[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
