COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60244 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ANTONIO L. BANKS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-250485. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Butler, Esq. 75 Public Square Suite 1210 Cleveland, OH 44113 -2- MATIA, C.J.: Defendant-appellant, Antonio L. Banks, appeals from his conviction for the offense of murder with a firearm specification. The appellant's appeal raises five assignments of error which address the issues of prejudicial joinder of defendants for trial, prosecutorial misconduct, defective jury instructions and other acts testimony. The appellant's appeal is not well taken. I. THE FACTS A. THE SHOOTING WHICH RESULTED IN THE DEATH OF WILBERT STALLWORTH-BEY On March 4, 1990, the appellant was operating an automobile on South Taylor Road in the City of Cleveland Heights. The appellant's cousin, Myron Newsom, was a passenger in the automobile. At approximately 5:00 p.m., the appellant and Myron Newsom came upon a group of individuals who belonged to a youth gang called the "Kappa Phi Nasty." Members of the youth gang began to rush toward the appellant's automobile. These same gang members began to throw rocks and bricks at the appellant's automobile. Passenger Myron Newsom, in response to the actions of the youth gang, produced a .38 caliber Charter Arms revolver from under the front seat of the automobile and fired three shots at the youth gang. The third and final shot, as fired by Myron Newsom, caused the death of Wilbert Stallworth-Bey. Following the shooting, the appellant and Myron Newsom were arrested by the Cleveland Heights Police. -3- B. THE INDICTMENT On April 9, 1990, the appellant and Myron Newsom were each indicted by the grand jury of Cuyahoga County for one count of aggravated murder in violation of R.C. 2903.01 with a firearm specification. It should be noted, however, that the present appeal is solely concerned with the appeal as brought by appellant-Antonio Banks. C. THE ARRAIGNMENT On April 13, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to the charged offense of aggravated murder with a firearm specification. D. THE JURY TRIAL On June 26, 1990, a jury trial was commenced in the Cuyahoga County Court of Common Pleas. Both the appellant and Myron Newsom were simultaneously tried before the jury as co- defendants. E. THE JURY'S VERDICT AND SENTENCE OF THE TRIAL COURT On July 6, 1990, the jury returned a verdict of not guilty with regard to the offense of aggravated murder. The jury, however, did find the appellant guilty of the lesser included offense of murder (R.C. 2903.02) with a firearm specification. Immediately after the return of the verdict of guilty, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institution, Lorain, Ohio, for a term of 15 years to life with regard to the offense of murder and a term of three years of actual incarceration with regard to the firearm -4- specification. The trial court further ordered that the terms of incarceration run consecutive to each other. F. THE TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for the offense of murder with a firearm specification. II. THE FIRST ASSIGNMENT OF ERROR A. ISSUE RAISED: PREJUDICIAL JOINDER OF CO-DEFENDANTS FOR TRIAL The appellant's first assignment of error is that: "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR UNDER CRIMINAL RULE 14 IN DENYING APPELLANT'S MOTION FOR A SEPARATE TRIAL." The appellant, in his initial assignment of error, argues that the trial court erred as a result of the denial of the appellant's motion for a separate trial. Specifically, the appellant argues that the trial court's denial of the Crim. R. 14 motion for relief from prejudicial joinder resulted in prejudice which ultimately denied the appellant a fair trial. The appellant's initial assignment of error is not well taken. B. CRIMINAL RULES AND JOINDER OF CO-DEFENDANTS FOR TRIAL Crim. R. 8(B), which deals with the joinder of two or more defendants in the same indictment, provides that: "Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, or in the same course of criminal conduct. Such defendants may be charged in one or more counts together or separately, and all of -5- the defendants need not be charged in each count." In addition, R.C. 2945.13, which deals with the trial of defendants who are jointly indicted for a felony, provides that: "When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately." Finally, Crim. R. 14, which deals with relief from prejudicial joinder of two or more defendants in the same trial, provides