COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71612 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CURTIS TRAVERS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 23, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-331841. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Eleanore Hilow, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Scott Roger Hurley, Esq. Assistant Public Defender 100 Lakeside Place 1200 W. Third Street Cleveland, OH 44113 2 JAMES D. SWEENEY, C.J.: Defendant-appellant Curtis Travers, d.o.b. April 8, 1969, appeals from his jury trial conviction of one count of Aggravated Arson, in violation of R.C. 2909.02(A)(2)1, a second degree felony. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the State offered the testimony of five witnesses during its case-in-chief.2 The first witness for the prosecution was Miss Kathy A. Thomas, who testified in summary as follows: (1) on November 15, 1995, at approximately 10:00 a.m., she met the defendant, who was her fiance at the time and appeared to be very angry; (2) the witness observed the defendant throw the gentleman she was with to the ground before defendant began assaulting her; (3) the witness ran away, toward a nearby girlfriend's house, as the defendant ran in the opposite direction, toward their apartment located at 3315 East 149th Street, Suite 9; (4) when the witness returned to their apartment at approximately 11:00 p.m. that evening, the fire department was just clearing up the remains of a fire which had completely gutted the apartment, destroying all the contents therein; (5) the defendant and she had lived at the apartment for approximately six months; (6) in the time they lived together, she did not consider 1Appellant was acquitted on two other counts of Aggravated Arson dealing with the risk of serious physical harm to a person. See R.C. 2909.02(A)(1). R.C. 2909.02(A)(2), which formed the basis for the conviction sub judice, provides: (A) No person, by means of fire or explosion, shall knowingly do any of the following: * * * (2) Cause physical harm to any occupied structure; * * * 2The defense put on no witnesses during its case-in-chief. 3 the defendant, who smoked infrequently, to be much of a cigarette smoker. The second witness for the prosecution was Miss Charla L. Polk, who testified in summary as follows: (1) at the time of the offenses herein, she and her fiance were co-managers at the apartment building where the offenses occurred; (2) the fire was discovered at approximately 4:00 p.m.; (3) from her parked car in the parking area behind the building, she observed the defendant, who lived with Miss Thomas, exiting the first floor rear door to the building approximately ten minutes prior to the discovery of the fire; (4) as the defendant exited the building, she observed him throw something into the garbage before walking toward the street by means of the building driveway; (5) the witness had given her key to the Thomas/Travers apartment to the defendant; (6) the door to the burning apartment was locked when the fire department arrived; (7) the weather was extremely cold the day of the fire and she thought it was odd that the defendant was attired in a windbreaker rather than his normal 3/4 length leather coat; (8) she also thought it was odd for the defendant to exit the rear of the building because he did not own a car. The third witness for the prosecution was Cleveland Fire Department arson investigator Lt. Daniel Kovacic, who testified in summary as follows: (1) he investigated the fire at the apartment; (2) he corroborated the previous testimony that the apartment door was locked when the fire department arrived; (3) his investigation indicated that there were two separate points of origin for the fire, the first fire being set to a bedroom mattress and bedding/clothing in the only bedroom, and the second fire being set 4 just outside the bedroom on a vacuum cleaner which had the remnants of clothing scattered near it; (4) the fire was a rapidly spreading fire, as opposed to a slow, smoldering type of fire commonly represented by one started by a cigarette; (5) accidental sources of ignition (i.e., electrical and mechanical sources of ignition) were ruled out as having started the fire; (6) after defendant's arrest, which required a short chase by officers, the defendant spoke with the witness in the company of Lt. Cummings, at which time the defendant admitted to having beaten his fiance before returning to the apartment; (7) the defendant stated that he stayed at the apartment for only several minutes before exiting through the front door of the building; (8) the defendant did not mention anything about having left a cigarette burning inside the apartment. The fourth witness for the prosecution was Mr. Michael Aerni, the owner of the apartment building, who testified in summary as follows: (1) the three-story building contains eleven apartment units; (2) damage estimates at the time of the trial were approximately $96,000; (3) at the time of the fire, ten of the apartment units were rented; (4) at the time of the trial, only four of the apartment units were habitable and rented; (5) subsequent to the fire, the witness received a letter (State Exhibit 1) from the incarcerated defendant, postmarked November 29, 1995, in which the defendant expressed remorse and sought forgiveness for having caused the fire, admitting that he had smoked a cigarette while at the apartment after the altercation with his fiance; (6) the building was renovated when he purchased the structure in 1992 and there were no problems with the 5 electrical or mechanical systems within the building. The fifth, and final, witness for the prosecution was Cleveland Fire Department Detective Charles E. Cummings, who investigated the fire with