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Reverse 404(B): How to Use an Alleged Victim’s Prior Bad Act in Trial

By: April Campbell

"Reverse 404(B)” is rarely used. But, that does not mean it can’t be. You just need to know how.  

Luckily, the Sixth District’s recent decision on the issue provides my litigious brethren with the means. State v. Sepeda, 2020-Ohio-4167 (Aug. 21, 2020)In this factually amusing case, Sepeda was charged with felonious assault when the “victim” claimed that Sepeda struck him with a car.  Sepeda's story was different.  Sepeda claimed the victim attacked his car, and that he had done nothing at all.   The funny thing was, the victim had done the exact same thing to someone else, who saw Sepeda’s situation on the news and reported his incident to the police.  With some keen investigative skill, Sepeda’s attorney found that report, and intended to use it in Sepeda’s trial.

Here’s how the attorney did it:  the attorney filed a 404(B) notice of intent to use the victim’s prior bad act.  At the hearing to address the issue, the attorney argued this evidence was not being introduced to show the victim acted in conformity with his prior aggressive behavior in Sepeda's case.  Rather, it was being used to show that the victim had pre-planned to attack Sepeda.  The attorney brought in the man who reported the prior incident to the police.  And importantly, the man testified he believed that by attacking his car, the “victim” was trying to pull off an insurance scam. 

Hence, the plan.  The trial court excluded this evidence, and when it did, got it wrong.  It does not matter whether evidence prejudices the state, which is what the trial decided when it excluded the evidence.  Rather, it only matters whether evidence is "unfairly” prejudicial; that is, arouses sympathy, evokes horror, or appeals to a jury’s instinct to punish.  Because Sepeda was seeking to establish he was not the aggressor, the “victim’s” prior actions were both highly probative and impeached his credibility.  That’s not unfair, the Sixth District reasoned. The Sixth District found the evidence admissible for Sepeda's defense under 404(B), and reversed Sepeda’s conviction. 

Now, to my point.  If you’ve got a case where you are arguing your client is not the aggressor or acted in self-defense, consider two things.  First, consider your client’s right to assert a complete defense as the means to get your evidence in.  Also consider 404(B).  

And if 404(B) fits, wear it: File your 404(B) notice, so that this formality does not preclude you from using the evidence. And, bring Sepeda with you to court, to explain to the trial court why the jury can hear about your alleged victim’s prior bad act.

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