that: "If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, information or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial. "When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately, unless the court orders the defendants to be tried jointly, upon application by the prosecuting attorney or one or more of the defendants, and for good cause shown." C. STANDARD OF REVIEW FOR CLAIM OF MISJOINDER A defendant, who claims that the joinder of multiple defendants in the same trial will result in an unfair trial, -6- bears the initial burden of demonstrating to the trial court that he will be materially prejudiced if separate trials are not granted to each defendant. See State v. Brooks (1989), 44 Ohio St. 3d 185; State v. Torres (1981), 66 Ohio St. 2d 340; State v. Roberts (1980), 62 Ohio St. 2d 170. A defendant who claims the misjoinder of multiple defendants for trial in an appeal, however, must demonstrate to the appellate court that the trial court abused its discretion by refusing to grant separate trials for each defendant. State v. Torres, supra; State v. Williams (1981), 1 Ohio App. 3d 156. D. APPELLANT RAISES TWO CLAIMS OF PREJUDICE WHICH RESULTED FROM MISJOINDER In the case sub judice, the appellant asserts two claims of prejudice in support of the argument that the trial court should have granted separate trials to the appellant and Myron Newsom. The initial claim of prejudice involves the cumulation of evidence. The second claim of prejudice involves the argument that the appellant's defense of innocence, as presented at trial, was antagonistic and contrary to the self-defense strategy as employed by the co-defendant, Myron Newsom. E. APPELLANT WAS NOT SUBJECTED TO CUMULATION OF EVIDENCE The appellant's initial claim of prejudice, as based upon the cumulation of evidence, must fail. The Supreme Court of Ohio has firmly established that a "jury is believed capable of segregating the proof on multiple charges when the evidence as to each of the charges is uncomplicated." State v. Torres, supra, -7- at 343; State v. Roberts (1980), 62 Ohio St. 2d 170. Although the evidence and testimony in the present appeal was voluminous, the complexity of the evidence and testimony was not great. A review of the record clearly shows that the evidence and testimony adduced at trial was both simple and direct and could not have resulted in confusion on the part of the jury. Thus, the appellant's claim of cumulation of the evidence must fail. United States v. Ragghianti (C.A. 9, 1975), 527 F.2d 586. F. APPELLANT NOT PREJUDICED BY DIFFERING DEFENSE STRATEGIES The appellant's second claim of prejudice, as based upon differing defense strategies as presented by the appellant and the co-defendant, must also fail. The appellant's defense of complete innocence vis-a-vis acting as an aider and abettor to the co-defendant was not harmed by the co-defendant's defensive strategy of self-defense. A complete denial of active participation in the circumstances which caused the death of the victim, Wilbert Stallworth-Bey, could not be affected by a claim of self-defense as asserted by the co-defendant. Thus, the appellant's second claim of prejudice must fail. Therefore, the trial court did not err as a result of denying the appellant's motion for a separate trial and the first assignment of error is not well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: "THE APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS FOR THE U.S. CONSTITUTION AND ARTICLE -8- I SECTION 10 OF THE OHIO CONSTITUTION BY THE PURPOSEFUL AND CONTINUOUS MISCONDUCT BY THE PROSECUTOR." A. ISSUE RAISED: PROSECUTORIAL MISCONDUCT The appellant, in his second assignment of error, argues that he was denied a fair trial as a result of prosecutorial misconduct which occurred during the course of trial. Specifically, the appellant argues that the prosecutor, during closing arguments, made reference to matters which the jury could not consider as a matter of law. The appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF PROSECUTORIAL MISCONDUCT A claim of prosecutorial misconduct must be evaluated in light of the entire case. State v. Maurer (1984), 15 Ohio St. 3d 239. In addition, the conduct of a prosecuting attorney during the course of trial does not constitute reversible error unless the appellant can demonstrate prejudicial harm. State v. DePew (1988), 38 Ohio St. 3d 275. Finally, the Supreme Court of Ohio, in State v. Smith (1984), 14 Ohio St. 3d 13, set forth the following test which is to be applied to a claim of prosecutorial misconduct in closing arguments. "The