Lt. Kovacic and corroborated that witness's testimony. The prosecution then rested subject to the admission of exhibits. The defense then made its motion for acquittal pursuant to Crim.R. 29. Subsequent to oral argument, this motion was denied. The defense then successfully admitted into evidence a chalkboard used in the courtroom before renewing its motion for acquittal. The court denied this renewed motion. Following the charge to the jury and deliberations by that body, the guilty verdict was returned. The court then remanded the defendant for the preparation of a pre-sentence investigation report. At the sentencing hearing, the court sentenced the defendant to a term of 5 to 15 years imprisonment plus court costs. This appeal presents two assignments of error for review. I THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE PERMISSIBLE USES OF OTHER ACTS EVIDENCE INTRODUCED BY THE STATE, IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS. The other acts evidence to which appellant refers is the testimony of Miss Thomas concerning the beating she received at the hands of the defendant-appellant and the accompanying photographic exhibits of Miss Thomas' face showing the wounds and bruising caused by that beating. Having reviewed the jury instructions given by the trial 6 court, it is noted that, when given the opportunity to do so by the court after the instructions were given, no party made any objections or modifications to the jury instructions3. Accordingly, the appellant properly raises the claimed error in the jury instructions under a theory of plain error. The standard of review for this theory was recently provided in State v. Williams (January 23, 1997), Cuyahoga App. No. 68330, unreported, at 2, 1997 WL 25525, at 2, as follows: The plain error standard is `but for' the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978), 53 Ohio St.3d 91, paragraph two of the syllabus; State v. Benge (1996), 75 Ohio St.3d 136, 141; State v. Waddell (1996), 75 Ohio St.3d 163, 166; State v. Moreland (1990), 50 Ohio St.3d 58, 62; and State v. Williams (1977), 51 Ohio St.2d 112. The essence of the plain error doctrine is one of waiver. Moreland, at 62. Our review is, of course, discretionary. Waddell, at 166 (our discretionary review of this issue must proceed, if at all [when no objection is made] under the plain error analysis of Crim.R. 52(B), and to warrant a reversal the but for standard of State v. Long and State v. Moreland must be established). In State v. Long, the Ohio Supreme Court mandated that the plain error rule is to be invoked only in exceptional circumstances to avoid a miscarriage of justice. Id. at 95. Citing Rule 52(b), the Supreme Court of Ohio stated an appellate court should not consider questions not raised and passed upon by the trial court. Plain error is a device to be used with limitation and caution. Long, at 96. To do otherwise would undermine and impair the administration of justice. Id. In light of this standard of review, we do not conclude that the outcome of the trial would have been otherwise but for the 3In fact, defense counsel complimented the trial court in a most effusive manner relative to the jury instructions. See R. 279. 7 claimed error. Whether Miss Thomas received a beating by the defendant or not, the evidence of defendant-appellant's guilt is unmistakable. The evidence placed the defendant at the apartment shortly before the fire was discovered: in fact, the defendant, in his letter to the building owner, admitted to being at the apartment and having caused the fire by leaving a cigarette burning in the unit after leaving the apartment. Next, the defendant was seen exiting the building using the back door to the building, a fact which defendant directly contradicted in his interview with the Fire Department investigators. Finally, the defendant claimed in his letter to the building owner that his careless use of a cigarette caused the fire, yet defendant did not mention this to the Fire Department investigators and the testimony of those investigators demonstrated that the cause of the fire was not due to a cigarette by virtue of the rapidly spreading nature of the fire and the existence of two separate points of origin. The first assignment of error is overruled. II THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE INTRODUCTION OF PHOTOGRAPHIC OTHER ACTS EVIDENCE, IN VIOLATION OF EVID.R. 404(B), THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL, GUARANTEED BY THE DUE PROCESS CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS. In this assignment, appellant claims that the admission into evidence of the three photographs of Miss Thomas' beaten face was error pursuant to Evid.R. 404(B). See State Exhibits 16-18, R. 237. 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 8 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. State v. Gumm (1995), 73 Ohio St.3d 413, 426. The photographs, which are subject to admission into evidence pursuant to the discretion of the trial court, State v. Wilson (1996), 74 Ohio St.3d 381, 391, State v. Heinish (1990), 50 Ohio St.3d 231 and Evid.R. 403 and 404, besides being illustrative of Miss Thomas' testimony concerning the severity of the beating and the level of anger present in the defendant-appellant at the time of the beating, aid in demonstrating an angry, vengeful or spiteful motive by the defendant in having chosen to set fire to the apartment and that such act was not the result of an accident. Accordingly, it was not error to admit the photographs into evidence. The second assignment of error is overruled. Judgment affirmed. 9 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. ANN DYKE, J. and TIMOTHY E. MCMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE 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 .