[Cite as State v. Jones, 2017-Ohio-4351.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 8-16-18

        v.

LUCAS GARTH JONES,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR16-02-0061

                                      Judgment Affirmed

                              Date of Decision: June 19, 2017




APPEARANCES:

        Peter K. DeSomma for Appellant

        Sarah J. Warren for Appellee
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PRESTON, P.J.

      {¶1} Defendant-appellant, Lucas Garth Jones (“Jones”), appeals the October

24, 2016 judgment entry of sentence of the Logan County Court of Common Pleas.

We affirm.

      {¶2} This case stems from instances on January 9 and 10, 2016 when Jones

presented fraudulent “payroll checks from Subway in Jackson Center, Ohio,”

payable to Jones, at Winner’s Market in Lakeview, Ohio. (Doc. No. 51). (See also

Doc. No. 43). On May 24, 2016, Jones was convicted of forgery in violation of

R.C. 2913.31(A)(3) in Auglaize County, Ohio for presenting a fraudulent payroll

check payable to Jones from Subway in St. Marys, Ohio at Pantry Pride in St. Marys

on February 5, 2016. (Doc. No. 52). Jones was not an employee of either Subway

location. (Doc. Nos. 51, 52).

      {¶3} On March 8, 2016, the Logan County Grand Jury indicted Jones on two

counts of forgery in violation of R.C. 2913.31(A)(3), fifth-degree felonies. (Doc.

No. 4). On March 11, 2016, Jones appeared for arraignment and pled not guilty to

the counts of the indictment. (Doc. No. 11).

      {¶4} On September 7, 2016, the State filed a motion in limine requesting

permission to introduce evidence at trial under Evid.R. 404(B) that Jones was

convicted of the same crime in Auglaize County on May 24, 2016. (Doc. No. 52).




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After a hearing that same day, the trial court granted the State’s motion. (Sept. 7,

2016 Tr. at 14).

       {¶5} The case proceeded to a jury trial on September 8, 2016. (Doc. No. 86).

On September 8, 2016, the jury found Jones guilty as to the counts of the indictment.

(Doc. Nos. 56, 57). The trial court filed its judgement entry of conviction on

September 12, 2016. (Doc. No. 60). On September 12, 2016, the trial court

sentenced Jones to 10 months in prison on Count One and 10 months in prison on

Count Two, and ordered that Jones serve the terms consecutively for an aggregate

sentence of 20 months. (Doc. No. 65). The trial court further ordered that Jones’s

20-month sentence in this case be served consecutively to his sentences in the

Auglaize County case and a Shelby County, Ohio case. (Id.). The trial court filed

its judgment entry of sentence on October 24, 2016. (Id.). The trial court filed a

nunc pro tunc sentencing entry on October 31, 2016. (Doc. No. 74).

       {¶6} Jones filed a notice of appeal on November 22, 2016. (Doc. No. 78).

He raises two assignments of error for our review, which we discuss together.

                           Assignment of Error No. II

       The Court Erred, to the Prejudice of Defendant, in Admitting
       Other “Bad Acts” Evidence Under Evid. R. 404(B).

                            Assignment of Error No. I

       The Court Erred, to the Prejudice of Defendant, in Admitting
       Evidence Rule 404(B) Material on Only One Day of Notice Before
       Trial.

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       {¶7} In his assignments of error, Jones argues that the trial court abused its

discretion by admitting evidence under Evid.R. 404(B). In particular, under his

second assignment of error, Jones argues that evidence of his conviction for the

same crime in Auglaize County is prejudicial and not admissible under Evid.R.

404(B). Under his first assignment of error, Jones argues that the State provided

untimely notice of its intent to use the other-acts evidence.

       {¶8} “‘Generally, evidence which tends to show that the accused has

committed other crimes or acts independent of the crime for which he stands trial is

not admissible to prove a defendant’s character or that the defendant acted in

conformity therewith.’” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-

7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-

Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d 763, 770 (3d Dist.1993) and

Evid.R. 404. “‘“Evidence of other crimes, wrongs, or acts”’” “‘“may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”’” Id.,

quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 15, quoting

Evid.R. 404(B). See also R.C. 2945.59.

       {¶9} “In State v. Williams, the Supreme Court of Ohio set forth the three-step

analysis trial courts should conduct in determining whether ‘other acts’ evidence is

admissible under Evid.R. 404(B).” Id. at ¶ 22, citing Williams at ¶ 19-20. “‘The


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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.’” Id., quoting Williams at ¶ 20, citing 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).’” Id., quoting Williams

at ¶ 20. “‘The third step is to consider whether the probative value of the other acts

evidence is substantially outweighed by the danger of unfair prejudice.’” Id.,

quoting Williams at ¶ 20 citing Evid.R. 403.

       {¶10} “Generally, ‘[a] trial court is given broad discretion in admitting and

excluding evidence, including “other bad acts” evidence.” Id. at ¶ 23, quoting State

v. Williams, 7th Dist. Jefferson No. 11 JE 7, 2013-Ohio-2314, ¶ 7, citing State v.

Maurer, 15 Ohio St.3d 239, 265 (1984). As such, “a reviewing court will not reverse

a trial court’s evidentiary ruling absent an abuse of discretion that materially

prejudices the affected party.” State v. Glenn-Coulverson, 10th Dist. Franklin No.

16AP-265, 2017-Ohio-2671, ¶ 24, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001).

An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).




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       {¶11} The trial court did not abuse its discretion by admitting the other-acts

evidence. Under the first step of the Williams analysis, the evidence that Jones was

convicted of forgery in March 2016 in Auglaize County for passing bad checks is

relevant to making it more probable that Jones committed the forgeries in this case.