prosecution is normally entitled to a certain degree of latitude in its concluding remarks. State v. Woodards (1966), 6 Ohio St. 2d 14, 26 [35 O.O.2d 8], certiorari denied (1966), 385 U.S. 930; State v. Liberatore (1982), 69 Ohio St. 2d 583, 589 [23 O.O.3d 489]. A prosecutor is at liberty to prosecute with earnestness and -9- vigor, striking hard blows, but may not strike foul ones. Berger v. United States (1935), 295 U.S. 78, 88. The prosecutor is a servant of the law whose interest in a prosecution is not merely to emerge victorious but to see that justice shall be done. It is a prosecutor's duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence which is before the jury. United States v. Dorr (C.A. 5, 1981), 636 F.2d 117. "The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Door, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Berger v. United States, supra, , at 88. It is improper for an attorney to express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer (1931), 124 Ohio St. 1; DR 7- 106(C)(4) of the Code of Professional Responsibility. Moreover, the code provides that an attorney is not to allude to matters which will not be supported by admissible evidence, DR 7-106(C)(1), and '*** [a] lawyer should not make unfair or derogatory personal reference to opposing counsel. ***' EC 7-37." State v. Smith (1984), 14 Ohio St. 3d 13, at 14. (Emphasis added.) C. APPELLANT'S CLAIM OF PROSECUTORIAL MISCONDUCT The appellant, through his claim of prosecutorial misconduct, argues that the prosecutor directly and indirectly addressed the issue of punishment during closing arguments. An application of the two-prong test for prosecutorial misconduct as found in Smith, however, fails to disclose the existence of any misconduct during closing arguments on the part of the prosecutor. A review of the record clearly demonstrates that the appellant's counsel, -10- during closing arguments, initially "opened the door" with regard to the issue of punishment. "One boy is dead and I don't think either family is happy about that. Just like I don't think either family is happy about this situation with these two boys. But this isn't a two for one deal. And that's what the State would have you think this is. This is a two for one deal. If he did something and you're convinced that he did something to assist Myron Newsom, so be it. But look at all the evidence. Put it in the proper context that it should be put in. And even if you're displeased with what he did here, you have to be convinced that his acts were designed and calculated to aid and abet Newsom. Newsom told you he got the gun from that house on his own. It was his gun. It wasn't Banks' gun. He kept it in the basement. He told you that he did not get anything from Banks. He didn't even know Banks knew he had the gun." (Tr. 1565). The alleged improper comments, as made by the prosecutor during closing arguments, were but a rebuttal to the comments as originally made by the appellant's counsel. "Now, Mr. Butler stood here and told you the State is looking for a two for one deal. The State is not looking for a two for one deal, ladies and gentlemen. For if that were the case, and if the State were looking for an eye for an eye, we would take these defendants to South Taylor Road, place them in front of a house, and have a police car drive down the street and gun them down -- "MR. BUTLER: Objection "MR. GRAYS: -- the way they did Wilbert Stallworth-Bey. "THE COURT: Ladies and gentlemen, I'm sure you know that is not what the State of Ohio would do. "MR. BUTLER: It's what Mr. Grays would do, your Honor. -11- "MR. GRAYS: I say we're not looking for an eye for an eye because if we were that's what we would like to do. "MR. BUTLER: You would do. "THE COURT: Let's just direct our attention to the jury. "MR. GRAYS: It's not about an eye for an eye. It's about aggravated murder with prior calculation and design. And they have the unmitigated gall to stand here and tell you that there was no plan. "Well, ladies and gentlemen, this is not 'I Spy' where there has to be some big elaborate plan and you get some guy with the make-up and change his identity and you bug phones and do all these type of things. "Now, to satisfy the element of prior calculation and design, it can't be something that's spur of the moment either. This was not spur of the moment. Buying bullets earlier in the day is not spur of the moment. Take a look at these bullets when you get in the jury room. There are bullets missing from this box. And you compare them with the bullets that are in a couple of these bags." (Tr. 