COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65385 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHNNY CONNER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 27, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-274985 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue MICHAEL B. TELEP, ESQ. Cleveland, Ohio 44103 Assistant County Prosecutor and 8th Floor Justice Center JOHNNY CONNER, Pro Se 1200 Ontario Street Serial No. A 272-769 Cleveland, Ohio 44113 P. O. Box 1368 Mansfield, Ohio 44901 -2- -3- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, Johnny Conner, appeals a decision from the trial court convicting him of felonious assault with a violence 1 specification. Conner assigns five errors for our review. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On September 20, 1991, sixty-seven year old Jesse Mathis went to the East 79th Street Garage to have his car repaired by Johnny Conner, defendant-appellant. When he arrived he found Conner working on other cars, so he proceeded to a nearby auto parts store to purchase parts for his car. He returned at around noon, but Conner was not there. After waiting several hours, Mathis went home. Along the way, he spotted Conner at a local scrap yard. Conner told Mathis he was getting parts for Mathis' car. Conner got into Mathis' car, and Mathis drove him back to the East 79th Street Garage. Mathis paid Conner $20.00, and Conner began working on his car. Mathis waited for several more hours while Conner alternated between working on his car and on other customers' cars. At around 1:00 a.m., Conner asked Mathis for more money. Mathis told Conner, because his ignition switch was dismantled, he had no way to go and get the money. Conner arranged for one of the garage owners, "Dewey", to give Mathis a ride home. Reluctantly, 1 See Appendix. -4- Mathis agreed to go home and get more money. Before he left, he told Conner he wanted him to have the car ready when he returned. Mathis went home around 1:30 a.m. and retrieved the money. When he returned, he gave Conner an additional $20.00. However, the car had not been repaired. Conner told Mathis he would finish his car tomorrow. In order for Mathis to drive the car home, Conner rigged some wrenches together to start the car. Mathis was not pleased with this arrangement and was even more upset because his ignition key was missing. However, he did proceed to drive the car home. At some point he ran out of gas. He got out of the car and walked to the trunk intending to retrieve a gas can from the trunk. As he prepared to place his key in the lock, he was hit over the head and forced into the trunk. As he heard the truck lock click, Mathis asked "What's going on, Johnny?" Conner replied, "You got smart." He then told Mathis to shut up. Mathis then heard Conner say "I'm going to burn the m..... f..... up." He then heard Conner shaking a gas can and smelled gas. Conner drove away with Mathis in the trunk. Mathis grabbed a hacksaw to force his way out of the trunk. Conner heard the noise and told Mathis to "quit bumping around back there." After driving around for 2-1/2 to 3 hours, Conner stopped the car and said "Brown, I can't do this to you. Sit tight. I'll get you out of it." Conner opened the trunk by breaking the lock. As Mathis started to get out, Conner held the trunk lid down and told Mathis -5- to wait a minute before getting out. Mathis waited for a short time, then climbed out of the trunk. One of Mathis' acquaintances, Tamara Johnson, found him sitting behind the trunk in a daze, bleeding from a head laceration. Johnson took Mathis home, and he called an ambulance. Doctors determined that Mathis suffered a concussion, a head laceration requiring eight stitches, and suffered symptoms including headaches, dizziness, and vertigo. Conner was arrested and charged with kidnapping and felonious assault, both with prior aggravated felony specifications. At trial Mathis testified, while he was being held in the car, he was in fear for his life. According to Mathis, Conner had once told him he killed a man. Mathis also stated he had been arguing with Conner about the missing ignition key immediately before he was pushed into the trunk. He also said that Conner repaired the broken trunk lock at some time during the ten days Mathis was in the hospital. Conner admitted working on the car but denied forcing Mathis in the trunk. He stated that when he left the garage at around 1:00 A.M. to go to a nearby bar, Mathis was cleaning off the driver's seat of his car and preparing to leave. He also denied ever telling Mathis that he had killed someone. After the verdict was read, the trial judge sentenced Conner to twelve to fifteen years in prison in the presence of the jury. Thereafter, the trial judge also made various comments to Conner and to the jury. He told the jury of Conner's extensive criminal -6- history. He made reference to the fact that Conner's last murder case was tried in his courtroom, that Conner had beat the charge, and that he had bragged about it to Mathis. Thereafter, the trial judge made the following comment to the jury: "If you acquitted that guy I was going to send him over to your neighborhood." This appeal followed. In his first assignment of error, Conner argues the trial court denied him due process when it accepted inconsistent jury verdicts. He claims the jury could not reasonably have found him guilty of felonious assault after acquitting him on the kidnapping charge. We disagree. "The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count." State v. Brown (1984), 12 Ohio St.3d 147,149. In this case, the jury found Conner guilty of felonious assault and not guilty of kidnapping. Following the reasoning of Brown, the jury's different verdicts on the different counts were not inconsistent. Conner's first assignment of error is overruled. In his second assignment of error, Conner asserts he was denied a fair trial and due process by the admission of Mathis' testimony that Conner told him he once killed a man. He argues the prejudicial nature of the evidence outweighed its probative value and should have precluded its admission as set forth in Evid.R. 403(A). We conclude the admission of the statement was correct -7- because it was admitted to show an element of the offense of kidnapping, which element is "to terrorize the victim." Consequently, this testimony becomes relevant to that issue. As discussed above, in order to prove kidnapping, the state must show that the victim was restrained or removed from where he was found for one of five statutorily defined reasons. One of the listed reasons is "to terrorize the victim." Mathis testified he feared for his life during the abduction because Conner told him he had killed a man before and placed the body in a trunk. His testimony about his fear and the reasons for such fear is relevant to establishing whether he was "terrorized" by his confinement. The testimony revealed Mathis knew that Conner had previously killed a man and placed the body in a trunk. At the time Conner placed Mathis in his trunk, he was aware that Mathis knew about his earlier crime. Because of the similarity of the situations, this evidence tends to show that Conner acted with a purpose to suggest to the victim that he, too, would be killed. Consequently, it is highly probative. Thus, we conclude any prejudice caused by the admission of this evidence was outweighed by its probative value in determining whether Conner's actions were taken with a purpose to terrorize Mathis. Accordingly, we overrule Conner's second assignment of error. Conner next asserts he was denied the effective assistance of counsel because trial counsel failed to object to clearly erroneous jury instructions. Specifically, he argues trial counsel should have objected to the following instruction by the trial court: -8- The indictment itself simply means that the grand jurors returned an indictment, and this is a formal way of instructing the defendant that he has been convicted of a crime. Conner also argues trial counsel should have objected to the following: In a case of reasonable doubt, when each and every element of the crime charge against the defendant has not been proved beyond a reasonable doubt by the State, he shall be acquitted. A party who fails to object to a jury instruction waives his right to assert error in the instruction unless the outcome of the trial would clearly have been different if not for the error. State v. Underwood (1983), 3 Ohio St.3d 12. In determining whether the erroneous jury instructions had an effect on the outcome of the case, we must examine the jury instructions as a whole. Although the trial court mistakenly referred to an indictment as notice that a defendant was convicted of a crime, he also told the jury that "the mere fact that the defendant has been indicted by the grand jury of this county raises no presumption of the guilt of the defendant." The jury was also told that the indictment "does not constitute evidence and you should not consider it as evidence of any guilt." Additionally, the defense argues the language in the second instruction could mislead a jury into believing that it may only acquit if it finds that all elements were not proved when in fact, the jury must acquit if any one element is not proved. (Emphasis added.) We believe it is equally conceivable that the jury was -9- not misled; since the language in the instruction is technically correct; "when each and every element *** has not been proved ***, he shall be acquitted." The use of the word "each" embodies individualized elements. Besides, the court said the state must prove each and every essential element of the charge, thereby leading the jury to conclude if one element is missing, it must acquit. It also said "[a] presumption of innocence is only overcome or overthrown when you as a jury find the proof is such as to exclude every reasonable doubt of the guilt of the defendant." After viewing these instructions in the context of the other instructions given, we conclude Conner waived his right by not objecting. He failed in this appeal to demonstrate that the outcome of the trial would clearly have been different if not for the stated error. Consequently, trial counsel's failure to object to these instructions does not constitute ineffective assistance of counsel. See Strickland v. Washington (1984), 466 U.S. 668,698. Conner also argues the trial court erroneously told the jury to use its common sense rather than the instructions of law and discouraged the jury from asking questions. Our review of the record reveals the trial court told the jury to use its common sense when interpreting the jury instructions and not to be "overly concerned with the technical meaning of words." Additionally, the court did not tell the jury not to ask questions but merely explained to them the procedure by which their questions would be answered and that the procedure would result in a delay. He explained that he just wanted