[Cite as State v. Caplette, 2018-Ohio-3285.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
          Plaintiff-Appellee                         :   Appellate Case No. 27805
                                                     :
 v.                                                  :   Trial Court Case No. 2017-CR-151
                                                     :
 ZACHARY R. CAPLETTE                                 :   (Criminal Appeal from
                                                     :   Common Pleas Court)
          Defendant-Appellant                        :
                                                     :

                                                ...........

                                               OPINION

                             Rendered on the 17th day of August, 2018.

                                                ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 West Second Street, Suite
830, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                               .............




DONOVAN, J.
                                                                                           -2-




       {¶ 1} Defendant-appellant Zachary Caplette appeals his conviction and sentence

for one count of burglary (habitation/person present or likely to be present), in violation of

R.C. 2911.12(A)(2), a felony of the second degree. Caplette filed a timely notice of

appeal with this Court on November 14, 2017.

       {¶ 2} The incident which forms the basis for the instant appeal occurred during the

early morning hours of January 12, 2017, when Caplette went to the residence of a friend

from school, co-defendant Evan Doling. Caplette testified that he and Doling drank

alcohol, smoked marijuana, and ingested the prescription medication Xanax.                 At

approximately 3:30 a.m., Caplette and Doling decided to go for a walk. Caplette testified

that at some point while they were walking, the pair observed a shed in a wooded area

behind a nearby neighborhood. Caplette testified that Doling entered the shed and

removed some items from inside. Caplette testified that he also entered the shed and

took a hatchet. Caplette and Doling then placed all of the stolen items by a nearby tree

and continued walking.

       {¶ 3} Caplette testified that after walking around for a while longer, he and Doling

came upon a house. Caplette testified that Doling approached the front of the house

and tried to open the front door, but the door was locked. Thereafter, Caplette and Doling

walked until they arrived in the backyard of the Lis residence located in Washington

Township, Montgomery County, Ohio. Caplette testified that Doling looked through a

glass door on the back of the house and observed a cooler on the floor inside filled with

wine bottles. At this point, Doling was able to gain entry into the house through a dog

door. Once inside, Doling began taking wine bottles out of the cooler and handing them
                                                                                         -3-


to Caplette through the dog door.

       {¶ 4} At approximately 6:00 a.m. on January 12, 2017, R.L. was sleeping in the

basement of his parents’ house in Washington Township when he was awoken to the

sound of glass bottles clinking together. When R.L. went to investigate the sound, he

observed an individual, later identified as Doling, inside his home passing wine bottles

through the dog door to another individual, later identified as Caplette, standing outside

the house. R.L. testified that he attempted to grab Doling. Doling, however, was able

to crawl back outside using the dog door. R.L. then observed Doling and Caplette jump

over the fence surrounding the backyard and flee into the woods. R.L.’s father, M.L.,

was awoken by the sounds of the struggle. After R.L. explained what had happened,

M.L. called the police.

       {¶ 5} Approximately five minutes later, Deputy Timothy Kim from the Montgomery

County Sherriff’s Office arrived at the victims’ residence with Deputy Sears.          After

explaining the situation, M.L. led the deputies through the backyard to where R.L. had

observed Doling and Caplette jump over the fence and run into the woods.

Accompanied by M.L., the deputies followed the path into the woods that they believed

the suspects had taken. M.L. testified that he and the deputies discovered a baseball

cap and two of the recently stolen bottles of wine, which had been dropped at the bottom

of a small ravine near the victims’ residence. We note that Caplette later admitted during

a police interview that the baseball cap found in the ravine belonged to him. M.L. testified

that while they were in the ravine, he and the deputies heard two people yelling nearby.

       {¶ 6} At approximately 7:00 a.m., M.L. and the deputies exited the woods back

onto the street, where they observed Caplette and Doling walking on the sidewalk;
                                                                                       -4-


Caplette and Doling were “pretty wet from the mud and everything.” M.L. testified that

he informed the deputies that he did not recognize either individual as anyone who lived

in the neighborhood. M.L. also testified that, when Deputy Kim approached the suspects

and asked them what they were doing, Caplette and Doling responded that they “were

out practicing MMA [fighting] * * * in the neighborhood.”

       {¶ 7} Shortly thereafter, the deputies transported R.L. to the scene where Caplette

and Doling were being detained. Once there, R.L. identified Doling as the individual he

observed inside the house passing bottles of wine through the dog door. The other

individual was eventually identified as Caplette. Caplette was arrested and taken into

custody.

