COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69725 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID HILL : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 320331 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. KEVIN M. SPELLACY, ESQ. CUYAHOGA COUNTY PROSECUTOR MCGINTY, GIBBONS & HILOW BY: EDWARD M. WALSH, ESQ. 1375 East Ninth Street, #1920 ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street WILLIAM T. DOYLE, ESQ. Cleveland, Ohio 44113 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: On February 17, 1995 at approximately 10:00 p.m., Percy Delaney was shot multiple times and died. Several eyewitnesses to the killing testified that appellant fired the shots which killed Delaney. Appellant was identified from a photo array by two witnesses to the murder. Numerous witnesses recognized the car which was driven by the killer as belonging to appellant. Appellant was arrested in connection with the murder in a suburb of Columbus, carrying nearly $1900.00 and a large amount of clothing, several days later. Appellant was indicted for one count of aggravated murder, R.C. 2903.01 and for one count of attempted aggravated murder, R.C. 2923.02/2903.01. Both counts of the indictment carried firearm specifications. A hearing was held on appellant's pre-trial motion to suppress the photo array identifications. The trial court denied the motion and proceeded to trial before a jury. On October 5, 1995 appellant was found not guilty of count two, attempted aggravated murder, and guilty on the first count of aggravated murder. The trial court sentenced appellant to a term of life imprisonment plus the mandatory three years of incarceration on the firearm specification, to be served consecutive to the life sentence. Appellant filed a timely appeal from the denial of his motion to suppress, his conviction and sentence for aggravated murder. He asserts four assignments of error. - 3 - I THE ADMISSION OF OTHER ACTS TESTIMONY IN VIOLATION OF R.C. 2945.59, EVID. R. 404(B) AND DAVID HILL'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS PLAIN ERROR. Appellant argues that the trial court erred in admitting the testimony of Barbara Cornelison to the effect that appellant had sold her crack cocaine. Appellant asserts that such testimony was highly prejudicial and that such prejudice outweighed any probative value the evidence may have had in proving any of the elements of the crime charged. Appellant's argument is not well taken. 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. Evid.R. 404(B). R.C. 2945.59 comports with this rule as follows: 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. The Ohio Supreme Court has held that: If the other act does in fact "tend to show" by substantial proof any of those things enumerated, such as - 4 - proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, then evidence of the other act may be admissible. (State v. Flonnory [1972], 31 Ohio St.2d 124, 18, 6 O.O.2d 95, 96-97, 285 N.E.2d 726, 729 followed.) State v. Broom (1988), 40 Ohio St.3d 277, at paragraph one of the syllabus. Regarding the admissibility of other acts evidence, this Court has also held that: To be relevant, * * * and therefore admissible, the other act testimony must "[tend] to make the existence of any fact that is of consequence * * * more probable or less probable * * *." Evid.R. 401. Even if the evidence is relevant, it must be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice * * *." Evid.R. 403(A). Other act evidence is never admissible * * * "when its sole purpose is to establish that the defendant committed the act alleged of him in the indictment." [Citations omitted.] * * * Other act evidence to show scheme, plan or system is relevant in two situations. First, another act is relevant if it "forms part of the immediate background of the alleged act which forms the foundation of the crime charged * * *." State v. Curry [(1975), 43 Ohio St.2d 66], at 73. In this situation, the other act must be inextricably related to the charged offense so that "it would be virtually impossible to prove that the accused committed the crime charged without also introducing evidence of the other acts." Id. State v. Matthews (1984), 14 Ohio App.3d 440, 442. The testimony relating to appellant's alleged sale of drugs to Barbara Cornelison was raised in the context of Cornelison's testimony that appellant had offered her cocaine in exchange for her help in setting up the victim, Percy Delaney. Cornelison testified that she was a crack addict. She further testified that - 5 - appellant had proposed that she knock on the door of her friend Kimberly Carter's home, where Delaney was known to stay, and once her friend had opened the door, appellant would shove Cornelison into the home and then take Delaney out of the house. In return for her help in gaining entrance into Carter's home, appellant offered Cornelison $85 worth of crack. This proposition occurred approximately two weeks prior to the murder. The issue presented to this Court is whether the testimony relating to prior drug sales between Cornelison and appellant was part of the immediate background of the murder, and therefore probative, and whether the probative value was outweighed by unfair prejudice to appellant. We find that the evidence of prior drug sales was part of the immediate background to the murder, tending to show that appellant knew Cornelison to be an addict, and therefore vulnerable to the proposition of crack in return for her aid in setting up the victim. Further, the testimony of prior sales tends to show that appellant had access to crack and could offer it in exchange for help from Cornelison. This evidence tends to support the existence of appellant's scheme or plan to kill Delaney. Having found the testimony to have probative value, we further find that the probative value is not outweighed by any unfair prejudice to appellant. From the beginning of this case, evidence and testimony indicated that drugs were involved in the murder. Testimony indicated that appellant lived with and worked for Ricky - 6 - Moton, a known drug dealer. Testimony was also elicited at trial which raised the issue of stolen drug money as the motive behind the murder. Drugs were clearly involved, if not directly in the murder, in the interactions and livelihoods of the major players in this case. Appellant was not unduly prejudiced by the testimony that he had sold drugs on prior occasions to Cornelison, given the weight of the probative value of this testimony. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29(A), OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFI- CIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. Appellant argues that his motion for acquittal on count one, aggravated murder, should have been granted because the State's witnesses had zero credibility and the defense witnesses were believable. Appellant's argument is without merit. The State presented eight witnesses who were either eyewitnesses to the shooting or were otherwise intimately involved in the crime, in addition to presenting numerous detectives and police personnel to substantiate the testimony. Edward Walker testified that he and several friends, including Delaney, were walking back from Dave's Drive-thru market when they saw a car slowly pass them. Walker identified the car as a white four door model with a maroon colored top. Walker also identified appellant as the driver of the car. Appellant was noticeable in - 7 - that neighborhood of East 117th and Superior at approximately 10:00 p.m. due to the fact that he appeared to be white. According to Walker, the only light-skinned people one might see at that time of night were probably police. When this sentiment was expressed by Shondo Thomas, one of those walking from the drive-thru, Delaney responded, "Oh, he cool." Walker understood Delaney to mean that he recognized the driver of the car and knew him not to be a police officer. Delaney knew the driver lived near Lakeview. Walker testified that the men continued walking away from the drive-thru after seeing the car stop in the drive-thru parking lot. Walker then heard someone walk up behind them and ask, "Where is Heavy D?" Walker identified appellant as the person following them. Appellant then asked the question specifically of Delaney, "Percy, you about to show me where Heavy D be at?" Walker then saw appellant pull a gun from the front of his pants. Walker and Delaney began running in one direction while the other two took off in a different direction. Walker heard two shots and saw Delaney fall. When he stopped running and turned to look back, Walker testified that appellant took a shot at him. After Walker ran around the corner of a building, he turned to see appellant fire three to four more shots directly into Delaney's body. Walker described appellant as wearing a sweat suit layered over several other shirts and a skull cap over his long curly hair. Walker further described appellant as Hispanic-looking and wearing a thick mustache. Walker did not see appellant drive away but - 8 - heard the tires squeal as he left the scene. Walker testified that he had heard a rumor several days before the shooting that a Mexican guy was mad at Percy because of an argument between Percy and Ricky Moton. On February 21st, four days following the murder, Walker identified appellant from a photo array at police headquarters. He chose appellant's picture and one other photo from the seven different Polaroids. After considering both pictures, Walker identified appellant from the photo array. Lamar Bigsby was at the drive-thru market buying a soda pop when he saw appellant in his cream-colored car with the maroon top. Lamar was a fourteen-year-old who lived in the neighborhood. He had seen appellant numerous times and knew him by the name of Amigo. Lamar testified to seeing two men with Percy Delaney that night by the names of Joe and Stephon. Lamar did not see Edward Walker and did not know a Shondo Thomas. Lamar further testified that he saw appellant leave the scene after the shooting in his car, however someone else was driving and appellant entered the car on the passenger's side. Lamar gave a statement to the police the next day. Lee Glover testified that appellant came to her home that evening and told her that he had killed Percy. Lee claimed to have known appellant casually for two months. She was expecting appellant that evening because he had promised to give her niece a ride home. She could not explain why appellant would have related - 9 - his actions to her as she claimed he did. Shondo Thomas was one of the young men walking with Percy Delaney and Edward Walker on February 17th, the night Delaney was killed. Shondo testified that he was the one who expressed concern when they saw appellant drive past them near the drive-thru. Shondo testified that the car was going at a normal rate of speed. When appellant called out to Percy, after following them on foot, Shondo stated that the two men had a conversation. However, Shondo could not hear the exchange between appellant and Percy. He witnessed appellant pull out a gun and shoot Delaney and heard several more shots after he ran. Shondo did not see appellant leave but heard tires squeal. Shondo Thomas did not speak with the police until the following June, four months after the murder. At that time he gave a statement and said that somebody had mentioned the name "Amigo" either the night of the incident or the next day as appellant's street name. Shondo also identified appellant from a photo array while at the police station on June 20th. Jermaine King was the last to testify of the three eyewitnesses to the murder who were with Percy Delaney on February 17th. Jermaine testified that he had recognized the car driven by appellant that night as belonging to Ricky Moton. He remembered that a light-skinned man had walked up behind them to talk to Percy. The man asked Percy where D was then Jermaine saw the man pull a gun from his right side and shoot Percy. Jermaine also saw - 10 - the man shoot at Edward Walker, who was standing close to the end of the apartment building where he had run. Then the man shot Percy several more times. On cross-examination Jermaine testified that he did not recall anyone suggesting that the light-skinned man might be the police when he drove by the group prior to the shooting. Jermaine spoke to the police about the homicide the next day. He was unable to identify appellant from the photo array. Darren Jackson, known by the street name of Heavy D, testified that Percy had lived at Rick Moton's until the month prior to the murder. He testified that Moton was a drug dealer. Jackson gave police information on February 18th as to where appellant could be found. Detective Garisek corroborated Jackson's testimony. Garisek was met the next day by three men, including Jermaine King, who took Garisek to Moton's home and pointed out the car which was driven by the gunman the previous night. Jermaine told Garisek that the name of the man he was looking for was Amigo. Kimberly Carter's testimony supported the testimony of Barbara Cornelison, discussed in the prior assignment of error. Carter testified that Amigo had approached her several days prior to the shooting and proposed that she help him get Percy in exchange for some dope and money. Percy had been staying with Carter for about a month. Appellant told Carter that he wanted to kill Percy because Percy had stolen $12,000 and some drugs from Rick Moton by putting a gun to Moton's girlfriend's head. Carter testified that - 11 - she was scared by the proposition and also by the fact that she saw appellant carrying a gun on his person. She told Percy about the proposition when she saw him. After Percy was killed, Carter gave a statement to the police. The defense put Holly Johnson, Denise Williams and Clay Bell Bullard on the stand to testify as alibi witnesses. Each of the three women related that appellant had come to Bullard's home before 10:00 p.m. on February 17th to see Johnson, Bullard's granddaughter. Johnson testified further that she and appellant had gone to Finast later that night, sat up drinking and playing cards and then went to the Omni Hotel for three and half hours between 4:00 a.m. and 7:30 a.m. The State offered the testimony of Marilyn Joyner in rebuttal to the alibi. Joyner testified that she had seen appellant at her house just before 10:00 p.m. on the 17th of February. She remembered that date because it was her tenth wedding anniversary. Appellant stayed only a few minutes before leaving. Joyner testified that appellant returned at approximately 10:45 p.m. He seemed jittery and sweaty and was wearing a white sweat shirt. She loaned him $65 and he left. Joyner saw him the next day at Rick Moton's house, playing with a dog in the backyard. Several detectives, forensics experts and the county coroner also testified on behalf of the State. Their evidence supported the testimony given by the State's witnesses. Percy Delaney was found dead in the middle of the street near the drive-thru market. - 12 - He had been shot five times and the wounds to the front of Delaney's body were not consistent with him running away from the shooter. Trace evidence indicated that the shots had been fired more than three to four feet away from Delaney's body. No gun was ever found in connection with this homicide. Nor were any blood samples found to provide physical evidence of appellant's participation in this murder. The trial court denied appellant's Crim.R. 29 motion for acquittal at the end of the State's case-in-chief and also denied appellant's renewal of the motion after the defense was presented. The Ohio Supreme Court has held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. [Citation omitted.] State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. Given the evidence contained in the record of this case, we find that appellant's conviction was clearly supported beyond a reasonable doubt. Barbara Cornelison and Kimberly Carter gave testimony supporting appellant's intention and plan to murder Delaney. The eyewitness accounts were not inconsistent on the important points of the incident and appellant was clearly identified as the killer by three of the witnesses. After viewing - 13 - the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the elements of murder proven beyond a reasonable doubt. Appellant's second assignment of error is overruled. III THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant again argues that the defense witnesses were believable and the State's witnesses were not credible. Appellant's argument is not well taken. This Court applies the standard set forth in State v. Martin (1983), 20 Ohio App.3d 172: 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. State v. Martin, supra, at 175. After a thorough review of the record we can not find that the jury clearly lost its way such that the conviction must be reversed. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY FAILING TO SUPPRESS THE IDENTIFICATION OF THE DEFENDANT BY AN IMPERMISSIBLY SUGGESTIVE PHOTO ARRAY. - 14 - Appellant asserts that the Polaroid photograph of him used in the photo array was of a different shape and size than the other six photographs. Appellant further claims that his photo stood out in that he was the only one depicted in the photo array wearing light colored clothing, like the suspect was described as wearing on the night of the shooting. Appellant suggests that the background in his picture was noticeably different from the other photos. Appellant is essentially arguing that the photo array was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Appellant's argument is not well taken. This issue was recently addressed by the Montgomery County Court of Appeals when a defendant claimed that his photo array was impermissibly suggestive because he was the only one in the array with a distinctive haircut which matched the description of the suspect's haircut. The court held: When an eyewitness to a crime is shown a series of photographs in an effort to identify a perpetrator, and the manner or mode of the presentation suggests that one individual is more likely than the others to be the perpetrator -- such as when the photograph of one individual is in some way emphasized -- undue suggestion may occur, increasing the likelihood of misidentification and violating the due process rights of a defendant so identified. Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967; Neil v. Biggers (1972), 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375; State v. White (Feb. 2, 1994), Clark App. No. 3057, unreported. Identification testimony tainted by an unduly suggestive out-of-court identification procedure may be suppressed. However, even if an identification procedure is unduly suggestive, the identification testimony derived - 15 - therefrom is not per se inadmissible solely for that reason. Reliability of the identification is the linchpin in determining its admissibility. Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243. As long as the identification itself is reliable, it is admissible despite the suggestive nature of the identification procedure. Neil v. Biggers, supra; Manson v. Brathwaite, supra; State v. Moody (1978), 55 Ohio St.2d 64, 377 N.E.2d 1008, State v. White, supra. Reliability is determined from the "totality of the circumstances," which includes the witness' opportunity to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated, and the time between the crime and the identification procedure. Biggers, supra; Brathwaite, supra. State v. Keene (Sept. 20, 1996), Montgomery App. No. 14375, unreported. See also, State v. Wells (1994), 94 Ohio App.3d 48. Even if we accept that the slight difference in size of the photograph rendered the photo array unduly suggestive, under the totality of the circumstances the pretrial identifications were reliable. During the pre-trial hearing on appellant's motion to suppress the identification testimony, Edward Walker and Shondo Thomas testified that they had identified appellant from the photo array. Edward Walker made his identification four days after the shooting while Thomas's identification was made four months later. Walker at first chose two photos, then, after consideration of the two, identified appellant as Delaney's killer. In spite of the length of time between the murder and the identification, Thomas had no trouble choosing appellant from the photographs. Each of the witnesses had more than adequate opportunity to see the assailant's face on the night of the murder. They both saw him - 16 - drive by prior to the confrontation, and during the confrontation were able to see him clearly under the street lamps. Detective Beaman interviewed Walker the night of the murder. Beaman testified that appellant had given the following description: Puerto Rican/light-skinned man with curly black hair, a thick mustache and wearing a sweat suit layered over the clothes. This description matched the one given in court and accurately described the physical characteristics of appellant. After reviewing the factors demonstrating reliability, a review of the corrupting effect of the suggestive identification is made and the two sets of factors are weighed against each other. State v. Wells, supra, at 61 citing Manson, supra, and Biggers, supra. We have reviewed the set of photographs used in the photo arrays and find that the size difference is so minimal as to be practically unnoticeable. Furthermore, the six men depicted in the array are so alike in physical appearance as to render the array extremely fair. The trial court judge noted in ruling upon the motion to suppress that the array was "abundantly fair." (Tr. 126) We agree. Weighing the factors in favor of reliability of the identifications against the minimal effect of a slightly different size photo and the color of the background and appellant's clothing, we find that testimony of the out-of-court identifications of appellant was properly admitted. Appellant's fourth assignment of error is overruled. The trial court's denial of appellant's motion to suppress is - 17 - affirmed. The conviction and sentence are also affirmed. - 18 - 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. DAVID T. MATIA, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE JUDGE 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 .