the jury to know what would happen in -10- the event they had any questions. Accordingly, we overrule Conner's third assignment of error. In his fourth assignment of error, Conner asserts the trial court erroneously imposed the maximum sentence without considering the sentencing criteria of R.C. 2929.12. The record of Conner's sentencing proceedings reveals the trial court did not specifically state on the record that it considered the sentencing criteria. However, "[a] silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12." State v. Cyrus (1992), 63 Ohio St.3d 164,166. Nothing in the statute or the decisions of this court imposes any duty on the trial court to set forth its reasoning. The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria. Id. Before sentencing Conner, the trial court referred to the fact that Conner had previously been convicted of murder and carrying a concealed weapon. Although the trial court did not specifically mention it at the time of sentencing, there was evidence in the record as to the other two sentencing criteria. The state presented evidence that the victim, Jesse Mathis, was sixty-seven years old at the time of the incident. Also, a physician who examined Mathis at the hospital testified that Mathis suffered from symptoms of post traumatic stress syndrome such as headaches, vertigo and dizziness as a result of being hit in the head. -11- Conner did not go forward with any evidence to rebut the presumption that the trial court considered the sentencing criteria in R.C. 2929.12. As stated above, we find the trial court's failure to specifically refer to the listed criteria does not indicate a failure to consider the sentencing criteria. Conner also argues the comments made by the trial court during sentencing reflected the court's personal animosity toward him and motivated the court's decision to impose the maximum sentence. The comments were made after the jury had reached its verdict and cannot be said to have influenced the jury's decision. Also, the sentence imposed by the trial court was within the statutory limits. In addition, the record contains evidence of all the statutory criteria supporting the imposition of the maximum sentence. We are unable to conclude the trial court's sentencing decision was motivated by animosity toward the defendant instead of a consideration of the relevant factors as defined by the sentencing statute. However, we must comment upon certain remarks of the trial judge, even though they did not affect the outcome of the trial. No matter how egregious the crime or how outraged a judge might personally feel when he disagrees with a verdict of acquittal, it is inappropriate for a trial judge in open courtroom and before a -12- jury, even after sentencing, to comment that the defendant "beat 2 the charge" in a prior case before him. A jury member might well be disturbed, moreover, when the judge concludes his comments, "If you acquitted that guy I was going to send him over to your neighborhood." Even if intended as humor, such a threat in the context of the court's other statements is disrespectful of the independence of the jury. Finally, a judge goes well beyond the permissible limits of rhetorical hyperbole when he adds the following: There is no appeal in the hereafter. You aren't going to appeal any of this stuff to the good Lord, and you are going to rot and burn in hell for the rest of eternity for what you have done, and I hope before you rot and burn in hell for eternity that you go down to that joint with those lifers, and I hope they assault you every day. Canon 1 of the Code of Judicial Conduct requires a judge to uphold the integrity of the judiciary and Canon 3 requires a judge to be "patient, dignified, and courteous to the litigants" and jurors. This standard does not vary depending upon the defendant, the crime, or the verdict. The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in 2 The judge also called him a "cold-blooded murderer" although the defendant was found guilty of the lesser charge of voluntary manslaughter in a prior case. -13- the social life." Wide enough in all conscience is the field of discretion that remains. Benjamin N. Cardozo, The Nature of the Judicial Process (1991), at 141. We believe that a better practice would be for trial courts to refrain from making such statements. However, because we find that the trial court's comments did not influence the outcome of this trial, we overrule Conner's fourth assignment of error. Finally, Conner argues the trial court abused its discretion in sentencing him to twelve to fifteen years in prison for felonious assault. He argues that he should have been sentenced to three, four, five, six, seven, or eight years to fifteen years under R.C. 2929.11(B)(2)(a). The state argues the sentence was proper under R.C. 2929.11(B)(2)(b) which provides that, if the offender has a prior conviction for aggravated murder, murder, or any first, second, or third degree aggravated felony, the sentence for a second degree aggravated felony shall be eight, nine, ten, eleven, or twelve years to fifteen years. Conner asserts the trial court should not have considered his prior aggravated felony conviction when sentencing him because the state failed to prove the aggravated felony specification. In this case, the prior aggravated felony conviction was clearly specified in the indictment as evidenced by the following language: The Grand Jurors further find and specify that the offender has previously