[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, 2019 
ATTORNEY 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 Alexander (“Alexander”), appeals his theft conviction 

that was rendered after a jury trial. For the reasons that follow, we reverse and remand. 

Procedural History and Facts

{¶2} In 2017, Alexander was charged with one count 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 trial court granted the motion over Alexander’s objection. 

{¶3} The following pertinent evidence was presented at trial. 

{¶4} Dustin Parsons (“Parsons”), an employee 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 and 
chainsaws. These storage units would be locked and secured anytime the trucks were left 

unattended. 

{¶5} On November 23, 2016, which was the Wednesday before Thanksgiving, the 

employees left the work site at 5:30 p.m. The employees secured 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 November 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 compartments. Sergeant David 

Kwiatkowski, also of the Walton Hills police department, observed blood on that same door, 

which he collected, and sent to the Ohio Bureau of Criminal Investigation (“BCI”) for testing. 

{¶8} Emily Feldenkris (“Feldenkris”), a forensic 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 are subject to a technical review by another 

qualified analyst. The technical review includes a second DNA analyst reviewing the original 

data and the controls to ensure that the tests were working properly, coming to his or her own 

independent conclusions, and verifying that the analyst who wrote the original report came to the 
same conclusions. 

{¶9} Feldenkris reviewed the data from the analyst who performed the DNA comparison. 

 Feldenkris found that the swabs from the scene were consistent with Alexander, and the 

expected frequency of occurrence of that particular 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 could be most likely the same suspect 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 Papineau secured a search warrant to obtain a 

buccal swab from Alexander to compare to the blood evidence that had been 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 the 
indictment. The court sentenced him to two years of community control sanctions, ordered 

$1,266 in restitution, and waived all fines and costs. 

Assignments of Error 

{¶14} Alexander now appeals, raising the following 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 testimony was admitted as expert testimony. 

III. Defendant’s constitutional rights were violated when the state improperly 

commented on his decision to remain silent. 

IV. Appellant’s convictions were not supported by sufficient evidence and the 

trial court erred by denying his motion for acquittal. 

V. The convictions were against the 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, Alexander 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 decisions 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 relevant evidence is mandatory “if its 

probative value is substantially outweighed 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 which the accused is on trial is not admissible 
when its sole purpose is to show the accused’s propensity 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 exceptions, 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, plan, 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. 

{¶20} Similarly, Evid.R. 404(B) provides that evidence 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 “proof 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 state, and * * * conservatively 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 introduce evidence from the Erie County thefts 

to establish that BCI compared the collected evidence to the swab taken from Alexander in this 

case. The state also wanted to introduce evidence from the Erie County theft to establish 

Alexander’s modus operandi (“M.O.”) of breaking 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 the parties would stipulate to the DNA evidence in lieu of the 

Evid.R. 404(B) evidence being introduced. Alexander declined. The trial court ultimately 

allowed the Evid.R. 404(B) evidence to be introduced, 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 thefts were relevant to this case. Alexander contends that the 

Erie County incidents are irrelevant 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 permission 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 identity 
of the perpetrator. 

{¶25} The state introduced evidence that Alexander’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 service 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 the 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 are similar — both crimes involved breaking 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 was 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 introduce evidence of the Erie County thefts to 

establish that the BCI compared the collected evidence 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 was 
admissible to show identity. The state had 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 the 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 the defendant committing the same or similar offense 

does not automatically constitute a M.O. Evidence 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 chest with a knife, both men had their trousers 

removed and their shoes were placed next to their bodies, and although 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 that the trial court erred in admitting evidence of a prior 

burglary conviction because the facts did not provide a behavioral footprint 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 steal easily accessible items commonly found on a 
kitchen counter, such as wallets, 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 companies. There is nothing unique about the 

manner in which Alexander committed the thefts that provide “a distinctive behavioral 

fingerprint.” Moreover, the extraneous details of the December 2015 Erie County theft were 

less probative than the DNA evidence from this case. Therefore, we find that the facts 

surrounding the December Erie County theft, including 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 probative 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 admissible to show M.O., the admission 

of that evidence is substantially outweighed 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 issue; 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 against 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 alternative 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 evidence of two Erie County incidents to show a 

DNA match in this case. The state could have easily introduced the DNA evidence from this 

case without discussing any specifics of Alexander’s alleged prior acts. 

{¶38} In addition, as discussed, the state introduced 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 Alexander’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 breaking 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 should 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, go 
back to almost a year prior in Erie County 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 that was taken in this case, he had a 

handheld saw in that case that was presumably 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 shall 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 admissible 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 therefore 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 that do not fall into any other Evid.R. 404(B) 

exception, especially when objective DNA evidence could have been 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 the evidence unfairly prejudiced Alexander. 

{¶45} The first assignment of error is sustained. Alexander’s conviction is reversed, and 

the case is remanded for further proceedings 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 recover of appellee 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. 

 

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 trucks. Some evidence of Alexander’s prior 

criminal activities was necessary to explain how the police obtained his DNA since Alexander 

refused to stipulate to the DNA evidence, but the details of those activities did not qualify as a 

modus operandi and were not necessary to prove identity. I nevertheless 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 him even if the extraneous details of his other 

crimes had been excluded.