[Cite as State v. Alexander , 2019-Ohio-451.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106556

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. TONY E. ALEXANDER

DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-613332-A

BEFORE: Jones, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 7, 2019ATTORNEY FOR APPELLANT Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor

BY: Sean Kilbane Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

LARRY A. JONES, SR., J.: {¶1} Defendant-appellant, Tony Al exander (“Alexander”), a ppeals his theft conviction that was rendered after a jury trial. For th e reasons that follow, we reverse and remand. Procedural History and Facts {¶2} In 2017, Alexander was charged with one c ount of theft, a fifth-degree felony. Prior to trial, the state filed an Evid.R. 404(B) motion to introduce other acts testimony. Alexander objected, and the tr ial court granted the motion over Alexander’s objection. {¶3} The following pertinent evidence was presented at trial. {¶4} Dustin Parsons (“Parsons”), an employ ee with Asplundh Tree Expert Co., was the general foreperson for a tree-trimming job in the Village of Walton Hills. His crew had a total of four work trucks that were parked on old Route 8. The trucks have built-in storage compartments on the sides where Asplundh employees would store equipment such as ropes andchainsaws. These storage units would be locked and secured anytime the trucks were left

unattended. {¶5} On November 23, 2016, which was the We dnesday before Thanksgiving, the employees left the work site at 5:30 p.m. The employees secure d the trucks at the site and parked them close — “an inch or two apart” — and facing opposite directions. This parking arrangement was meant to prevent any thefts from the storage units on the sides of the trucks. Before Parsons left the work site, he collected all the keys to the trucks, which included the keys to the storage units. {¶6} When Parsons returned to the site on Nove mber 28, he discovered that locks of two of the side compartments had been cut and the doors forced open. Missing from the trucks were three chainsaws and a leaf blower, worth a total of $1,600. {¶7} Parsons discovered a spot of blood on the door of a damaged storage unit and called police. Officer Thomas Creek from the Walton Hills police department responded to the scene and observed two spots of blood on one of the damaged side compartme nts. Sergeant David Kwiatkowski, also of the Walton Hills police department, observed bl ood on that same door, which he collected, and sent to the Ohio Bureau of Criminal Investigation (“BCI”) for testing. {¶8} Emily Feldenkris (“Feldenkris”), a fo rensic scientist in BCI’s DNA section, performed the technical review for the case. Feldenkris explained the process of extracting a DNA profile from a piece of evidence and comparing it to a DNA standard, and that all conclusions and findings made by a DNA analyst ar e subject to a technical review by another qualified analyst. The technical review includes a second DNA an alyst reviewing the original

data and the controls to ensure that the tests were working properly, coming to his or her own independent conclusions, a nd verifying that the analyst who wrote the original report came to thesame conclusions. {¶9} Feldenkris reviewed the data from the analyst who performed the DNA comparison.

Feldenkris found that the swabs from the scen e were consistent with Alexander, and the expected frequency of occurrence of that particul ar evidence profile was rarer than one in one

trillion unrelated individuals. {¶10} Alexander’s DNA was in the computerized database from a previous case. Sergeant Dennis Papineau (“Sergeant Papineau”) from the Erie County Sheriff’s Office testified regarding that previous case, that involved two incidents. According to Sergeant Papineau, on November 23, 2015, he responded to a call for broken car windows in an outlet mall parking lot.

He located blood inside one of the vehicles and was able to collect a blood sample for further analysis. {¶11} On December 12, 2015, Sergeant Papineau responded to the same area after employees of Nelson Tree Service reported that one of their trucks had been broken into. Sergeant Papineau “knew that it c ould be most likely the same su spect that would be involved”

in this incident and the November 23 incident . The police detained Alexander and located numerous chainsaws, a grinder, and an assortment of tools in the back seat of Alexander’s car. Alexander initially told police he was an employee of the tree service company, but the police quickly learned this was not true. {¶12} Based on this investigation, Sergeant Papin eau secured a search warrant to obtain a buccal swab from Alexander to compare to the blood evidence that had b een collected at the

scene of the November 2015 vehicle break-ins. The sergeant did not testify regarding whether they made a DNA match or the outcome of Alexander’s arrest in Erie County. {¶13} The jury in the instant case convicted Alexander of the sole count in theindictment. The court sentenced him to two years of community cont rol sanctions, ordered $1,266 in restitution, and waived all fines and costs. Assignments of Error {¶14} Alexander now appeals, raising the followi ng assignments of error for our review: I. The trial court erred by admitting other acts evidence over appellant’s objection.

