COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70282 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) ANTHONY B. BYARSE ) ) Defendant-Appellant ) Date of Announcement of Decision SEPTEMBER 4, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-327975 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue SHERRY F. McCREARY, Assistant Cleveland, Ohio 44103 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, P.J.: Defendant-appellant Anthony B. Byarse appeals from his convictions following a jury trial for four counts of aggravated burglary (R.C. 2911.11); two counts of aggravated robbery (R.C. 2911.01); ten counts of rape (R.C. 2907.02); one count of felonious sexual penetration (R.C. 2907.12); one count of having a weapon while under disability (R.C. 2923.13); and four counts of kidnapping R.C. 2905.01). The jury further found the defendant had a firearm on seven counts, and did not release the victim in a safe place on the kidnapping counts. Defendant asserts error in that he was not brought to trial within the time allowed by the speedy trial act; the trial court abused its discretion in not honoring his request for a change of counsel; he was prejudiced by not being advised of an informant's identity; improperly obtained evidence should have been suppressed; eyewitness identification was the result of a suggestive lineup; a continuance was improperly denied to obtain other witness testimony; other criminal acts prejudiced his defense; and the State's evidence was insufficient to sustain the convictions which were against the manifest weight of the evidence. We find no reversible error and affirm. The criminal offenses charged all related to a series of nighttime sexual assaults on four different women within a few miles of defendant's residence in the months of July, August and September 1995. 3 Sylvia Fields, 33 years old, testified for the State that on August 10, 1995, she went to bed on the first floor of her home at 10916 Kinsman Road at 10:00 p.m. She was awakened at 5:30 a.m. when she felt something on the side of her head and heard a man's voice screaming in a forceful whisper, I'll blow your head off. She was able to see that he was approximately 5'6" tall, and pretty stocky, healthy build. Her assailant was wearing a black skull cap, a brown jacket without sleeves, black turtleneck, black jeans and black shoes, and his face was uncovered. She also stated she could smell his cologne. He asked for money and jewelry; she told him she had none. He told her to take her pajama bottoms off, which she did. He had intercourse with her twice from behind, once vaginally and once anally, and once from the front. It was then she looked at his face. When he finished, he cut the telephone cords and headed in the direction of her daughter's room. Ms. Fields picked up a pole from under the bed to swing at him and she hit a mirror instead. He then came back to the bed and, holding a knife to her throat, told her to stay there while he looked over the house. She said the knife was a pop-out knife with a six inch blade. He finally returned to the bedroom and told her he was leaving and if she called the police he would kill her. After he left, she woke her daughter and cousin and told them she had been raped. She then spliced the phone cord together and called the police. She was transported to St. Luke's Hospital where a rape kit was administered. She testified she observed a cinder block underneath 4 her daughter's bedroom window which came from behind the house by the garage. Her daughter's fan had been pushed out of the window to allow entry. The man took $10.00 from her daughter's purse and $25.00 from her cousin's purse. (Tr. 209-229). At the police station, Ms. Fields was unable to identify any photographs shown to her, however, she did pick defendant out of a lineup. She saw defendant when she first walked in; she looked at everyone else then back at defendant. It took her three to five seconds to identify him. She also identified clothing shown to her by the police, i.e., the vest-type jacket and what she believed to be the cologne he was wearing. She then made an in-court identification of defendant. (Tr. 237-41). On cross-examination, Ms. Fields testified she had an opportunity to get a good look at defendant's face because the street light, which was about ten steps away, was shining into her bedroom window. The description of the defendant that she gave to the police was that he was about 5'6", bald-headed or very short haired, and that his face protruded. As to the lineup, Ms. Fields said some of the men were taller and skinnier than defendant, but she was able to eliminate them all because she new exactly what the guy looked like. He was two inches from my face. It was no doubt that's him. (Tr. 253). Morgan Smith, a 13-year-old, eighth grader, testified that on August 16, 1995, she lived with her mother and brother at 3238 E. 137th Street. She was alone that evening and fell asleep on the couch watching television at around midnight. She was awakened in 5 the early morning hours by a man she identified as defendant yelling at her to wake up or I'll blow your head off. She could feel a gun touching the back of her head and he told her not to look at him. He then asked her where her money was. She eventually found her purse downstairs and gave defendant $30.00. Defendant told her to take her clothes off. He laid on top of her and vaginally and anally raped her. Afterwards, he started to go towards the kitchen, but when he