been convicted of or pleaded guilty to an aggravated felony, the said Johnny Conner, with counsel, on or about the 30th day of November, 1976, in the Common Pleas Court of Cuyahoga County, Ohio, Case No. -14- CR 28082, having been convicted of the crime of Voluntary Manslaughter, in violation of Revised Code Section 2903.03 of the State of Ohio. This language complies with the requirement of R.C. 2941.14.2 which provides that, in order to impose an actual term of incarceration because the offender has a prior aggravated felony conviction, the prior conviction must be specified in the indictment. However, the indictment as presented to the jury did not contain any mention of the aggravated felony specification. There was no mention of the aggravated felony specification either in the final jury instructions or the verdict forms submitted to the jury. Also, there is no evidence that the aggravated felony specification was nolled. The transcript of proceedings in this case begins with opening statements. There is no record before this court of the pretrial discussions that took place in the trial court. Nonetheless, it is apparent from the trial court's comments at the time of sentencing that there was an agreement between the parties that the specification would be determined by the trial court at the time of sentencing. During sentencing, without any objection from the defense, the trial court made the following statements on the record: Now, what this jury didn't know, but we can now tell you, is that Mr. Conner has a little bit of a history. You see, back in '76 he was charged with aggravated murder, and he was tried, and he was found guilty of voluntary manslaughter. -15- It appears from the record Conner's trial counsel made a strategic decision to have the specification determined by the trial judge in order to prevent the jury from learning that Conner had committed voluntary manslaughter and to avoid possible prejudice resulting from such knowledge. Under the circumstances, it is improper for Conner to assign error to the state's failure to present evidence proving the prior aggravated felony specification. We overrule Conner's fifth assignment of error. 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. NAHRA, J., CONCURS; KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART. (SEE ATTACHED CONCURRING AND DISSENTING OPINION) PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -17- APPENDIX I. THE APPELLANT WAS DENIED DUE PROCESS WHEN THE COURT ACCEPTED INCONSISTENT VERDICTS FINDING THE APPELLANT GUILTY ON ONE COUNT AND NOT GUILTY ON THE OTHER COUNT WHEN THE ONLY ISSUE WAS THE IDENTIFICATION OF THE PERPETRATOR. II. THE TRIAL COURT ERRONEOUSLY ALLOWED EVIDENCE IN VIOLATION OF EVIDENCE RULE 401,402 AND 403 WHICH PREJUDICED THE APPELLANT AND DENIED HIM A FAIR TRIAL AND DUE PROCESS. III. COUNSEL'S FAILURE TO OBJECT TO IMPROPER JURY INSTRUCTIONS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND THE JURY INSTRUCTIONS WERE PLAINLY ERRONEOUS. IV. THE TRIAL COURT ABUSED ITS DISCRETION IS IMPOSING THE MAXIMUM SENTENCE WITHOUT CONSIDERING THE CRITTERIA (sic) OF RC 2929.12 AND FAILED TO REFRAIN FROM INTEMPERATE COMMENTARY THAT AFFECTED THE PUBLIC CONFIDENCE IN THE TRIAL PROCESS. V. THE TRIAL COURT IMPOSED A SENTENCE IN EXCESS OF THAT AUTHORIZED BY LAW AND THUS ABUSED ITS DISCRETION. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65385 : STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : AND -vs- : : DISSENTING JOHNNY CONNER : : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 27, 1996 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I respectfully dissent from the majority's disposition of defendant's second assignment of error regarding the admissibility of Mathis's testimony that Conner had previously bragged about killing a man. The trial court erred by not excluding this testimony, which was not relevant to any element of the crime and was substantially prejudicial. The relevant portion of the testimony is as follows: Q. Is it fair to say that you didn't consider this a joke, did you? A. I didn't consider that being a joke, because he done talked with me about how he killed a man -- MR. MAJER: Objection. A. -- over onto the brewery place. - 2 - THE COURT: Overruled. Q. Okay. So what was going on in your mind at the time that he's driving around with you in the trunk of your car? A. I figure I was dead like that white man on 84th off of Kinsman, because he told me all about it. Q. You figured you were dead like the white man? A. I just figured I was dead. Q. Because he told you all about it. What did he tell you all about it? A. He was bragging to me about how he killed that one, and he would have killed the other one if he would a found him. Q. Now, why would that make you upset in the back of a trunk? A. Because he done talked to me about that before that occurs. Q. Did he say how he killed this guy: THE COURT: All right. Sustained. Let's move on to something else. A. He shot him. THE COURT: Sir, don't answer the question. Let's move on to something else. (Tr. 38-39.) The introduction of this evidence is prohibited under Evid.R. 404(B), which governs admitting evidence of defendant's other acts. The rule provides as follows: 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 codified this rule: 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. - 3 - Because the common law rule prohibited introducing evidence of a defendant's prior acts, any exception to this rule must be strictly construed against the state. State v. Burson (1974), 38 Ohio St.2d 157, 158. In State v. DeMarco (1987), 31 Ohio St.3d 191, 194, the Supreme Court reiterated "that R.C. 2945.59 is to be strictly construed against the state, and to be conservatively applied by a trial court. [Citations omitted.] This court has previously cautioned lower courts against the sweeping admission of evidence under R.C. 2945.59 ***." See, also, DeMarco, syllabus paragraph one. Quoting its earlier Burson decision, the Supreme Court further emphasized the following two conditions: Prosecutors and trial courts should be particularly aware that evidence of other acts is admissible [pursuant to R.C. 2945.59] only when it "tends to show" one of the matters enumerated in *** [that] statute and *** when it is relevant to *** [prove the defendant's guilt] of the offense in question. Such evidence is admissible, not because it shows that the defendant is crime prone, or even that he has committed an offense similar to the one in question, but in spite of such facts.***" [Citations omitted.] DeMarco, supra, 194. The Supreme Court applied the same logic to Evidence Rule 404(B). DeMarco, 194. The challenged testimony fails to meet the requirement of relevancy. Evidence of what the victim alleged he heard the defendant say years before is not relevant to prove defendant's guilt of the offense in question. The prosecution confused the issue in failing to distinguish between the mens rea of the defendant and what was in the mind of the victim. The victim's perception is not relevant to mens rea. Only the defendant's - 4 - motive or intent is. Nothing in the disputed testimony contributes to understanding the defendant's motive or intent. The majority, however, saw in the victim's statement evidence of defendant's purpose. In support, the majority stated, "The testimony revealed Mathis knew that Conner had previously killed a man and placed the body in a trunk." (Emphasis added.) There is nothing whatsoever in the record to support the latter half of this 1/ statement. The victim was never asked nor did he volunteer any 2/ details about where any alleged body was placed. There is no factual basis, therefore, to the majority argument that the testimony was admissible because of the "similarity of the situations." There was nothing similar. Further, the majority made a huge logical leap when it concluded that evidence of what was in the mind of the victim tended to show the defendant's purpose. The challenged testimony, therefore, fails to tend to show any of the items enumerated in the statutory exception or the rule. What the victim alleged he heard the defendant say regarding prior acts is admissible only if it is material to prove matters enumerated in R.C. 2945.59. Because the victim's statement is about a prior act unconnected to the current offense with which the defendant is 1/ The only questions regarding the alleged prior act of the defendant occurred on pp. 38, 51, 70, 74, and 166 of the transcript. 2/ The prosecutor put this question to the defendant, who denied the entire matter. The prosecutor also improperly included the detail about the body in his closing argument (Tr. 183). - 5 - charged and does not tend to show any of the enumerated items, it should not have been admitted under Evid.R. 404(B). The statement, moreover, is obviously prejudicial and was an attempt to induce defendant to discuss the matter further and thus bring in more prejudicial information, for example, his prior acquittal for murder. Even if such evidence were relevant, the probative value of this testimony is outweighed by its prejudicial effect and should have been excluded under Evid.R. 403(A). This rule states as follows: RULE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. See, e.g., State v. Smith (1985), 29 Ohio App.3d 9. It is important to note that the Ohio rule is more strict than its federal counterpart. The Ohio rule makes exclusion mandatory if the probative value is substantially outweighed by the prejudice, whereas Federal Evid.R. 403 is discretionary. Additionally, when determining whether the probative value is outweighed, a court should consider whether other non-prejudicial proof is offered on the same point. In other words, "[o]ther means of proof may also obviate the need for the introduction of unfairly prejudicial evidence." Giannelli, Ohio Evidence Manual, Section 403.06, p. 22; State v. Williams (1976), 47 Ohio App.2d 330. The majority holds that the evidence was probative on the issue of whether the victim was "terrorized" by his confinement and - 6 - that this probative value outweighed any prejudice. This reasoning is flawed. First, even if this evidence were relevant, its probative value is limited. There was other evidence offered to establish that the victim was "terrorized." Victims may be expected to fear for their lives after they have been hit on the head, thrown in a trunk, and told that the car was going to be burned and especially after they smelled gasoline being poured. Such overwhelming evidence that the victim was scared because of immediate events made unnecessary any further evidence of what he remembered from the past. Second, the danger of prejudice is unquestionable. A claim that the defendant bragged about previously killing a man has a prejudicial effect that far outweighs the dubious probative value of the statement. Therefore, because the testimony was not admissible regarding a prior act and because the prejudicial effect of this evidence .