II. The trial court erred and appellant was denied the effective assistance of counsel when Emily Feldenkris’s tes timony was admitted as expert testimony.

III. Defendant’s cons titutional rights were violated when the state improperly commented on his decision to remain silent. IV. Appellant’s convicti ons were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal. V. The convictions were against th e manifest weight of the evidence. {¶15} The first assignment of error is dispositive of this appeal.

Other-Acts Evidence was Inadmissible {¶16} In the first assignment of error, Alexande r contends that the trial court erred by admitting other-acts evidence. {¶17} The admission of evidence lies within the broad discretion of a trial court, and a reviewing court should not disturb evidentiary deci sions in the absence of an abuse of discretion that has created material prejudice. State v. Noling , 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43. {¶18} Under Evid.R. 403(A), exclusion of rele vant evidence is mandatory “if its probative value is substantially out weighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Moreover, pursuant to Evid.R. 404(B), evidence that an

accused committed a crime other than the one for wh ich the accused is on trial is not admissiblewhen its sole purpose is to show the accused’s pr opensity or inclination to commit crime, or that the accused acted in conformity with bad character. State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. There are ex ceptions, however, that allow other acts of wrongdoing to be admitted into evidence. {¶19} R.C. 2945.59 provides: [i]n any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his [or her] part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his [or her] motive or intent, the absence of mistake or accident on his [or her] part, or the defendant’s scheme, pla n, 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 s how or tend to show the commission of another crime by the defendant. {¶20} Similarly, Evid.R. 404(B) provides that ev idence of other crimes, wrongs, or acts “is not admissible to prove the character of a person in order to show action in conformity therewith” but may be admissible to show “pr oof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident.” R.C. 2945.59 and Evid.R. 404(B) are “to be strictly construed against the st ate, and * * * conservativ ely applied by a trial

court.” State v. DeMarco , 31 Ohio St.3d 191, 194, 509 N.E.2d 1256 (1987). {¶21} In Williams , the Ohio Supreme Court set forth the following three-step analysis for determining whether other-acts evidence is admissible: The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401.The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R. 403.

Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 20. {¶22} According to the state, it sought to in troduce evidence from the Erie County thefts to establish that BCI compared the collected ev idence to the swab taken from Alexander in this

case. The state also wanted to introduce evidence from th e Erie County theft to establish Alexander’s modus operandi (“M.O.”) of breakin g into tree service work trucks to steal equipment. {¶23} Prior to trial, the parties discussed the state’s Evid.R. 404(B) motion on the record. The court inquired whether th e parties would stipulate to the DNA evidence in lieu of the Evid.R. 404(B) evidence being introduced. Alex ander declined. The trial court ultimately allowed the Evid.R. 404(B) evidence to be in troduced, but precluded the state from introducing Alexander’s Erie County conviction. {¶24} Pursuant to Williams , we first consider whether the other-acts evidence is relevant; that is, whether the Erie County th efts were relevant to this case. Alexander contends that the Erie County incidents are irrele vant because it happened at a different time in a different jurisdiction. The state argues that the fact at issue in this case was not whether there were items stolen, what the value was of the items stolen, or whether anyone had per mission to take any of the items, but rather a question of who stole the items. Thus, the state contends, the issue in the

case was whether Alexander was the individual who broke into the Asplundh work truck and stole the equipment, and the state sought to introduce the other-acts evidence to show the identityof the perpetrator. {¶25} The state introduced evidence that Al exander’s DNA was on the Asplundh work truck. According to the state, it needed to explain to the jury why this fact was significant, and Evid.R. 404(B) “gave the state a vehicle to do so” because the December 2015 incident in Erie County dealt with a theft from another tree servi ce work truck and the facts in the previous

instance are almost identical to this case. {¶26} In the instant case, there was testimony which allowed the jury to find that Alexander cut the lock off of the Asplundh work truck storage unit and took equipment. In the Erie County incident, Alexander was found with a grinder, and th e Nelson trucks involved locks that had been cut from the storage units. Ultimately, the state contends, the other-acts evidence

is relevant because it is evidence that the presence of Alexander’s DNA on the Asplundh work

truck was not coincidental. {¶27} We agree with the state that the evidence was relevant. The facts and

