COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71383 STATE OF OHIO : : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION MELVIN BATES : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-338461 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 Defender EDWARD O. PATTON, ESQ. DARIN THOMPSON, ESQ. The Justice Center Assistant Public Defender 9th Floor 1200 West Third Street N.W. 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 -2- KARPINSKI, J.: Defendant-appellant, Melvin Bates, appeals from the judgment of the trial court in which a jury found defendant guilty of one count of aggravated arson and five counts of attempted murder. On appeal, defendant argues that admitting prejudicial other acts testimony constitutes reversible error and that the defense counsel's failure to object to the evidence constitutes ineffective assistance of counsel. This case arose out of an incident in which Bill Stewart's house caught on fire on the evening of November 6, 1994. Investigatorsdetermined the fire was deliberately set. Defendant was subsequently charged with aggravated arson and attempted murder, to which he pled not guilty. At trial, the first two witnesses for the state were the two fire investigators, Chief Paul Stubbs and Lieutenant Roger Maple. They both stated that, in their opinion, the fire was deliberately set with gasoline on the northeast corner of the house. They both stated there was considerable debris around the northeast corner, including a gas can. Erma Locket next testified for the state. She lived in the area of the house that was burned and knew defendant from the neighborhood. On the night of November 6, 1994, she saw a van pull into the driveway next to Bill Stewart's house and observed defendant exit the passenger's side of the van and go to the side of the house. When defendant returned to the van, a great big -3- ball of fire erupted. Defendant then entered the van and it drove away. The next day, she claimed to have told Stewart about her observations, but he was sloppy drunk. She admitted that although she observed the fire and read about the fire in the paper, she did not come forward to the authorities for two years. Bill Stewart also testified. He owned the home that was set on fire. He described the circumstances under which he knew defendant. In 1994, he lived in the house with Diana Spradlin, his common-law wife. Spradlin's daughter, Krystal Trainer, and Trainer's two daughters lived in the upstairs unit of the house. In January, 1994, defendant moved into the downstairs unit. In September, 1994, Diana Spradlin and defendant together moved out of the house. On November 3, 1994, Diana Spradlin moved back into Stewart's house. Stewart then observed defendant driving Diana Spradlin's station wagon. Stewart admitted that on November 6, 1994, he slashed the tires on the station wagon, set the car on fire, went home, and passed out in the reclining chair located in the northeast corner of the house. He woke up to find his house on fire and does not remember anything until he was at the hospital. Krystal Lee Trainer testified that she is the daughter of Diana Spradlin and considers Stewart to be her father. She stated that after defendant moved into the house, he and her mother had an affair, which resulted in the two of them moving to Columbus. On November 6, 1994, her mother, running away from defendant, returned home drunk and slept with Krystal because her mother had an argument with Stewart. As they were sleeping, they were awakened -4- by glass breaking and discovered the house was on fire. A passerby rescued them. Myron Bates, defendant's brother, testified for the state as a result of a plea bargain. He stated that on the night of the fire, he and his brother were drinking heavily. Myron then drove defendant over to Stewart's house to fight with him. Upon arriving at Stewart's house, defendant left the car, returned five to ten minutes later, and drove defendant to the bus station. Sub- sequently, defendant admitted to Myron that he burned Stewart's house. Myron also identified a letter he wrote advising defendant to stay away because the police were searching for him. Diana Spradlin testified for the defense. At the time of trial she was living with defendant but, prior to the events of 1994, she had been Stewart's girlfriend for approximately 10 years. At one point, she and defendant moved out of Stewart's house. In November, 1994, she moved back to Stewart's house to retrieve some belongings and see her daughter. On November 6, 1994, she went drinking with defendant and his brother Myron. When they returned to Myron's house, they went inside and came out to find that the tires had been slashed on the station wagon that contained Diana's and defendant's belongings. She went back to Stewart's house, had an argument with Stewart, and then went to sleep in Krystal's bed. She awoke to find the house on fire. Defendant was not at his brother's house the next day, so Diana took a bus to Columbus where she knew he would be. The two of them then traveled to South Carolina. -5- On cross-examination, Diana testified she told the arson investigators that defendant has a temper when he is drunk. She spoke of three instances when defendant punched her. She explained that these instances did not indicate that defendant was violent because in two of the instances she hit him and, in the third, she was out of line and deserved to be hit. She also explained that he uses the alias Jan Weiss to prevent him from being apprehended for his D.U.I.'s. She admitted that defendant was angry after he found the station wagon containing all their possessions had been burned. Defendant took the stand. He testified about moving into his friend Stewart's house but moved out with Diana when they began having a relationship. After living for a short period of time in Columbus, they came back to Cleveland. On the day of the fire, he, his brother, and Diana went out drinking together, starting on whiskey at 9:00 a.m. When they went to the car to drive Diana to Stewart's house, they found the station wagon's tires had been slashed. Diana walked to Stewart's house, defendant's brother left, and defendant stayed and drank at his residence. As he was sitting there, a brick came through the window. He looked out and saw a car driving away with Bill Stewart in the car. He then noticed the station wagon was on fire. Defendant stated he never left his brother's place that night and denied any involvement in setting the fire. -6- The jury returned a verdict of guilty on all six counts of the indictment. Defendant timely appeals, raising the following two assignments of error: I. MELVIN BATES WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL'S FAILURE TO OBJECT TO THE STATE'S IMPROPER AND PREJUDICIAL USE OF OTHER ACTS EVIDENCE SO UNDERMINED THE ADVERSARIAL PROCESS THAT THE TRIAL CANNOT BE RELIED UPON AS HAVING PRODUCED A JUST RESULT. II. THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING THE PROSECUTOR TO ARGUE THAT THE PRIOR BAD ACTS EVIDENCE WAS PROOF OF CHARACTER TO SHOW CONDUCT IN CONFORMITY THEREWITH. In both assignments, defendant argues that the state impermissibly used other acts evidence to gain defendant's conviction. Specifically, defendant takes issue with the prosecutor's argument that testimony of prior alcohol-related violence was proof that defendant set the house on fire after drinking all day and finding his car was burned. In the first assignment, defendant argues that his trial counsel was ineffective for not objecting to the evidence. In the second assignment, defendant argues that the trial court committed plain error by allowing the prosecutor to make this argument in his closing argument. Generally, evidence of other acts is not admissible to show a person's propensity to commit an offense. Evid. R. 404(B) states as follows: 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, -7- intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Ohio Supreme Court has further clarified as follows: Prosecution evidence that a defendant has committed other crimes, wrongs or acts independent of the offense for which he is on trial is not generally admissible to demonstrate that the defendant has a propensity for crime or that his character is in conformity with the other acts. State v. Mann (1985), 19 Ohio St.3d 34, syllabus paragraph one. Defendant contends the prosecutor argued that defendant's violence when he had been drunk in the past was proof that he would burn down the house after he had been drinking all day on November 6, 1996. Defendant cites the following excerpts from the state's closing argument. I had to drag it out of Diana Spradlin that every time they got drunk it seems like she was getting beat up. She told you that that wasn't getting violent, she deserved it, and she was out of line. She gave you the testimony of a woman who has been battered so many times she doesn't know up from down. It's a sad story, but we know one thing. When they drink, who gets violent? Who gets violent when Diane [sic] and Melvin drink? Melvin Bates. *** This is a guy that every time something happens or someone is out of line he's punching people. And he's going to tell you, but on the day of the fire, he's calm, cool, and collected. I think his term was mellow when this fire occurred on his automobile with his possessions, when the tires were punctured on the automobile with his possessions. He's telling you he's mellow, but we know from the love of his life that there is a different story going on here, that every time he drinks he's a violent individual. He has anger. There is a pattern here. Drinking, anger, violence, drinking, anger, violence. This is Melvin's modus operandi. This is the way his mind is operating under the haze of alcohol, drink, get drunk, get violent. (Tr. 587-588.) Furthermore, in the state's rebuttal argument, the prosecutor -8- argued as follows: And ask yourselves, ladies and gentlemen, who's [sic] method, modus operandi, method of operation, the way they do things is drinking, anger, violence? Is it Mickey Bates', or as we learned from Diana Spradlin, after I had to pull teeth to get it out of her, and from the defendant, Melvin, that it's Melvin's modus operandi? Get liquored up, throw some punches, break some dentures, violence, sober, kiss and make up. That, my friends, is the only evidence that supports the defendant's testimony, Diane's [sic] testimony when I dragged it out of her in cross-examination, that it's anger. (Tr. 628.) The state cites State v. Gumm (1995), 73 Ohio St.3d 413, and argues that the evidence showed defendant treated Diana like his property and the evidence and argument established motive. We disagree. In Gumm the Court noted that other acts evidence is admissible if it tends to show motive or intent. Moreover, the Gumm Court went on to note that the contested other acts testimony was not emphasized or revisited in the closing argument. In the case at bar, the state specifically emphasized the evidence in its closing. The record is quite clear that the state was arguing that defendant was extremely violent and vindictive when he was drunk and angry. The state specifically argued that, because he acted this way in the past, the jury could infer that, in his drunken state, defendant would seek revenge upon seeing his car and possessions burned. Such an argument violates Evid.R. 404(B). However, in order to obtain a reversal, under either the ineffective assistance of counsel claim or the plain error doctrine, defendant must demonstrate prejudice. Under an ineffective assistance of counsel claim, defendant must show a reasonable probability that, were it not for counsel's errors, the -9- result of the trial would have been different. State v. Hill (1996), 75 Ohio St.3d 195, 211, quoting State v. Bradley (1989), 42 Ohio St.3d 136. Similarly, a defendant will not obtain a reversal under the plain error doctrine unless but for the error, the outcome of the trial clearly would have been different otherwise. State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus (emphasis added); State v. Campbell (1994), 69 Ohio St.3d 39, 41. In the case at bar, the trial court's permitting the closing argument does not satisfy either standard. The state presented evidence from the fire inspectors who concluded the fire was deliberately set using gasoline. Ms. Lockett, who was familiar with defendant, testified that she saw defendant exit a van and go up to Stewart's house. When he returned to the van, the house went up in a ball of fire. Defendant's brother, Myron, testified that after defendant's station wagon was burned, defendant was angry and wanted to go fight Stewart. Myron further stated he drove defendant to Stewart's house on the night it was set on fire and that defendant admitted to him defendant had burned the house. The jury had overwhelming evidence with which to convict defendant without the other acts. Therefore it cannot be said that the outcome of the trial would have been different under either the ineffective assistance of counsel or the plain error standard. Defendant's two assignments of error are overruled. Judgment affirmed. -10- 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. PORTER, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI 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 .