COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69561 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CARL DUNAWAY, SR. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 31, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-322,426A JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: RICHARD AGOPIAN Attorney at Law 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Carl Dunaway, Sr. was convicted at trial by a jury of aggravated burglary, R.C. 2911.11, with a specifica- tion for a prior aggravated felony; felonious assault, R.C. 2903.11, with specifications for violence, violence with a deadly weapon and aggravated felony; and aggravated robbery, R.C. 2911.01, with a specification for aggravated felony. On August 18, 1995, the court imposed a sentence of ten to twenty-five years on counts one and three and eight to fifteen years on count two, all sentences to run concurrently. From this action of the trial court, the defendant-appellant timely appeals. For the reasons stated below, we affirm the decision of the court. Appellant raises the following sole assignment of error for our review: THE TRIAL COURT DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL, AND DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF OTHER ACTS OF THE DEFENDANT THAT WERE PREJUDICIAL IN NATURE. Appellant challenges the court's admission of the testimony of Cleveland Police Officer Cheryl Brown to the extent that it shows other crimes, wrongs or acts of the appellant. Appellant complains - 3 - that testimony at trial elicited from the police officer over objection of counsel constituted evidence of other crimes or acts, which is inadmissible evidence of other crimes, wrongs or acts of the appellant not admitted for the permissible purposes of the rule pursuant to Evid.R. 404(B). Evid.R.404 (B) 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 con- formity 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. Evidence of other acts is inadmissible to show the defen- dant's propensity or inclination to commit an offense. State v. Curry (1975) 43 Ohio St.2d 66, at 68. The complained-of testimony in the matter sub judice con- cerned the appellant's use of drugs and the fact that he was on probation. The state elicited statements from the police officer that the appellant had tested positive for drugs and that he believed he would go back to prison anyway. Such testimony was made over the objection of defense counsel. Evidence of crimes or other acts is admissible only when it is relevant to one of the matters listed in the statute, such as motive or intent. State v. Thompson (1981), 66 Ohio St.2d 496. "The principle underlying Evid.R. 404(B) is that evidence of other acts is simply so prejudicial that to allow it in outweighs its - 4 - value as relevant evidence." State v. Prokos (1993), 91 Ohio App.3d 39, at 43. The test to be used by the reviewing court in a criminal case in which a defendant-appellant alleges that prejudicial error con- stitutional in nature occurred by allowing the jury to hear cer- tain testimony is found in State v. Davis (1975) 44 OhioApp.2d 335. First, in a criminal case where the appellant alleges that it was prejudicial error to allow the jury to hear certain testimony, we must determine whether it was error to allow the jury to hear the complained-of testimony. Id. at paragraph three of the syllabus. A review of the record does not reflect that the testimony was offered for any of the allowed permissible purposes under the statute nor was there any instruction given by the trial court to enable the jury to use the testimony for a proper purpose allowed by Evid.R. 404(B). The state makes no argument that the evidence was offered for an admissible purpose. The evidence introduced over objection of counsel was evidence of other bad acts of the appellant, his drug use and probationary status. Therefore, we find that it was error for the court to permit the testimony of the "other bad acts" of the appellant as they bore no relation to crimes as charged. Second, we must determine whether such error was either prejudicial error or harmless error. Davis, supra at 343. To make that determination, "[t]he court must read the entire record, disregarding the objectionable material, and then determine whether - 5 - or not there was overwhelming evidence of the appellant's guilt. Harrington v. California (1969), 395 U.S. 250; Chapman v. California (1967), 386 U.S. 18." Id. at 343-344. See State v. Stevenson (Oct. 8, 1992), Cuyahoga App. No. 61074, unreported, at 7. Appellant has alleged this error is unconstitutional in nature. In Harrington v. California, supra, the court held that where evidence supplied in violation of a constitutional right was merely cumulative and the other evidence against the accused was overwhelming, the reviewing court could conclude beyond a reason- able doubt that the denial of the accused's constitutional rights was harmless error. Our supreme court stated that "[e]rror in the admission of other act testimony is harmless when there is no rea- sonable possibility that the testimony contributed to the accused's conviction. (Crim.R. 52(A); Chapman v. California [1967], 386 U.S. 18.)" State v. Lytle (1976), 48 Ohio St.2d 391, paragraph three of the syllabus. We have carefully reviewed the record before us as a whole, disregarding the references to the drug use and probationary status of the appellant found in the testimony of Police Officer Brown. We conclude that the record demonstrates overwhelming evidence of the appellant's guilt aside from the disputed evidence. At trial, the state presented evidence from the victim, who testified that the appellant and appellant's son kicked in the victim's bedroom door and beat him by punching, kicking and hit- - 6 - ting him with his guitars. The victim testified that the appel- lant hit him twelve or fifteen times with his fists. On the way out of the victim's bedroom after both assailants had beaten him, the appellant and his accomplice took the victim's gold necklace and his key to the house. The state presented testimony of Cleveland Police Officer Skengers, who testified that he interviewed the victim who had been assaulted and received the names of the suspects, one of whom was the appellant. Officer Skengers noted the scene was consistent with forced entry. The door to the victim's house had been kicked in, the bedroom was in disarray, blood was observed on the wall and two broken guitars had blood on them. He observed that the victim had contusions, cuts and abrasions, including bruises on the back of his arms, which would be consistent with defensive wounds. Cleveland Police Officer Cheryl Brown testified that she had observed the victim, who had apparently been beaten rather severe- ly. The victim provided the names of the two suspects; one of the suspects was the appellant. She located the appellant and Mirandized him. Officer Brown told the appellant that he was being arrested for breaking into the victim's house and beating him. After being placed under arrest, the appellant told Officer Brown that he had "*** kicked [the victim's] ass." Officer Brown noted that the appellant made his statements to her in a bragging manner and that he indicated that he was taking responsibility for what he - 7 - did. She further stated that "[h]e was bragging about breaking into the upstairs, about how he had beat him so severely." Officer Brown testified that during the search incident to the appellant's arrest, the police found a key in the appellant's pocket which fit into the lock at the victim's house. The defense presented its case, including the testimony of the appellant, who testified on his own behalf. Appellant testified that although he was present at the time of the beating, it was not him but his son who beat the victim. The appellant stated that he did not participate in the beating or robbing the victim; he was present during the incident to make sure that his son did not kill the victim and that the victim did not kill his son. The appellant further stated that when he was arrested, he took responsibility for what happened and he was willing to go to prison for his son so that his son would not get into trouble. Upon consideration of the entire record before us, we do not see that the admission of improper testimony concerning drug use and the probationary status of the appellant made by Patrolman Brown amounts to prejudicial error. The balance of the evidence at trial constituted overwhelming evidence of the appellant's guilt of aggravated burglary, felonious assault and aggravated robbery. Accordingly, we find the error complained of was harmless beyond a reasonable doubt and did not deprive the appellant of his constitutional right to a fair trial. The judgment of the trial court is affirmed. - 8 - - 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 Cuyahoga County 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. LEO M. SPELLACY, C.J. and DAVID T. MATIA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .