[Cite as State v. Knuckles, 2011-Ohio-4242.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96078



                                    STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                              KIMMY D. KNUCKLES
                                               DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-531870

        BEFORE:            Cooney, J., Stewart, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: August 25, 2011
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ATTORNEY FOR APPELLANT

Rick Ferrara
1424 East 25th Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Brian S. Deckert
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

     {¶ 1} Defendant-appellant, Kimmy Knuckles (“Knuckles”), appeals his

burglary conviction. We find no merit to the appeal and affirm.

     {¶ 2} Knuckles was charged with aggravated burglary with notice of

prior conviction and a repeat violent offender specification. The following

evidence was presented at the bench trial.

     {¶ 3} On December 3, 2009, at approximately 7:30 p.m., the victim,

Charles Roberts (“Roberts”), heard an unusual noise in his basement. Upon

investigation, he discovered a man entering the basement through a broken
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window. Roberts screamed at the man, who immediately retreated out the

window. Roberts followed the man outside and caught him in the driveway

where the two men began to fight.

      {¶ 4} A neighbor heard one of the men accuse the other of breaking into

his house.   She called the police who apprehended Knuckles on a nearby

street. Roberts positively identified him as the burglar.

      {¶ 5} Knuckles testified in his own defense and admitted that he had

prior convictions for aggravated burglary, burglary, and breaking and

entering. He explained that he knew a person named “Scott” who had been

a tenant in Roberts’s basement and that he (Knuckles) had done drugs and

spent a few nights in Scott’s basement apartment. Knuckles claimed that he

had come to Roberts’s house to pick up Scott’s social security check and other

“stuff” and that when he knocked on the basement window, as he had done in

the past, the window pane fell out.

      {¶ 6} At the conclusion of the trial, the court found Knuckles guilty of

burglary in violation of R.C. 2911.12, with notice of prior conviction and a

repeat violent offender specification. Knuckles was sentenced to five years in

prison. He now appeals, raising four assignments of error.

      {¶ 7} In his first assignment of error, Knuckles argues that the trial
court abused its discretion when it allowed the prosecution to introduce
“other acts” evidence in violation of Evid.R. 404(B) and 609(B). In his second
and third assignments of error, he argues the prosecution committed
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misconduct when it used “other acts” evidence without providing the evidence
to defense counsel in response to discovery prior to trial and that the
cumulative errors involving the violation of Evid.R. 404(B) deprived him of a
fair trial. In the fourth assignment of error, Knuckles claims the burglary
conviction was against the manifest weight of the evidence. Because all the
assigned of errors are related, we address them together.

      {¶ 8} Pursuant to Evid.R. 404(B) and R.C. 2945.59, “[e]vidence of other

acts is admissible if (1) there is substantial proof that the alleged other acts

were committed by the defendant, and (2) the evidence tends to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” State v. Lowe, 69 Ohio St.3d 527, 530, 1994-Ohio-345,

634 N.E.2d 616. The analysis of evidence under Evid.R. 404 is not complete

until the court balances its probative value against its unfairly prejudicial

effect as required by Evid.R. 403. State v. Crotts, Cuyahoga App. No. 81477,

2003-Ohio-2473, ¶24, citing United States v. Clark (C.A.6, 1993), 988 F.2d

1459, 1465. Therefore, exceptions in Evid.R. 404(B) “must be construed

against admissibility, and the standard for determining admissibility * * * is

strict.” State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682, paragraph

one of the syllabus.   Although the standard for admissibility of other-acts

evidence is strict, a trial court’s evidentiary ruling will not be reversed on

appeal unless such ruling is an abuse of discretion amounting to prejudicial

error. Lowe at 532.
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      {¶ 9} Knuckles argues the trial court improperly allowed details of his

prior crimes into evidence to prove “absence of mistake” and “modus

operandi.”   Knuckles testified that he had no intention of breaking into

Roberts’s house but had come there to help his friend, Scott, move his “stuff”

from the basement apartment.        Knuckles claimed he made an honest

mistake when he came to Roberts’s house. The State claimed that evidence

of Knuckles’s prior burglary convictions would establish his modus operandi

and thereby prove the absence of this alleged mistake.

      {¶ 10} A modus operandi provides a “behavioral fingerprint” for the

other acts, which can be compared to the behavioral fingerprint for the crime

in question. Lowe at 531. In other words, the State may use a common

modus operandi to prove identity by showing that the accused has committed

similar crimes and used the same distinct, identifiable scheme or plan as was

used in the commission of the charged offense.       However, evidence of a

modus operandi is generally used only if the identity of the perpetrator is at

issue. Id. Since Knuckles admits he was present at the scene of the crime,

identity is not an issue.    Further, “[t]o be admissible to prove identity

through a certain modus operandi, other acts evidence must be related to and

share common features with the crime in question.” Id.
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      {¶ 11} The evidence of Knuckles’s other crimes was not related to the

charged offense and did not share any distinct features that would establish

an identifiable scheme. The State contends that in each of Knuckles’s prior

convictions, he “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 them.” The State claims this evidence proves “motive,

opportunity, intent, preparation, plan, knowledge, identity or absence of

mistake or accident.” However, because there is nothing unique about these

actions, they fail to distinguish Knuckles from any other burglar.        This

“other acts” evidence served no purpose but to imply that Knuckles has a

propensity to commit criminal acts and that he acted in conformity therewith

when he committed the charged offense. This is precisely the “other acts”

evidence Evid.R. 404(B) seeks to exclude.

