COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71594 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION JASON MARSH : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 16, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-336917. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Paul Mancino, Jr., Esq. 75 Public Square, #1016 Cleveland, Ohio 44113-2098 For Defendant-appellant: Michael A. Sullivan, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 2 WEENEY, JAMES D., C.J.: Defendant-appellant Jason Marsh appeals from his convictions or aggravated burglary in violation of R.C. 2911.11, and theft in iolation of R.C. 2913.02. The appellant was sentenced to a term f incarceration of five to twenty-five years for aggravated urglary, and sentenced to a concurrent term of incarceration of ighteen months for theft. The State presented the testimony of three men, William radshaw, the victim, Michael Seman, a friend of the victim and of he appellant, and Cleveland Police Officer David Kelly. The ppellant testified on his own behalf. William Bradshaw testified that he, his wife and his newborn aughter resided in a home located on State Road in Cleveland, Ohio. he second floor of the home was rented to Joe Weber. The evidence howed that the basement of the home was used, in part, for storage y both Weber and Bradshaw. The basement was accessible to all ccupants of the home through an interior stairwell. There was a usiness parking lot on one side of the home. The home has side indows facing the driveway, and the outside of the house is lluminated with a motion sensitive security light. The door used y the occupants for entry is on the same side of the house as the riveway and the business parking lot. On January 25, 1996, the dogs began barking. Bradshaw looked ut the window and noted that the security light was on and the open ence gate. Because of the light he was able to observe a white hevrolet Celebrity parked in the lot adjacent to the home, but he 3 as not able to clearly see any details. The vehicle was parked acing the house, and the two passenger doors were open. Mr. radshaw observedtwo men, one an unidentified Puerto Rican and the ther the appellant. The appellant was doing something in the rear eat of the vehicle, but Bradshaw could not tell exactly what was appeni ng. The two men closed the rear doors of the vehicle and ntered the front seat. The appellant was driving and the other man eached in back and grabbed a baseball bat. As they were leaving he passenger flicked off Mr. Bradshaw (T. 33). At that point Mr. radshaw knew something was going on. (T. 33.) At first Mr. Bradshaw did not recognize the bat as his own. s he started down the stairs into his basement, Mr. Bradshaw noted hat there was snow on the steps. As he reached the bottom of the tepshe instantly saw that his baseball bat, which had black tape n the handle, was missing. Bradshaw received the bat from his ather when he was fourteen years old, and he uses it every day to ractice his swing. (T. 53.) Bradshaw's other baseball bat had een moved out of place. Bradshaw looked around the basement and oticed other items missing, such as his p.a. system with a rack ountprocessor and a crate amplifier. Bradshaw then notified the olice. When Bradshaw went back into the basement he noticed dditional items missing, including a Ross speaker enclosure which s three foot by two foot; a microphone; a VCR; cords and two edals. Bradshaw testified as to the value of each of the items aken from his home. Bradshaw recognized the appellant as the man driving the white 4 ehicle because the appellant had visited his tenant, Joe Weber, the vening prior to the theft. On that night, at approximately 11:30 .m., he and his newborn child were awakened by noise from the enant and his guests. As Bradshaw looked out the window that night e observed Michael Seman, an acquaintance, speaking with the ppellant. The same white vehicle was parked in the same place as t appeared on the evening of the theft. Bradshaw telephoned Seman o inquire why such noise was made and whose white car was parked n the lot. Seman responded that it was Jay (T. 58). Because of his, Bradshaw was able to give the police the name of the erpetrator. On the night of January 25, 1996, after Bradshaw notified the olice, he telephoned Michael Seman at Payless Shoe Stores, Seman's lace of employment. He informed Seman of the evening's events. fter the police arrived, Bradshaw received a telephone call from man who identified himself as Jason Marsh. The man stated that e would return the items which had been taken. The caller believed heseitems to have belonged to the tenant, Joe Weber. The police fficers waited in vain at the house for about twenty to thirty inutes for the return of the items. At the time of the burglary, oe Weber was working. Michael Seman testified that he has known the appellant