COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60587, 60588 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ANTONIO DELGADO : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1992 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case Nos. CR-250324 and CR-250862 JUDGMENT: Affirmed in Part, Reversed in Part, and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MARLENE N. LALLY, ESQ. Cuyahoga County Prosecutor 711 Statler Office Tower RONALD JAMES, ESQ. 1127 Euclid Avenue Assistant Prosecuting Attorney Cleveland, Ohio 44115 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellant, Antonio Delgado, was indicted on May 1, 1990 by the Cuyahoga County Grand Jury in a four-count indictment. Count one was for attempted grand theft of a motor vehicle, in violation of R.C. 2923.02 and 2913.02. Count two was for possession of criminal tools, in violation of R.C. 2923.24. Count three was for possession of cocaine, in violation of R.C. 2925.11. Count four was for intimidation, in violation of R.C. 2921.03. A trial by jury was held and appellant was found guilty on counts one and two and found not guilty on counts three and four (Case No. 60587). Appellant was sentenced to a term of one and one-half years in jail on each count with sentences to run consecutively. Appellant was indicted with a codefendant, Sherman Sherrills, in a separate case, for receiving stolen property and was also found guilty as charged (Case No. 60588). Case Nos. 60587 and 60588 are consolidated for purposes of appeal. Appellant was granted a delayed appeal and for the reasons that follow, we affirm in part and reverse in part. II. Detective Robert Beck of the Cleveland Police Department testified that he was on Spyglass Detail on March 2, 1990 with Detective William Evans. While on surveillance in the Flats area, they observed a 1979 Pontiac with two males in it. The - 3 - Pontiac stopped several times, each time double parking next to newer model General Motors vehicles. The officers got suspicious because the car was passing several empty parking spots. Officer Beck identified the driver of the car as Antonio Delgado. Officer Beck knew Mr. Delgado through several prior encounters with him. The car finally stopped and the passenger, later identified as Sherman Sherrills, a codefendant in the Delgado trial, got out and approached a parked General Motors vehicle. He tried the door handles on each side of the vehicle, then rocked the vehicle. The rocking is done to detect and avoid an alarm. Mr. Sherrills then took a screwdriver from the pocket of a gray sweat shirt he was wearing and got alongside the vehicle out of the view of the officers. Mr. Sherrills was interrupted by several pedestrians walking down the street. Mr. Sherrills then got back into the car and they drove off. Officer Beck radioed his partners who were working the Spyglass Detail in the area to stop Mr. Delgado's car. After the detectives stopped the car, Mr. Delgado and Mr. Sherrills were arrested. The car was searched and two screwdrivers, a pair of gloves and a small pack of white powder were found. One of the screwdrivers had a bent tip, which is used to get under the lock of a vehicle. It is also used to start a vehicle, and peel the column of a vehicle when inside. Mr. Delgado and Mr. Sherrills were later transferred to the Justice Center and booked. - 4 - On March 14, 1990, Officers Beck, Evans and Stropko on their way to work encountered Mr. Delgado and Mr. Sherrills on the innerbelt facing northbound, near Chester Avenue, in Cleveland. Officer Beck saw Mr. Delgado and Mr. Sherrills in a 1984 Buick Station Wagon as they approached the officers vehicle at a high rate of speed. The Buick slowed down on approaching them and went around their car on the berm. Mr. Delgado was the driver and Mr. Sherrills was the passenger. The officers followed the car because according to Officer Beck, "It just didn't look like they belonged in that vehicle to me." They got the license plate number of the vehicle. Officer Beck pulled alongside the Buick and noticed the lock on the passenger side was punched, an indication that the vehicle might have been stolen. Officer Beck observed Mr. Sherrills tap Mr. Delgado by the shoulder and they went through a red light at a high rate of speed. The officers could not pursue the vehicle because they were in a private car. A computer run on the vehicle number revealed that it had been reported stolen the previous day. When the officers got to the station, they took police cars and went to the area they knew Mr. Delgado and Mr. Sherrills lived. The officers found the vehicle abandoned about two blocks from where the suspects lived. The officers searched the vehicle and discovered a screwdriver, a gray hooded sweat shirt, a pair of sunglasses, a piece of paper with Mr. Delgado's name on it, two cassette tapes, a pack of cigarettes, a lighter and a pair of - 5 - pliers. They noticed that the steering column of