COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68439 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION EUGENE CLOUD : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 317234 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES MARIE T. SMYTHE, ESQ. Cuyahoga County Prosecutor 5334 Northfield Road KAREN L. JOHNSON, Assistant Maple Heights, Ohio 44137 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Eugene Cloud appeals from his conviction following a jury trial for aggravated burglary (R.C. 2911.11) with three felony specifications and for theft (R.C. 2913.02) with three prior theft offenses and two violence specifications. Defendant contends that the convictions were against the manifest weight of the evidence, unsupported by sufficient evidence and the court erred in the admission of certain evidence. We find no error and affirm. On August 25, 1994, between 2:30 and 5:30 a.m., the Cleveland residence of Rita Baker and her son was burglarized while the occupants slept. Cash, checks, credit cards, a wallet and a purse were stolen. Entry was by means of a kitchen window. Defendant's fingerprints were found both inside and outside the kitchen window. The victims did not know defendant and did not give him permission to enter. When defendant was arrested based on his fingerprints, he gave an oral statement to the police in which he admitted that he acted as lookout for a string of burglaries. He boasted that because his fingerprints could not be found inside the burglarized residences, he could not be charged. He also showed a Cleveland Police detective the location of other burglaries he had participated in. We will address defendant's assignments of error in the order asserted. - 3 - I. THE VERDICT RENDERED AGAINST APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED UPON INSUFFICIENT EVIDENCE. The weight to be given the evidence and the credibility of witness testimony is primarily the province of the trier of fact, in the present case, the jury. State v. DeHass (1967), 10 Ohio St.2d 230. As held in State v. Harris (1993), 89 Ohio App.3d 147, 149: "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St.2d 169. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence, as follows: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42 [102 S.Ct. 2211, 2216, 2218, 72 L.Ed.2d 652, 659, 661]." Martin, supra, 20 Ohio App.3d at 175. See, also, City of Brooklyn v. Seiber (Dec. 22, 1994), Cuyahoga App. No. 65212, unreported. The evidence before the jury was plainly sufficient to sustain the convictions herein. In the instant case, the victims testified as to the date and time parameters of the burglary, the items stolen, and that they - 4 - did not know the defendant nor had they given him permission to enter. Police officers testified as to obtaining fingerprints from the crime scene and identified them as belonging to the defendant. Finally, Detective Amos Floyd testified that after defendant was arrested he made an oral statement admitting participation in the burglary. The evidence supporting defendant's convictions was overwhelming and unrebutted. The evidence was both sufficient and adequate to support the convictions. The jury's verdict was not against the manifest weight of the evidence. Assignment of Error I overruled. II. THE TRIAL COURT ERRED WHEN IT ALLOWED DETECTIVE BLACK BULL TO GIVE EXPERT TESTIMONY ON THE PSYCHOLOGICAL DIFFERENCES BETWEEN A CAT BURGLAR AND A BURGLAR. Defendant argues that his conviction should be reversed because of Detective Amos Floyd's testimony with respect to cat burglars. We find no merit to this assignment of error. Evid. R. 702 provides in pertinent part: A witness may testify as an expert if all of the following apply: (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; - 5 - (C) The witness's testimony is based on reliable scientific, technical, or other specialized information. *** Whether a witness qualifies as an expert and his testimony would be helpful to the jury is in the sound discretion of the trial court. Grote v. J.S. Mayer & Co. (1990), 59 Ohio App.3d 44. The qualification of an expert witness will not be reversed unless there is a clear showing of an abuse of discretion. State v. Tomlin (1992), 63 Ohio St.3d 724, 728; State v. Maupin (1975), 42 Ohio St.2d 473, 479. "Abuse of discretion" connotes more than mere error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. In the instant case, Detective Amos Floyd's testimony with respect to the cat burglar's modus operandi was relevant to establish defendant's identity as the burglar, to explain to the jury the scope of the items stolen and to support the credibility of defendant's admissions to the detective. These matters were beyond the knowledge of the average citizen, and this evidence was properly offered to assist the jury in evaluating other testimony in the trial. It is well settled that police officers with sufficient experience can testify as to the modus operandi of certain criminals. This Court has routinely allowed police officers to testify about behavior of drug traffickers and auto thiefs. State v. Bryant (June 2, 1994), Cuyahoga App. No. 65614, unreported; - 6 - State v. Robinson (May 9, 1991), Cuyahoga App. No. 58463, unreported; State v. Haynes (June 15, 1989), Cuyahoga App. No. 55538, unreported. The detective was well qualified to give expert testimony based on his 28 years of police work, burglary investigation and specialized information as an undercover detective. Columbus v. Dawson (1986), 28 Ohio App.3d 45; State v. Sellers (April 21, 1983), Cuyahoga App. No. 45410, unreported; State v. Mack (Dec. 2, 1993), Cuyahoga App. No. 62366, unreported. The trial court properly permitted the detective to testify to the motive and method of cat burglars. In any event, even if this isolated testimony was improperly admitted, such error was harmless beyond any reasonable doubt in view of the overwhelming evidence of defendant's guilt including defendant's fingerprints at the scene and his confession. State v. Moreland (1990), 50 Ohio St.3d 58. This assignment of error is overruled. III. THE TRIAL COURT ERRED BY ALLOWING IN TESTIMONY IN CONTRAVENTION OF OH R. EVID 404(B). Defendant argues that his confession to committing other burglaries was improperly admitted as "other acts" evidence. We do not agree. Evid. R. 404(B) provides: (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 - 7 - 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. In the instant case, defendant's admissions were not admitted for the purposes of proving that defendant had a criminal character or committed the instant crime. It was properly admitted to prove defendant's identity and knowledge, as well as his plan and scheme in committing the aggravated burglary for which he was tried. State v. Lowe (1994), 69 Ohio St.3d 527, 531; State v. Jamison (1990), 49 Ohio St.3d 182; State v. McConnell (1993), 91 Ohio App.3d 141, 146; State v. Mathews (1992), 80 Ohio App.3d 409, 414- 416. The evidence tended to show that as a part of the plan or scheme, defendant would approach a house in the early morning hours, find an open window, break through the screen, enter the house and burglarize it. The similarities between the present case and the previous crimes are obvious and fit a general pattern, and as such, were admissible. State v. Lopez (1993), 90 Ohio App.3d 566, 580; State v. Perry (1992), 80 Ohio App.3d 78, 83. Through cross-examination of State's witnesses, the defendant denied that he was one of the individuals who burglarized the home in question. He challenged the accuracy of the fingerprint identification. His admissions to the detectives, therefore, were properly admitted because they tended to establish his identity as the burglar and thief. - 8 - Moreover, any error in the admission of such evidence was certainly harmless beyond any reasonable doubt given his fingerprints at the scene of the crime. State v. Williams (1988), 38 Ohio St.3d 346. This assignment of error is overruled. Judgment affirmed. - 9 - 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 Court of Common Pleas 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. DAVID T. MATIA, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER 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 .