       {¶ 8} Caplette was later interviewed at the Montgomery County Sheriff’s Office by

Detective Linda Shutts. After being Mirandized by Detective Shutts, Caplette admitted

that he accompanied Doling when they approached the victims’ residence on the morning

of January 12, 2017. Caplette further admitted that prior to approaching the victims’

residence, he and Doling had entered a shed located in the surrounding neighborhood

and taken items from the shed. Most importantly, Caplette told Detective Shutts that he

helped Doling commit the burglary of the victims’ residence insofar as acted as a lookout

while Doling was inside the house.

       {¶ 9} Caplette was indicted for one count of burglary on February 9, 2017. At his

arraignment on March 16, 2017, Caplette stood mute, and the trial court entered a plea

of not guilty on his behalf. On April 26, 2017, the State filed a notice of intent to use

evidence of Caplette’s prior acts during trial pursuant to Evid.R. 404(B). In response,

Caplette filed a motion in limine on May 5, 2017, in which he sought to prevent the State
                                                                                           -5-


from adducing evidence of his “prior bad acts” at trial. On October 11, 2017, the trial

court overruled Caplette’s motion in limine, thereby permitting the State to adduce

evidence of Caplette’s prior acts at trial. A jury trial was held which ended on October

12, 2017, and Caplette was found guilty of one count of burglary. On November 7, 2017,

Caplette was sentenced to five years of community control sanctions.

       {¶ 10} It is from this judgment that Caplette now appeals.

       {¶ 11} Caplette’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED WHEN IT PERMITTED THE STATE TO

       PRESENT EVIDENCE OF OTHER WRONGFUL ACTS COMMITTED BY

       THE DEFENDANT [WHICH] THE STATE USED TO SHOW THAT

       DEFENDANT ACTED IN CONFORMITY WITH THOSE OTHER ACTS IN

       COMITTING THE CRIME BEING TRIED.

       {¶ 12} In his sole assignment, Caplette contends that the trial court erred when it

denied his motion in limine and permitted the State to adduce evidence of his prior act of

breaking into a shed immediately before he aided Doling in burglarizing the victims’

residence on January 12, 2017. Caplette argues that the prior acts evidence presented

by the State was only used to establish that he committed the burglary, thereby violating

Evid.R. 404(B).

       {¶ 13} Initially, we note that although Caplette filed a pre-trial motion in limine

seeking exclusion of the prior acts evidence, he failed to object to the State’s presentation

of said evidence during trial. A decision on a motion in limine is a tentative, interlocutory,

precautionary ruling by the trial court on the admissibility of evidence; as such, it cannot

serve as the basis for an assignment of error on appeal. State v. Baker, 170 Ohio App.3d
                                                                                                 -6-

331, 2006–Ohio–7085, 867 N.E.2d 426, ¶ 9 (2d Dist.), citing State v. Grubb, 28 Ohio

St.3d 199, 503 N.E.2d 142 (1986). “In virtually all circumstances finality does not attach

when the motion is granted. Therefore, should circumstances subsequently develop at

trial, the trial court is certainly at liberty ‘ * * * to consider the admissibility of the disputed

evidence in its actual context.’ ” Id., quoting Grubb at 201–202. An appellate court need

not review the propriety of a ruling on a motion in limine unless the claimed error is

preserved by a timely objection when the issue is actually reached during the trial. Id.

Failure to object to or proffer evidence at trial based on the disposition made in a

preliminary motion in limine constitutes a waiver of any challenge. See Baker; State v.

Gray, 2d Dist. Montgomery No. 26473, 2016–Ohio–5869, ¶ 29; State v. Wilson, 2d Dist.

Montgomery No. 24577, 2012–Ohio–3098, ¶ 48.

       {¶ 14} In the absence of an objection, we review the trial court's decision for plain

error. In order to constitute plain error, the error must be an obvious defect in the trial

proceedings, and the error must have affected substantial rights. State v. Norris, 2d Dist.

Montgomery No. 26147, 2015–Ohio–624, ¶ 22; Crim.R. 52(B). Plain error should be

noticed “with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.

       {¶ 15} Evid.R. 401 through 403 define relevance and provide for the function of

relevance as the threshold standard for admissibility.           Evid.R. 404(A) provides that,

though it may be relevant, “[e]vidence of a person's character or a trait of character is not

admissible for the purpose of proving action in conformity therewith on a particular

occasion.”    “The term ‘character’ refers to a generalized description of a person's
                                                                                       -7-


disposition or a general trait such as honesty, temperance, or peacefulness. Generally

speaking, character refers to an aspect of an individual's personality which is usually

described in evidentiary law as a ‘propensity.’ ” Weissenberger's Ohio Evidence Treatise

(2009 Ed.), Section 404.3.

      {¶ 16} Evid.R. 404(B) states as follows:

      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. It may,

      however, be admissible for other purposes, such as proof of motive,

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

      mistake or accident.

      {¶ 17} Evid.R. 403(A) provides:

      Exclusion mandatory. Although relevant, evidence is not admissible if its

      probative value is substantially outweighed by the danger of unfair

      prejudice, of confusion of the issues, or of misleading the jury.

      {¶ 18} We have followed established precedent holding that Evid.R. 404(B) must

be strictly construed against the admissibility of other-bad-act evidence. State v. Shaw,

2d Dist. Montgomery No. 21880, 2008-Ohio-1317, citing State v. Broom, 40 Ohio St.3d

277, 533 N.E.2d 682 (1988). “The courts in Ohio have long recognized that evidence of

other crimes, wrongs or bad acts carries the potential for the most virulent kind of

prejudice for the accused.” Id. at ¶ 13. The Supreme Court of Ohio has established the

following three-part test for the admission of Evid.R. 404(B) testimony:

      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
                                                                                           -8-


       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.

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.

“Prejudice occurs if there is a reasonable possibility that the error might have contributed

to the conviction.” State v. Hardy, 97 N.E.3d 838, 2017-Ohio-7635, ¶ 65, citing State v.

Cowans, 10 Ohio St.2d 96, 104–105, 227 N.E.2d 201 (1967).

       {¶ 19} At trial, Caplette’s main defense was that he was unaware of what Doling

intended to do when he approached the victims’ residence. Relying on Evid.R. 404(B),

the State argued to the trial court that evidence concerning Caplette's prior act of breaking

into the shed with Doling was admissible to show knowledge and the absence of mistake

or accident. In other words, Caplette's prior act of breaking into the shed showed that

his commission of the conduct alleged in the indictment was not a mistake or accident

and that he knew Doling intended to break into the victims’ residence when they

approached the back of the house after jumping over the fence and walking through the

backyard.

       {¶ 20} Upon review, we conclude that the trial court did not err, plainly or otherwise,

when it permitted the State to introduce evidence of Caplette’s prior act of breaking into
                                                                                        -9-


a shed immediately before he aided Doling in burglarizing the victims’ residence on

January 12, 2017. The evidence was adduced by the State in order to establish that

Caplette had knowledge of what Doling intended to do when he unlawfully entered the

victims’ residence. At trial, Caplette testified regarding the events leading up to the

burglary at the victims’ residence. Specifically, Caplette testified that he and Doling

decided to go for a walk at approximately 3:30 a.m. on January 12, 2017. Caplette

further testified that at some point, he and Doling came upon a shed whereupon they both

entered and stole items. After burglarizing the shed, Caplette testified that he and Doling

continued to walk until they arrived at the victims’ residence. The fact that he and Doling

had just unlawfully entered and stolen items from the shed was clearly probative of

whether Caplette had knowledge that Doling intended to burglarize the victims’ residence

when they arrived there.

      Therefore, the evidence of Caplette's prior breaking and entering of the shed

satisfied the first two steps of the Williams analysis. With respect to the third prong of

the Williams analysis, exclusion of relevant evidence is mandatory where the “probative

value [of the evidence] is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” Evid.R. 403(A). For the evidence to

be excluded on this basis, “the probative value must be minimal and the prejudice great.”

State v. Morales, 32 Ohio St.3d 252, 257, 513 N.E.2d 267 (1987). The introduction of

evidence regarding Caplette's prior breaking and entering of the shed was relevant and

not unfairly prejudicial to him. Evidence regarding this criminal behavior was highly

probative as it established that Caplette had prior knowledge of Doling’s intention to

burglarize the victims’ residence. Unfavorable evidence is not equivalent to unfairly
                                                                                         -10-

prejudicial evidence. State v. Bowman, 144 Ohio App.3d 179, 185, 759 N.E.2d 856 (12th

Dist. 2001). Accordingly, we find the trial court did not err in admitting into evidence this

prior bad act, as the danger of unfair prejudice was minimal and the evidence was clearly

probative of whether Caplette had knowledge that Doling intended to burglarize the

victims’ residence when they arrived there.

       {¶ 21} Caplette’s sole assignment of error is overruled.

       {¶ 22} Caplette’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

                                      .............



WELBAUM, P.J. and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michael P. Allen
Christopher C. Green
Hon. Erik R. Blaine