circumstances of the thefts ar e similar — both crimes involved break ing into the storage unit of tree trimming trucks with some kind of grinding tool and stealing equipment from the trucks. {¶28} Our inquiry does not end here, however. Pursuant to Williams , we next consider whether the Erie County evidence wa s presented to prove Alexander’s character to show that he acted in conformity therewith or whether the other-acts evidence was presented for a legitimate purpose under Evid.R. 404(B). {¶29} Again, the state claims it sought to introdu ce evidence of the Erie County thefts to establish that the BCI compared the collected ev idence to the swab taken from Alexander in this case to establish Alexander’s identity and also to show his M.O. {¶30} We find no merit to the state’s contention that the other-acts evidence wasadmissible to show identity. The state ha d a DNA match to identify Alexander as the perpetrator in this case; if identity was at issue, the best evidence was the objective DNA evidence from this case, not th e evidence from Erie County. {¶31} Extrinsic evidence of prior bad acts may also be used to identify the defendant as the perpetrator of the offense by showing that the defendant committed similar crimes using a distinct M.O. But a prior act involving th e defendant committing the sa me or similar offense does not automatically constitute a M.O. Ev idence of a certain M.O. is admissible under Evid.R. 404(B) when it “provides a behavioral fingerprint which, when compared to the behavioral fingerprints associated with the crime in question, can be used to identify the defendant as the perpetrator.” State v. Lowe , 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). {¶32} To qualify as a M.O., there must be some unique pattern tending to show that the crimes were committed by the same person. For example, in State v. Bey , 85 Ohio St.3d 487, 709 N.E.2d 484 (1999), the Ohio Supreme Court held that the other-acts evidence was

admissible in a homicide case because both victims were businessmen who were killed at their place of business, both were stabbed in the ch est with a knife, both men had their trousers removed and their shoes were placed next to their bodies, and althoug h both businesses were robbed, jewelry was left on each man. {¶33} Conversely, in State v. Yancy , 8th Dist. Cuyahoga Nos. 96527 and 96528, 2011-Ohio-6274, this court found th at the trial court erred in admitting evidence of a prior burglary conviction because the facts did not pr ovide a behavioral foot print with which to identify the defendant as the perpetrator of the crime. The similar facts included that a perpetrator gained access to an older home in Shaker Heights, Ohio, at night, by slicing the

window screen to unlatch the window and st eal easily accessible items commonly found on akitchen counter, such as wa llets, purses, and keys. Id. at ¶ 20, 22. {¶34} The similarities between the December 2015 theft from Nelson in Erie County and November 2016 theft from Asplundh in Cuyahoga County are striking only because the two

thefts involved similar victims — tree service co mpanies. There is nothing unique about the manner in which Alexander committed the thefts that provide “a distinctive behavioral fingerprint.” Moreover, the extraneous deta ils of the December 2015 Erie County theft were less probative than the DNA evidence from this cas e. Therefore, we find that the facts surrounding the December Erie County theft, includi ng the fact that the victim was another tree trimming company, were not admissible to show M.O. {¶35} Third, under Williams , we consider whether the pr obative value of the other-acts evidence is substantially outweighed by the danger of unfair prejudice. We find that even if the

facts of the December 2015 Erie County incident were admissibl e to show M.O., the admission of that evidence is substantially outweig hed by the danger of unfair prejudice. {¶36} In balancing the probative value of certain evidence against its possible prejudicial tendency, it is appropriate to assess evidentiary alternatives the same way. State v. Creech , 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 22. Probative value is measured partially by the relative scarcity of evidence on the same i ssue; that is, if the state offers evidence for which there is an evidentiary alternative that has substantially similar or greater probative value but is less prejudicial, the probative value of the state’s evidence must be discounted. Id. , citing Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). “The danger of unfair prejudice is then weighed ag ainst this reduced probative value.” Creech at id. In other words, the probative value of the state’s evidence is affected by the presence of an evidentiary alternative. Id. at ¶ 24.{¶37} In this case, there was an evidentiary alte rnative to the other-acts evidence the state wished to introduce. Although the state first collected Alexander’s DNA in Erie County, there was no reason why the state needed to introduce ev idence of two Erie County incidents to show a

DNA match in this case. The state could ha ve easily introduced the DNA evidence from this case without discussing an y specifics of Alexander’s alleged prior acts. {¶38} In addition, as discussed, the state introdu ced other-acts evidence of two incidents, only one of which involved a theft from a tree service truck. The November 2015 Erie County incident involved car break-ins. It was during that incident that Al exander’s DNA was first collected, but the circumstances of those break-ins were dissimilar from facts of this case. The November 2015 incident involved a perpetrator br eaking car windows while the cars were parked in an outlet mall parking lot. The facts of that incident differ from the instant case, where it was alleged that Alexander broke into an unattended tree-trimming vehicle, parked on the side of the road, to steal equipment. {¶39} We are further troubled by the fact that the trial court did not give the jury a limiting instruction with regard to Alexander’s prior acts. A trial court can minimalize potential prejudice by providing limiting instructions before testimony and again before submitting the case to the jury . See State v. Mills , 2016-Ohio-6985, 72 N.E.3d 76, ¶ 18 (12th Dist.). No limiting instruction was given in this case. {¶40} If there was any doubt about the state’s motive to introduce the other-acts evidence in this case, one need only consider the state’s closing argument. During closing arguments, the state told the jury that even if the jury did not believe the DNA or other evidence that showed that Alexander committed a theft, the jury shoul d still convict Alexander based on his prior act: If any of that evidence is not enough for you, if you are still thinking, okay, I don’t know, maybe, maybe there is a chance, maybe there is some doubt there, okay, goback to almost a year prior in Erie Count y where the defendant is seen with three chainsaws in the back of his truck after he stole from yet another tree service company. This is what he does. This is his M.O. He takes items from tree service companies. The same amount th at was taken in this case, he had a handheld saw in that case that was presum ably used and what the evidence shows was used in this case. {¶41} Here, the state is admitting that it used the evidence of a prior bad act to show that Alexander acted in conformity therein in the current crime. {¶42} The error was not harmless. “Pursuant to Crim.R. 52(A), ‘any error, defect, irregularity, or variance which does not affect substantial rights sh all be disregarded.’ In order to find an error harmless, a reviewing court must be able to declare a belief that the error was harmless beyond a reasonable doubt.” State v. Stephens , 2016-Ohio-384, 59 N.E.3d 612, ¶ 34 (8th Dist.), quoting State v. Lytle , 48 Ohio St.2d 391, 403, 358 N.E.2d 623 (1976). A reviewing court may overlook an error where the remaining ad missible evidence, standing alone, constitutes “overwhelming” proof of a defendant’s guilt. Stephens at id ., citing State v. Williams , 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983). If there is ‘“no reasonable possibility that unlawful testimony contributed to a conviction, the error is harmless and therefor e will not be grounds for

reversal.”’ Stephens at id. , quoting State v. Brown , 65 Ohio St.3d 483, 605 N.E.2d 46 (1992). {¶43} In this case, a reasonable possibility exists that the testimony regarding the Erie County incidents contributed to Alexander’s conviction. Moreover, although the state presented

evidence that Alexander’s DNA was found on one of Asplundh’s trucks, that evidence alone is not overwhelming proof of his guilt. Compare Yancy , 8th Dist. Cuyahoga Nos. 96527 and 96528, 2011-Ohio-6274 (substantial evidence to support guilty verdict beyond other-acts

evidence included defendant’s DNA found in an unknown hat in the victims’ home and defendant being arrested in the victims’ stolen car, which had on it license plates registered to defendant’s father).{¶44} Simply put, there was no legitimate reason to allow facts about the prior theft, which do not establish identity or M.O., and th at do not fall into any other Evid.R. 404(B) exception, especially when objec tive DNA evidence could have b een admitted without detailing Alexander’s prior acts. That is unless the state’s objective was to show “this is what he does.” In light of the above, the admission of th e evidence unfairly pr ejudiced Alexander. {¶45} The first assignment of error is sustaine d. Alexander’s convic tion is reversed, and the case is remanded for further proceed ings consistent with this opinion. {¶46} The remaining assignments of error are moot given our disposition of the first assignment of error. See App.R. 12(A)(1)(c). {¶47} Judgment reversed; case remanded. It is ordered that appellant rec over of appellee costs herein taxed.

The court finds there were reas onable 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. Th e defendant’s conviction having been affirmed, any bail pending appeal is ter minated. 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 Appella te Procedure.

LARRY A. JONES, SR., JUDGE EILEEN A. GALLAGHER, P.J., CONCURS; EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION EILEEN T. GALLAGHER, J., DISSENTING:{¶48} I respectfully dissent because while I agree the trial court erred in admitting detailed evidence of Alexander’s prior criminal activities, I find the error harmless given the fact that Alexander’s DNA was found on the Asplundh truc ks. Some evidence of Alexander’s prior criminal activities was necessary to explain how the police obtained hi s DNA since Alexander refused to stipulate to the DNA evidence, but th e details of those activ ities did not qualify as a modus operandi and were not nece ssary to prove identity. I neve rtheless believe the error in allowing these details to come into evidence was harmless because the DNA evidence linking Alexander to the thefts was enough to convict h im even if the extraneous details of his other

crimes had been excluded.