COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 62857 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION OTIS GOLSTON III : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-260715. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Craig T. Weintraub Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Bartley J. Troy, Esq. 75 Public Square, #714 Cleveland, Ohio 44113-2078 Kevin Francis O'Neill, Esq. William M. Saks, Esq. 1223 West 6th Street Cleveland, Ohio 44113-1353 - 2 - SWEENEY, JAMES D., P.J.: Defendant-appellant Otis Golston III ("Golston"), date of birth April 17, 1964, appeals from his jury trial conviction of two counts [counts one and three] of motor vehicle grand theft in violation of R.C. 2913.02 and two counts [counts two and four] of possession of criminal tools in violation of R.C. 2923.24. For the 1 reasons adduced below, we affirm. A review of the record on appeal indicates that the trial court conducted a pretrial hearing on April 24, 1991, on Golston's motion to suppress evidence relative to the photo array identification of the defendant. At this suppression hearing, two witnesses testified on behalf of the prosecution. The first witness for the prosecution was Euclid Police Detective Raymond 2 Jorz, who stated in pertinent part the following (S.R. 5-40) : (1) he has been a police officer for seventeen years; (2) in late October, 1990, he became involved with the investigation of a car theft from Sims Brothers Buick in Euclid, Ohio, which had occurred in mid October; (3) the nature of the car theft involved a "key switch" scheme, whereby a person test drives a vehicle on the dealership lot and, upon returning to the lot, gives the salesperson a set of keys belonging to a different car while pocketing the legitimate keys to the car just returned; (4) also in 1 This appeal is being heard pursuant to the order of remand of the Ohio Supreme Court in State v. Golston (1994), 71 Ohio St.3d 224. 2 The initials "S.R." refer to the Suppression Record. - 3 - late October, 1990, the witness learned of a similar key switch scheme having been perpetrated at Euclid Chrysler Plymouth in Euclid, Ohio; (5) the witness learned that the Mayfield Village Police Department was investigating a similar type crime and that they had a suspect in their crime; (6) the witness obtained the photo of the Mayfield Heights suspect and, inserting into an additional array consisting of a total of five Polaroid photographs, gave the five photo array [State Exhibit A], in a stack, to the salespersons at Sims Buick and Euclid Chrysler Plymouth on November 19, 1990; (7) the witness did not indicate anything about any of the photographs in the array as the salespersons flipped through the photos; (8) both salespersons, without hesitation and independent of one another, picked out the photo of the defendant; (9) prior to the photo array, the salesperson at Sims Buick, Mr. White, told him that the suspect had a small semi-circular scar just above the mouth on one side; (10) on November 20, 1990, the witness and his partner went to Golston's house where they talked to Golston; (11) the witness observed a small semi-circular scar above Golston's mouth; (12) the car involved in the theft from the Chrysler dealer was reported missing several days after the key switch. The second witness for the prosecution at the suppression hearing was Mr. Ronald White, the salesman from Sims Buick, who corroborated the testimony of Detective Jorz, adding in pertinent part the following (S.R. 40-64): (1) Golston, clean-shaven, walked - 4 - into the dealership on October 30, 1990, and asked to test drive a brand new, red, four-door, wire wheeled, Buick Skylark which was loaded with options and had just arrived at the dealership from the factory; (2) the witness spent approximately twenty minutes talking to Golston and explained to Golston that the car could be test driven the following day because it had just arrived and had to be serviced; (3) Golston agreed to return the following day to test drive the car; (4) Golston returned around 3:30 p.m. on October 30, 1990, and test drove the car with the witness; (5) returning from the test drive, Golston gave the witness a set of keys; (6) the two then went to the witness's office to fill out paperwork for a prospective purchase, where Golston identified himself as "Mr. Anderson" and gave an address; (7) after several minutes, Golston asked to use the restroom and left the room; (8) Golston having not returned from the restroom after five minutes, the witness went looking for him; (9) the witness could not locate Golston and also noticed that the Buick Skylark, which had been parked near the showroom and that had been test driven, was missing from the lot; (10) the witness then called the police, who arrived shortly and took the witness's statement and a description of the suspect, which included the presence of a very light facial scar near the left side of the mouth. In support of the motion to suppress, the defense offered the testimony of Golston's mother, Mrs. Ela P. Golston, who stated in pertinent part the following (S.R. 67-74): (1) the defendant has - 5 - sported a closely cropped beard, much like the one he is wearing at the hearing, for the past three to four years; (2) the defendant has no facial scars; (3) the defendant has lived with her all of his life; (4) her son's beard is not thick and it is primarily under the chin rather than up on the cheeks; (5) the picture of her son which was included in the photo array is that of her son, but he has not looked like that for some time. Following a brief oral argument on the motion to suppress, the court denied the motion. The jury trial commenced on Tuesday, October 22, 1991. The prosecution offered the testimony of six witnesses. The first witness for the prosecution was Mr. Ronald White, who restated his previous testimony from the suppression hearing, adding the following (R. 90-130): (1) when Golston was at the Sims Buick dealership on October 30, 1990, the witness showed Golston the two showrooms and the cars therein; (2) Golston was very interested in driving just the new red Skylark; (3) the witness noticed that the keys that Golston had given him were not to the test driven car when Golston had excused himself to go to the restroom and the bogus keys were on the witness's desk; (4) the keys differed in that the numbers on the attached rings were different; (5) the witness identified the defendant in court; (6) when he entered the showroom, Golston was conservatively dressed, clean-shaven and wore no eyeglasses or jewelry; (7) the stolen car from Sims Buick was valued at approximately $15,800 and was recovered approximately one - 6 - week later in a damaged condition, the damages amounting to approximately $4,000 to $4,500; (8) Euclid Chrysler Plymouth is approximately one-half mile distant from Sims Buick; (9) Golston was very smooth and was not nervous, contrary to the behavior of most persons entering a car dealer seeking to purchase a car. The second witness for the prosecution was Ms. Billie Bauer, who stated in pertinent part as follows (R. 132-166): (1) she was the salesperson who assisted the defendant at Euclid Chrysler Plymouth; (2) Sims Buick is approximately one block east of Euclid Chrysler Plymouth; (3) during the afternoon of October 30, 1990, the defendant entered the showroom, sat in several cars in the showroom by himself, and then asked to see a new, gold colored, Chrysler LeBaron four-door sedan; (4) she and he took the LeBaron for a test drive, with the defendant driving; (5) the cars in the showroom do contain sets of keys within the cars; (6) they returned from the test drive after about five minutes, parked the car on Chardon Road, went inside the showroom and she returned the keys given her by the defendant to the office, sat down at the witness's desk, and started to have a conversation; (7) the defendant gave his name as "Frank Anderson" and also gave a telephone number which turned out to be fictitious when she attempted to telephone him the next day; (8) the witness parted company with the defendant to wait on another customer and because the defendant explained that he would have to discuss the purchase with his wife; (9) the defendant lingered in the showroom for a little while before departing; (10) - 7 - a few days later, it was discovered that the test driven LeBaron was missing from the lot; (11) no one, besides the defendant, test drove the LeBaron between the visit by the defendant and the time the car was discovered missing; (12) the witness identified the defendant in court; (13) she had no problem identifying the defendant from the photo array conducted by the Euclid Police; (14) when he entered the showroom on the day of the test drive, the defendant was well dressed in a set of very nice exercise warmups with tennis shoes, well groomed, wearing no eyeglasses or earrings; (15) when the dealership noticed the car was missing during an inventory, a review of the two keys on hand, which purported to be genuine as belonging to the LeBaron, revealed that only one of the two keys belonged to the LeBaron and that the set was missing the master key to the car which would open any lock on the car. The third witness for the prosecution was Euclid Police Patrolman James B. Thompson, who stated the following (R. 167- 183): (1) on November 3, 1990, he was dispatched to Euclid Chrysler Plymouth concerning the theft of a car from the dealership using a suspected key switch; (2) he corroborated the testimony of Ms. Bauer concerning the circumstances of the theft. The fourth witness for the prosecution was Detective Jorz who reiterated his previous testimony from the suppression hearing, adding the following (R. 213-250): (1) the LeBaron was recovered by the Cleveland Police in the fourth district on October 30, 1990, at approximately 8:40 p.m.; (2) the Skylark was recovered by the - 8 - Cleveland Police in the fourth district on November 1, 1990, at approximately 11:42 p.m.; (3) he learned there was no such person as "Frank Anderson"; (4) Golston, who lives with his parents within the boundary of the fourth police district in Cleveland, initially denied involvement in the crimes; (5) when he interviewed Golston at home, Golston was well-dressed, clean, articulate, wearing eyeglasses, and did not have a limp or use a cane; (6) he took Mr. White to the Bedford Police Department in January, 1991, to see a key switch suspect by the name of "Frank Anderson" and Mr. White said that this suspect was not the man whom he had assisted at Sims Buick because this Bedford suspect had a prominent scar above his right eye. The fifth witness for the prosecution was Bedford Police Detective Thomas Curran, who corroborated the testimony of Detective Jorz, adding in pertinent part the following (R. 251- 264): (1) in October, 1988, he investigated a theft of a Honda automobile from the Jay Honda dealership in Bedford, Ohio; (2) this Honda theft involved a key switch; (3) during the investigation of the Honda theft, it was learned that Golston had given the bogus Honda key used in the switch to the perpetrator of the theft; (4) Golston drove the perpetrator who actually stole the Honda to the dealership lot, but Golston did not enter the dealership; (5) the stolen Honda was recovered several blocks from Golston's home; (6) Golston told the witness that he (Golston) had full knowledge of the key switch scheme involving the Honda; (7) Golston did not have - 9 - a limp in 1988 and did not use a cane; (8) Golston was charged and convicted in relation to the theft of the Honda. The sixth witness for the prosecution was Euclid Police Detective Robert Pestak, who assisted Detective Jorz in the investigations of the thefts, corroborated the testimony of Detective Jorz and the two salespersons, and added that both of the recovered vehicles had been stripped of some valuable components. (R. 267-295.) At this point the prosecution rested and the defense moved for acquittal pursuant to Crim.R. 29. Following argument by the parties, the court denied this motion. During its case-in-chief, the defense offered the testimony of six witnesses. The first witness for the defense was Golston's mother, Mrs. Ela P. Golston, who repeated her earlier suppression hearing testimony, and added the following (R. 308-332): (1) the defendant wears eyeglasses and does not wear contact lenses; (2) the defendant has no facial scars; (3) the defendant wears a gold earring in his left ear; (4) on October 30 and 31, 1990, the defendant was at home during the periods when he was supposed to be at the dealerships. The second witness for the defense was Miss Denise White, who stated the following in pertinent part (R. 333-345): (1) in 1990, she lived next door to the Golston's; (2) on October 30 and 31, 1990, she talked to the defendant, her best friend, on the - 10 - telephone at home at approximately 4:00 p.m.; (3) the defendant wore eyeglasses; (4) the defendant has no facial scars. The third witness for the defense was Mr. Everett Mitchell, Jr., who stated the following in pertinent part (R. 345-350): (1) he lives next door to the Golston home; (2) the defendant wears eyeglasses and has a closely cropped beard; (3) he saw the defendant on October 31, 1990, at home in the driveway at approximately 8:20 p.m., and the defendant claimed he (Golston) was returning from trick-or-treating with the nephew and niece. The fourth witness for the defense was Miss Joy Holland, who stated the following in pertinent part (R. 351-356): (1) the defendant is her brother, and he lives at home, downstairs from her living quarters; (2) on October 31, 1990, at 3:45 p.m., she spoke with the defendant on the telephone at home and asked him to take her two children trick-or-treating at 6:00 p.m. that evening; (3) the defendant always sported a beard and wore eyeglasses, and has no facial scars. The fifth witness for the defense was Mr. Otis Golston, Jr., the father of the defendant, who stated the following in pertinent part (R. 356-366): (1) he saw the defendant on October 31, 1990, at 3:45 p.m. at home in the defendant's bedroom when the witness came home from work; (2) the defendant wears eyeglasses, sports a beard, and has no facial scars; (3) the defendant's bedroom does not have a telephone. - 11 - The defendant testified on his own behalf as the sixth witness for the defense, stating the following in pertinent part (R. 368- 412): (1) he wears eyeglasses and has never been clean shaven subsequent to 1988; (2) due to several car accidents, he has a limp and uses a cane at times; (3) this case involves mistaken identity; (4) he corroborated the testimony of other defense witnesses as to his being at home in the afternoon on October 30 and 31, 1990; (5) he did drive his car to Jay Honda in October, 1988; (6) he pled guilty on February 21, 1989, to one count of grand theft motor vehicle and was sentenced to two years probation and 150 hours of community service. At this point, the defense rested and renewed its motion for acquittal. This motion was denied. Subsequent to closing arguments, instructions to the jury, and jury deliberations, the jury returned its guilty verdict on all counts. Defendant was sentenced to a term of one and one-half years each, concurrent, on counts one and three, and a term of one year each on counts two and four, counts two and four to run concurrent with count one. This appeal followed presenting two assignments of error. I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION IN LIMINE AT TRIAL AND ADMITTING EVIDENCE OF PRIOR BAD ACTS OF THE DEFENDANT THEREBY PREJUDICING THE JURY AND DENYING THE DEFENDANT A FAIR TRIAL. At issue in this assignment is the court allowing the prosecution, on the examination of Detective Curran and cross- - 12 - examination of the defendant, to elicit questioning concerning the defendant's prior conviction for grand theft motor vehicle involving the key switch scam at Jay Honda in 1988. In State v. Shedrick (1991), 61 Ohio St.3d 331, at 337, the court stated the following: Ordinarily, evidence of the defendant's prior conduct that tends to show bad character is inadmissible to prove conduct in issue at trial. See Evid.R. 404. An exception to this rule, however, is provided in Evid.R. 404(B), which states: "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." A similar provision is found in R.C. 2945.59, which provides: "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." Although R.C. 2945.59 does not specifically state that other acts may be admitted to prove the defendant's identity, we have held that the issue of identity is included within the concept of scheme, plan, or system. State v. Broom (1988), 40 Ohio St.3d 277, 281, 533 N.E.2d 682, 689; State v. Curry - 13 - (1975), 43 Ohio St.2d 66, 73, 72 O.O.2d 37, 41, 330 N.E.2d 720, 725-726. Evid.R. 404(B) and R.C. 2945.59 codify an exception to the common law. Broom, supra, 40 Ohio St.3d at 281-282, 533 N.E.2d at 689-690; State v. Burson (1974), 38 Ohio St.2d 157, 158- 159, 67 O.O.2d 174, 175, 311 N.E.2d 526, 528. In order to be admissible the "other act" evidence must "tend to show," by substantial proof, the defendant's identity, plan, scheme, or system. Neither the statute nor the rule requires that the "other act" be "like" or "similar" to the crime charged, as long as the prior act tends to show one of the enumerated factors. Broom, supra, 40 Ohio St.3d at 282, 533 N.E.2d at 690; State v. Flonnory (1972), 31 Ohio St.2d 124, 126, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729. When the identity of the perpetrator is at issue, "other act" evidence tends to show the defendant's identity as the perpetrator by showing that he "committed similar crimes within a period of time reasonably near to the offense on trial, and that a similar scheme, plan or system was utilized to commit both the offense at issue and the other crimes." Curry, supra, 43 Ohio St.2d at 73, 72 O.O.2d at 41, 330 N.E.2d at 726; Broom, supra, 40 Ohio St.3d at 282, 533 N.E.2d at 690. Also see, State v. Woodard (1993), 68 Ohio St.3d 70, 73. In the present case, the evidence sought to be suppressed was properly admitted as other act evidence because it tended to prove the identity of the perpetrator in the offenses at issue, as well as the scheme, plan or system used by the perpetrator, namely, a key switch. The first assignment is overruled. II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE PRIOR TO TRIAL AND - 14 - PERMITTING THE PHOTO ARRAY IDENTIFICATION OF DEFENDANT TO BE ENTERED INTO EVIDENCE, THEREBY DENYING THE DEFENDANT A FAIR TRIAL. In this assignment, appellant argues that the pretrial photographic array was unduly suggestive and should have been suppressed. We disagree. The standard of review for an out-of-court identification was recently stated in State v. Menz (December 27, 1994), Clermont App. No. CA94-05-034, unreported, 1994 Ohio App. LEXIS 5860, as follows: An out-of-court identification which is unduly suggestive taints and renders inadmissible an in-court identification by the witness because of the substantial likelihood of misidentification. Neil v. Biggers (1972), 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401. Reliability is the linchpin in determining the admissibility of a pretrial identification since the identification's reliability is balanced against the danger of its suggestive nature. Manson v. Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140. The reliability of an identification procedure, as well as its suggestive nature, are to be ascertained from a consideration of the totality of the circumstances surrounding the identification procedures. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Also see State v. Jells (1990), 53 Ohio St.3d 22. After a careful review of the photo array and the procedures used by the police, we conclude that there was no undue suggestion under a totality of the circumstances. Both salespersons had close up views of the perpetrator for extended periods of time. The descriptions used by the salespersons never wavered between the time of the photo array, the motion hearing, and the trial. Both - 15 - salespersons showed no hesitation when identifying the perpetrator. Additionally, the photo array of five Polaroid photographs consisted of five individual black males with similar physical build, ages, skin tone, hair length, facial hair, and width of noses. The only differing aspect to the photos was that the defendant was wearing eyeglasses while the remaining four individuals were without eyeglasses. We find this not to be unduly suggestive in the identification of the defendant. Noting that the salespersons stated that the perpetrator did not wear eyeglasses, the use of eyeglasses in the photo array would, if anything, conceal the identity of the defendant as the perpetrator and focus one's attention on the remaining individuals in the array. The second assignment is overruled. Judgment affirmed. - 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. SARA J. HARPER, J., and DONALD C. NUGENT, J., CONCUR. JAMES D. SWEENEY PRESIDING 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. .