State v. DeMarco

• Decision Date: 08 July 1987
• Docket Number: No. 86-612,86-612
• Citation: 509 N.E.2d 1256,31 Ohio St.3d 191,31 OBR 390
• Parties: , 31 O.B.R. 390 The STATE of Ohio, Appellee, v. DeMARCO, Appellant.
• Court: Ohio Supreme Court

Page 191

31 Ohio St.3d 191

509 N.E.2d 1256, 31 O.B.R. 390

The STATE of Ohio, Appellee, v. DeMARCO, Appellant.

No. 86-612.

Supreme Court of Ohio.

July 8, 1987.

Syllabus by the Court

1. Evidence of other acts of a defendant is admissible pursuant to R.C. 2945.59 only when it tends to show one of the matters enumerated in that statute and when it is relevant to prove the defendant's guilt of the offense in question.

2. Although violations of the Rules of Evidence during trial, singularly, may not rise to the level of prejudicial error, a conviction will be reversed where the cumulative effect of the errors deprives a defendant of the constitutional right to a fair trial.

On September 4, 1984, defendant-appellant, Dr. Thomas J. DeMarco, was indicted by a Cuyahoga County Grand Jury on seven counts relating to dealings with a 1980 Porsche automobile.

Auto Cars, Inc. and its former controlling-interest holder Avi Stern, ultimately acquired title to a 1980 Porsche in the summer of 1981, which car had a salvage value of $18,000. At the time, the 1980 Porsche was seriously damaged and not in a drivable condition. Also, on or about this time, Auto Cars leased the 1980 Porsche to Sharon Auto Repair & Collision Center ("Sharon Auto") in New York. This lease was financed by Bank One of Ravenna ("Bank One"). Bank One acquired collateral insurance on the vehicle.

In June 1982, Sharon Auto became delinquent on its lease payments and Bank One informed Auto Cars and Stern that the vehicle was to be repossessed. Stern had the 1980 Porsche returned to Ohio on a flatbed truck, as the vehicle had not yet been repaired. Bank One's collateral insurer, Mid-Atlantic Insurance Company ("Mid-Atlantic"), appraised the damage to the 1980 Porsche, and determined that the vehicle could be repaired for $12,167.74. Mid-Atlantic issued a check for this amount to Bank One.

In July 1982, Bank One was on the verge of cancelling its operating agreement with Auto Cars because of the corporation's financial difficulties. On July 20, 1982, appellant and attorney Harvey Bruner purchased a controlling interest in Auto Cars, which caused Bank One to refrain from cancelling its agreement with the leasing firm.

Later, in August 1982, Auto Cars sold the 1980 Porsche to Commerce Leasing Company, another automobile leasing firm. Commerce Leasing then leased the vehicle to Richmond Associates, a group of dentists-investors whose shareholders included appellant. Bank One's lien on the vehicle had been satisfied by payment from Commerce Leasing and through a part of the collateral insurance payment by Mid-Atlantic. The excess money from the collateral insurance payment, amounting to $11,607.74, was paid to Richmond Associates as part of the arrangement made by Auto Cars.

Richmond Associates then subleased the 1980 Porsche to Sharon Auto in New York with the understanding that Sharon Auto was going to repair the vehicle for $6,000 during the sublease period. The 1980 Porsche subsequently disappeared.

In January 1983, Richmond Associates took out an insurance policy on the 1980 Porsche with Aetna Life & Casualty Insurance Company ("Aetna"). Concurrently, Auto Cars ordered a 1982 Porsche from Germany. The 1982 Porsche was the same model and similar in color to the 1980 Porsche.

In May 1983, Dennis Dunagan, a leasing agent for Auto Cars, went to New York and picked up the 1982 Porsche. Dunagan placed the license plates for the 1980 Porsche on the 1982 Porsche and drove it to the Pittsburgh, Pennsylvania, area. In Moon Township, a suburb of Pittsburgh, Dunagan reported that the 1980 Porsche had been stolen.

Appellant filed an insurance claim for $30,000 on the 1980 Porsche, on behalf of Richmond Associates, with Aetna. Appellant told an insurance adjuster for Aetna that the 1980 Porsche was stolen in Pittsburgh, where Dennis Dunagan had driven it to show to prospective purchasers.

Aetna refused to pay appellant's claim for the alleged theft of the 1980 Porsche. Richmond Associates eventually filed suit against Aetna, but the lawsuit was subsequently dismissed.

Appellant entered a plea of not guilty to all counts in the indictment. A trial by jury commenced on November 8, 1984. At the conclusion of the state's case, appellant's motion for judgment of acquittal was denied with respect to the first five counts, but was granted as to counts six and seven of the indictment, which were, respectively, charges of possession of a criminal tool and grand theft.

On November 20, 1984, the jury acquitted the appellant on counts two and four, namely, charges of defrauding Richmond Associates and possessing a motor vehicle title as a criminal tool, but the jury returned a verdict of guilty on two counts of attempted grand theft and one count of use of a proof of loss form as a criminal tool. Appellant was sentenced to concurrent one-year sentences on these counts and was ordered to pay fines totalling $7,500.

On January 14, 1985, appellant filed a timely notice of appeal with the court of appeals. While the appeal was pending, appellant filed a motion for a new trial in the trial court. The court of appeals retained jurisdiction but remanded the case to the common pleas court for a hearing on the motion. On June 5, 1985, the trial court denied the motion for a new trial.

On April 21, 1986, the court of appeals affirmed the lower court's judgment of conviction and denial of the motion for new trial.

The cause is now before this court upon the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Ann T. Mannen, Cleveland, for appellee.

Armstrong, Gordon & Mitchell, William Mitchell and Elliott S. Barrat, Cleveland, for appellant.

FORD, Justice.

I

Our first inquiry concerns the trial court's admission, over objection, of evidence relating to other alleged acts of misconduct by appellant, involving different automobiles. Appellant's counsel filed a motion in limine which requested that the prosecutor be prohibited from presenting evidence of alleged acts of misconduct other than those charged in the indictment. Pursuant to this motion, the court ordered that the prosecutor address the court at a sidebar conference at any time he intended to bring in "any evidence pertaining to similar acts."

During appellant's trial, the court permitted testimony from Robert Knapik, the collection manager of Bank One, that Auto Cars had fifty-six cars leased, and that he believed that it was in violation of the lessor operating agreement. He further testified that he had written appellant to inform him that $437,563.81 was due. Appellant argues that this evidence did not relate to the 1980 Porsche involved in the seven counts of the indictment, and that the testimony suggested that appellant was involved in a gigantic scheme, involving numerous automobiles, to defraud Bank One. The prosecutor, in his closing argument, repeatedly implied that appellant was involved in numerous insurance frauds. ¹ Appellee further argues that the objectionable testimony was admissible to show appellant's "knowledge of previous frauds and his intent to continue in the same pattern."

Evid.R. 404(B) provides that:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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."

This Rule of Evidence is codified in R.C. 2945.59, which provides:

"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."

This court has held that R.C. 2945.59 is to be strictly construed against the state, and to be conservatively applied by a trial court. See State v. Burson (1974), 38 Ohio St.2d 157, 67 O.O.2d 174, 311 N.E.2d 526; State v. Strong (1963), 119 Ohio App. 31, 26 O.O.2d 134, 196 N.E.2d 801. This court has previously cautioned lower courts against the sweeping admission of evidence under R.C. 2945.59:

"Nowhere do the words 'like' or 'similar' appear in the statute. Prosecutors and trial courts should be particularly aware that evidence of other acts of a defendant is admissible [pursuant to R.C. 2945.59] only when it 'tends to show' one of the matters enumerated in * * * [that] statute and * * * when it is relevant to * * * [prove the defendant's guilt] of the offense in question. Such evidence is admissible, not because it shows that the defendant is crime prone, or even that he has committed an offense similar to the one in question, but in spite of such facts. * * * " Burson, supra, 38 Ohio St.2d at 158, 67 O.O.2d at 175, 311 N.E.2d at 528. See, also, State v. Hector (1969), 19 Ohio St.2d 167, 48 O.O.2d 199, 249 N.E.2d 912; State v. Wilkinson (1980), 64 Ohio St.2d 308, 18 O.O.3d 482, 415 N.E.2d 261.

The same logic should apply to Evid.R. 404(B).

The evidence offered by the state regarding delinquent loans by Bank One to Auto Cars is not relevant to proof of the guilt of the appellant of the offense in question. The alleged delinquency of Auto Cars in its car loan payments does not necessarily establish any wrongdoing by appellant; nor is there an illustrated connection between the alleged delinquent loans on the part of the appellant and the crimes for which he was charged and convicted: dealings with the 1980 Porsche.

In this case we believe the state was impermissibly allowed to imply that appellant was involved...