given the disk containing the entire contents of the cell phone. T. 215; 260.
Upon this Court’s review, State’s Exhibit 7 contains hundreds of text messages, as well as
pictures and videos unrelated to the charges in this case that potentially contain
inadmissible other acts evidence.
Conclusion.
{¶60} Due to the errors in the admission of the other acts testimony relating to
drugs, giving the unredacted exhibits the jury, the prosecutor’s insinuation that Mott was
exchanging drugs for food stamp cards, the jury was presented with evidence that Mott
was the type of defendant who possessed and trafficked drugs and committed other
unsubstantiated offenses, resulting in prejudice. The evidence in the record cannot
overcome these glaring errors.
{¶61} It can hardly be questioned that the jurors likely weighed in their analysis
the fact that Mott was involved with drugs and other unsubstantiated offenses. This is
especially true where, as here, no instructions were requested or given to the jury
concerning the purposes for which the other acts evidence may and may not be
considered, and, further, the jury was not instructed that the state does not satisfy its
burden of proof beyond a reasonable doubt by an inference that the defendant committed
this crime because his past acts suggest a propensity to commit crimes. See, State v.
Hartman, Oh.Sup.Ct. No. 2019-0184, 2020-Ohio-4440, 2020 WL 5637596 (Sept. 22,
2020), ¶70-71. Further, the entire exhibits rather than only the relevant an admitted
portions of those exhibits were given to the jury to review during their deliberations. The
state increased the danger of unfair prejudice by highlighting the improper inferences
during closing argument
Richland County, Case No. 2019CA0116 31
{¶62} We conclude that the other-acts drug evidence, the unredacted traffic stop
video and the entire contents of Motts cell phone introduced in this case was not
admissible for any purpose under Evid.R. 404(B). Each of the purported rationales raised
upon by the trial court either invited an improper character reference or was irrelevant to
a material issue in the case. Further the jury instructions provided did not mitigate the
prejudicial effect of the evidence. Hartman, ¶73.
{¶63} Accordingly, Motts First and Second Assignments of Error are sustained.
{¶64} In light of our disposition of Mott’s Second Assignment of Error, we find
Motts Third, Fourth and Fifth Assignments of Error to be moot.
{¶65} The judgment of the Richland County Court of Common pleas is reversed
and this matter is remanded for further proceedings consistent with this opinion.
By Gwin, J.,
Hoffman, P.J., and
Baldwin, J., concur