COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60761 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : KAWANIS SANDIFER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-252723 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: THOMAS E. CONWAY ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: PATRICK D'ANGELO THE 113TH ST. CLAIR BLDG., #440 CLEVELAND, OHIO 44114-1214 -2- SPELLACY, J.: Defendant-appellant Kawanis Sandifer ("appellant") appeals from her conviction for one count of Aggravated Robbery, in violation of R.C. 2911.01, with a firearm specification. The facts giving rise to the instant appeal are as follows: In late 1989, Roy Pitts travelled to Florida and purchased a 1981 380 SEL Mercedez-Benz. A Florida Certificate of Title for the automobile was dated and notarized on October 10, 1989. Roy Pitts did not receive an Ohio Certificate of Title until April 17, 1990. On April 19, 1990, Roy Pitts sold the vehicle to John Sanford for $9,000. On that particular day, Roy Pitts gave John Sanford the car so he could drive it for one day. Roy Pitts received $9,000 in cash, but he did not sign over the Ohio Certificate of Title to John Sanford. After receiving the $9,000 in cash, Roy Pitts returned to his home in Warrensville Heights, Ohio. Roy Pitts intended to hide the money in his home initially, but he changed his mind. Roy Pitts decided to take the $9,000 in cash and an additional $1,500 in cash to his mother's house, located in East Cleveland, Ohio. Roy Pitts' friend, Velton Moss, picked him up in order to drive him to his mother's house. Velton Moss drove a burgundy Oldsmobile 98 with a white top. When Roy Pitts entered Velton Moss's car, he had the $9,000 in a sock within a bag and the $1,500 in his front pocket. -3- Since Velton Moss did not have a driver's license, he chose to drive through the City of Cleveland as opposed to driving through the suburbs. Apparently, he feared that he would be pulled over in one of the suburbs. When Roy Pitts and Velton Moss drove through the intersection of East 116th Street and Imperial, they were pulled over by a Cleveland Patrol car. Appellant, a police officer with the Cleveland Police Department, was driving the car with her 1 partner, Officer Otis Jackson, as the passenger. At trial, Officer Jackson testified that about an hour before they pulled over Velton Moss at the intersection of East 116th Street and Imperial, appellant had received several calls on her pager. At one point, she made a telephone call from a public telephone booth at East 116th Street and Kinsman. According to Officer Jackson, appellant spoke on the telephone for a few minutes and then she informed him that they were looking for a "red 98". No dispatch call came over the radio regarding a "red 98." Eventually, Officer Jackson observed a "red 98," but before he could activate the patrol car's overhead lights, appellant stopped him and said that they were on a stakeout. Velton Moss stopped his car and appellant parked the patrol car behind Velton Moss's vehicle. Appellant approached the 1 Officer Otis Jackson was a rookie on April 19, 1990 and appellant was his field training officer. -4- driver's side and asked Velton Moss for a driver's license. After Velton Moss informed appellant that he did not have a driver's license, she placed him into the patrol car. Appellant then approached Roy Pitts and asked him to exit the vehicle. In the meantime, Officer Jackson was in the patrol car with Velton Moss. Outside Velton Moss's vehicle, Roy Pitts provided appellant with a driver's license and she conducted a search of him. Appellant confiscated the $1,500 from Roy Pitts' pocket and then proceeded to conduct a search of the automobile. Appellant retrieved the $9,000 in cash from the car and then instructed Roy Pitts to walk straight to the patrol car. Roy Pitts was placed into the patrol car with Velton Moss and at the same time, appellant instructed Officer Jackson to go search Velton Moss's car. While Officer Jackson was searching Velton Moss's car, a dispatch call came over the police radio. Appellant then summoned Officer Jackson to return to the patrol car and she let Roy Pitts and Velton Moss out of the car. The officers drove off in their patrol car after giving Velton Moss a warning. Realizing that appellant had taken off with Roy Pitts' money, Roy Pitts and Velton Moss got into Velton Moss's car and followed the officers. When Roy Pitts finally caught up with appellant, he asked her "What's up with the money?" Appellant told him to meet her at the Fourth District Police Station. When Roy Pitts and Velton Moss arrived at the Fourth District Police Station, appellant was behind the counter doing -5- paperwork. Roy Pitts was unable to get appellant's attention after waiting about two or three hours. Roy Pitts eventually learned from another police officer that appellant had left, thus, he spoke to a sergeant about his money. Roy Pitts engaged in an argument with the sergeant and then the captain of the station came out. Roy Pitts and the captain spoke for approximately one hour, with Roy Pitts telling him about the entire situation. The captain had Roy Pitts fill out a complaint form, but he did not sign it at that time. Roy Pitts wanted to speak to his parents first. On the following day, Roy Pitts was contacted by Sergeant Gunsch from the Cleveland Police Department and was asked to go downtown. Roy Pitts went downtown and provided Sergeant Gunsch with a statement. On May 7, 1990, appellant was indicted by the Cuyahoga County Grand Jury for one count of Aggravated Robbery, in violation of R.C. 2911.01, with a firearm specification. At her arraignment on May 22, 1990, appellant pleaded not guilty to the