See State v. Regan, 5th Dist. Delaware No. 13CAA080067, 2014-Ohio-3797, ¶ 19

(concluding that “evidence of [Regan] previously selling fake [baseball] cards on

two separate occasions in two separate states was relevant” to making it more

probable that he sold a fake baseball card). Indeed, in both cases, Jones presented

fraudulent payroll checks from Subway restaurants at which he was not an

employee.

       {¶12} Concerning the second step of the Williams analysis, the evidence that

Jones was convicted of forgery for passing similar bad checks reflects a similar

“motive, intent, knowledge, and absence of mistake” regarding the checks in this

case. See State v. Yoder, 5th Dist. Licking No. 16-CA-54, 2017-Ohio-903, ¶ 20

(“We have previously found evidence of other bad checks may be relevant to the

issue of motive, intent, knowledge, or absence of mistake.”), citing State v. Smith,

5th Dist. Stark No. 2002CA306, 2003-Ohio-2033, ¶ 35; Regan at ¶ 19 (concluding

that the evidence of Regan’s prior sales of fraudulent baseball cards was “admissible

to show his intent, knowledge and absence of mistake”); State v. Woods, 12th Dist.

Butler No. CA94-12-225, 1995 WL 1565271, *3 (Oct. 2, 1995) (concluding that


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“the evidence concerning the other bad checks written by” Woods was admissible

under Evid.R. 404(B) because it was shown to prove Woods’s “identity as the author

of the six bad checks charged in the indictment” and was “probative of [Woods’s]

intent to defraud the bank and the absence of mistake or accident, as well as his

scheme, plan or system in committing the underlying crimes with which he was

charged”).

       {¶13} Finally, the third and final step of the Williams analysis involves a

consideration of whether the probative value of the other-acts evidence is

substantially outweighed by the danger of unfair prejudice. Wendel, 2016-Ohio-

7915, ¶ 28. The evidence of Jones’s Auglaize County conviction “is not unduly

prejudicial ‘because the trial court instructed the jury that this evidence could not be

considered to show that [Jones] acted in conformity with a character trait.’” Id.,

quoting Williams at ¶ 24. (See Sept. 8, 2016 Tr. at 115). The trial court’s limiting

instruction lessened any prejudicial effect of the evidence of Jones’s Auglaize

County conviction, and corroborated that Jones did not mistakenly present the

fraudulent checks because the crimes are sufficiently similar to prove that Jones did

not mistakenly believe the checks were not fraudulent. Wendel at ¶ 28; Yoder at ¶

23 (“The crimes are sufficiently similar to prove [Yoder] did not mistakenly believe

the instant checks were ‘lost.’”). As such, any prejudicial effect did not substantially




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outweigh the probative value of the evidence. See Regan at ¶ 19. See also Wendel

at ¶ 28, quoting Williams at ¶ 24.

       {¶14} Jones further argues under his first assignment of error that the State

failed to comply with the notice requirement of Evid.R. 404(B). In particular, he

argues that the State’s motion was untimely because it was filed one day before trial.

       {¶15} “Evid.R 404 was amended in 2012 to adopt a notice requirement.”

State v. Nuzum, 6th Dist. Lucas No. L-15-1122, 2016-Ohio-2744, ¶ 20. As a result

of that amendment, “[t]he proponent of other-acts evidence must provide

‘reasonable notice in advance of trial’ of the general nature of any such evidence it

intends to introduce at trial.” Yoder at ¶ 24, quoting Evid.R. 404(B). “‘[T]he notice

given to the defense regarding “other crimes” evidence must be sufficiently clear so

as “to permit pretrial resolution of the issue of its admissibility.’” Id., quoting State

v. Tran, 8th Dist. Cuyahoga No. 100057, 2014-Ohio-1829, ¶ 23, quoting United

States v. Long, 814 F.Supp. 72, 74 (D.Kan.1993). “Following its amendment, the

Ohio rule is now similar to the federal rule, which requires reasonable notice of the

general nature of any such evidence in order to prevent unfair surprise.” Nuzum at

¶ 20, citing State v. Plevyak, 11th Dist. Trumbull No. 2013-T-0051, 2014-Ohio-

2889, ¶ 12.     “‘Whether notice is “reasonable” will depend on the facts and

circumstances of each case.’” Yoder at ¶ 24, quoting Plevyak at ¶ 19.




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       {¶16} We conclude, based on the specific facts and circumstances of this

case, that Jones was provided reasonable notice in advance of trial of the State’s

intention to use the other-acts evidence at trial. See Plevyak at ¶ 20 (concluding that

Plevyak could not “demonstrate either unfair surprise or prejudice” by the State’s

notice on the morning of trial that it intended to introduce other-acts evidence at

trial); Yoder at ¶ 25 (concluding that “the four-day notice period in the instant case

to be ‘reasonable notice in advance of trial’”). Notwithstanding Jones’s contention

on appeal that he was notified the day before trial, the record reflects that his trial

counsel was notified two days before trial of the State’s intention to use the other-

acts evidence. (See Sept. 7, 2016 Tr. at 10). The notice in this case allowed a pretrial

resolution of the question of admissibility of the evidence at which Jones was

provided the opportunity to challenge its admissibility. (See id.). See also Yoder at

¶ 25; Plevyak at ¶ 54 (Cannon, P.J., concurring in part and concurring in judgment

only in part). Moreover, Jones cannot say that he was unfairly surprised by the

State’s notice that it intended to introduce his Auglaize County conviction because

he was certainly aware of it.

       {¶17} For these reasons, we hold that the trial court did not abuse its

discretion by admitting the Evid.R. 404(B) evidence in this case.

       {¶18} Jones’s assignments of error are overruled.




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       {¶19} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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