COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72811 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION BURRELL FULLER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 30, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 256342 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor MARK R. MAJER, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN, ESQ. 4403 St. Clair Avenue Cleveland, Ohio 44103 PATRICIA ANN BLACKMON, A.J.: Appellant Burrell Bill Fuller appeals the decision of the trialcourt convicting him of kidnaping and robbery and sentencing -2- him accordingly. Fuller assigns the following four errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT DID NOT GRANT THE APPELLANT'S REQUEST FOR A MISTRIAL DUE TO SPEEDY TRIAL VIOLATIONS. II. THE TRIAL COURT HAD A DUTY TO ISSUE FINDINGS OF FACT AFTER OVERRULING THE APPELLANT'S MOTION FOR A SPEEDY TRIAL WHEN THE APPELLANT REQUESTED THEM. III. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV. THE TRIAL COURT ERRED WHEN IT ALLOWED IN EVIDENCE OF OTHER ACTS OF THE DEFENDANT WHICH WERE WHOLLY INDEPENDENT OF THE OFFENSE FOR WHICH HE WAS ON TRIAL. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On August 9, 1990, Fuller was arrested for the kidnaping and robbery of Elizabeth Libby Petrey. Fuller was indicted on Septemb er 13, 1990. A summons was sent by certified mail to his last known address on September 17, 1990 and was returned unclaimed on October 24, 1990. At the time, Fuller was incarcerated in Lorain Correctional Institution for an unrelated charge. A warrant for his removal was filed on October 3, 1990, but Fuller was released before it could be served. In September 1996, Fuller was extradited from Mississippi where he was incarcerated for aggravated assault.1 On February 3, 1997, 1 Fuller was tried for the rape of Brenda Stringfellow in Starkvill e, Mississippi. After a hung jury, Fuller pleaded to a -3- Fuller filed a speedy trial motion to dismiss these charges. The motion was denied and trial began on May 1, 1997. At trial, the victim Elizabeth Petrey testified that on August 9, 1990, she left work between 4:00 p.m. and 5:00 p.m. Sometime thereafter, Fuller entered her car and introduced himself. He also told her he knew her neighbors, the Jacksons. Petrey drove according to Fuller's instruction and parked on a dead-end street where he began pulling and grabbing her. Petrey escaped by hitting Fuller on the head with a Pepsi can. Petrey ran to the nearby home of Vivian Kyle. While at Vivian Kyle's home, Petrey called the police, her boyfriend, and her father. Petrey also testified Fuller followed her to the Kyle's residence yelling at her and calling her a crazy bitch. Petrey said he also told Vivian Kyle that Elizabeth Petrey was his woman and Vivian Kyle was interfering in a personal dispute. Thereafter, he drove away in Petrey's car after hearing police sirens. The second half of Petrey's testimony described the events that led to Fuller's arrest. While at the Kyle residence, Petrey called the Jacksons and spoke to Blue Jackson, who told her Fuller's last name,the street he lived on, and his place of employment. Petrey relayed this information to the police. The street where Fuller lived is the same street where Petrey and her family live. Later, when her mother and sister were taking her to the hospital, they decided to drive by to see if Elizabeth Petrey's car lesser included offense of felonious assault. Consequently, Fuller was sentenced to nine years. -4- was at Fuller's place of residence. They did see the car and returned home to inform the police of the whereabouts of the car. Then, Petrey and her family went back to Fuller's house to confront him. A fight ensued between Fuller and Petrey's family. Petrey finally went to the hospital. While at the hospital, the police asked Petrey to return to the scene of the fight to identify Fuller. She complied with their request and identified him as the person who got into her car and subsequently stole it. Police Officer Earline Robinson responded to the call at 5:50 p.m. She said Petrey was visibly shaken. After taking down a report and description of Fuller, Officer Robinson left to look for him. Two hours later, Officer Robinson received another call to respond to 1087 E. 148th Street because a man fitting the description of Fuller was seen in the area. Officer Robinson stated that Petrey pointed Fuller out as her attacker. He was then arrested. Officer Joseph Mitchell testified he was dispatched to East 148th Street in connection with an automobile theft. Officer Mitchell testified Fuller ran away upon seeing him and his partner. Officer Mitchell apprehended Fuller after a brief foot chase. Testimony was also given by Marquise Kyle, daughter of Vivian Kyle.Marquise Kyle was a child at the time of the incident. She testified she saw a man and a woman tussling in a car that stopped at the end of the street. Marquise told her mother what she saw. Vivian Kyle chose not to interfere at that time and sent Marquise to the corner store. Upon returning, Marquise noticed the car and the people in it were still there. Again, Marquise told her mother -5- she thought the lady in the car needed help. Soon after, Petrey was running down the street screaming for help. Marquis e Kyle also testified Fuller followed Petrey to the Kyle's home yelling and calling her names. Marquise Kyle said Fuller left after hearing police sirens. During the trial, Marquise Kyle identified both Petrey and Fuller as the victim and the perpetrator, respectively. Other members of the Kyle family gave similar testimony. The state also called Brenda Stringfellow of Laurel, Mississippi. Ms. Stringfellow testified she gave Fuller a ride per the request of a mutual friend in 1995. Ms. Stringfellow said Fuller began making sexual remarks to her and punching her. Ms. Stringfellow said Fuller made her drive to a secluded area and raped her. Finally, Ms. Stringfellow testified Fuller was not convicted of raping her, but subsequently pled guilty to aggravated assault. On defense, Fuller testified that Petrey often left work early to smoke crack with him. Fuller testified on the day in question, Petrey came to his house around 3:00 p.m. to smoke crack with some friends. Fuller and Petrey left to purchase more crack. Fuller said they stopped on Wheelock because Petrey wanted a hit. He said Petrey complained she did not get enough and grabbed the crack and jumped out of the car screaming. Fuller said he followed her and threw her shoe at her and drove home. Fuller testified there was no struggle. In his first assigned error, Fuller argues his Sixth Amendment right to a speedy trial was violated by the prosecution's -6- unjustifiable delay in commencing prosecution. Fuller argues his case was not tried until seven years after his arrest in 1990. The issue for us is whether the prosecutor exercised reasonable diligence in executing the summons and warrant. We frame the issue in these terms because Fuller was arrested on August 9, 1990. He was indicted on September 13, 1990. A summons was sent by certified mail to his last known address on September 17, 1990 and was returned unclaimed. The state learned that he was incarcerated in Lorain and issued a warrant for his removal. However, before the warrant could be executed he was released. He, thereafter, left the state. He was extradited from Mississippi in September 1996. February 3, 1997 he filed his speedy trial motion, which was denied. Thereafter, on May 1, 1997 trial was commenced. The six year statute of limitations for prosecuting felonies would bar Fuller's prosecution unless it is shown that the state exercis ed reasonable diligence in executing the warrant for his arrest. The state argues it complied with Crim.R. 4(D) when it attempted to serve the summons and warrant on Fuller. Crim.R. 4(D) provides that a summons is to be served upon a defendant by delivering a copy to him personally, or by leaving it at his usual place of residence with a person of suitable age, or by mailing it to his last known address by certified mail with a return receipt requested. Here, the prosecution sent summons by certified mail and it was returned unclaimed. Consequently, the prosecution has shown that it has met the requirements of Crim.R. 4(D). State v. Greer (1981), 2 Ohio App.3d 399. -7- When the requirements of Crim.R. 4(D) have been met, this court has held that reasonable diligence has been satisfied. State v. Stevens (Dec. 22, 1994), Cuyahoga App. No. 67400, unreported. See Cleveland v. Anderson (Aug. 27, 1992), Cuyahoga App. No. 60998, unreported. The record shows the state attempted certified mail service, but it was returned unclaimed. When the state learned Fuller was in Lorain Correctional Institution, it attempted to remove him by warrant but missed him. Thereafter, he moved out of state. The state ultimately located him in Mississippi where he was serving nine years for aggravated assault stemming from a rape and kidnapp ing. Based on this record, we conclude the prosecution exercised reasonable diligence to execute the warrant. Accordingly, Fuller's first assigned error is overruled. In his second assignment of error, Fuller argues the trial court erred when it failed to issue his requested findings of fact, which he made after the court denied his speedy trial motion. Pursuan t to Crim.R. 12(E), the trial court must state its essential findings on the record when determining a motion where factual issues are involved. (Emphasis added.) The Ohio Supreme Courthas held [i]t is reversible error for a trial court to fail to state on the record its essential factual findings when it overrules a defendant's motion *** upon the defendant's timely request. State v. Almalik (1986), 31 Ohio App.3d 33, syllabus. (Emphasis added.) Here, the trial court stated its findings on the record, which is sufficient under State v. Almalik. The purpose of the finding -8- is to provide a record for the reviewing court to enable it to properly address the appellant's factual issues. This, we were able to do from the transcribed record; consequently, Fuller's second assigned error is overruled. Fuller argues in his third assigned error that the verdict is against the manifest weight of the evidence. We disagree. 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 then. Weight is not a question of mathematics but depends on its effect in inducing belief.' State v. Thompkins (1997), 78 Ohio St.3d 380, 387. Thus, our inquiry under State v. Thompkins is whether the weight of the evidence sustains the conviction. If not, we must conclude that the jury lost its way and created a miscarriage of justice. In substance, we must determine if the evidence weighs heavily against the conviction. Id. Fuller was charged with kidnaping Elizabeth Petrey and robbing her of her car. Elizabeth Petrey testified Fuller entered her car, ordered her to drive to a dead-end street where he assaulted her. She was able to free herself when she struck him with a Pepsi can. She escaped and he drove off in her car. The car was later found near Fuller's home on the street where he lived. -9- Petrey's testimony was corroborated by Marquise Kyle who observed a man and woman fussing in a car; the car was stopped at the end of the street. Marquise told her mother, Vivian Kyle, that from her observation, the woman needed help. Thereafter, she saw Petrey running down the street screaming for help. She also observed that Petrey's clothing was torn. Marquise identified Elizabeth Petrey and Fuller. Additionally, the state presented other acts evidence tending to show motive, scheme, plan, or system. The substance of the other act evidence was that Ms. Stringfellow gave Fuller a ride at the request of a mutual friend. During the drive, he assaulted her and forced her to drive to an isolated area where he raped her. Based on all of the state's evidence, we conclude the evidence weighed heavily in favor of Fuller's conviction; consequently, his third assigned error is overruled. In his fourth assignment of error, Fuller argues the trial court erred when it allowed in other act evidence. Fuller claims the other act was wholly independent of the offense for which he was on trial. He also argues the testimony did not qualify as any of the exceptions listed in Evid.R. 404(B) or R.C. 2945.59 and, thus, should have been excluded. Evidence Rule 404(B) states as follows: 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. -10- R.C. 2945.59 states a similar provision. Here, Ms. Stringfellow testified Fuller forced her to drive to an isolated area, beat her, and then raped her. The state argues Ms. Stringfellow's testimony showed motive scheme, preparation, and planning in a crime identical to the one involving its case against Fuller. The state argues Ms. Stringfellow's testimony tended to show Fuller's plan was to take Petrey to a remote location via her car as he did Ms. Stringfellow and rape her. We agree. Consequently, we conclude Ms. Stringfellow's testimony provided enough similarity to show a common scheme, plan, or motive. State v. Goines (1996), 111 Ohio App.3d 840, 846. Ms. Stringfellow's testimo ny also formed a unique, identifiable plan of criminal activity. State v. Jamison (1990), 49 Ohio St.3d 182. Therefore, the trial court committed no error, and Fuller's fourth assignment of error is overruled. Judgment affirmed. 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. -11- TIMOTHY E. McMONAGLE, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 courtpursuant 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 .