charges. On September 14, 1990, the State filed a Notice of Intention to Use Evidence pursuant to Evid. R. 404(B) and R.C. 2945.59. The State informed the trial court that it intended to introduce the testimony of Officer Robert Nagy from the Cleveland Police Department. The State asserted that Officer Nagy's testimony regarding a prior incident with appellant would be very probative -6- of appellant's scheme, plan or system in committing the alleged crime at issue. Just prior to the commencement of appellant's jury trial on September 17, 1990, the trial court conducted a hearing on the State's notice of using Officer Nagy's testimony. After hearing oral arguments, the trial court found that Officer Nagy's testimony was admissible pursuant to Evid. R. 404(B) and reinforced by R.C. 2945.59. At trial, the State presented the testimony of Officer Nagy over a continuing objection by appellant's counsel. During his testimony, the trial court provided the jury with an instruction on the limited use of Officer Nagy's testimony. Officer Nagy testified that on April 13, 1990, he was a rookie working a patrol car with appellant, his field training officer. On that particular day, appellant drove the patrol car to the Garden Valley Apartments to see a friend. Appellant went up to the apartments while Officer Nagy remained in the patrol car. Officer Nagy further testified that after about three to five minutes, appellant exited the apartment with two males following. The males got into another vehicle and appellant returned to the patrol car. She told Officer Nagy that her two friends were going to pick up another friend and then she was going to fake a traffic stop as a joke. Officer Nagy stated that he indicated to appellant that that was not a good idea, because something could backfire. After the two males picked up the -7- other person, appellant pulled their vehicle over. Officer Nagy announced on the police radio that they were making a traffic stop and requested information on the license plate. In the meantime, appellant had taken all three men out of their vehicle and placed them into the patrol car. Officer Nagy further testified that appellant instructed him to check for warrants on two of the men. While he did so, appellant took one of the men out of the patrol car and led him to the rear of the patrol car. At that point, a radio dispatch came over the police radio requesting appellant and Officer Nagy's assistance. Officer Nagy stated that he immediately exited the patrol car, walked to the rear of the patrol car, and informed appellant of the dispatch call. When he got to the rear of the patrol car, Officer Nagy observed appellant holding a wad of money in one of her hands. Appellant then said "Nagy, what do you think we should do with this?" Officer Nagy responded, "What the f___ do you think we should do with it? Give it f___ right back." Appellant returned the money and issued no ticket. The jury subsequently found appellant guilty of aggravated robbery, with a firearm specification. Appellant was sentenced to a term of three years actual incarceration on the firearm specification, to run consecutively to the five to twenty-five years on the aggravated robbery conviction. Appellant filed a timely notice of appeal and subsequently raised the following argument: -8- WHETHER THE TRIAL COURT ERRED BY ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE TO BE INTRODUCED TO THE JURY. Appellant argues in her sole assignment of error that the trial court erred in permitting Officer Nagy to testify as to "other acts" allegedly committed by her. Appellant contends that the prejudicial effect of such evidence substantially outweighed its probative value. 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. R.C. 2945.59 provides as follows: In any criminal case in which the defen- dant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. Evidence of "other acts" is not admissible to show a defendant's propensity or inclination to commit an offense. State v. Curry (1975), 43 Ohio St. 2d 66. "Other acts" evidence is relevant and therefore admissible if it tends to show other purposes, such as proof of motive, opportunity, intent, -9- preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Jamison (1990), 49 Ohio St. 3d 182; State v. Broom (1988), 40 Ohio St. 3d 277, paragraph one of the syllabus. When "other acts" evidence is introduced for this purpose, the prosecution must show a connection existed, in the defendant's mind, between the offense in question and the "other acts." State v. Burson (1974), 38 Ohio St. 2d 157. In the instant case, the prosecution used Officer Nagy's testimony in an effort to show that appellant had previously attempted to take money from an individual during a routine traffic stop. We find that this evidence tended to show a scheme or plan which was relevant to the crime charged. We further find that its probative value was not substantially outweighed by its prejudicial effect. Moreover, the trial court instructed the jury that the "other acts" evidence was to be viewed and considered in light of appellant's intent, motive, scheme, plan, or absence of mistake or accident. The trial court specifically charged the jury that said evidence was not to be considered as proof that she committed the crime at issue. For the foregoing reason, we conclude that Officer Nagy's testimony was inextricably related to the charged offenses and, therefore, admissible. Appellant's assignment of error is without merit and is overruled. Trial court judgment is affirmed. -10- 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. JOHN F. CORRIGAN, P.J., AND BLACKMON, J., CONCUR LEO M. SPELLACY 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. .