Habit Evidence: Trevor Bauer’s Alleged Past Might Come Back to Haunt Him

As reported by the Washington Post today, it appears that Trevor Bauer faced a similar complaint from an Ohio woman in 2020. This alleged victim stated that Mr. Bauer allegedly punched the victim and choked her during sex to the point that she became unconscious. It is also reported that she, like his alleged California victim, also sought a permanent restraining order against Mr. Bauer. It appears that the alleged Ohio victim did not take the matter to hearing. What is that? Often times in domestic violence cases, alleged victims are exceptionally cooperative at the onset of the case. That is in part because emotions are rampant and everybody is in the victim’s ear telling them what to do and how to proceed. However, over time, those emotions subside and all the voices tend to disappear. The victim also ponders whether or not he/she would be willing to miss work (and potential pay) to testify in Court to get their alleged abuser held accountable. That same victim(s) also ponders whether or not this is what is best for their mental health and well-being. Some believe that the best thing to do is just put the incident behind them. Finally, some give it a second thought and decide that they want their private life to remain private. That being said, that alleged 2020 incident might some have major ramifications for Mr. Bauer’s 2021 criminal investigation.

As stated in a previous post, Mr. Bauer allegedly punched the victim and then proceeded to choke her during sexual intercourse in the 2021 case to the point that she was rendered unconscious. Those specific acts (punching the victim and choking to the point it renders the victims unconscious) are strikingly similar to the alleged facts from the complaint from the Ohio woman in 2020. Mr. Bauer, by his own admission, admitted that he had a casual on and off again relationship with this Ohio woman while he was a member of the Cleveland Indians from 2016-2019. Mr. Bauer allegedly stated to the Ohio woman that he couldn’t see her again because, “He didn’t feel like spending time in jail for killing someone. That is what would happen if he saw her again.” But how could those allegedly striking similarity facts from the alleged 2020 Ohio incident hurt Mr. Bauer in his alleged 2021 California incident? That is through the theory of habit evidence.

Under California Evidence Code 1105, “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” Thus, the alleged 2020 incident (where Mr. Bauer punched the victim during sex as well as choked her to the point where she was rendered unconscious during sex) is potentially admissible in Mr. Bauer’s 2021 incident if he is formally charged and his case goes to trial. That is because these facts theoretically show that Mr. Bauer tends to punch sexual partners and choke them unconscious during sex and continue having sex with them while they are unable to continue to consent. Let me tell you, to a jury, that is compelling evidence. That is because, if admitted, a prosecutor could tell a jury during closing, “He has done the exact same thing to two different women. He punches them during sex and he also chokes them unconscious and continues to have sex with them. They have no ability to say no to whatever he is doing. The alleged 2021 California victim could not say whether or not she wanted anal sex with Mr. Bauer. Mr. Bauer took that decision away from her.” A jury will likely then go back into the jury room and all tell each other, “He did this before and he will do it again. We need to put a stop to this now.”

We are obviously a long from trial and/or a conviction for Trevor Bauer but the question remains: Are these two alleged victims isolated incidents or are they the tip of the iceberg?

Matthew F. Tympanick is an Associate Attorney at Wicker Smith in Sarasota, Florida. He is a graduate of University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. In over three years as a prosecutor, he prosecuted thousands of domestic violence cases. You can follow him on Twitter @Tympanick20.