1572, 1573.) D. NO PROSECUTORIAL MISCONDUCT IN THE CLOSING ARGUMENTS The comments of the prosecutor did not involve an attempt to directly or indirectly address the issue of punishment or sentencing of the appellant upon conviction. In addition, a review of the complete closing arguments of the prosecutor merely demonstrates a permissible summary of evidence adduced at trial. Cf. State v. Ferguson (1983), 5 Ohio St. 3d 160. It should also be noted that the trial court cautioned and instructed the jury with regard to the issue of punishment and sentencing. -12- "THE COURT: Ladies and gentlemen, let me say to you that you must not in any way be concerned with what the possible penalties are in this case. Your job here is to decide what the facts are and whether they correspond with the law." (Tr. 1578, 1579). Thus, the appellant was not prejudiced by the comments of the prosecutor as made during closing arguments and the appellant's second assignment of error is not well taken. IV. THE THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error is that: "THE TRIAL COURT DEPRIVED APPELLANT OF A FAIR TRIAL BY AMPLIFICATION OF ITS CHARGE TO THE JURY AND BY ITS SUMMARIZATION OF THE EVIDENCE." A. ISSUE RAISED: DEFECTIVE JURY INSTRUCTION The appellant, in his third assignment of error, argues that the trial court's instruction to the jury was defective. Specifically, the appellant argues that the trial court erred as a result of the following: 1) the trial court's amplification of the jury instructions as contained in the publication entitled Ohio Jury Instructions; and 2) the trial court's summarization during the jury instruction of the evidence and testimony adduced at trial. The appellant's third assignment of error is not well taken. B. "OHIO JURY INSTRUCTIONS" ARE A GUIDE AND NOT MANDATED BY LAW The jury instructions which are contained in the publication captioned Ohio Jury Instructions are but a collection of proposed criminal and civil jury instructions which have been drafted by members of the bench and other legal scholars. Although the jury -13- instructions as contained in the Ohio Jury Instructions have been sanctioned by this court on numerous occasions, a trial court is not legally bound to deliver the jury instructions as contained in Ohio Jury Instructions. Cf. State v. Hicks (August 18, 1988), Cuyahoga App. No. 54219, unreported; State v. York (Oct. 24, 1985), Cuyahoga App. No. 49952, unreported. A trial court's jury instruction need only encompass the statutory definition or elements of the particular charged offense as contained in R.C. Chapter 29 in order to satisfy the constitutional requirements for due process, specificity and clarity. Cf. State v. Bentz (1981), 2 Ohio App. 3d 352. C. TRIAL COURT'S JURY INSTRUCTION WAS PROPER The jury instruction of the trial court correctly defined each and every element of the offense of aggravated murder and the lesser included offense of murder, involuntary manslaughter and felonious assault. The trial court also properly instructed the jury with regard to the following legal concepts which were directly related to the appellant's trial for the offense of aggravated murder: 1) reasonable doubt; 2) evidence; 3) inference, 4) circumstantial evidence; 5) complicity; 6) aider and abettor; 7) self-defense; 8) preponderance of the evidence; 9) purpose; and 10) prior calculation and design. Thus, the trial court's divergence or amplification of the jury instructions as contained in the Ohio Jury Instructions was not error. D. TRIAL COURT DID NOT ERR BY SUMMARIZING EVIDENCE -14- Further review of the record does not demonstrate that the trial court's summarization of evidence and testimony during the jury instruction constituted reversible error. The trial court's reference to testimony and evidence, if any, did not indicate or suggest that the trial court held an opinion with regard to the evidence or the credibility of witnesses. The trial court's jury instruction was totally neutral and did not favor either the appellant or the prosecution. E. TRIAL COURT DID NOT ERR BY EXAMINING WITNESSES It should also be noted that the trial court's examination of eleven witnesses did not result in prejudicial harm to the appellant. Ohio case law has repeatedly established that a trial judge possesses the authority to examine a witness so long as the examination is relevant and does not suggest bias or prejudice. Sandusky v. DeGidio (1988), 51 Ohio App. 3d 202; State v. Dacons (1982), 5 Ohio App. 3d 112; State v. Kay (1967), 12 Ohio App. 2d 38; State v. Hrynczyn (App. 1957), 76 Ohio Law Abs. 