the vehicle was peeled. Officer Mitchell Wisniewski of the Cleveland Police Department Special Records section testified that he compared the fingerprints lifted off the Buick to a known fingerprint of Mr. Sherrills, and they matched. Officers Evans and Blanc corroborated Officer Beck's testimony concerning the events of March 2, 1990. Officer Evans also corroborated Officer Beck's testimony concerning the events of March 14, 1990. John Donavan testified that he is the owner of the Buick Station Wagon. His car disappeared from his driveway between 8:30 and 9:00 p.m. He was not sure the exact date the car disappeared. He did not give anybody permission to take his car or drive it. David Barna testified that when he returned to his car on March 2, 1990, the police had left a note that someone had tried to enter his car. He did not give anyone permission to enter or drive his car. Mr. Delgado testified on his own behalf. He testified that on March 2, 1990, he drove to downtown Cleveland in the company of Mr. Sherrills and two girls, Carmen Massa and Jackie Pagan. They let the girls out at Rumrunner's bar in the Flats. When they went to park their car, they were arrested by the Cleveland Police. - 6 - On direct examination, Mr. Delgado testified that he had been arrested several times in the past for various offenses. He testified that he had been incarcerated three times in the past. He testified that he had known Officers Beck and Evans prior to March 2, 1990. He had been arrested with his brother by both officers in 1982. He was further questioned by the prosecution concerning his arrest in 1981 for receiving stolen property, a 1982 arrest for grand theft, a 1984 arrest for possession of criminal tools and receiving stolen property, and a 1986 arrest for receiving stolen property. III. Appellant's assignments of error are as follows: "I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ITS FAILURE TO CAREFULLY LIMIT, BOTH DURING THE COURSE OF TRIAL AND IN THE GENERAL CHARGE TO THE JURY, THE PURPOSES FOR WHICH EVIDENCE PRESENTED BY THE PROSECUTION COULD BE USED REGARDING PRIOR SIMILAR ACTS OR CRIMES COMMITTED BY THE DEFENDANT. "II. DEFENDANT WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF COUNSEL WHERE EVIDENCE OF OTHER CRIMES IS PERMITTED TO COME BEFORE THE JURY DUE TO DEFENSE COUNSEL'S NEGLECT, IGNORANCE OR SENSELESS DISREGARD OF DEFENDANT'S RIGHTS AND BEARS NO REASONABLE RELATIONSHIP TO LEGITIMATE TRIAL STRATEGY. "III. THE TRIAL COURT ERRED IN THE MANNER IN WHICH IT FORFEITED DEFENDANT'S MOTOR VEHICLE, SEIZED AS CONTRABAND, IN CONTRAVENTION OF R.C. 2933.43 AND IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS AGAINST ILLEGAL SEARCH AND SEIZURE." Appellant, in his first assignment of error, argues that the trial court erred by not properly instructing the jury on evidence of prior acts or crimes. Appellant contends that the - 7 - testimony of state witnesses detailing his prior crimes and encounters with the police was improper and the trial court's failure to properly instruct the jury prejudiced his case. We disagree. Evid. R. 404(B) states as follows: "(B) Other crimes, wrongs or acts. 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." Evid. R. 608 and Evid. R. 609 respectively state in pertinent part as follows: "(A) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. "(B) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruth- fulness of another witness as to which character the witness being cross-examined has testified. "Rule 609. Impeachment by Evidence of Conviction of Crime "(A) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross- - 8 - examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement, regardless of the punishment whether based upon state or federal statute or ordinance." We shall examine the record and determine whether within the permissible use of other crimes or acts evidence, appellant's right to a fair trial was prejudiced. Officer Beck testified on direct examination as follows: "Q. Was anything else said to you? "A. Mr. Delgado, when he saw that that wasn't doing any good, he told me that his brother should have taken care of me at the time, at the time prior. "Q. Do you know his brother? "A. I do. "Q. Who was he? "A. Oscar Delgado. "Q. Have you ever had any problems with Oscar? "A. Yes. "Q. What was that? "A. I arrested Oscar, Detective Evans and myself, for car theft. "Q. How long have you known Mr. Delgado and Mr. Sherrills? "A. Our association goes back several years. "Q. Do you like them? "A. No, I don't. "Q. On that same day, March the 14th, you then found the vehicle in question; is that correct? "A. Yes. - 9 - "Q. Where did you find it? "A. On Carl Avenue. Carl Avenue is south of St. Clair, north of Superior, several blocks from where Mr. Delgado lives. "Q. Where does he live? "A. He lives on Hecker Avenue, 7219 Hecker. "Q. How do you know that address? "A. I have had association [sic] with Mr. Antonio Delgado, Carlos