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Reverse 404(B) Evidence: An Evidence Rule 403(A) Analysis

By: Megan Patituce

Although all criminal defense practitioners should be familiar with the state’s use of Evid.R. 404(B) evidence against defendants, it is less often that a defendant has the opportunity to level similar evidence against an accuser.  In State v. Sepeda, 6th Dist. Lucas No. L-19-1125, 2020-Ohio-4167, the Sixth District Court of Appeals reversed and remanded Mr. Sepeda’s case for a new trial as a result of the trial court’s erroneous exclusion of “reverse 404(B)” evidence.

Mr. Sepeda was indicted as a result of claims that he had hit the alleged victim with his vehicle.  Mr. Sepeda, however, claimed that the alleged victim had been the aggressor in an unprovoked attack.  In support of his defense, Mr. Sepeda filed notice of his intent to call an independent third party witness who had also suffered an unprovoked, aggressive attack from the alleged victim.  After a hearing, the trial court engaged in a 404(B) analysis and issued a ruling denying defendant the opportunity to present the evidence.

On appeal after conviction, the Sixth District found that the trial court had erred in utilizing an Evid. R. 404(B) analysis.  Rather, it held that the analysis should have been pursuant to Evid.R. 403(A).  To that end, the Sixth District explained that the evidence was relevant in that both events involved unprovoked attacked by the alleged victim against a motorist, which bolsters Mr. Sepeda’s defense and calls into question the credibility of the alleged victim.  Further, the Sixth District found that the state would not have been unfairly prejudiced by the admission of the testimony in question.

The Evid.R. 403(A) analysis led the Sixth District to conclude that the trial court had abused its discretion and, in light of the trial testimony, the error was not harmless.  The denial resulted in the denial of Mr. Sepeda’s constitutional right to present a complete defense and, as such, necessitated a new trial.

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