since rade school and that Bradshaw is his employer as well as his urrent landlord. On or about January 24, 1996, Seman and the ppellant visited Joe Weber. They arrived at 10:30 or 11:00 p.m. nd left at approximately 2:00 or 2:30 a.m. This meeting was the 5 irst between Weber and the appellant. The appellant was driving white Chevrolet Celebrity. In the course of the visit, Weber and he appellant entered into a transaction (T. 98). Seman testified hat during the first part of the evening Weber gave money to the ppellant. Seman observed the appellant give Weber little white ocks (T. 100). Later in the evening, Weber traded possessions for he white rocks (T. 100). Specifically, Weber traded speakers, a uitar amplifier, and a VCR (T. 101), as well as a canister vacuum leaner and a telephone (T. 124). Seman testified that at the end f the evening, even after the trading, Weber owed the appellant ighty dollars and a clothes dryer. The clothes dryer was in the asement. When it was time to leave, at approximately 2:00 a.m., emanassisted the appellant in carrying the bartered goods out to he car. They both made several trips into and out of the house. s Seman and the appellant left the house, the appellant stated that f Weber failed to pay, he would take Weber's possessions (T. 104). On January 25, 1996, Seman was working at Payless Shoe Stores. hile at work he received a telephone call from Bradshaw. Based pon this conversation, Seman paged the appellant. The appellant eturned the page, and stated that he had taken Weber's possessions. eman testified that he informed the appellant that the Bradshaws ere willing to drop the charges if the items were returned (T. 06).The appellant indicated that the items had already left his ossession. Seman gave the appellant the Bradshaw's telephone number nd indicated that the appellant should call them. After he inished the phone call with the appellant, Seman telephoned the 6 radsha ws. He informed the Bradshaws that the appellant would elephone them. Cleveland Police Officer David Kelly testified that on January 5, 1996, he received an assignment to respond to the Bradshaw's ome on State Road. While he was speaking with William Bradshaw the elephone rang. After the telephone conversation terminated, fficer Kelly and his partner, Officer Montalvo, waited for pproximately twenty-five to thirty minutes for a male to return the tolen property (T. 150). After that period of time elapsed, the fficers obtained enough information to complete their report and hey left the scene. The appellant asserts three assignments of error. The first assignment of error: DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE COURT ADMITTED INTO EVIDENCE A PHONE CALL FROM A PERSON UNKNOWN TO THE RECIPIENT OF THE CALL. The appellant argues that the court should have prohibited illiam Bradshaw from testifying as to the telephone call received y him at the time the police were present in the home. Bradshaw ad never met the appellant, but rather had only seen him once from distance. Since Bradshaw was unable to identify the appellant's oice, the appellant asserts that there was no foundation for the dmission of the testimony. Evid.R. 901 requires that evidence be authenticated prior to ts admission. Evid.R. 901(B)(5) permits voice identification whether heard firsthand or through mechanical or electronic ransmission or recording, by opinion based upon hearing the voice 7 t any time under circumstances connecting it with the alleged peaker. This court, in State v. Williams (1979), 64 Ohio App.2d 671, eld: In a criminal case the mere statement of a person calling a victim on the telephone identifying himself as the defendant is insufficient evidence to establish the caller's identityas the defendant. However, direct and circumstantial evidence which reasonably identifies the defendant as a party to such telephone conversation establishes a sufficient foundation to admit evidence of the conversation in a criminal case. In State ex rel. Montgomery v. Villa (1995), 101 Ohio App.3d 78, the court held that once a prima facie case is made, the videnc e goes to the jury and it is the jury who will ultimately etermine the authenticity of the evidence. See also State v. Vrona 1988), 47 Ohio App.3d 145, where the court held: 1) that testimony s to a telephone call is admissible where there is a reasonable howing, through testimony or other evidence, that the witness laced or received a call as alleged, plus some indication of the dentity of the person spoken to; 2) there is no fixed dentification requirement for calls; and, 3) each case has its own et of facts. In the case sub judice, the court heard testimony from William radsha w that he received a telephone call from a person who dentified himself as the appellant; that he observed the appellant utside of his home on the night in question; that the caller ndicated that he would return the stolen objects; and that the aller also indicated that he had been under the mistaken belief the 8 bjects belonged to Joe Weber. Officer Kelly testified that he was resent when Bradshaw received a telephone call, and that as a esult he waited for the stolen goods to be returned. Michael Seman estifi ed that he paged the appellant, and upon receiving a elepho ne call from appellant, learned that the appellant was nvolved in the theft. Seman also testified that he gave the ppellant the Bradshaw's telephone number and that he directed the ppellant to telephone the victim. This testimony of these men was sufficient to authenticate the vidence for admission. Officer Kelly's testimony objectively ffirms that a telephone call was received by the victim. radshaw's testimony reasonably indicates the appellant was aware f and involved in the theft because the appellant not only knew of he theft, but he identified the tenant by name. The testimony of eman likewise indicates that the appellant knew of the ircumstances surrounding the theft of items from the Bradshaw asement. The trial court did not err in admitting testimony that the ppellant telephoned the victim. Sufficient circumstantial evidence as introduced which reasonably identified the appellant as the erson who telephoned William Bradshaw at the time the police were resent in the home. The appellant's first assignment of error is overruled. The second assignment of error: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED EVIDENCE CLAIMING DEFENDANT TO BE A DRUG DEALER. 9 In this assignment of error the appellant argues that the court ermitt ed improper and prejudicial testimony and that the court rred in failing to give a curative instruction. The appellant lleges that Michael Seman testified that the appellant is a drug ealer, and that Joe Weber was a drug addict who purchased drugs rom the appellant. The appellant characterizes this alleged estimony as the introduction of both character evidence and vidence of other acts. The following testimony of Michael Seman was heard by the court T. 98-100): Q During the course of your visit with Joe Weber, did Jason Marsh and Joe Weber did they have a conversation? A Yes, they did. Q Did they enter into any type of transaction? A (Nodding head.) Q You have to answer. A Yes. Q Could you describe how that happened? Mr. Mancino: Objection The Court: Overruled. You may answer. A Well,Joe is a drug addict, and at the time of this happening Jason was a drug dealer. Mr. Mancino: Objection. The Court: Without characterizing, just tell us what you saw. Sustained to the characterization. Jury's instructed to disregard that. By Mr. Sullivan: 10 Q Just describe what you saw happen. A Um, Joe purchased crack cocaine off Jason. Mr. Mancino: Objection to this. The Court: Sustained as to whether or not it's crack cocaine. By Mr. Sullivan: Q Without did you see some type of exchange? A Yes, I did. Q Now, you're not a lab technician or anything, are you? A No. Q So without saying what, just tell us what you actually saw. A Um, for the first part of the night it was money. Q Who gave money to who? A Joe to Jason. And then it came down to the point where it started to turn to goods. Q Okay. So when Joe gave Jason money, what did you see Jason, if anything, give to Joe? A Crack cocaine. Q Okay. Mr. Mancino: Objection. The Court: Sustained as to the characterization crack cocaine. By Mr. Mancino (sic): Q What did you see? Could you describe what that item looked like? A Oh, it was just a little white rock, man, just little, you know. I can't use any other description besides the name for it. Q Okay. But again, without actually analyzing it, you 11 can't tell us what it is. A It was just little white rocks. As can be seen from a careful reading of this passage of estimony, the court did not permit the State to elicit testimony hat the appellant was a drug dealer. When such testimony was iven, the court, properly, sustained the appellant's objection and, ontrary to the appellant's assertions, the court issued a curative nstruction. While the trial court properly sustained the objection, the ppellant 's argument may be read as a contention that the entire assage should have been stricken as objectionable. Evidence of haracter and of prior acts are not admissible except as permitted n Evid.R. 404, and the admission of such evidence is within the ounddiscretion of the trial court. State v. Matthews (1992), 80 hio App.3d 409. The Supreme Court has held that although the tandard for admissibility is strict, the other acts need not be the ame as or similar to the crime charged. State v. Jamison (1990), 9 Ohio St.3d 182. Evid.R. 404 states in pertinent part: (A) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, subject to the following exceptions: (1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same is admissible; **** (B) Other