Delgado, Oscar Delgado." Officer Evans also testified on direct examination as follows: "Q. Have you ever seen Mr. Sherrills and Mr. Delgado "A. Yes, I have. "Q. Approximately how many times? "A. I believe it was three times, two or three times. "Q. Do you like them? "A. No, I don't." It is a well established rule in Ohio that evidence of prior criminal conduct of a defendant is not admissible in a subsequent trial of the defendant unless such evidence falls within certain statutory exceptions. See R.C. 2945.59. However, the use of such exceptions are to be strictly construed against the state. State v. Strong (1963), 119 Ohio App. 31. In the case sub judice, we fail to see any direct testimony of the officers that could be interpreted as introducing other acts or wrongs of appellant into evidence. While we think that Officer Beck should have limited his testimony to his knowledge of appellant's brother, Oscar Delgado, without mentioning that he - 10 - arrested him, we see no prejudice that could come out of such testimony within the contents of its introduction. Officer Evans' testimony that he had had an association with the Delgados is neither prejudicial nor improper. The officer set out to look for Mr. Delgado. They knew him and his place of abode and suspected that the stolen car they saw him driving could be at his place of abode. It is not unreasonable, therefore, for Officer Evans to explain that his past association with the Delgados, the association of which could have been based on other innocent meetings unrelated to criminal acts, led them to the area they suspected the stolen car could be. Accordingly, the testimony of the officers on direct examination is consistent with the law. Appellant further argues that the state improperly introduced evidence of other acts or wrongs committed by him and his brothers to his prejudice on cross-examination. We note that the officer's testimony concerning the threats he received from the Delgados in the past was unnecessary and unsubstantiated and should not have been allowed. However, within the total circumstances of this case, we consider such testimony harmless. Appellant further argues that the trial court did not properly instruct the jury on the evidence of other crimes or acts. We disagree. We must point out that prior crime or acts evidence was properly used by the prosecution in the case sub judice for two reasons. Firstly, appellant's trial counsel first - 11 - introduced the issue of appellant's other crimes or acts on direct examination of appellant, thereby waiving any objection to the prosecution's pursuit on the same line of inquiry. State v. Hartford (1984), 21 Ohio App. 3d 29. Secondly, where a defendant takes the witness stand on his own behalf, his credibility and reputation as a witness becomes fair game and is, therefore, a proper subject for cross-examination, and the limitation on such cross-examination rests within the sound discretion of the trial court. State v. Tharp (1976), 49 Ohio App. 2d 7. We prefer to hold that evidence of other crimes or acts as introduced in the case sub judice is appropriate under Evid. R. 608 and 609 and not pursuant to R.C. 2945.59 as argued by appellant. However, assuming arguendo that we accept appellant's contention, we still fail to see error in the trial court's handling of the evidence. The trial court instructed the jury as follows: "Now, there was testimony in this case with respect to the prior convictions of the defendants for various crimes. This testimony can be considered by you for the purpose of helping you to test the credibility or the weight to give to the testimony of those witnesses. It cannot be considered by you, however, for any other purpose." (Emphasis added.) The trial court, pursuant to R.C. 2945.59 and other laws concerning the admission of other acts evidence is required to instruct the jury on the limited purpose of the evidence. The jury must be instructed that the evidence must be used for the limited purpose for which it was introduced and for no other purpose. Failure of the trial court to so instruct is reversible - 12 - error, and a request for such instruction need not be made. See State v. Crafton (1968), 15 Ohio App. 2d 160. The record in the case sub judice shows that the trial court substantially complied with case law on its instruction to the jury concerning other crimes or acts evidence. See State v. Pigott (1964), 1 Ohio App. 2d 22; see also State v. Pope (1961), 171 Ohio St. 438. Accordingly, appellant's first assignment of error is overruled. IV. Appellant, in his second assignment of error, argues that his trial counsel was ineffective. Appellant specifically argues that his trial counsel opened the door to the prosecution's endless recital of his past convictions and other acts. The record shows that appellant decided to take the stand on his own behalf against advice of counsel. As stated supra, appellant's character became an issue when he took the stand, and the prosecution within the limits of the law can properly inquire of appellant's character when it directly affects his credibility. Appellant was indicted for attempted grand theft. Since theft offenses involve dishonesty, a past conviction on a theft offense may be properly used to impeach a witness pursuant to Evid. R. 609(A)(2). State v. Tolliver (1986), 33 Ohio App. 3d 110. The court in State v. Martin (1987), 37 Ohio App. 3d 213, held that: "Evidence of other crimes which is permitted to come before the jury due to defense counsel's neglect, ignorance or senseless disregard of the defendant's rights and which bears no reasonable relationship to a legitimate trial strategy has been held to render the assistance of counsel ineffective." - 13 - We cannot hold that appellant's trial counsel was negligent, or disregarded his rights in the introduction of other acts evidence. We equally cannot hold that the introduction bore no reasonable relationship to a legitimate trial strategy. As stated supra, when appellant ignored counsel's advice and took the stand, his character and reputation became an issue. A knowledgeable trial counsel in an attempt to diminish the impact of an accused's character on the jury when introduced by the prosecution, can preempt the prosecution by first introducing such a character trait. It is a trial tactic that we cannot consider unreasonable as a matter of law. An appellate court should not second guess a trial counsel's trial tactics based on the results of a trial since no one can precisely predict which tactics will succeed or fail in any particular case. Since appellant's trial counsel's performance did not fall below acceptable standards, he cannot be judged ineffective. State v. Bradley (1989), 42 Ohio St. 3d 136; Strickland v. Washington (1984), 466 U.S. 668. However, where evidence is overwhelming, error in the admission of other acts evidence is harmless when there is no reasonable possibility that the evidence contributed to the defendant's conviction. Chapman v. California (1967), 386 U.S. 18; State v. Lytle (1976), 48 Ohio St. 2d 391; see also Crim. R. 52(A). In the case sub judice, the testimony of the police officers was sufficient to convict the appellant as charged and the other acts evidence had little or no impact on - 14 - his conviction. Appellant's second assignment of error is overruled. V. Appellant, in his third assignment of error, argues that the trial court erred by allowing a forfeiture of his automobile in contravention to the requirements of R.C. 2933.43. We agree. R.C. 2933.43 stipulates the procedures that must be followed before a forfeiture can lie and the statutory procedure must be strictly construed. State v. Niles (1989), 44 Ohio App. 3d 133. The following colloquy took place between the trial court and appellant in the case sub judice. "THE COURT: Do either of you own any property? "Do you, Mr. Sherrills? "DEFENDANT SHERRILLS: No, I do not. "THE COURT: Do you? "DEFENDANT DELGADO: No. "THE COURT: What about the motor vehicle that was described in the testimony here which was your motor vehicle? "DEFENDANT DELGADO: It is in my mother's name now. "THE COURT: Oh, when was it transferred to her; during the pendency of either of these cases? "DEFENDANT DELGADO: Yes. "THE COURT: W h a t w a s t h e consideration for the transfer? "DEFENDANT DELGADO: So that way she can be able to get it out and keep it for herself. - 15 - "THE COURT: So that she could keep "Well, I'm going to order that vehicle forfeited to pay the costs." We hold that there is no discretionary or statutory authority in the trial court to order a forfeiture of contraband property for use to pay court costs pursuant to R.C. 2933.43. The state argues as follows: "The defendant agreed to voluntarily give up his car in exchange for consideration of a more lenient sentence. Therefore, since the forfeiture was voluntary, all of the requirements of R.C. 2933.43 do not have to be met." The state's argument is an affront to the statutory legal process and, therefore, unpersuasive. See State v. Baumholtz (1990), 50 Ohio St. 3d 198. The state's acceptance of an accused's property in lieu of a stricter sentence is without legal foundation and, therefore, unacceptable. Appellant's third assignment of error is sustained. The trial court's forfeiture order is void and the vehicle is ordered returned to appellant. We have no opinion on the legality of the vehicle's transfer to appellant's mother during the pendency of his case. This opinion is strictly on the manner of forfeiture as revealed by the record. Accordingly, the trial court's judgment is affirmed in part and reversed in part in both cases, and the cause remanded for further action consistent with this opinion. - 16 - 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. DYKE, P.J., and JAMES D. SWEENEY, J., CONCUR. SARA J. HARPER JUDGE 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. .