got to the dining room, defendant raped her again and made her perform oral sex on him. He then raped her again and he performed oral sex on her. He then made her get dressed and she followed him into the kitchen where he asked for an orange and some water. After making small talk about the family and school, defendant told Miss Smith he would cut the phone lines if she called the police, and he then left through the side door, through the backyard and across the fence. Her aunt took her to St. Luke's Hospital the following morning. Miss Smith described the assailant to the police as short and stocky, with facial hair. She said he used a ladder to get into the kitchen window and gain access into the house. Miss Smith further testified the living room light and television were on in the livingroom. Defendant turned on the kitchen light when she could not find the orange but he told her not to look at him. When he sat down, she did not see his whole face, but she did look at him. At the police station she viewed photos and two different lineups. Defendant was not in the first lineup and she picked someone else, however, she was not sure about 6 him because he was too tall. She picked him because she thought she had to pick somebody. At the second lineup, she picked out the defendant. She also picked out some cologne she thought was similar to what defendant had worn during the attack. (Tr. 256- 84). Paula Leigh Doyle testified that on October 11, 1989, she lived at 2681 East 127th Street. Her testimony was admitted to show how the defendant operated in committing a previous crime. The trial court gave the jury a cautionary instruction before her testimony was given. Doyle testified that at approximately 10:00 p.m. she was alone in the house when defendant broke into her kitchen holding a stick and threatened her not to scream. He searched each room of her house, looking for money and demanding other property. She said he was not wearing a mask, but was wearing a hat of hers. She could see his face. He then made her lie on the floor while he held a large knife from her kitchen and told her to undress. She faked insanity by screaming and shaking which made defendant tell her to get up and cook for him instead. She described his demeanor as calm and in control. She cooked bacon and eggs and he made sandwiches, telling her to face the wall while he ate. He then walked out of her front door. Defendant took a gold charm bracelet and a kitchen towel, and he was wearing her hat when he left the house. He was still wearing her hat when she later identified him in the police car. (Tr. 296-99). D'Leesa Jefferson, 28 years old, testified that on July 24, 1995, she lived at 3446 East 119th Street in a first floor 7 apartment. At approximately 1:30 a.m., while asleep in her bed with her two-year- old twins, she heard a man's voice say, Keep your head down. Don't say anything. She also felt a metal object at her temple. After asking for money or food stamps, defendant brought her jewelry box off the dresser and told her to keep her head turned away. After deciding he did not want the items in the jewelry box, he ordered her to get on her knees, pulled her panties down, put on a condom, and raped her by inserting his finger and his penis in her vagina. When one of the babies began to awake, he told her to put her back to sleep. He then made her get on the floor where he vaginally raped her again. He ejaculated and began to get dressed, however, he changed his mind and turned her on her back and raped her again while instructing her to cover her eyes with her arm. He then asked her the quickest way out and asked for her name and telephone number which she gave him because she was afraid to lie. During the rapes, she noticed he was a solid built person with short, stubby, light-skinned hands. She described him as a black male wearing a jacket with a red checkered sleeve. She did not see his face during the rapes because her eyes were closed and her back was turned. After he exited the kitchen door, he turned around and kicked it open again. She was able to see a ski mask and she saw his face from the lips down. She could see him by the light from the kitchen television. She also noticed his cologne and that his hair smelled of some type of oil. She was taken by ambulance to St. Luke's Hospital where she was treated and tested. 8 She subsequently went to the police station a couple of weeks later where she identified a jacket and some cologne which reminded her of defendant. (Tr. 323-324). Upon viewing a police lineup, Ms. Jefferson was able to first identify defendant's voice after all the men were required to say, Keep your head down and Keep your head down. Do you have any money, in a regular tone and in the gritting, grinding tone he used when he first awakened her. The men also were required to step up closer to her from side to front. She also recognized defendant by his build and the stockiness of his hands. During the rapes of Ms. Jefferson, defendant used a condom and threw it in the trash can in the bedroom. It was later retrieved by Ms. Jefferson's brother. On cross-examination, Ms. Jefferson testified that although she could not identify anyone in the lineup by his face she was able to pick out defendant by his build and his voice. She heard his voice, smelled his cologne, observed his build, saw his hands and a part of his face during her ordeal. She said there was no question this was the man who raped her. (Tr. 341-342, 346-47). Officer Richard Tusing of the Cleveland Police Department testified that about 2:00 a.m. on July 24, 1995, he and his partner responded to a call from Ms. Jefferson and found her crying, upset and scared. He obtained a statement from her at this time. He also went to St. Luke's Hospital to talk with her some more and to gather a rape kit. Ms. Jefferson directed him to the garbage can in her bedroom where he saw two condoms. A detective from the 9 Scientific Investigation Unit came out, but as far as the officer knew, SIU did not take the condoms. At the Jefferson home there was a garbage can turned upside down outside the bedroom window. (Tr. 354-60). Officer David Zemba testified that on August 11, 1995, at 5:30 a.m. he and his partner responded to 10915 Kinsman in connection with the rape of Sylvia Fields. When they arrived, she was a little excited and shaken. She told the police defendant used a black or blue steel revolver. Officer Zemba found a cinder block below an open widow on the east side of the house. They picked up the rape kit from St. Luke's and transported it to SIU. (Tr. 364- 68). Charleen Baker, a Laboratory Assistant with Inmate Services at the Justice Center testified to drawing blood, hair samples and saliva from defendant on September 28, 1995. (Tr. 372-373). Nicole Johnson testified she was a 16-year-old junior at Shaker Heights High School. At the time of the rape, she was 15 years old living with her mother and siblings at 3159 Livingston Road in Cleveland. On the evening of August 18, 1995, the entire family was sleeping on the living room floor because that was the coolest place in the house. She was awakened at approximately 5:30 a.m. when she felt a tap on her shoulder. There were no lights on, however, the television was on. There was a person kneeling behind her with what felt like a gun to her head. A hostile male voice softly told her to get up, don't say anything, and don't look. She got up and walked into the kitchen. He asked where her 10 mother's purse was and she told him it was in the front room. He also asked where the telephones were, then went into the dining room and cut the cord. He then asked her if she had had sex before and she responded she had not. He then took her into the backyard by the garage between two cars. She said the neighbors floodlight lit up her backyard, and at that point, she saw the defendant's face. Once outside, he forced her to perform oral sex on him twice and he had anal sex with her twice. They then went back onto the back porch where he had anal sex with her again. Afterward, he told her if she told anybody and if he saw police cars at her house, he would kill everybody in the house. Defendant left the house by the back door. The neighbor's flood light shined into the backroom so that she was able to see defendant in that room as well. After he left, she awakened her mother. Her mother attempted to call 911 but the telephone cords were cut. They drove to her grandfather's house and called the police. She gave a description to the police and she recalled smelling alcohol on defendant's breath. She was taken to St. Luke's Hospital where she was examined and a rape kit was administered. She later went to the police station and looked at some photographs but did not see defendant's picture. She then went to the police station to view a lineup and identified the defendant as her attacker. At the time of the rapes, she was about six inches away from his face and was able to get a good look at him. She said although he was wearing a piece of cloth tied around the back 11 of his head like a bandanna covering his nose and mouth, she was able to see the rest of his face clearly. On cross-examination, Miss Johnson testified that when the assailant initially woke her he covered her face with a cloth before leading her into the kitchen. However, she was able to see his face in the back yard because the neighbor's flood light provided ample lighting; she was also able to see him on the back porch. She also testified that she only viewed one lineup and there were seven, possibly eight men in it. She was able to pick out defendant because he was short and stocky, and because of his eyes and his hair. The police asked him to say something and she recognized his voice as that of the man who raped her. (Tr. 403- 419). Cleveland Det. Keith Scharf testified that he dusted for latent fingerprints at the crime scene of Miss Johnson's house. He described a second floor hallway window where the mini blinds were broken and the slats were laying on the roof. He dusted the slats and found three black powder latent fingerprints which he gave to SIU. While he was outside, he also noticed that the telephone wires were cut. (Tr. 433-37). Tina Wolff, a Scientific Examiner with the Police Forensic Laboratory, testified as an expert witness for the State. She testified that her duties include analysis of blood and body fluids. Her examination of the four victims who testified in this case was as follows: D'Leesa Jefferson, vaginal swabs positive for semen and her panties positive for seminal fluid; Sylvia Fields, 12 vaginal swabs positive for semen, and a pair of silk shorts had seminal fluid in the crotch area; Morgan Smith, semen in the vaginal swabs and semen found in a towel washcloth belonging to her; Nicole Johnson, four stains on her t-shirt, all positive for seminal fluids. All of this evidence was submitted to the Coroner's Office for further analysis. (Tr. 454-457). Linda Luke, of the Coroner's Office Trace Evidence Department, also testified as an expert for the State. For her analysis, she received from the Forensic Laboratory nine blood standards, including blood standards for the defendant and the four victims who testified in this case: vaginal swabs and clothing from D'Leesa Jefferson, Sylvia Fields, Morgan Smith and a t-shirt from Nicole Johnson. From these items she conducted certain tests for the presence of DNA. She testified that the DNA results on all the evidence she received in this case established that defendant's markers were consistent with the analysis of the vaginal swabs and t-shirt for the four females. She testified that approximately three out of every 10,000 black males carries the same DNA markers as defendant's. (Tr. 484-485). Det. Marvin Cross testified he is assigned to the Repeat Offenders Unit of the Cleveland Police Department. He became involved with Det. Borders in the investigation of a series of rapes in the Fourth District when the defendant developed as a suspect in these rapes. In late August 1995, Cross was looking to apprehend defendant when he received information that he was staying with his girlfriend, Carolyn Love, at 3421 East 118th 13 Street, downstairs. Cross testified that when they went to the apartment to arrest defendant, the door was answered by Carolyn Love. He could see defendant inside and when he identified himself as the police, defendant ran to the back bedroom. Det. Cross and Det. Grooms, with guns drawn, ordered him to come out of the bedroom. (Tr. 498-511). After defendant was arrested and was being transported to the station for booking, Cross and Borders engaged in a conversation about items they observed in the apartment while they were arresting defendant. He then obtained a search warrant for the apartment and executed it the same day. The items seized from the place where defendant was staying included a red plaid jacket in the bedroom closet, a light brown jacket, a green bottle of cologne, a blue bottle of Antonio cologne, and a .45 millimeter pellet gun. On cross-examination, Cross testified that at least two teenage children lived in the house where defendant was staying and the closet from which he took some of the clothing during the search contained men's and women's clothing. On re-direct, Cross testified that the addresses of the four victims who testified in this case and that of the apartment where the defendant was staying were all within two to three miles of each other. Det. Edward Prinz, a Fingerprinting Examiner with the SIU Latent Fingerprinting Section, next testified as an expert witness for the State. He compared the latent fingerprints lifted from the 14 mini blind slats by Det. Scharf with that of Anthony Byarse and found one partial latent fingerprint to be identical to the fingerprint chart of defendant. On cross-examination, he stated that the partial fingerprint represented a third of a total fingerprint area. He stated that he was comfortable that the partial print was a match. At the close of the State's case, the trial court granted defendant's motion for judgment of acquittal on counts 18, 19 and 21 (having a weapon while under disability charges) and also deleted the gun specification as to all victims except Sylvia Fields. The only witness called by the defense was defendant's girlfriend, Carolyn Love. She testified that she lived at 3421 East 118thStreet, Cleveland, for six years with her son, daughter and defendant. Her 18-year-old son, Antonio, was fathered by defendant, whom she had known approximately 22 or 23 years. (Tr. 575-577). She testified that on the nights of the various rapes, defendant was asleep with her and she would have known if he left because she is a light sleeper. Ms. Love testified that the pellet gun seized during the search was one that she had taken from her son almost a year before and put in a box in her bedroom and it had been there since that time. She identified certain clothing items as being her's and her son's and that defendant did not keep his clothes in the closet with her and her son. On cross-examination, Ms. Love testified she did not tell the police about defendant's alibi as soon as she discovered the 15 charges against him because she was devastated at the time. She identified some of the State's exhibits as belonging to defendant. She also identified one of the bottles of Aspen cologne as belonging to her and denied to whom the other bottle belonged, although it was found on her bedroom dresser. She said she had never seen it before, however, when she was confronted with the inventory sheet from the search which was signed by her, she said she did not remember the cologne. She identified the knife as her's, having found it on the street and left on her dresser. She also identified the scarves as belonging to her. Ms. Love identified a photo of defendant on the day of his arrest and said he appeared to have a beard, but he did not wear a beard. Although she testified she knew defendant was not the kind of person who could commit the crimes involved, she admitted that she was aware that he had pled guilty to the aggravated burglary and aggravated robbery of Paula Leigh Doyle in 1990 and another aggravated robbery of Velma Williams in 1990. She explained that defendant was not living with her at the time of these earlier crimes. At the close of all the evidence, the defense motion for judgment of acquittal was denied and the guilty verdicts were subsequently returned by the jury as aforesaid. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY R.C. 2945.71. 16 Defendant contends that he was not brought to trial within the 90-day period required by the speedy trial statute since he was in jail following his arrest until trial. Pursuant to R.C. 2945.73(B), the defendant must make a motion prior to the commencement of trial raising any speedy trial violations. This provision states: (B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections R.C. 2945.71 and 2945.72 of the Revised Code. In the case herein, no such motion was made prior to or at the commencement of trial. Defendant instead raised this issue pro se nine months after his trial had ended and seven months after his notice of appeal had been filed. This was clearly improper procedure pursuant to R.C. 2945.73(B). It is the motion that triggers the prosecutor's duty to produce the evidence negating the defendant's assertion that his speedy trial rights have been violated. State v. Thompson (1994), 97 Ohio App.3d 183, 186. Therefore, defendant cannot raise such an argument on direct appeal as this Court is only able to consider arguments properly raised before the trial court. State v. Thompson, supra, at 187; Worthington v. Ogilby (1982), 8 Ohio App.3d 25, 27. We also, however, fail to find any plain error here as defendant has failed to show that a timely motion to dismiss on speedy trial grounds would have been successful. R.C. 2945.71(C)(2) requires the State to try an accused against whom a felony is pending within 270 days after his arrest. 17 Each day the accused spends in jail in lieu of bail on the pending charge shall count as three days. R.C. 2945.71(D). The time begins to run under the speedy trial statute when the accused is formally arrested. State v. Gibson (1992), 75 Ohio App.3d 388, 390; State v. Barker (1993), 92 Ohio App.3d 516, 525-526. However, R.C. 2945.72(H) extends the time limits of R.C. 2945.71 by the period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion. Defendant was arrested on August 25, 1995 and held in jail. Absent any circumstances which would extend the time for trial under R.C. 2945.72, the State was required to bring defendant to trial no later than November 23, 1995. However, the record in this case shows that on October 6, 1995, a pre-trial continuance was granted at the defendant's request until October 31, 1995, tolling the statute for a period of 25 days. On October 31, 1995, a second pre-trial continuance was granted at defendant's request until November 13, 1995, tolling the statute for an additional 13 days. On November 14, 1995, a third pre-trial was set for December 4, 1995. In this same journal entry, the trial was set for January 8, 1996, at defendant's request, tolling the statute an additional 35 days. This 73 day delay occasioned by defendant extended the statutory time for trial to February 4, 1996, well beyond the date the trial actually began, i.e., January 23, 1996. 18 Since the continuances herein were granted upon the defendant's own motion as revealed by the record, his speedy trial rights were not violated because the statute was tolled during such period. State v. Fields (1994), 97 Ohio App.3d 337, 350; State v. Barker, supra at 530; State v. Howard (1992), 79 Ohio App.3d 705, 708; State v. Collura (1991), 72 Ohio App.3d 364, 369. Defendant's Assignment of Error I is overruled. II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT'S REQUEST FOR A CHANGE OF COURT APPOINTED COUNSEL AND VIOLATED THE RIGHT TO COUNSEL PURSUANT TO THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. The record in this case shows that defendant was initially appointed Attorney Patricia Snyder to represent him. Because of his dissatisfaction with her, the court allowed her removal and appointed the public defender to represent defendant at trial. On the date of the trial, counsel made a motion to be removed as counsel because of defendant's expressed dissatisfaction with them. The trial court denied that motion and made the following finding: *** Mr. Mullin and Mr. Buckley are competent attorneys to handle this matter. The Court is not concerned with whether people like each other or not. The Court's only obligation is to provide competent counsel, and the Court has done so. And this case is going to proceed. (Tr. 4-5). Notwithstanding defendant's complaints that counsel would not allow him to participate in preparing his defense and irreconcilable personality problems, the record in this case 19 reveals that defendant was vigorously represented by his court appointed attorneys. The Supreme Court has held that in order to discharge a court-appointed attorney, a defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel. State v. Coleman (1988), 37 Ohio St.3d 286, 292. There was no indiction that there was such a breakdown in the attorney- client relationship in this case as to deny or even jeopardize defendant's right to the effective assistance of counsel. The determination of whether defendant is entitled to a change of court appointed counsel is a matter of discretion with the trial court. State v. Warden (1986), 33 Ohio App.3d 87, 91; State v. Walker (1993), 90 Ohio App.3d 352, 362; State v. Bradley (Feb. 17, 1994), Cuyahoga App. No. 64768, unreported at 7. An abuse of discretion entails more than an error of law or judgment. The term abuse of discretion implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Busch (1996), 76 Ohio St.3d 613, 616. Upon careful review of the record, we find that defendant has failed to make any showing that the trial court abused its discretion in this matter. Defendant's Assignment of Error II is overruled. III. THE TRIAL COURT PREJUDICED THE DEFENSE WHEN IT DENIED THE APPELLANT'S REQUEST TO REVEAL THE IDENTITY OF THE STATE'S INFORMANT AND DENIED THE APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. 20 The trial court's decision whether to require disclosure of a confidential informant's identity is not reversible absent an abuse of discretion. State v. Feltner (1993), 87 Ohio App.3d 279,282. In State v. Williams (1983), 4 Ohio St.3d 74, syllabus, the Ohio Supreme Court held that an accused is entitled to the disclosure of the identity of a confidential informant when *** the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges. See, also, State v. Williams (1995), 73 Ohio St.3d 153, 172; State v. Brown (1992), 64 Ohio St.3d 649, 652; State v. Butler (1984), 9 Ohio St.3d 156. The burden of establishing the need for disclosure falls upon the defendant. State v. Parsons (1989), 64 Ohio App.3d 63, 69. Something more than speculation about the possible usefulness of an informant's testimony is required. State v. Garcia (August 24, 1995), Cuyahoga App. No. 67858, unreported at 5. As the court in State v. Parsons, supra at 67 held: One factor of major significance *** is the degree of participation of the informant in the underlying conduct. Generally speaking, the greater the degree of participation, the greater the need for disclosure. Courts have held consistently that where the informant was not an active participant in the criminal activity, but only a tipster, disclosure is not required ***. When the degree of participation of the informant is such that the informant virtually becomes a state's witness, the balance swings in favor of requiring disclosure of the informant's identity. State v. Williams, supra at 76. 21 In the instant case, the defendant contends that if the informant's identity was revealed during the suppression hearing and during trial, then defendant could have proven that Det. Cross fabricated the manner in which he obtained the defendant's address, thereby impeaching his credibility. However, such an allegation is speculative at best as no evidence was proffered regarding the detective's alleged fabrication of how he obtained the address. Something more than speculation about the possible usefulness of an informant's testimony is required. State v. Garcia (August 24, 1995), Cuyahoga App. No. 67858, unreported at 5. The informant was also basically a tipster who had no involvement with the defendant's underlying crimes. Since his involvement was limited, disclosure was not required. State v. Parsons, supra. Furthermore, the evidence against the defendant was so overwhelming that any damage to the credibility of Det. Cross would have had minimal impact, if any, on the outcome of the trial. Since the defense failed to sustain its burden that the identity of the informant was necessary to establish an element of the crime charged or that it was beneficial or helpful to the defense, the trial court did not abuse its discretion in not requiring that the informant's identity be revealed. Defendant's Assignment of Error III is overruled. IV. THE TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM THE SEARCH WARRANT AND IMPROPERLY DENIED THE MOTION TO SUPPRESS EYEWITNESS IDENTIFICATION DUE TO THE SUGGESTIVE LINE-UP IN VIOLATION OF THE FOURTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. 22 Defendant argues that the search warrant issued in this case was fatally defective because the affidavit of Det. Cross to obtain the warrant contained false information regarding defendant's previous convictions for rape. This argument is without merit. The affidavit in support of the search warrant states that: During the course of the investigation, Detective Essie Borders telephoned the Shaker Heights Police Department to learn if they had information which might assist the investigation. Detective Borders learned that, one, Anthony Byarse had been investigated, arrested, and convicted for rapes in Shaker Heights with a similar method of operation. (Tr. 25). The Supreme Court in State v. Waddy (1992), 63 Ohio St.3d 424, 441 held: To successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either intentionally, or with reckless disregard for the truth. Franks v. Delaware (1978), 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667, 672. ***. Even if the affidavit contains false statements made intentionally or recklessly, a warrant based on the affidavit is still valid unless, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause. Frank, supra, 438 U.S. at 156, 98 S.Ct. At 2676, 57 L.Ed.2d at 672. In this case, defendant has not shown that there was an intentional false statement in the affidavit. Det. Cross obtained information from a fellow police detective of the Sex Crimes Unit relating what her investigation had revealed. Indeed, the 23 affidavit states that this information regarding defendant's prior sex offense convictions was obtained by Det. Borders and related to Det. Cross. There was no intentional misrepresentation here. Det. Cross testified that his record check revealed no prior sex offenses for defendant. He did, however, testify that he had information that defendant was arrested for a rape in Shaker Heights. Based on this knowledge, it was not unreasonable for him to believe Det. Borders' statement that defendant had prior convictions for rapes in Shaker Heights. Even if the paragraph containing the information about prior sex offenses had been excised, there still was sufficient probable cause to support the issuance of the warrant in this case given the averments respecting the other victims. Defendant's complaints about the suggestive nature of the police lineup are also not well founded. Whether identification is reliable or not depends on the totality of the circumstances. State v. Williams (1995), 73 Ohio St.3d 153, 164; State v. Sims (1984), 13 Ohio App.3d 287, 288. In Neil v. Biggers (1972), 409 U.S. 188, 199-200, the United States Supreme Court set forth five factors to be considered in evaluating reliability as follows: [T]he opportunity of the witness 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 by the witness at the confrontation, and the length of time between the crime and the confrontation. ***. See, also, State v. Jells (1990), 53 Ohio St.3d 22, 27; State v. Williams, supra. 24 Before determining the reliability pursuant to Neil v. Biggers, supra, the court must first determine if the identification procedures used were impermissibly suggestive. State v. Barnett (1990), 67 Ohio App.3d 760, 767; State v. Green (1990), 67 Ohio App.3d 72, 79; State v. Merrill (1984), 22 Ohio App.3d 119, 120. The defendant has the burden to show the court that the identification procedures were unnecessarily suggestive and that the in-court identification will be unreliable under the totality of the circumstances. State v. Sims, supra, at 288. Moreover, even suggestive identification procedures do not preclude admission where the identification itself is determined to be reliable. State v. Moody (1978), 55 Ohio St.2d 64; State v. Barnett at 767; State v. Green at 79. As the Supreme Court in State v. Williams, supra, held, citing to State v. Jells, supra, [t]he focus, under the `totality of the circumstances' approach, is upon the reliability of the identification, not the identification procedures. In the instant case, the identification procedures were not unduly suggestive. State's Exhibit 8 is a compilation of all the photographs of the people in the different lineups. The photos show that all of the individuals were of muscular builds of varying heights from 5'5" to 5'11". Defendant was not the shortest in the group. Even if the line up was suggestive, the victim's identification of defendant was reliable pursuant to the Neil v. Biggers factors. The victims each had an opportunity to spend 25 intimate time with defendant, to become aware of his body close up, to hear his voice, smell his cologne, observe his movements and his clothing and see his hands. The victims in this case all testified that they knew that defendant was short and stocky. Although his face was partially covered in several instances, this did not prevent the victims from observing other identifiable characteristics, i.e., his hair, eyes, lips, protruding lower half of face. The victims testified that there was adequate lighting, either from inside the homes or from nearby outside light, to see their assailant. The identifications were made within a short period of time after the offense. All of the victims testified they were certain it was defendant who raped them. The identification of these witnesses was reliable and the trial court correctly overruled the defendant's motion to suppress. Defendant's Assignment of Error IV is overruled. 26 V. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S REQUEST FOR A CONTINUANCE TO OBTAIN A WITNESS IN SUPPORT OF HIS MOTION TO SUPPRESS EYEWITNESS IDENTIFICATION OR IN THE ALTERATIVE ISSUING A BENCH WARRANT FOR THE WITNESS IN VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT. The grant or denial of a continuance in a criminal matter is entrusted to the sound discretion of the trial judge. State v. Burke (1995), 73 Ohio St.3d 399, 407; State v. Grant (1993), 67 Ohio St.3d 465, 479; State v. Unger (1981), 67 Ohio St.2d 65. Defendant here argues that the trial court erred in refusing to issue a bench warrant or grant a continuance so that one of his witnesses could be brought into court. Specifically, defendant had subpoenaed one Bernard Murrell who he claims was a member of one of the lineups and who would testify that defendant was treated differently than the others in the lineup. Because Murrell did not appear, defendant wanted a continuance or a bench warrant to compel his attendance. Defendant now claims the trial court abused its discretion in not granting the motion. An appellate court must not reverse a denial of a continuance unless there has been an abuse of discretion. Id., at 67; State v. Burke, supra, at 407; State v. Unger, supra, at 67. The Ohio Supreme Court has indicated that an abuse of discretion entails more than an error of law or judgment. The term abuse of discretion implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Busch, supra, at 616; State v. Christon (1990), 68 Ohio App.3d 471, 475. Defendant has failed to make any showing that the court abused its discretion in this 27 case. As stated in Assignment of Error IV, even if the lineup was suggestive, it would not preclude admission of the identification where the identification itself was reliable. State v. Moody, supra; State v. Barnett, supra. The trial court correctly determined that the reliability of the eyewitness identification was a jury question. (Tr. 84). There was no abuse of discretion in the denial of the continuance in this case. Defendant's Assignment of Error V is overruled. VI. THE TRIAL COURT IMPROPERLY ADMITTED OTHER ACTS EVIDENCE TO THE PREJUDICE OF THE APPELLANT AND IN VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. Evid.R. 404(B) reads as follows: (B) Other crimes, wrongs or acts. 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 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 appellant'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. 28 The Supreme Court addressed the issue of other act testimony in State v. Gumm (1995), 73 Ohio St.3d 413, 426, and held that: Evid.R. 404(B) provides that "[e]vidence 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 states: "In any criminal case in which the defendant's motive or intent *** or system in doing an act is material, any acts of the defendant which tend to show his motive or intent *** 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." In State v. Flonnory (1972), 31 Ohio St.2d 124, 126, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729, this court noted that R.C. 2945.59 permits the showing of "other acts" when such other acts "tend to show" certain things, e.g., motive and intent, as identified in the statute. "If such other acts do in fact 'tend to show' any of those things they are admissible notwithstanding they may not be 'like' or 'similar' to the crime charged." Id. The testimony of Paula Doyle was admissible to show the defendant's modus operandi. The trial court gave a limiting instruction to the jury prior to Ms. Doyle's testimony, as follows: TO COURT: All right. Ladies and gentlemen, you're going to hear some evidence now concerning a like or similar act on the part of the defendant. This evidence may only be considered to show methods of operation, scheme, or plan. It cannot be considered for any other purpose. 29 (Tr. 292-293). The Supreme Court recently described when other acts are admissible to show modus operandi in State v. Lowe (1994), 69 Ohio St.3d 527, 531 as follows: Other acts may also prove identity by establishing a modus operandi applicable to the crime with which a defendant is charged. "Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid.R. 404(B)." State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, syllabus. "'Other acts' may be introduced to establish the identity of a perpetrator by showing that he has committed similar crimes and that a distinct, identifiable scheme, plan, or system was used in the commission of the charged offense." State v. Smith (1990), 49 Ohio St.3d 137, 141, 551 N.E.2d 190, 194. While we held in Jamison that "the other acts need not be the same as or similar to the crime charged," Jamison, syllabus, the acts should show a modus operandi identifiable with the defendant. State v. Hutton (1990), 53 Ohio St.3d 36, 40, 559 N.E.2d 432, 438. Paula Doyle testified to how the defendant first asked for money and jewelry then proceeded to try to rape her. It was only after she faked insanity that he decided to have her cook for him instead. She described his demeanor as calm and in control. This comports with the victims testifying how the defendant would first ask for valuables then proceed to rape them. They also testified that once he began to rape them he acted calm and in control and even friendly, engaging some of them in conversation afterwards or making them cook for him. This testimony in conjunction with the trial court's limiting instruction was not prejudicial. Even if it was erroneously admitted, however, the Ohio Supreme Court has held that error in the admission of other acts testimony 30 is harmless when there is no reasonable possibility that such testimony contributed to the accused's conviction. State v. Simko (1994), 71 Ohio St.3d 483, 491; City of Columbus v. Taylor (1988), 39 Ohio St.3d 162, 166; State v. Bayless (1976), 48 Ohio St.2d 73, paragraph seven syllabus; State v. Jacocks (1990), 64 Ohio App.3d 713, 717. The admission of the alleged other acts evidence in this case did not affect the verdict. The evidence of defendant's guilt from eye witness testimony was overwhelming. Also, the partial fingerprint lifted from one of the crime scenes matched defendant's prints and defendant's DNA markers were consistent with the DNA found in the semen obtained from each of the rapes. Defendant's Assignment of Error VI is overruled. VII. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT' CONVICTIONS. VIII. THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. 31 Jenks(1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. 32 When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). All the victims were able to identify the defendant in the lineups. They all had similar experiences with him, their descriptions of their assailant were the same or very similar, his method of operation was the same or similar with all the victims, a partial fingerprint lifted from one of the crime scenes was an identical match to the defendant's prints, and defendant's DNA markers were consistent with all four tests relating to the victims in this case. It is clear that the evidence in this case, viewed in the light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crimes charged in this case proven beyond a reasonable doubt. For the same reasons, we can not find that the verdicts were against the manifest weight of the evidence. Defendant's Assignments of Error VII and VIII are overruled. 33 Judgment affirmed. 34 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 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. NAHRA, J., and ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING 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 .