      {¶ 12} In the third assigned error, Knuckles argues the prosecution

committed misconduct by failing to disclose the “other acts” evidence to him

prior to trial in violation of Crim.R. 16(B)(1)(c). The State filed a notice of

intent to use other acts evidence. Crim.R. 16(B)(1)(c) provides that “[u]pon

motion of the defendant the court shall order the prosecuting attorney to

permit the defendant to inspect and copy” the listed documents, including

those that “are intended for use by the prosecuting attorney as evidence at
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the trial[.]” Similarly, Crim.R. 16(B)(1)(e) states that, on defendant’s motion

“the court shall order the prosecuting attorney to furnish to the defendant a

written list of the names and addresses of all witnesses whom the prosecuting

attorney intends to call at trial[.]”   Crim.R. 16(E)(3) sets forth the various

remedies if a party fails to comply with the discovery provisions of the rule.

In those circumstances, “the court may order such party to permit the

discovery or inspection, grant a continuance, or prohibit the party from

introducing in evidence the material not disclosed, or it may make such other

order as it deems just under the circumstances.”

      {¶ 13} The only “other acts” evidence the State offered at trial consisted

of Knuckles’s own testimony regarding the details of his prior convictions.

Knuckles stipulated to his prior convictions on direct examination.         The

State did not present any documents nor any surprise witnesses. No one

could have been more familiar with Knuckles’s prior criminal history than

Knuckles himself.     Therefore, we find no error in the State’s failure to

produce any written discovery regarding his prior convictions as “other acts”

evidence.

      {¶ 14} In his second assignment of error, Knuckles contends he was

deprived of his right to a fair trial as a result of cumulative errors the court

made in allowing “other acts” evidence to be admitted in violation of Evid.R.
                                         8

404(B). We agree the “other acts” evidence was admitted in error but find

the error was harmless because the remaining evidence weighs strongly in

favor of Knuckles’s guilt and he stipulated to his prior convictions.

Moreover, the trial court, as the trier of fact, would only consider proper

evidence.

      {¶ 15} In the fourth assignment of error, Knuckles argues his conviction

is against the manifest weight of the evidence. In determining whether the

verdict was against the manifest weight of the evidence, the appellate court

reviews the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of all witnesses, and determines whether in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such

a manifest miscarriage of justice that the judgment must be reversed and a

new proceeding ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717. Where a judgment is supported by competent, credible evidence going to all

essential elements to be proven, the judgment will not be reversed as being against the

manifest weight of the evidence. State v. Mattison (1985), 23 Ohio App.3d 10, 14, 490

N.E.2d 926.

      {¶ 16} Knuckles was convicted of burglary in violation of R.C. 2911.12

that provides, in pertinent part, that “[n]o person * * * by force, stealth, or

deception, shall * * * [t]respass in an occupied structure when another person
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other than an accomplice of the offender is present, with purpose to commit in

the structure * * * any criminal offense.”

      {¶ 17} Roberts testified that he discovered Knuckles entering his home

through a basement window.         When confronted, Knuckles immediately

climbed out the basement window to escape. A neighbor witnessed the men

struggling outside and heard one of them scream: “You thought you could

break into my house!” The State played a recording of the neighbor’s 911 call

reporting the fight. She told the dispatcher that one man was accusing the

other man of breaking into his house and that the man had the alleged

burglar “pinned down,” while yelling for someone to call the police.     This

evidence is compelling because this witness was a neutral bystander who was

simply reporting her present sense impressions as the events unfolded, and

her testimony corroborated the victim’s version of the incident.

      {¶ 18} Although Knuckles denied the burglary, he admitted that he

came to the basement apartment to obtain some of Scott’s “stuff.” According

to Knuckles, Scott told him that Roberts would not let him (Scott) have his

things. This suggests Knuckles intended to get Scott’s “stuff” from Roberts’s

basement knowing that Scott was not permitted inside the house or

basement. Knuckles stated that he knew Roberts was home but did not ring

the doorbell, which indicates an intent to enter the home by stealth.      He
                                     10

knocked on the basement window and accidently broke it but denied

attempting to enter the house through the window.

      {¶ 19} In light of the other evidence in the record, excluding the “other

acts” evidence, Knuckles’s testimony that he did not intend to break into

Roberts’s house or break the window was not credible.            Therefore, we

conclude that the burglary conviction was supported by competent, credible

evidence and any error in the admission of “other acts” evidence was

harmless.

      {¶ 20} All the assignments of error are overruled.

         Judgment affirmed.

      It is ordered that appellee recover of 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.
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     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
LARRY A. JONES, J., CONCUR