crimes, wrongs or acts. Evidence of the othercrimes, 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, 12 intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See also R.C. 2945.59. Evidence of other acts is admissible or purposes of proving motive and intent. State v. Vinson (1990), 0 Ohio App.3d 391. Specifically, the court held that other acts f drug-related activities are relevant to a determination of motive r intent and are admissible under Evid.R. 404(B). Id. Where the dmission of the appellant's drug activity are inextricably related o the case, statements regarding the sale of drugs are relevant to how motive, intent, identity, and absence of mistake or accident. atthews, supra. Likewise, the testimony provided by Seman provided admissible vidence as to the motive, intent, identity, and absence of mistake r accident. Seman's testimony regarding the trading of money and ossess ions for drugs provided a motive for the appellant's ttempted self-help remedy to collect on an illegal debt. This estimony provided support for the identity of the perpetrator, and rovided a basis for the jury to determine that the theft was not one by mistake or accident. The trial court did not abuse its iscretion in admitting this relevant testimony. The appellant's second assignment of error is overruled. The third assignment of error: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL WHEN THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The appellant asserts that the State submitted insufficient vidence that the appellant committed aggravated burglary or theft 13 ith proof beyond a reasonable doubt. The appellant argues that here was no evidence that the appellant entered the victim's house; here was no evidence that the appellant was seen with the stolen tems; that the telephone call was uncorroborated; and there was nsufficient evidence that the items were stolen or were ever in the asemen t. The appellant also asserts that the weight of the vidence presented by the State does not support his conviction. When the sufficiency of the State's evidence is challenged, the elevant inquiry is whether, after viewing the evidence in a light ost favorable to the prosecution, any rational trier of fact could ave found the essential elements of the crime beyond a reasonable oubt. State v. Williams (1995), 73 Ohio St.3d 153 citing to ackson v. Virginia (1979), 443 U.S. 307 and State v. Waddy (1992), 3 Ohio St.3d 424. The Supreme Court set forth the test for appellate review of he manifest weight of the evidence in State v. Jenks (1991), 61 hio St.3d 259, 273. A verdict will not be disturbed unless the ppellate court finds that reasonable minds could not reach the onclusion reached by the trier of fact. A reviewing court will not everse a verdict where there is substantial evidence upon which a ury could reasonable conclude that all the elements of the offense ave been proven beyond a reasonable doubt. State v. Ely (1978), 6 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The eight to be given evidence and the credibility of witnesses are rimarily for the trier of fact to determine. Jenks, supra. This court must also note that in Jenks, supra, the court held 14 t syllabus two: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. Citations omitted. The State provided evidence that the appellant was at the ictim's house the night prior to the crimes; that the appellant raded white rocks for money and possessions; that Joe Weber owed he appellant additional money; that the appellant told Mike Seman hat he would take the possessions of Joe Weber if Weber failed to ay his debt; that the appellant's white Chevrolet Celebrity was arked next to the victim's home both the night before the theft and he night of the theft; that the appellant was seen in the company f the person who was holding the victim's baseball bat the night f the crimes; that the victim and his family were present in the ome at the time of the theft; that the gate to the victim's home as open; that there was snow leading down into the basement steps f the victim's home; and that the appellant telephoned the victim nd indicated that he would return the stolen items. This evidence, f believed by the trier of fact, was sufficient to convict the ppellant of both aggravated burglary and of theft. The appellant's third assignment of error is overruled. Judgment affirmed. 15 It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecting the Common Pleas Court to carry this judgment into xecution. The defendant's conviction having been affirmed, any ail pending appeal is terminated. Case remanded to the trial court or execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. NN DYKE, J. and, IMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will e journalized and will become the judgment and order of the court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .