COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61304 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RUDOLPH WEST : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-251048 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: LEONARD D. HALL ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: DANIEL G. WIGHTMAN 110 MOORE ROAD AVON LAKE, OHIO 44012 -2- SPELLACY, J.: Defendant-appellant Rudolph West ("appellant") appeals from his conviction for two Drug Law violations under R.C. 2925.03. The facts giving rise to the instant appeal are as follows: On August 23, 1989, Lakewood Detective Bruce Wilkins was working undercover during a joint narcotics investigation involving the Cleveland Police Department, the Lakewood Police Department, and the Westshore Enforcement Bureau. Detective Wilkins worked with an informant known as Howie, who set up a purchase of cocaine with William Kondratuk. At approximately 7:45 P.M., Detective Wilkins and Howie arrived at William Kondratuk's residence in Rocky River, Ohio, but there was no cocaine to be bought. Detective Wilkins had $1,000 in police "buy money" and was wearing a body transmitter. There were also several other police officers in the area conducting a surveillance of the activity. Detective Wilkins informed William Kondratuk that he was not going to part with the "buy money." At that point, Lisa Donofrio and Bret Weinschreider drove up in a red car and sounded the horn. William Kondratuk spoke to Lisa Donofrio and Bret Weinschreider and then told Detective Wilkins that they were in a hurry to meet the supplier. Since Detective Wilkins would not part with the "buy money," he joined Lisa Donofrio and Bret Weinschreider and the three departed in the red car. Initially, they drove to the Great Northern Mall, and Lisa Donofrio went into a Rempro store and obtained an apartment key -3- from Darlene Olen. Apparently, the cocaine was stored in Darlene Olen's apartment located in North Ridgeville, Ohio. Immediately thereafter, the trio left for Darlene Olen's apartment. Bret Weinschreider drove the car at very high speeds, and Lisa Donofrio said that they had to hurry, because the supplier, named Rudy, was going to be at the apartment for a short period of time. Just before they arrived at Darlene Olen's apartment, Detective Wilkins counted out $800 from the "buy money" and handed it to Lisa Donofrio. As they pulled up to the apartment, Detective Wilkins observed appellant standing outside. Lisa Donofrio then got out of the car and approached appellant. According to Lisa Donofrio, appellant was very upset because she had brought someone with them whom he did not know. Lisa Donofrio handed appellant the apartment key and appellant opened the door. Inside the apartment, appellant retrieved some cocaine from the refrigerator, weighed out 14 grams, and placed it into a bag. Lisa Donofrio took some cocaine for herself and for Bret Weinschreider. She also handed appellant the $800 she just received from Detective Wilkins. After Lisa Donofrio gave appellant the $800, he gave her the cocaine, which she put in her purse. Appellant and Lisa Donofrio left the apartment and appellant locked the door. Lisa Donofrio returned to the car while appellant hid Darlene Olen's apartment key in the bushes. Lisa Donofrio immediately gave Detective Wilkins the cocaine and the -4- trio returned to William Kondratuk's residence. Subsequent tests of the white powder revealed that it was 13.30 grams of cocaine. On April 11, 1990, appellant was indicted by the Cuyahoga County Grand Jury for two counts of a Drug law violation under R.C. 2925.03. Count one alleged that appellant knowingly sold cocaine in an amount exceeding the bulk amount but less than three times the bulk amount. It was alleged in Count two that appellant knowingly possessed cocaine in an amount exceeding the bulk amount but less than three times the bulk amount. At his 1 arraignment on April 20, 1990, appellant pleaded not guilty. On December 5, 1990, appellant's bench trial commenced. Appellant was subsequently found guilty of the charges. He was sentenced to a term of five to fifteen years on Count one, with three years actual, and to a term of two years on Count two, with one and a half years actual. The trial court ordered the counts to run concurrently. Appellant filed a timely notice of appeal and subsequently raised the following assignment of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY IMPROPERLY ADMITTING EVIDENCE OF PRIOR DRUG DEALING IN VIOLATION (SIC) EVIDENCE RULE 404(B), REVISED CODE SEC. 2945.59 AND THE APPELLANT'S RIGHT TO DUE PROCESS. 1 William Kondratuk, Lisa Donofrio, Bret Weinschreider and Darlene Olen were also indicted by the Cuyahoga County Grand Jury. However, they entered into plea bargains as opposed to going to trial. -5- Evid. R. 404(B) provides 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 states as follows: In any criminal case in which the defendant'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 prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. "Other acts" evidence is relevant and therefore admissible if it tends to show other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Broom (1988), 40 Ohio St. 3d 277, paragraph one of the syllabus. 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. In the instant case, Lisa Donofrio and Bret Weinschreider both testified about their dealings with appellant regarding the use and sale of cocaine. Both testified that they made -6- deliveries of cocaine for appellant and also testified that they received cocaine for their personal use. We find that this evidence tended to show a scheme or plan which was relevant to the crimes charged. Also, the testimonies of Lisa Donofrio and Bret Weinschreider tended to show the absence of mistake that appellant was involved in the sale of cocaine. We further find that its probative value was not substantially outweighed by its prejudicial effect. Moreover, the trial court specifically noted, on the record, that said evidence would not be considered to convict appellant on the charges at issue. We conclude that the testimonies of Lisa Donofrio and Bret Weinschreider were inextracably related to the charged offenses and, therefore, admissible. Appellant's assignment of error is without merit and is overruled. Trial court judgment is 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. NAHRA, 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. .