COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70932 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RAUSHON INGRAM : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 19, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 335953 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. James A. Draper, Esq. Cuyahoga County Prosecutor Cuyahoga County Public By: R. Paul Cushion, Esq. Defender Assistant Prosecuting Atty. By: Scott Roger Hurley, Esq. The Justice Center - 9th Fl. Assistant Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113 -2- ROCCO, J.: In this appeal from his conviction for possession of cocaine, defendant-appellant Raushon Ingram contends both that the trial court erred during its cautionary instruction regarding the introduction of "other acts" evidence and, further, that his conviction was against the manifest weight of the evidence. This court finds appellant's contentions are without foundation in the record, therefore, his conviction is affirmed. Appellant's conviction stems from an incident which occurred on February 8, 1996. At approximately 5:00 p.m. Cleveland Police Officer Richard Maruniak was driving his patrol car in the vicinity of East 37th Street and Woodland Road. His partner, field trainee Officer Albert David Oliver, was in the car with him. Maruniak observed a black Cadillac proceed through an intersection without obeying the traffic signal. He radioed for information about the black car and was soon advised it had been reported stolen. Maruniak therefore determined to perform a "felony stop" of the car rather than a simple traffic stop. Maruniak activated the zone car's flashing lights and quickly instructed Oliver as to the procedure to follow. As the black car pulled over in response to Maruniak's signal, Maruniak drove the zone car at an angle up to the driver's side door before stopping. Both officers then immediately exited with their weapons drawn. As instructed, Oliver proceeded toward the passenger side of the black car. At the same time, Maruniak circled behind the -3- zone car and ran to the black car's driver's door. The officers were also shouting for the people inside the car to put their hands up where they could be seen. As they approached the vehicle, the officers could see the driver, later identified as appellant, making furtive movements. Oliver, however, observed that the passenger, later identified as Ricardo Buckley, appellant's cousin, had complied with the order; his hands were completely up in the air. Fearing appellant had a weapon, Maruniak pulled open the driver's side door. He saw appellant make a throwing motion toward his cousin with his right hand. The object launched from appellant's hand failed to travel to its apparent target, however. Instead, it fell to the floor on the driver's side. Maruniak saw it was something that appeared to be wrapped in tissue paper then compressed into a ball. After appellant's arrest, Maruniak retrieved the object, then placed it into an evidence bag. The object, upon laboratory analysis, was determined to be a rock of crack cocaine weighing .58 grams. Appellant subsequently was indicted on one count of drug abuse, R.C. 2925.11, possession of cocaine in less than the bulk amount. Appellant's case proceeded to jury trial. Ultimately, the jury found appellant guilty of the charge. The trial court subsequently sentenced appellant to a one year term of incarceration. Appellant has filed a timely appeal of his conviction and presents two assignments of error for review. -4- Appellant's first assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED INSTRUCTION CONCERNING PREJUDICIAL "OTHER ACTS" BEFORE THE JURY. Appellant argues the trial court's cautionary instruction to the jury in this case with regard to the basis for the police officer's stop of him constituted error sufficient to merit a new trial. This court does not agree. Prior to the commencement of appellant's trial, the prosecutor indicated on the record his intention to place in evidence the fact that the officers had a legal basis for their stop since the car appellant was driving was a stolen vehicle. The prosecutor stated that fact provided essential background for the jury's consideration of the offense for which appellant was charged. The prosecutor offered to stipulate that no other facts concerning the matter would be introduced. Appellant, through his defense counsel, would agree to stipulate only to the legal basis for the stop. The trial court, therefore, decided the stipulation would "indicate the automobile was stopped in connection with the report of a stolen vehicle, but nothing more." The trial court also stated it would give the jury a cautionary instruction. Appellant objected to the trial court's inclusion of the word "stolen" in the stipulation but not to its latter declaration. Thereafter, the parties gave their opening arguments. At the outset of his remarks to the jury, appellant asserted: The first thing I would like to address and kind of set aside are things that the State and the defense agree on: As the Judge will read to you, we don't -5- dispute that there was a legal basis for the stop. We don't dispute that the automobile that was involved was stolen, and I don't want to waste any of your time, or any of the Court's time, or any of the Court's resources in disputing that fact. (Emphasis added.) The trial court interrupted appellant's argument at that point with the following: THE COURT: Let me stop you there, please. Ladies and gentlemen, the parties have stipulated, that is, they have agreed to the fact that the automobile in question was stopped by the police because they suspected that it was stolen. The parties have stipulated to that, and, therefore, you must accept that there was a proper basis for stopping the automobile in the first place. So that fact, for purposes of this trial, is admitted, and you must accept it as true. Beyond that, nothing else will be offered with regard to the automobile, and you may not speculate with regard to any other facts. Go ahead, counsel. Appellant then continued his remarks and the trial proceeded to its conclusion. Appellant now contends the foregoing instruction by the trial court was improper pursuant to Evid.R. 404(B). Initially, this court notes two important factors must be considered prior to addressing appellant's argument. First, appellant objected to neither the trial court's statement of its intention to issue a cautionary instruction nor the instruction itself. Second, appellant himself affirmatively placed the fact of the car's status in front of the jury prior to the trial court's instruction. Under these circumstances, appellant has waived his argument with respect to the issue on appeal. State v. Williams (1977), 51 Ohio St.2d 112; Schade v. -6- Carnegie Body Co. (1982), 70 Ohio St.2d 207; State v. Underwood (1983), 3 Ohio St.3d 12; Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, syllabus 1; State v. Woodruff (1983), 10 Ohio App.3d 326. Furthermore, for the trial court's action to constitute "plain error," this court must find both that appellant's substantial rights have been effected and that only overruling the trial court's action can prevent a manifest miscarriage of justice. Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91; State v. Underwood, supra. The record in this case does not support such findings. Evid.R. 404(B) states: Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes * * * (B) Other Crimes, wrongs, or acts. Evidence of the 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. (Emphasis added.) Initially, it is important to note that the trial court never informed the jury that appellant stole the car. Thus, it is questionable that the jury could infer appellant was guilty of that crime. See, e.g., State v. Smith (1990), 49 Ohio St.3d 137. Secondly, the principle underlying Evid. 404(B) is that evidence of "other acts" may be simply so prejudicial that allowing it would outweigh its relevancy value. State v. Smith, -7- supra; State v. Prokos (1993), 91 Ohio App.3d 39; State v. Jurek (1989), 52 Ohio App.3d 30. However, if the trial court admits the evidence for a purpose other than merely demonstrating the defendant's bad character or criminal propensity, its action may not be improper. State v. Smith, supra. Thus, evidence of an other crime may be presented when it is "so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof ***." State v. Wilkinson (1980), 64 Ohio St.2d 308, 317; see, also, State v. Roe (1989), 41 Ohio St. 3d 18. It is also admissible if it tends to prove a specific element of the crime changed. State v. Smith, supra. In this case, the trial court properly admitted evidence that appellant was driving a stolen car under both of the foregoing rationales. Maruniak testified that the officers' conduct during the stop would have been different if it were merely for a traffic violation; since the car was reported stolen, however, they conducted a "felony stop." This explained why they approached the car rapidly and with weapons drawn. State v. Hughley (1984), 20 Ohio App.3d 77; State v. Jurek, supra; State v. Fluellen (1993), 88 Ohio App.3d 18; cf. State v. Prokos, supra. On this basis, the evidence of the car's status was relevant. Moreover, the evidence was relevant with respect to an element of the crime, viz., appellant's knowing possession of the cocaine. As the officers approached, weapons at the ready, appellant reacted differently to the threat than did his cousin. -8- Rather than immediately putting his hands above his head, he moved around in the car. This suggests appellant's immediate concern was to unburden himself of the contraband, not to ensure his own safety. Therefore, for the foregoing reasons, the trial court did not err in this case when it instructed the jury concerning the fact the car appellant was driving was a stolen vehicle. State v. Smith, supra; State v. Jurek, supra; State v. Hughley, supra. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST APPELLANT WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the weight of the evidence does not support his conviction because the testimony of the state's witnesses was contradictory and unreliable. Appellant cites State v. Mattison (1985), 23 Ohio App.3d 10, in support of his contention, however, this court finds appellant's argument unpersuasive. In Mattison, this court listed several factors to be considered when an assignment of error based upon manifest weight is presented. However, in State v. Martin (1983), 20 Ohio App.3d 172 at 175, the actual test which must be utilized was set forth as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgement was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the -9- 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A review of the record in this case demonstrates appellant's conviction for possession of cocaine was in accord with the manifest weight of the evidence. The state presented the testimony of the arresting officers. Both stated that after a command was directed to the people in the car to raise their hands, appellant did not immediately comply; instead, appellant was moving inside the car. Oliver testified that Buckley, however, put and then kept his hands where Oliver could see them. Maruniak further testified that because of appellant's movements, his own awareness was heightened since he feared appellant might be reaching for a weapon. Maruniak, therefore, focused mainly on viewing appellant's hands when he pulled open the driver's side door. He stated he then plainly saw appellant attempt to throw the crack cocaine. Later, Maruniak recovered -10- the contraband from the place he had seen it land. Under the circumstances, it was not unlikely Maruniak would be unable at trial to recall nonessential details concerning the interior arrangement of the car: his attention was upon ensuring the safety of himself and his partner in the potentially dangerous situation. Buckley's testimony was consistent with that of the officers'. He testified he complied instantly with their order because he saw their weapons as they approached. He admitted he was "scared." Appellant's testimony, on the other hand, was both self- serving and contradictory. Appellant described an unreasonably long conversation between himself and Buckley in the car as the officers were rushing toward them. Moreover, appellant admitted Buckley's account of the incident had been accurate in many aspects. It was well within the province of the jury to reject most of appellant's evidence while crediting that of the state's witnesses. In short, there was substantial evidence in this case upon which the jury could conclude appellant possessed cocaine in violation of R.C. 2925.11. State v. Crenshaw (June 4, 1992), Cuyahoga App. No. 60671, unreported; State v. Gilbert (Sept. 22, 1994), Cuyahoga App. No. 66269, unreported; State v. Giles (May 5, 1996), Cuyahoga App. No. 69367, unreported. The record in this case reflects that, weighing all the evidence, drawing all the reasonable inferences therefrom and considering the testimony and credibility of the parties' witnesses, the verdict fails to indicate the jury lost its way -11- and created a manifest miscarriage of justice. State v. Martin, supra. Accordingly, appellant's second assignment of error is also overruled. Appellant's conviction is affirmed. -12- 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 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. JOSEPH J. NAHRA, P.J., AND JOHN T. PATTON, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .