COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60935 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DONALD SWEARINGEN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 16, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-249259 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES GARY AXNER Cuyahoga County Prosecutor 2000 E. 9th Street 8th Floor Justice Center Suite 629 1200 Ontario Street Cleveland, Ohio 44115 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Donald Swearingen defendant-appellant, hereinafter Defen- dant timely appeals his conviction from a jury trial for Arson in violation of R.C. 2923.03. The evidence in pertinent part, established that on October 22, 1989, at approximately 1:00 A.M. a van belonging to Martin Feliciano was set on fire by the use of a flammable liquid. Albert Lugo of the Cleveland Fire Department Investigation Unit testified that a broken bottle near the van and burn patterns in the van's interior indicated the use of a flammable liquid to ignite the fire. He also testified all possible accidental causes had been eliminated during the course of his investigation. On the morning in question, Dennis Blaich while in his home on West 41st Street heard glass break in the alley outside. When he looked out the window, he saw Defendant throwing a lit bottle into Feliciano's van. He then went and told Feliciano who was a guest in his home that Defendant set his van on fire. Feliciano went outside and saw a car speeding away from his van. He immediately turned on the water hose and put the fire out. The Cleveland Fire Department arrived shortly thereafter. The fire caused $1,500.00 in damage to the van. Later that same morning, Feliciano heard a glass break. He looked out into the alley and he saw a car pull up next to his pick up truck. He saw Defendant stick his head out of the window and take a bucket in his hand. Defendant threw the bucket at the window of Feliciano's pickup. -3- Feliciano yelled to Defendant that he was going to call the police, since he thought Defendant was going to light a match. Defendant took off in the car and at the same time he pointed a gun at Feliciano. Jerry Carpenter was presented as an alibi witness for Defen- dant. He testified that on the night in question Defendant was with him at his home at the time the offense occurred. Defendant filed a timely notice of alibi which indicated that he was at 1960 West 45th Street at the time in question. Defense counsel admitted that he knew, prior to Carpenter's testimony, that the address listed on the notice of alibi was incorrect and he did not know the correct address. Thereafter, Defendant moved to amend the notice. The trial court denied Defendant's subsequent motion to amend, because he failed to give the state an opportunity to investigate and failed to inform them the address was incorrect. On rebuttal, Det. John Mulhall of the Cleveland Police Department testified that he went to 1960 West 45th, the address listed on the notice of alibi, to investigate. At that address, he found a vacant lot. After review of the evidence and the trial court's instructions, the jury returned a verdict of guilty. Defendant was sentenced to a definite term of two years and assessed costs. The instant appeal followed. Defendant's first assignment of error states: -4- THE TRIAL COURT ERRED WHEN IT DID NOT DIRECT A VERDICT FOR THE DEFENDANT-APPELLANT BECAUSE THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues that the verdict is against the manifest weight of the evidence and the trial court committed plain error in the admission of other acts evidence. We disagree. The weight to be given circumstantial evidence is the same as that afforded to direct evidence. State v. Jenks (1991), 61 Ohio St. 3d 259. A criminal conviction should not be reversed where there is sufficient probative evidence "which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Eley 56 Ohio St. 2d 169, 172. See, e.g., Jenks at 283. In the instant case, there is sufficient probative evidence of Arson within the meaning of R.C. 2909.03. Furthermore, there is no evidence of other acts within the meaning of Evid. R. 404(B), which provides that: 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. Defendant's second appearance on the scene constitutes a continuing course of conduct. Therefore, we need not reach the issue of plain error, because no error occurred. Even if the other acts instruction would have been proper, the failure to give it would not have been constituted plain error, because -5- there is no evidence in the record that, but for the error, the outcome of the trial clearly would have been different. See, e.g. State v. Long (1978), 53 Ohio St. 2d 91, 97 cited in State v. English, (Apr. 30, 1992), Cuyahoga App. No. 60190, unreported (held failure to give other acts instruction plain error). Defendant's second assignment of error states: THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW DEFENDANT-APPELLANT TO AMEND HIS ALIBI AND SUBSEQUENTLY ALLOWED THE STATE TO PRESENT EVIDENCE ON THAT ISSUE. Crim. R. 12.1 provides that: Whenever a defendant in a criminal case proposes to offer testimony to establish an alibi on his behalf, he shall, not less than seven days before trial, file and serve upon the prosecuting attorney a notice in writing of his intention to claim alibi. The notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense. If the defendant fails to file such written notice, the court may exclude evidence offered by the defendant for the purpose of proving such alibi, unless the court determines that in the interest of justice such evidence should be admitted. The Supreme Court of Ohio, in State v. Smith (1983), 17 Ohio St. 3d 98 at 105 found no abuse of discretion in the denial of the presentation of an alibi where: *** the prosecution was unaware of the identity of the alibi witnesses, it had no opportunity or motive to question these witnesses or to investigate the facts, and it would have suffered prejudice by the introduction of alibi testimony. Furthermore, there is some indicia of proof that the alibi evidence was withheld from the prosecution in bad faith, as a planned trial tactic. -6- Defense counsel in the instant case admitted that he knew of the mistaken address on the notice of alibi prior to the alibi witnesses' testimony, but waited until after he testified to inform the prosecution. Defense counsel also failed to offer a good faith reason why he waited to inform the prosecution. Therefore, the trial court did not abuse its discretion in denying the motion to amend the notice of alibi and finding Defendant acted in bad faith. Furthermore, the trial court properly admitted the testimony of an otherwise legitimate rebuttal witness. Judgment affirmed. -7- 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 KRUPANSKY, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .