[Cite as State v. Yancy, 2011-Ohio-6274.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 96527 and 96528
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DEVON L. YANCY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-540684 and CR-540324
BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: December 8, 2011 ATTORNEY FOR APPELLANT
Jeffrey P. Hastings 50 Public Square Suite 3300 Cleveland, OH 44113-2289
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Brad S. Meyer Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113
SEAN C. GALLAGHER, J.: {¶ 1} Appellant-defendant Devon Yancy appeals his conviction following a trial in
the Cuyahoga County Common Pleas Court Case Nos. CR-540324 and CR-540684. For the
following reasons, we affirm.
{¶ 2} On April 2, 2010, the victims’ home, located in Shaker Heights, Ohio, was
broken into during the middle of the night. The kitchen-window screen was slashed,
allowing the perpetrator to open the screen and the window. The homeowner thought the
glass part of the window was unlocked at the time. Several items — two cell phones, a
wallet, a purse, garage door openers, and key sets — that were sitting on the kitchen counter
beneath the window were stolen. One of the cars, a maroon Infiniti, was also taken. A
white, polo baseball cap was found in the mud room, located near the kitchen. The hat did
not belong to anyone living in the house. DNA consistent with Yancy’s, along with two
other unknown individuals, was found inside the hat.
{¶ 3} Almost two weeks later, East Cleveland police officers noticed the maroon
Infiniti speeding. After determining that the plate was registered to a Buick, the officers
initiated a stop. The driver, however, fled, causing a high-speed pursuit. The pursuing
officers momentarily lost track of the Infiniti and ended up guessing as to which direction it
went. Guessing correctly, they found the Infiniti stopped and parked on the side of the road.
Yancy was about five feet from the car and walking away. The officers detained Yancy as
he was the only individual in the vicinity of the car. The license plates were registered to Yancy’s father. Yancy initially gave the officers a false name. Neither of the officers could
identify Yancy as the driver. The officers arrested Yancy because he gave a false
identification and birth date to the officers. Once Shaker Heights police were notified of the
recovered stolen Infiniti, Yancy was implicated in the burglary.
{¶ 4} Yancy was indicted in two separate cases. In Case No. CR-540324, Yancy
was charged with one count of burglary with a notice of prior conviction and repeat violent
offender specifications, and two counts of theft for the events involving the Shaker Heights
home. In Case No. CR-540684, Yancy was charged with two counts of failure to comply,
one count of receiving stolen property, and one count of falsification for the events involving
the East Cleveland police chase.
{¶ 5} During the trial, the state introduced other-acts evidence stemming from
Yancy’s 2003 burglary conviction in an attempt to use the similarities between the 2003 and
2010 burglaries to identify Yancy as the perpetrator of the 2010 burglary. Identity was an
issue in the case. The state introduced evidence that Yancy committed three burglaries in
2003 where he slit a screen of a window in a home in an older east Cleveland suburb and
grabbed items commonly found on a kitchen counter that were underneath the window. The
trial court admitted this other-acts evidence over Yancy’s objection.
{¶ 6} The jury ultimately found Yancy guilty of receiving stolen property, failing to
comply, falsification, burglary, theft, and aggravated theft. The court found Yancy guilty on the repeat violent offender (“RVO”) and notice of prior conviction (“NPC”) specifications that
accompanied the burglary charge. Yancy waived his right to a jury trial on the NPC and
RVO specifications. The court sentenced Yancy to a cumulative term of imprisonment of
nine years.
{¶ 7} It is from this conviction that Yancy timely appeals, raising three assignments
of error. His first assignment of error provides as follows: “The trial court erred in
permitting the state’s use of [Evid.R.]404(B) evidence because the prejudicial effect of the
defendant’s prior conviction clearly outweighed its probative value, and was inadmissable
character evidence.” Yancy’s first assignment of error is overruled.
{¶ 8} The trial court has broad discretion in the admission or exclusion
of evidence, and unless it has clearly abused its discretion and the defendant
has been materially prejudiced thereby, an appellate court should be slow to
interfere. State v. Hancock,108 Ohio St.3d 57, 76, 2006-Ohio-160, 840
N.E.2d 1032. The term “abuse of discretion” means “an unreasonable,
arbitrary, or unconscionable action.” State ex rel. Doe v. Smith, 123 Ohio
St.3d 44, 47, 2009-Ohio-4149, 914 N.E.2d 159. It is “a discretion exercised to
an end or purpose not justified by, and clearly against reason and evidence.”
(Citations and quotations omitted.) State v. Hancock, 108 Ohio St.3d at 77.
{¶ 9} Evid.R. 404(B) codifies “an exception to the common law with respect to
evidence of other acts of wrongdoing” and must be construed against admissibility. State v. Broom (1988), 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682. The standard for determining
admissibility of such evidence is strict. Id. Evid.R. 404(B) prohibits the use of evidence of
other crimes, wrongs, or acts of the accused to show that the accused committed the crime
with which he is now charged. “The rule lists purposes for which evidence of prior [acts]
may be presented, but the list is illustrative rather than exhaustive because the rule forbids only
the use of prior-[acts] evidence to show that since the defendant committed crimes in the past,
probably he committed the crime of which he is now accused * * *.” U.S. v. Edwards
(C.A.7, 2009), 581 F.3d 604, 608. Other-acts evidence may be admissible for other
purposes, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. State v. Gus, Cuyahoga App. No. 85591,
2005-Ohio-6717, ¶ 18. Despite this exception, even when other-acts evidence is otherwise
admissible, it is limited by relevancy or unfair prejudice considerations. Evid.R. 402, 403.
Other-acts evidence is admissible if there is substantial proof that the defendant committed the
other act. State v. Carter (1971), 26 Ohio St.2d 79, 269 N.E.2d 115, paragraph two of the
syllabus.
{¶ 10} In other words, Ohio courts must undertake a three-step analysis in 1
determining whether to admit the other-acts evidence. Courts must determine whether the
1 Although we describe the analysis in terms of a three-step approach, relevancy is always an issue when determining whether evidence in general is admissible. The same approach can also be described as a two-step approach, assuming relevancy, that involves the proper purpose and unfair prejudice inquiries. proponent of the other-acts evidence demonstrated that (1) the other-acts evidence is offered
for a specific proper purpose, (2) the evidence is relevant, and (3) the probative value of the
evidence substantially outweighs the potential for unfair prejudice. Finally, if the court
determines that all three elements should be construed in favor of admissibility, the court must
instruct the jury, if requested, that the evidence is only to be considered for the proper purpose
for which it was admitted. See id. A finding against admissibility for any of the factors
necessitates exclusion of the other-acts evidence.
{¶ 11} We note that it is insufficient to seek to admit the evidence with the
“shot-gun-style approach” of citing Evid.R. 404(B) and all the potential purposes. The 2
burden of showing the proper purpose rests with the proponent of the evidence, and since Ohio
courts must presume the other-acts evidence is excluded, the proponent must identify the
specific purpose for which the evidence is being introduced. See id.
{¶ 12} Turning to the facts of this case, the state improperly sought to introduce the
other-acts evidence of Yancy’s prior convictions for burglary “to show the motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in
the commission of the indicted charges.” The state then corrected the problem by filing a
2 The other-acts jury instruction given in this case listed all the potential purposes for which the other-acts evidence could be considered. We note that the better practice is to limit the instruction to the stated purpose for which the other-acts evidence was introduced. The standard Ohio jury instruction, 2 OJI-CR 401.25, echoes this practice as it specifically indicates to use “the appropriate alternative,” referring to the list of proper purposes, when giving the instruction. “supplemental authority” and limiting the purpose of introducing the other-acts evidence to
identifying the defendant as the perpetrator of the 2010 burglary. The state argued that the
evidence of Yancy’s 2003 burglaries was relevant to demonstrate that Yancy was the
perpetrator of the 2010 burglary because of the similarities between the crimes, rather than
being introduced to prove Yancy’s propensity to commit crimes. We therefore will constrain
our analysis to the identity exception with the observation that identity was a genuine issue at
trial. See State v. Williams, Cuyahoga App. No. 94965, 2011-Ohio-5650, at ¶ 55.
{¶ 13} Other-acts evidence is admissible pursuant to the “common scheme, plan, or
system” exception in two instances, the first of which is irrelevant to the current appeal: (1)
the other acts are part of one criminal transaction and are inextricably related to the charged
crime; or (2) the common scheme, plan or system tends to prove identity of the perpetrator.
Id. at 72-73.
{¶ 14} “If evidence is offered to show identity, then the proponent of the evidence is
trying to prove the identity of the criminal with evidence of other acts committed by the
defendant that are so similar to the present crime that a single person, the defendant, must have
committed both crimes.” Id. at ¶ 54. This can also be described as the defendant’s modus
operandi or behavioral footprint and can be compared to the defendant’s behavioral footprint
for the crime at issue to identify the defendant as the perpetrator of the later crime. Id. {¶ 15} The quintessential example of a behavioral footprint is illustrated in State v.
Bey, 85 Ohio St.3d 487, 1999-Ohio-283, 709 N.E.2d 484. In Bey, 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 died after being stabbed with a
knife in the chest, 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 person.”
Williams, 2011-Ohio-5650, at ¶ 55. Such similar, specific facts could be used to identify
the perpetrator.
{¶ 16} In the current case, the state sought to introduce the other-acts evidence of
Yancy’s prior burglaries because in the prior burglaries, the perpetrator broke into the victim’s
house in an east Cleveland suburb by cutting the screen of a window. The stolen items in the
prior and current cases were keys, purses, wallets, and one of the victim’s cars, and the
burglaries occurred during the same time of day, the overnight hours. Although the state
argues that all the items were within reach of the window, allowing the perpetrator to remain
outside the home, the most condemning piece of evidence found was Yancy’s white baseball
cap, which was inside the house and nowhere near the kitchen window. The state does not
address this discrepancy.
{¶ 17} In support of its position, the state analogizes Yancy’s case to State v.
Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311. Wogenstahl, however, is distinguishable. First, the Ohio Supreme Court found that “both [crimes] involved people
[appellant] had been with or visited with the day before, and in both offenses he utilized some
[ruse] to get the occupant out of the home so he could commit the burglary. In [both] cases
there was a sign of force and, finally, he used an alibi when he was confronted that he had
gone straight home and gone to bed and didn’t know anything about the burglary.” (Internal
quotation omitted.) Id. at 365. The similarities were thus more than general traits of a
crime; the similarities were specific to the defendant.
{¶ 18} Second, and more important, the indictment in Wogenstahl included a prior
aggravated felony specification that necessitated proof that the defendant was convicted of a
prior felony. Wogenstahl’s only prior conviction was the burglary, making the other-acts
evidence otherwise relevant to the prosecution’s burden of proof on the specification. Id. at
366.
{¶ 19} In this case, Yancy waived his right to a jury trial on the repeat violent offender
and notice of prior conviction specifications. Therefore, the state did not need to prove the
past conviction during the jury portion of the trial. The only relevancy of the other-acts
evidence in this case was to establish identity. On this point, the trial court erred in admitting
the other-acts evidence of Yancy’s prior burglaries because the state offered no specific traits
from the 2003 burglaries that could be used to identify Yancy as the perpetrator of the 2010
burglary. {¶ 20} Contrary to the state’s argument, the facts that a perpetrator gained access to an
older, Shaker Heights home through a window; that the easily accessible items commonly
found on a kitchen counter — wallets, purses, and keys, leading to the car theft, were stolen;
and that the burglary occurred in the overnight hours do not identify Yancy as the perpetrator
of every similar burglary in every east side suburb of Cleveland. The state’s similar facts are
traits of a burglary in general and do not provide a “behavioral footprint” with which to
identify Yancy as the perpetrator of the crime. This is unlike Wogenstahl where the
defendant used the exact same ruse to get the victims from the home and provided the exact
same excuse when confronted by police. Wogenstahl, 75 Ohio St.3d at 365.
{¶ 21} The present case is similar to State v. Knuckles, Cuyahoga App. No. 96078,
2011-Ohio-4242, where this court held that the “evidence of [the defendant’s] other crimes
was not related to the charged offense and did not share any distinct features that would
establish an identifiable scheme[,]” when the only similarities presented were that the
defendant “broke into the home of someone he did not know, usually through a window, with
intent to steal and ended up fighting with the homeowner in two [of the cases].” Id. The
evidence merely served to demonstrate the defendant’s propensity to commit burglaries, and
we found the trial court erred in admitting the other-acts evidence as that was “precisely the
“other acts” evidence Evid.R. 404(B) seeks to exclude.” Id. {¶ 22} The same is true under the facts of the current case. The similarities identified
by the state were that the crime was perpetrated by slicing the window screen to unlatch the
window and items commonly left on a kitchen counter were stolen. Nothing specifically
identifies a behavioral footprint linking a single perpetrator with the 2003 and the 2010
burglaries. For this reason, we agree with Yancy that the trial court erred in admitting the
other-acts evidence in this case. The state, as the proponent of the other-acts evidence, failed
to present any evidence of a behavioral footprint and the trial court abused its discretion in
admitting the other-acts evidence. We, therefore, need not address the relevancy or unfair
prejudice factors. See Williams, 2011-Ohio-5650.
{¶ 23} This does not, however, end our inquiry. See Knuckles, 2011-Ohio-4242, ¶
14. Yancy objected to the admission of the evidence at trial, and therefore harmless-error
analysis is appropriate. State v. Dixon, Scioto App. No. 09CA3312, 2010-Ohio-5032, ¶ 42.
Pursuant to Crim.R. 52(A) any error, defect, irregularity, or variance that
does not affect a substantial right will be disregarded. “We apply
non-constitutional harmless-error analysis to evidentiary errors such as this. A
non-constitutional error is harmless when there is substantial other evidence to support the
guilty verdict.” (Internal quotations omitted.) Dixon, 2010-Ohio-5032, ¶ 42.
{¶ 24} In this case, there was substantial evidence to support the guilty verdict beyond
the other-acts evidence. The most condemning evidence in this case was Yancy’s DNA found in the victims’ home, coupled with the circumstantial evidence of Yancy being arrested
in connection to the stolen vehicle adorned with his father’s license plate. For this reason,
Yancy’s first assignment of error is overruled as the trial court’s error in admitting the
other-acts evidence was harmless.
{¶ 25} Yancy’s second assignment of error provides: “The trial court erred in
granting the state’s motion for joinder because such joinder resulted in prejudice to the
defendant, denying him a fair trial.” His second assignment of error is without merit.
{¶ 26} Pursuant to Crim.R. 8(A) and 13, two or more offenses can be tried together if
they are of similar character, based on connected transactions, or part of a course of conduct or
common scheme. Ohio law favors joining multiple offenses in a single trial if the offenses
charged are of the same or similar character. State v. Lott (1990), 51 Ohio St.3d 160, 163,
555 N.E.2d 293. In order to demonstrate a trial court erred in denying severance, a defendant
must establish that (1) his rights were prejudiced, (2) he provided the trial court with sufficient
information to demonstrate prejudice, and (3) the court abused its discretion in refusing to
separate the charges for trial. State v. Schaim (1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661.
{¶ 27} In this case, the joined cases were based on connected transactions. Yancy
was apprehended with the stolen Infiniti after allegedly leading the police on a high-speed
chase through residential streets. This connected him to the burglary since the license plate
on the vehicle was linked to Yancy’s father, who was incarcerated during the entire time period in question. The fact that Yancy was implicated with the stolen property is
circumstantial evidence that he committed the burglary crime, and therefore the same evidence
would be introduced in both trials. While we agree that stacking cases against a defendant is
prejudicial in some respects, that observation alone is insufficient to establish that the
defendant’s rights were prejudiced. The trial court did not abuse its discretion in joining the
two cases together for trial, and Yancy’s second assignment of error is overruled.
{¶ 28} Yancy’s third and final assignment of error provides: “The trial court erred
when it denied the defendant’s motion for an independent DNA test and expert witness which
resulted in the denial of the defendant’s due process rights as set forth under the Fifth and
Fourteenth Amendments of the United States Constitution.” His final assignment of error is
overruled.
{¶ 29} The Ohio Supreme Court provided:
“Due process may require that a defendant be provided with expert assistance when necessary to present an adequate defense. However, to show entitlement to such assistance, the defense must make a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial. In making this determination, the court must consider (1) the effect on the defendant’s private interest in the accuracy of the trial if the requested service is not provided, (2) the burden on the government’s interest if the service is provided, and (3) the probable value of the additional service and the risk of error in the proceeding if the assistance is not provided.”
(Internal citations and quotations omitted.) State v. Campbell (2000), 90 Ohio St.3d 320,
327-328, 738 N.E.2d 1178. Therefore, the defendant must present sufficient facts upon which the court can make a decision. “‘Undeveloped assertions that the proposed assistance
would be useful to the defense are patently inadequate.’” State v. Taylor (Dec. 7, 2000),
Cuyahoga App. No. 76527, citing State v. Weeks (1989), 64 Ohio App.3d 595, 598, 582
N.E.2d 614.
{¶ 30} For example, in State v. Mason (1998), 82 Ohio St.3d 144, 694 N.E.2d 932, the
Ohio Supreme Court affirmed the trial court’s decision to deny the indigent defendant an
independent DNA expert because the defendant did not challenge the underlying DNA
identification. The court noted that any independent analysis would be superfluous. Id. at
152.
{¶ 31} Yancy submitted nothing to indicate that the results of an independent DNA
testing would be likely to aid in his defense. Rather, Yancy argued that the state’s sole link
between Yancy and the burglary was the DNA profile found on the white baseball cap.
Yancy contended that he required an independent DNA analysis to identify the unknown
profiles found on the hat, the times at which each profile was placed on the hat, and the
number of other contributors. Yancy, however, explored such issues on cross-examination of
the state’s DNA expert witness. The state’s DNA expert admitted that it was not possible to
determine when the DNA profiles were deposited on the hat, that the minor profiles could 3
3 Yancy’s DNA profile was the major contribution found on the white baseball cap. The two unknown profiles were only minor contributions. have been deposited after Yancy’s DNA, and that there were at least two other unknown
profiles found on the hat.
{¶ 32} More important, Yancy did not challenge the underlying DNA identification.
The mere possibility that the independent DNA analysis could have had some value to the
defense was not enough. Mason, 82 Ohio St.3d at 150. The defense presented the trial
court with nothing more than speculation as to the likely value of an independent DNA
analysis. This did not amount to the “particularized showing” required to entitle the
defendant to an expert. We therefore overrule Yancy’s third assignment of error.
The decision of the trial court is affirmed.
It is ordered that appellee recover from appellant 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.
SEAN C. GALLAGHER, JUDGE MARY J. BOYLE, P.J., and EILEEN A. GALLAGHER, J., CONCUR