481. No such bias or prejudice can be found with regard to the trial court's examination of eleven witnesses. Thus, the trial court's jury instruction was not defective and the appellant's third assignment of error is not well taken. V. THE FOURTH ASSIGNMENT OF ERROR The appellant's fourth assignment of error is that: "THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT MUST ACQUIT THE APPELLANT OF AGGRAVATED MURDER BEFORE CONSIDERING LESSOR [SIC] INCLUDED -15- OFFENSES, THEREBY DENYING THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS." A. TRIAL COURT IMPROPERLY INSTRUCTED JURY WITH REGARD TO LESSER INCLUDED OFFENSES The appellant, in his fourth assignment of error, argues that the trial court improperly instructed the jury with regard to consideration of the lesser included offenses to aggravated murder. Specifically, the appellant argues that the trial court's jury instruction mandated that the jury initially acquit the appellant of the charged offense of aggravated murder prior to consideration of the lesser included offenses of murder, voluntary manslaughter and felonious assault. B. SUPREME COURT OF OHIO AND JURY'S CONSIDERATION OF LESSER INCLUDED OFFENSES The appellant's fourth assignment of error is not well taken. The Supreme Court of Ohio, in State v. Thomas (1988), 40 Ohio St. 3d 313, examined the issue of a jury's consideration of the lesser included offenses to a principal charged offense and held that: "A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense." State v. Thomas, supra, paragraph three of the syllabus. See also, State v. Muscatello (1977), 57 Ohio App. 2d 231. -16- C. APPELLANT'S CLAIM OF IMPROPER JURY INSTRUCTION WITH REGARD TO LESSER INCLUDED OFFENSES In the present appeal, the appellant argues that the jury instruction of the trial court implied to the jury that a unanimous finding of not guilty with regard to the offense of aggravated murder was required prior to the jury's consideration of the lesser included offenses of murder and voluntary manslaughter. The appellant cites to the following portion of the trial court's jury instruction in an effort to support his claim of error. "Now if you don't find a particular defendant guilty of aggravated murder or murder, then you should go on and consider whether or not that defendant is guilty of involuntary manslaughter." (Tr. 1616.) This court, however, in reviewing a claim of error associated with a trial court's jury instruction, must examine the complete jury instruction in order to determine whether the appellant was prejudiced. Cupp v. Naughten (1973), 414 U.S. 141; State v. Price (1979), 60 Ohio St. 2d 136; State v. Smith (Feb. 26, 1987), Cuyahoga App. No. 51823, unreported. D. TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH REGARD TO LESSER INCLUDED OFFENSES A review of the complete jury instruction as delivered by the trial court shows that the jury was properly instructed with regard to the consideration of the lesser included offenses to the crime of aggravated murder. The complete jury instruction, as delivered by the trial court, did not specifically require a unanimous acquittal of the principal charged offense prior to a -17- consideration of the lesser included offenses nor can this court find that the trial court's jury instruction implied a requirement of unanimous acquittal prior to a consideration of the lesser included offenses. The trial court's jury instruction merely provided that if the jury could not reach a verdict on the charge of aggravated murder, to then proceed to a consideration of the lesser included offenses. Such an instruction did not run afoul of State v. Thomas, supra. See also, State v. Wren (Feb. 27, 1992), Cuyahoga App. No. 59618, unreported. Thus, the trial court's jury instruction was not prejudicial to the appellant and the fourth assignment of error is not well taken. VI. THE FIFTH ASSIGNMENT OF ERROR The appellant's fifth assignment of error is that: "THE TRIAL COURT ERRED BY ALLOWING IN EVIDENCE OF PREJUDICIAL OTHER ACTS." A. ISSUE RAISED: PREJUDICIAL OTHER ACTS TESTIMONY The appellant, in his fifth assignment of error, argues that the trial court erred as a result of allowing the prosecutor to introduce at trial prejudicial "other acts." Specifically, the appellant argues a violation of Evid. R. 404(B), (other crimes, wrongs or acts), and R.C. 2945.59, (proof of defendant's motive), as a result of the following: 1) admission of a firearm, found in the appellant's home, into evidence; 2) admission into evidence of two telephone pagers; 3) cross-examination of the appellant with regard to $700 as found on the appellant when arrested; 4) cross-examination of the appellant with regard to -18- the cost of his coat; and 5) cross-examination of the cost of the speakers as found in the appellant's automobile. The appellant's fifth assignment of error is not well taken. B. EVID. R. 404 AND OTHER ACTS TESTIMONY Pursuant to the application of Evid. R. 404(A), evidence of a defendant's character is not ordinarily admissible to prove conformity therewith on a particular occasion. However, Evid. R. 404(B) does provide exceptions to the non-admissibility of character evidence: "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." This court, with regard to the usage of character evidence to demonstrate conformity on a particular occasion, held in State v. Chakirelis (Aug. 23, 1984), Cuyahoga App. No. 47804, unreported, at 7, that: "Evid. R. 404(A) only prohibits the circumstantial use of character evidence in which the character trait is used to show a person acted in conformity with that trait on a particular occasion. See Editor's Comment to Evid. R. 404, Ohio Rules of Evidence Handbook (Gianelli)." In addition, this court in State v. Wilson (1982), 8 Ohio App. 3d 216, at 218, held that: "Under Evid. R. 404(B), '[e]vidence 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.' However, -19- such evidence may be 'admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' The Staff Note to Evid. R. 404(B) emphasizes that this list of justifiable purposes for evidence of other acts is not exclusive or exhaustive. Therefore, a party may sometimes introduce 'other acts' evidence, although the purpose for its admission is not enumerated in Evid. R. 404(B). "Where such evidence is not offered for the forbidden purpose, and is not admitted for one or more of the listed permissible purposes, then it is admissible only if it is relevant under Evid. R. 401 and not excluded under Evid. R. 403. Evid. R. 401 states that evidence is relevant where it has 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See also, State v. Smith (1990), 49 Ohio St. 3d 137. C. PROSECUTION DID NOT INTRODUCE EVIDENCE OF APPELLANT'S OTHER ACTS Herein, a review of the record fails to support the appellant's claim that the prosecution introduced evidence and testimony during the course of trial which violated Evid. R. 404. The evidence and testimony adduced at trial did not impeach the credibility of the appellant nor was it used by the prosecution in an attempt to establish the appellant's conformity with a particular trait on a specific prior occasion. D. FIREARM AND TELEPHONE PAGERS WERE RELEVANT The testimony of Detective Tyler, with regard to a third firearm and two telephone pagers as found in the appellant's home, was directly related to the circumstances which lead to the discovery of the firearm which caused the death of Wilbert -20- Stallworth-Bey. No attempt was made by the prosecution to imply or infer that the appellant was involved in illicit drug activity. To the contrary, the possible association of the telephone pagers and the firearms with illegal drug activity was introduced to the jury during the closing argument as made by the defense counsel who represented co-defendant, Myron Newsom. (Tr. 1542.) E. CROSS-EXAMINATION OF APPELLANT WITH REGARD TO MONEY, COAT AND SPEAKERS WAS PERMISSIBLE The cross-examination of the appellant, with regard to $700, was relevant and was harmlessly explained away by the appellant as downpayment money for the purchase of a new automobile. (Tr. 1385.) No prejudicial harm can be found with regard to the cross-examination of the appellant with regard to the cost of a coat. (Tr. 1386.) Finally, the direct examination of the appellant with regard to the stereo system installed in his automobile provided the prosecution with the opportunity to cross-examine the appellant vis-a-vis the stereo system. (Tr. 1366, 1386.) F. HARMLESS ERROR BEYOND A REASONABLE DOUBT It should also be noted that the appellant's five claims of prohibited "other acts" testimony were harmless since there was no reasonable possibility that the testimony and evidence of alleged "other acts" contributed toward the appellant's conviction. Chapman v. California (1967), 386 U.S.s 181; State v. Lytle (1976), 48 Ohio St. 2d 391. -21- Thus, the trial court did not err as a result of allowing the admission of testimony of prejudicial "other acts" and the appellant's fifth assignment of error is not well taken. Judgment affirmed. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. CONCURS; HARPER, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .