COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69691 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DERYL L. GIBSON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 8, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court No. CR-315754 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES SEYMOUR GROSS Cuyahoga County Prosecutor 450 Standard Building GEORGE SADD, Assistant 1370 Ontario Street RICHARD WISE, Assistant Cleveland, Ohio 44113-1701 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Deryl Gibson appeals from a Common Pleas Court jury verdict finding him guilty of two counts of arson in connection with two burned-out Lincoln Town Cars owned by his former father-in-law and mother-in-law, Rev. Ralph and Claudette Polk. The appellant married Cedra Polk in 1984, but they separated about a year later and divorced in 1989. They had jointly owned a 1980 Lincoln Town Car which Gibson retained following the divorce, but eventually relinquished to Cedra because he could not make monthly payments on that vehicle. On September 16, 1994, Rev. Polk and his wife who had been visiting their daughter in Cleveland, were planning to return to Alabama. As Polk was packing his 1994 Lincoln Town Car for their return trip, Gibson angrily approached him in the driveway of Cedra's residence, pounded his fist on the hood of Polk's car, and demanded to know the location of the 1980 Lincoln Town Car. As he did so, Polk became frightened because Gibson's eyes were glassy and he told his wife to telephone the police. Cedra then returned home from work around 1:30 a.m. that morning and parked her mother's 1984 Lincoln Town Car in the driveway behind her father's vehicle. Because she was afraid that Gibson would return to her residence, Cedra could not sleep and instead watched television in her living room. Between 4:00 and 4:30 a.m., when Cedra looked out the window, she saw both - 3 - vehicles engulfed in flames. Police and fire crews responded, extinguished the fires, and determined the cause to be arson because a flammable liquid had been splashed on the cars. Later that day, Gibson visited Betty Kates, whom he knew because she also had been previously related to the Polks by marriage. Gibson told her he had set fire to the Polk vehicles and took her to see them in the driveway at Cedra's home, bragging how he set the cars on fire with gasoline. When Gibson returned home, he telephoned Kates, and again bragged about having set the fires. Thereafter, Kates called the Polks and told them that Gibson admitted setting the fires and arranged for the Polks to listen if Gibson called again by using her three-way telephone line. When Gibson called Kates for a second time, the Polks listened to the conversation and heard Gibson admit to Kates that he had gotten the Polks back by setting their cars on fire. Thereafter, the grand jury indicted Gibson on two counts of arson. At trial, the State presented three witnesses who established that Gibson admitted he set fire to the Lincoln Town Cars: Kates, Rev. Polk, and Mrs. Polk. The State further established that Gibson took Kates to view the burned-out vehicles and that he told her that he used gasoline to set the fires. - 4 - Two witnesses testified in support of Gibson's alibi defense; his mother, Mary Gibson, and his girlfriend, Diane Singletary, both of whom accounted for his whereabouts on the evening of September 16, 1994 and the morning of September 17, 1994. The jury, however, after hearing all the evidence, found Gibson guilty of two counts of arson. Gibson now appeals and assigns two errors for our review which have a common basis of law and fact and therefore will be treated together. They are as follows: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO INSTRUCT THE JURY AS TO THE LIMITED PURPOSE FOR WHICH IT COULD RECEIVE THE TESTIMONY OF THE PROSECUTION'S WITNESSES CONCERNING "OTHER ACTS" OF THE DEFENDANT UNDER R.C. 2945.59. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING THE PROSECUTION TO PRESENT TESTIMONY CONCERNING "OTHER ACTS" OF THE DEFENDANT WHICH WERE ALLEGED TO HAVE OCCURRED SIX (6) YEARS PRIOR TO THE OFFENSE CHARGED AND WERE THEREFORE TOO REMOTE IN TIME TO HAVE PROBATIVE VALUE AS TO THE MOTIVE OR INTENT. Gibson argues that the trial court erred in permitting testimony about other acts of the defendant in allegedly harassing Cedra at work regarding the 1980 Lincoln Town Car, his alleged obsession with that vehicle, and his visit to Cedra's residence on the evening before the fires. He also argues the - 5 - court erred in failing to give a limiting instruction on the use of this testimony. The State urges that the contested testimony does not constitute other act testimony, and alternatively, its admission is harmless error. Finally, the State urges that the trial court was not required to give a limiting instruction because Gibson did not make a timely request for such an instruction. The issue then for our resolution is whether the trial court erred in admitting this testimony and in failing to give a limiting instruction on the use this testimony. R.C. 2945.59 states: 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. Gibson complains that the trial court admitted evidence of his alleged obsession with the 1980 Lincoln Town Car, his harassment of Cedra at her place of employment and his visit to Cedra's residence the day prior to the fires. This testimony, however, does not constitute other act testimony as contemplated by R.C. 2945.59 because it fails to establish motive, intent, scheme, plan or system in committing the act of arson. While it does establish a connection between appellant, the Polks, and the - 6 - vehicles, it hardly constitutes such evidence as may constitute the commission of another crime by the defendant as tending to prove his commission of this crime. Thus, no limiting instruction became necessary and no error occurred from admitting this testimony at trial. Further, we are mindful of State v. Bayless (1976), 48 Ohio St.2d 73, where the Supreme Court stated: * * * Error in the admission of evidence is harmless if there is no reasonable possibility that the evidence may have contributed to the accused's conviction. In this case, the compelling testimony of Betty Kates who testified that appellant admitted to her that he set the fires, that he took her to the situs, and that he admitted using gasoline as an accelerant, combined with the evidence offered by Rev. Polk and his wife in which they related hearing Gibson admit to these acts of arson, provided the jury with evidence upon which to base its verdict. Further, the jury had an opportunity to consider the credibility of these witnesses as well as the appellant's mother and girlfriend who testified in support of his claimed alibi. The jury obviously considered all relevant testimony and returned its verdict in conformity with the State's evidence. We find no merit to these assignments of error and they are therefore overruled. In accordance with the foregoing analysis, the judgment of the trial court is affirmed. - 7 - Judgment affirmed. - 8 - 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. HARPER, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .