COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69619 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MIGUEL ROSADO : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 5, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-318,266 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JAMES VALENTINE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT R. CLARICO, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Miguel Rosado ("appellant"), appeals the judgment of the Cuyahoga County Court of Common Pleas finding him guilty of one count of murder with a firearm specification. For the reasons that follow, we affirm. The facts relevant to this appeal are as follows: Shortly after 6:00 a.m. on September 5, 1994, Charles Livingston ("Livingston") was found unconscious behind the wheel of a vehicle found on the lawn of a residence at the corner of West 30th and Clark Avenue in Cleveland. The record reflects that Livingston had sustained two gunshot wounds, both of which entered the left side of his body and exited the right side. Livingston failed to respond to emergency surgery performed at MetroHealth Medical Center where he was later transported and was pronounced dead at 7:59 a.m. that morning. Evidence of cocaine was found in the victim's blood. Patrol Officer Rawls was dispatched to the scene and testi- fied that a bag containing a brown and green leafy substance, believed to be marijuana, was discovered on the floor of the vehicle. Eventually, two .45 caliber bullets were removed from the center armrest of the vehicle. Ballistics testing concluded that - 3 - these two bullets were fired from a .45 automatic pistol owned by appellant. Testimony adduced at trial revealed that information linking the appellant with the murder was first provided by Edito Rosa ("Rosa"). Rosa testified that he was present at the home of Jose Carballo at approximately 6:00 a.m. on the morning of the murder, as was appellant. He further testified that appellant appeared "nervous, paranoid" and was mumbling, "Did they see me?" Sometime later, appellant and Rosa were driving in Rosa's car when the song "Voices," the lyrics of which suggest that one hears voices after shooting somebody, was playing on the tape player. Rosa testified that appellant smirked at hearing this song because "it brought back a memory." Sometime in mid-September, Rosa provided the Parma 1 Police Department with information that appellant was involved in the shooting death of Livingston. Appellant and Celon Meza ("Celon") were en route to Miami, Florida on September 11, 1994, when the vehicle they were driving was stopped by State Highway Trooper Todd Criss in Cambridge, Ohio, because of a defective headlight. While Celon is the owner of the vehicle, appellant was driving the car at the time. When questioned by Trooper Criss, appellant stated that he was Omar Meza, Celon's brother, and that he had no identification with him. Providing a social security number other than his own, appellant 1 Lieutenant Schmigel of the Parma Police Department was Rosa's former track coach. - 4 - was questioned by Trooper Criss when the physical description failed to match appellant's. Stating that the information on his driver's license was incorrect, appellant continued to portray himself as Omar Meza. Celon consented to a search of his vehicle, whereupon a box of .45 shells was found in the back seat. Celon admitted that he had a .9 millimeter gun in the trunk, which was readily found and secured. While continuing to search the trunk, a loaded .45 caliber gun was found behind a stereo speaker box. The trooper had trouble securing this gun without the help of appellant, who instructed him as to how to dismantle the magazine. Also found in the trunk was a box of personal papers, including a W-2 form with appellant's name and social security number. After the officer checked this social security number, appellant re- vealed his true identity, whereupon the weapons were confiscated and appellant and Celon were arrested for improper transportation and falsification. On December 1, 1994, Rosa and appellant again had a conversa- 2 tion while both were incarcerated in the Cuyahoga County Jail. Rosa testified that during this conversation, appellant told him that he had shot the "fiend," a characterization of Livingston as the neighborhood drug addict. He further testified that appellant 3 told him that appellant thought "Pete" , who was present during the 2 Rosa was charged with two counts of improperly discharging a firearm at a habitation in violation of R.C. 2923.161. 3 The record reflects that the whereabouts of "Pete" remain unknown. - 5 - shooting, had snitched on him and that once appellant got out of jail, he was going to Florida to have Pete killed. Appellant also told Rosa about the incident in Cambridge, Ohio, and that the gun appellant used in the murder was there and soon to be melted down. Upon learning this new information, Rosa contacted Detective O'Malley of the Cleveland Police Department. Rosa had given a statement to Det. O'Malley only a few days earlier based on the information provided to the Parma Police Department. With this new information, Det. O'Malley interviewed both Celon and Omar. Both testified at trial that appellant had disclosed details of appellant's involvement in the murder of Livingston. Appellant was ultimately indicted and charged with Livingston's murder. Rosa entered into a plea bargain agreement with the prosecuting attorney whereby Rosa's pending charges would be reduced to two counts of carrying a concealed weapon in ex- change for Rosa's truthful testimony at appellant's trial. On August 23, 1995, a jury found appellant guilty, and the trial court subsequently sentenced him to serve a term of fifteen years to life, consecutive to a three-year term of actual incarceration pursuant to a firearm specification. Appellant timely appeals and assigns the following errors for our review: I. THE TRIAL COURT ERRED WHEN IT ADMITTED OUT OF COURT STATEMENTS WHERE NO EXCEPTION TO EVID.R. 802 APPLIED. - 6 - II. MR. ROSADO WAS UNFAIRLY PREJUDICED BY THE INTRODUCTION OF OTHER ACTS EVIDENCE IN VIOLATION OF EVID.R. 404(B). III. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF MURDER HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. I. In his first assignment of error, appellant contends that the testimony of witness Edito Rosa ("Rosa") was inadmissable hearsay. Specifically, appellant claims that Rosa was permitted to testify that in response to hearing the song "Voices," appellant "smirked like it brought back a memory of shooting Livingston." Evid.R. 801 defines hearsay as a "statement, other that one made by the declarant while testifying at the trial ***, offered in evidence to prove the truth of the matter asserted." A statement is not hearsay, however, if it is an admission by a party opponent, being offered against that party, and the statement is the party's 4 own. Consequently, admissions by a criminal defendant to a 5 witness are admissible. Appellant maintains that his "smirk" cannot be characterized as a "statement" within the purview of Evid.R. 801(D)(2). Apparently, appellant challenges Rosa's interpretation of appel- 4 Evid.R. 801(D)(2)(a). 5 Id. See, also, State v. Byrd (1987), 32 Ohio St.3d 79, 89. - 7 - lant's "smirk" as implying that appellant was recalling a memory associated with the shooting of Livingston. Appellant contends that, as such, no "statement" was made but that, rather, Rosa drew a conclusion based on a facial grimace; however, when cross- examined by defense counsel, Rosa testified as follows: DEFENSE COUNSEL: And then two weeks after the killing, he is playing music and smirking in the car, correct? THE WITNESS: Yes. DEFENSE COUNSEL: He is not talking to you about the killing, right? THE WITNESS: Talking to me? DEFENSE COUNSEL: He is not talking to you about the killing in the car? THE WITNESS: He said it just brings back memory. (Emphasis added.) On redirect, Rosa further testified as follows: PROSECUTOR: And what was Mr. Rosado's reaction when the tape got to that song? * * * THE WITNESS: He just had like a smirk, had a smirk on his face. Leaned back, started like smirking, laughing, said does that bring back any memory. (Emphasis added.) Contrary to appellant's assertions, Rosa's testimony was that appellant said that the song brought back - 8 - memories of shooting Livingston. As such, Rosa's testimony re- garding appellant's reaction to the song "Voices" was properly admitted as an admission of a party opponent. Appellant next contends that Omar's testimony that appellant had between $1500 and $2500 was inadmissible hearsay because it was offered to prove that appellant had a large amount of money in his possession with which to flee the state. Omar testified as follows: PROSECUTOR: Did you have any conver- sation about money? THE WITNESS: Yes, we had -- * * * PROSECUTOR: Tell us about that, please. THE WITNESS: Yes. He had a lot of money, about $2,500, somewhere in there. $1,500. PROSECUTOR: Did he say this? THE WITNESS: I just saw the roll of money. PROSECUTOR: You saw a roll of money, okay. Did he indicate to you where that money came from? THE WITNESS: Drug dealing. As can be surmised, the above testimony was merely Omar's observation of the quantity of cash in appellant's possession. It did not involve any statements made by another or by appellant - 9 - himself. As such, Evid.R. 801 does not apply, and the trial court properly admitted this testimony. Accordingly, appellant's first assignment of error is over- ruled. II. In his second assignment of error, appellant argues that the trial court improperly admitted evidence of appellant's drug dealing in violation of Evid.R. 404(B). Specifically, Omar was permitted to testify that appellant sold crack cocaine in the area of the murder and that appellant had a large sum of money from dealing drugs. The admission or exclusion of relevant evidence rests within 6 the sound discretion of the trial court. The issue thus becomes whether the trial court abused its discretion in admitting testi- mony concerning appellant's past drug-dealing activity. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, 7 arbitrary or unconscionable." As a general rule, evidence of a person's other criminal acts, crimes or wrongs is inadmissible to prove a person's propensity to 6 State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. 7 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 10 - 8 commit crime. Notwithstanding, such evidence is admissible for other purposes in accordance with 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 he commission of another crime by the defendant. To be admissible, the evidence must be relevant to some issue of 10 proof of guilt. Despite the exceptions to inadmissibility, "other acts" evi- 11 dence must be construed against admissibility; however, if the "other acts" are material and form part of the immediate back- ground or lay a foundation for the crime charged, then the "other acts" are considered inextricably related to the alleged criminal 12 act and testimony related thereto is admissible. 8 Evid.R. 404(B); State v. Broom (1988), 40 Ohio St.3d 277; see, also, State v. Bobo (1989), 65 Ohio App.3d 685, 692. 9 See, also, Evid.R. 404(B). 10 State v. Hector (1969), 19 Ohio St.2d 167, 175. 11 Broom, supra, at 282. 12 Id. See, also, State v. Matthews (1992), 80 Ohio App.3d 409, 415; State v. Bobo, supra at 692-693; State v. Hill (1987), 37 Ohio App.3d 72, 74-75. - 11 - The state theorized that appellant shot Livingston while the two were consummating a drug deal because appellant became fearful that Livingston was going to take off with appellant's drugs or money. In order to demonstrate that appellant's motive for the murder was drug related, the prosecution elicited testimony of appellant's past drug dealing. Omar, Celon and Rosa all testified that appellant had dealt drugs in the area. The large quantity of cash observed by Omar supported his testimony that the cash was the product of dealing drugs. We reject appellant's argument that the testimony was offered to demonstrate his propensity for criminal activity in violation of Evid.R. 404(B). To the contrary, the testimony of appellant's past drug dealing was relevant because it served as a foundation for Livingston's murder. Furthermore, the testimony was material as it created a framework for considering whether appellant was motivated by his desire to successfully complete a drug deal. Consequently, the trial court did not abuse its discretion in admitting the testimony of appellant's past drug dealing because the testimony supported the prosecution's theory of appellant's motive and, as such, was inextricably related to the crime for which he was 13 charged. Accordingly, appellant's second assignment of error is over- ruled. 13 See State v. Hill, supra, at 74-75; see, also, State v. Bobo, supra, at 692-693. - 12 - III. In his third assignment of error, appellant asserts that the verdict is against the manifest weight of the evidence. Appellant argues that the jury lost its way when it relied on the testimony of prosecution witnesses Rosa, Omar and Celon, each of whom had his own interests at stake. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which the trier of fact could reason- ably conclude that all the elements of an offense have been proven 14 beyond a reasonable doubt. In determining whether a trial court's decision is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; 14 State v. Eley (1978), 56 Ohio St.2d 169, syllabus. See, also, State v. Smith (1991), 61 Ohio St.3d 284, 289. - 13 - (8) whether the evidence is vague, uncertain, conflicting or fragmentary. In making this determination, however, the appellate court must accord deference to the factfinder's conclusions regarding the credibility of the witnesses as the factfinder is in a better 16 position to observe the witnesses' demeanor. Moreover, the decision to reverse a judgment as against the manifest weight of the evidence is to be exercised with extreme caution and only in the exceptional case where it is evident that the evidence weighs 17 manifestly against conviction. With this standard in mind, we conclude that the jury's ver- dict was not against the manifest weight of the evidence. Appel- lant argues that it is incredible beyond belief that appellant would admit to Rosa, his enemy, that he had killed Livingston, had planned to kill "Pete," and would soon escape to Florida. Appellant posits that Rosa's testimony was offered to exact ven- geance on appellant as well as being made for the purpose of seeking favorable treatment from the prosecutor on unrelated criminal charges. While it is true that Rosa agreed to plead guilty to lesser charges in exchange for his truthful testimony at appellant's 15 State v. Mattison (1985), 23 Ohio App.3d 10, syllabus; State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442, 64443, unreported. 16 State v. DeHass (1969), 10 Ohio St.2d 230. 17 See Wilson, supra. - 14 - trial, it cannot be said that such testimony was elicited solely because Rosa's personal interests were at stake. The testimony adduced at trial revealed that Rosa had contacted the police with information linking appellant to the murder several weeks before he was charged with the offenses that eventually became the subject of 18 the plea agreement. Furthermore, although it may be unusual for someone in appellant's position to disclose details of a murder to someone considered an "enemy," it is not so unlikely as to be incredible. The evidence adduced at trial does not lead to the conclusion that appellant and Rosa were enemies. While they apparently were not close friends, Rosa was certainly a tolerable acquaintance of appellant. They were both present in the same household the morning of the murder and had an occasion to travel together in Rosa's automobile. Appellant further argues that Celon's statement to the police most likely was fabricated because he was angry with appellant at the time it was made; however, it appears from the record that Celon's testimony at trial did not differ significantly from his statement, and there is no indication that such testimony was fabricated. While Celon testified that he was warned that he would be charged with Livingston's murder if he did not give a statement implicating appellant, this testimony was contradicted by Det. 18 Rosa first contacted the Parma Police Department sometime in mid-September of 1994. It was not until October 25, 1994 that he was charged with improperly discharging a firearm, which became the subject of a plea agreement dated January 11, 1995. - 15 - O'Malley, who testified that no such statements were made to Celon. Moreover, Celon, failing to respond to a subpoena for trial, had to be arrested to secure his appearance as a witness for the state. Consequently, it is unlikely that he would take such severe steps to avoid testifying only to fabricate his testimony because he was angry with appellant. Appellant lastly takes issue with the testimony of Omar. Omar testified that shortly after the murder, appellant disclosed the details of Livingston's murder and his planned escape to South America. Claiming that it would be unlikely for appellant to "pour his heart out" to Omar, as Omar's brother, Celon, testified, appellant argues that this testimony is too incredible to be believed. Moreover, appellant maintains that Omar and Celon conspired to incriminate appellant in order to protect Celon from possible murder charges. Despite appellant's assertions to the contrary, there is no evidence from the record to support that Celon was ever considered a suspect in this case. Information was provided linking appellant to the murder. It was appellant who claimed he was Omar Meza and continued to lie and deceive the state trooper when confronted with conflicting information. It was appellant who provided assistance to the same trooper as to how to dismantle the .45 caliber gun linked to the murder of Livingston. It was appellant's gun that matched the bullets retrieved from the car which Livingston was driving. - 16 - Based upon the evidence in the record, we hold that compe- tent, credible evidence exists upon which the jury could have reasonably concluded that appellant was guilty of the Livingston's murder. The jury, after listening to and observing Rosa and Omar, apparently found their testimony to be credible. Moreover, it appears that the jury took into consideration the inconsistencies between Celon's testimony and that of Det. O'Malley. Consequently, it cannot be said that the jury lost its way in reaching its verdict. As there is evidence upon which the jury could reasonably conclude that appellant was, beyond a reasonable doubt, guilty of the murder of Charles Livingston, we hold that appellant's con- viction is not against the manifest weight of the evidence. Accordingly, appellant's third assignment of error is over- ruled. Judgment affirmed. - 17 - 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 .