State v. Wright , 2014 Ohio 5424 ( 2014 )

[Cite as State v. Wright, 2014-Ohio-5424.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100803
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEVEN WRIGHT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-562470-A
BEFORE: Blackmon, J., Rocco, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: December 11, 2014
-i-
ATTORNEY FOR APPELLANT
Jeffrey S. Richardson
Richardson & Kucharski Co., L.P.A.
1200 West 3rd Street, Suite 190
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
John Patrick Colan
Gregory Paul
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Steven Wright (“Wright”) appeals his convictions and assigns the
following errors for our review:
I. The defendant-appellant’s due process rights and rights to a fair trial as
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution were violated by
ineffective assistance of counsel.
II. The trial court erred and denied defendant-appellant due process of law and his
right to a fair trial by allowing evidence of prior bad acts of the
defendant-appellant.
III. The trial court erred and denied defendant-appellant due process of law and
his right to a fair trial by allowing hearsay statements into evidence.
IV. The trial court erred to the prejudice of the defendant-appellant when it
overruled his motion to suppress challenging the lawfulness of the police search
and seizure, in violation of his constitutional rights against unreasonable search
and seizure as guaranteed by the Fourth and Fourteenth Amendments to the
United States Constitution and Section 14, Article I of the Ohio Constitution.
V. The trial court erred to the prejudice of the defendant-appellant in denying his
motion for acquittal made pursuant to Crim.R. 29(A).
VI. The trial court erred to the prejudice of the defendant-appellant when it
returned a verdict of guilty against the manifest weight of the evidence.
{¶2} Having reviewed the record and pertinent law, we affirm Wright’s convictions.
The apposite facts follow.
{¶3} On May 15, 2012, the Cuyahoga County Grand Jury indicted Wright on one count
of attempted murder, three counts of arson, and one count of aggravated arson. On May 21,
2012, Wright pleaded not guilty to the charges at his arraignment. Thereafter, numerous
pretrials were conducted, and on October 24, 2013, a jury trial began.
Jury Trial
{¶4} At trial, the testimony of 21 state witnesses and one defense witness established
that in the early morning of July 16, 2011, motorists traveling along Interstate 480 in North
Olmsted, Ohio reported seeing a blaze off the highway. Patrolmen Gorden Goodman and
Patrick Skullin of the North Olmsted Police Department, who were on separate routine patrols,
immediately responded to the scene of the fire. The two patrolmen worked feverishly to rescue
the occupants, Betty Wright, 1 the then 77-year-old owner of the house, Heather Hammill, a
caretaker, as well as Hammill’s 10-year-old son, Joe Voelzow.
{¶5} As Patrolman Goodman was assisting Betty Wright across the street to a
neighbor’s house, she indicated that she could not believe that her son did what he said he was
going to do. Betty Wright’s statement was an apparent reference to threats her son had made
approximately six days earlier, when she asked him to leave the house following a heated
argument. Betty Wright also indicated to the neighbor, Rita Gross, that she had evicted her son
and he told her that if she kicked him out, he would burn the house down.
{¶6} At the scene, the patrolmen observed white paint smeared all over the car
belonging to Betty Wright and to the truck belonging to Hammill. Both vehicles were removed
to preserve evidence of possible vandalism. The first responder also found a cigarette lighter
on the lawn of the home. Eventually, through the mutual aid of surrounding jurisdictions, the
North Olmsted Fire Department extinguished the fire.
{¶7} Shortly before noon that day, as the first responders and fire investigators were
leaving the scene, police officers observed Wright walking towards his mother’s home, shirtless
and carrying a bag. As Wright’s approach got closer, the officers observed a white substance
smeared all over his hands. On closer inspection, noting the distinct similarity with the white
substance smeared on Betty Wright’s and Hammill’s vehicles, the officers arrested Wright.
1
Betty Wright passed away from lung cancer prior to the commencement of
the trial.
{¶8} Subsequently, the white substance from Wright’s hand, as well as his clothing,
boots, and cell phone were collected and sent to State Fire Marshal Forensic Lab and the Ohio
Bureau of Criminal Identification for testing. After testing, the white substance on Wright’s
hand was found to have the same chemical composition as the white substance smeared all over
the two vehicles.
{¶9} The fire investigator opined that the fire was intentionally set and that it started on
the side of the house with the aid of an accelerant containing heavy petroleum distillate product.
The petroleum distillate product was also found on the boots Wright was wearing on the
morning he was arrested. The investigation determined that the fire did not start inside the house.
{¶10} On October 29, 2013, the jury returned guilty verdicts on all counts. On
November 25, 2013, the trial court sentenced Wright to 13 years in prison.
Ineffective Assistance of Counsel
{¶11} In the first assigned error, Wright argues he was denied the effective assistance of
counsel.
{¶12} To succeed on a claim of ineffective assistance, a defendant must establish that
counsel’s performance was deficient and that the defendant was prejudiced by the deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Counsel will only be
considered deficient if his or her conduct fell below an objective standard of reasonableness.
Strickland at 688.
{¶13} In Strickland, the United States Supreme Court also stated that a court’s scrutiny of
an attorney’s work must be deferential. The court further stated that it is too tempting for an
appellant to second-guess his attorney after conviction and appeal and that it would be all too
easy for a court to conclude that a specific act or omission was deficient, especially when
examining the matter in hindsight. Accordingly, this court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance, and the
defendant must overcome the presumption that the challenged action might be considered sound
trial strategy. Id. at 689. Further, to establish resulting prejudice, a defendant must show that
the outcome of the proceedings would have been different but for counsel’s deficient
performance. Id. at 694.
{¶14} In the instant case, Wright argues trial counsel was ineffective because he failed to
secure the appearance of Janet Reyes, Patrick Wyatt, and Daniel Chaney. Wright claims all
three witnesses would have been critical to his defense.
{¶15} First, Wright contends that Reyes, an employee of Extended Stay America in North
Olmsted, where he and his mother stayed for over a month after the fire, would have testified that
he had a good relationship with his mother. However, we are uncertain what light Reyes could
have shed on the relationship between Wright and his mother, because there is no indication how
much interaction Reyes had with them, and no indication whether she was aware that there was a
fire. Importantly, there is no indication that Reyes was ever privy to the mother and son
relationship prior to the fire.
{¶16} Second, Wright contends that Patrick Wyatt, the insurance investigator hired by
Nationwide, would have testified that his mother indicated in a telephone interview that she did
not believe Wright started the fire. Wyatt’s alleged anticipated testimony might have been eyed
by the jury with caution, because it too would have been a post-fire interaction between a
remorseful son and a mother who, despite what her child had done, might not want that child to
be prosecuted.
{¶17} Third, Wright contends that Chaney should have been secured, but admits that he is
unclear what the substance of his testimony would have been. As such, we conclude trial
counsel would have had a difficult time assessing Chaney’s relevance to the proceedings at hand.
{¶18} Here, as discussed above, because the testimony of Reyes, Wyatt, and Chaney
would not have been relevant, because two of the potential witnesses observed Wright’s
interaction with his mother was after the fire occurred, and because Wright concedes that he was
uncertain what the testimony of the third potential would have been, we decline to find that trial
counsel’s tactical decision not to secure their presence at trial constituted deficient performance.
{¶19} Finally, based on the foregoing, Wright has failed to show that the absence of the
aforementioned three possible witnesses resulted in prejudice. Consequently, we decline to
conclude that Wright was denied the effective assistance of counsel. Accordingly, we overrule
the first assigned error.
Other Acts Evidence
{¶20} In the second assigned error, Wright argues the trial court erred when it allowed the
state to introduce evidence about disturbance at his mother’s home the week prior to the fire.
{¶21} We review the admission of evidence under an abuse of discretion standard. State
v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, citing State v. Maurer, 15 Ohio
St.3d 239, 473 N.E.2d 768 (1984). “Abuse of discretion” connotes more than error of law or
judgment; it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶22} Pursuant to Evid.R. 404(B),
[E]vidence of other crimes, wrongs, or acts is not admissible to prove a
defendant’s character as to criminal propensity. 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.
Id.{¶23} Rule 404(B) is codified in R.C. 2945.59, which provides that:
[I]n 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.
{¶24} Recently, in State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, the Ohio Supreme Court revisited and addressed this very issue. The Ohio Supreme Court
concluded that Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the admission
of evidence of other crimes, wrongs, or acts offered to prove the character of an accused in order
to show that the accused acted in conformity therewith, but does not preclude admission of that
evidence for other purposes, e.g., to show proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Id.{¶25} In the instant case, at trial, three witnesses, including Wright’s brother, Fred,
testified about the disturbance the week prior to the fire. Fred testified that Wright was upset
because Hammill had entered their mother’s life, literally began living there, and appeared to be
taking advantage of their mother. Fred testified that his brother was very upset at being asked to
leave the house. Fred testified that although, he did not care for Hammill, he went to the house
when summoned, to make sure Wright left without incident. Fred testified that he found the
living room in disarray and their mother upset.
{¶26} Hammill testified that she too was summoned by Wright’s mother on the day of the
disturbance. Hammill testified that Wright, as well as his girlfriend, threatened her with
physical harm. Hammill testified that Wright’s mother called the police and they arrived a
short while later.
{¶27} Officer Eric Morgan of the North Olmsted Police Department confirmed that he
responded to Mrs. Wright’s home on the day of the disturbance. Officer Morgan testified that
by the time he arrived, it had been decided that Wright would leave the house to avoid any future
problems.
{¶28} Here, in accord with the Ohio Supreme Court’s recent pronouncement in Williams
supra, the state’s introduction of testimony regarding the disturbance was pertinent to establish
Wright’s motive for setting the fire in retaliation for being asked to leave his mother’s home.
{¶29} As such, the trial court did not abuse its discretion in admitting the testimony
regarding the disturbance almost a week prior to the fire. Accordingly, we overrule the second
assigned error.
Hearsay Evidence
{¶30} In the third assigned error, Wright argues the trial court erred when it admitted
hearsay testimony. Specifically, Wright argues that the trial court should not have allowed
Patrolman Goodman to testify that Wright’s mother stated immediately after the fire that “I can’t
believe my son did this. I can’t believe he did what he said he was going to do.”
{¶31} Wright also argues the trial court should have excluded neighbor Rita Gross’s
testimony that Wright’s mother told her, as the house was burning, that Wright had stated that he
would burn the house down if she kicked him out of the house.
{¶32} Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within an
exception provided by the rules of evidence.
{¶33} The Confrontation Clause guarantees a criminal defendant the right “to be
confronted with the witnesses against him.” U.S. Constitution Amendment VI. In Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme
Court held that the Confrontation Clause bars “testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for
cross-examination.”
{¶34} The Court distinguished between testimonial and nontestimonial hearsay and held
that only testimonial statements implicate the Confrontation Clause. Id. According to Crawford,
the initial analysis to be made in determining whether a defendant’s right to confrontation has
been violated by the admission of out-of-court statements that are not subject to
cross-examination “is not whether [the statements] are reliable but whether they are testimonial
in nature.” Toledo v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543 (6th Dist.), ¶
13, citing Crawford, supra, at 61, 124 S.Ct. 1354, 158 L.Ed.2d 177.
“Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later prosecution.” Davis v.
Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
{¶35} Thus, to determine whether a statement is testimonial or nontestimonial, we inquire
“whether a reasonable person in the declarant’s position would anticipate his statement being
used against the accused in investigating and prosecuting the case.” United States v. Cromer, 389
F.3d 662, 675 (C.A.6, 2004); see also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855
N.E.2d 834, paragraph two of the syllabus.
{¶36} In the instant case, Wright’s mother’s statement to Patrolman Goodman is subject
to the Confrontation Clause, because a reasonable person in the mother’s position would
anticipate her statement being used against her son in investigating and prosecuting the case.
{¶37} However, Wright’s mother made the same statement to her neighbor, Gross. The
statement to Gross was not testimonial, because a reasonable person in the mother’s position
would not anticipate this statement being used against her son in investigating and prosecuting
the case. As such, this statement to Gross falls under one of the firmly established exceptions to
the hearsay rule, namely, an excited utterance. State v. Richardson, 6th Dist. Lucas No.
L-07-1214, 2010-Ohio-471.
{¶38} Evid.R. 803(2) defines an “excited utterance” as a “statement relating to a startling
event or condition made while the declarant was under the stress of excitement caused by the
event or condition.”
{¶39} Excited utterances are admissible as an exception to the hearsay rule because they
are “the product of reactive rather than reflective thinking and thus, are believed inherently
reliable.” State v. Ducey, 10th Dist. Franklin No. 03AP-944, 2004-Ohio-3833, ¶ 17, citing State
v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993).
{¶40} “Reactive excited statements are considered more trustworthy than hearsay
generally on the dual grounds that, first, the stimulus renders the declarant incapable of
fabrication and, second, the impression on the declarant’s memory at the time of the statement is
still fresh and intense.” State v. Collins, 8th Dist. Cuyahoga No. 99659, 2013-Ohio-5579, citing
Taylor at 300, quoting Weissenberger, Evidence, Section 803.16, at 1 (1992).
{¶41} For an alleged excited utterance to be admissible, four prerequisites must be
satisfied: (1) a startling event produced a nervous excitement in the declarant, (2) the statement
was made while still under the stress of excitement caused by the event, (3) the statement related
to the startling event, and (4) the declarant personally observed the startling event. See State v.
Ray, 189 Ohio App.3d 292, 2010-Ohio-2348, 938 N.E.2d 378 (8th Dist.).
{¶42} Here, the two aforementioned identical statements, one testimonal and the other
nontestimonial, were made to separate individuals within minutes of each other, while Wright’s
mother was experiencing the stress and trauma of watching her home engulfed in flames. Thus,
Wright’s mother had no time for reflective thought. Consequently, as noted above, events such
as that experienced by Wright’s mother generally renders the declarant incapable of fabrication.
{¶43} As such, the trial court did not abuse its discretion in admitting into evidence the
hearsay testimony of Patrolman Goodman and Rita Gross under the excited utterance exception
to the hearsay rule. Further, because Wright’s mother made the identical statement to both
Patrolman Goodman and to the neighbor, allowing Patrolman Goodman to testify about the
mother’s statement was harmless. Accordingly, we overrule the third assigned error.
Motion to Suppress
{¶44} In the fourth assigned error, Wright argues the trial court erred when it overruled
his motion to suppress because the police officers had no probable cause to seize or arrest him on
the morning following the fire.
{¶45} An appellate court’s review of a trial court’s ruling on a motion to suppress
presents a mixed question of law and fact. Euclid v. Jones, 8th Dist. Cuyahoga No. 97868,
2012-Ohio-3960. The reviewing court is bound to accept the trial court’s findings of fact if they
are supported by competent, credible evidence. State v. Shabazz, 8th Dist. Cuyahoga No. 97563,
2012-Ohio-3367, citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). The
application of the law to those facts is subject to de novo review. State v. Polk, 8th Dist.
Cuyahoga No. 84361, 2005-Ohio-774, ¶ 2.
{¶46} The Fourth Amendment to the United States Constitution prohibits warrantless
searches and seizures, with some exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967). A warrantless arrest is unconstitutional unless the arresting officer
has probable cause to make the arrest at that time. State v. Timson, 38 Ohio St.2d 122, 127, 311
N.E.2d 16 (1974).
{¶47} Probable cause exists when officers have “‘facts and circumstances within their
knowledge and of which they [have] reasonably trustworthy information’ that would sufficiently
‘warrant a prudent man in believing that the [suspect] had committed or was committing an
offense.’” State v. Fannin, 8th Dist. Cuyahoga No. 79991, 2002-Ohio-6312, quoting Beck v.
Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
{¶48} Furthermore, the Fourth Amendment allows a police officer to stop and detain an
individual if the officer possesses a reasonable suspicion, based upon specific and articulable
facts, that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). In deciding whether reasonable suspicion exists, courts must examine the
“‘totality of the circumstances’ of each case to determine whether the detaining officer has a
‘particularized and objective basis’ for suspecting legal wrongdoing.’” United States v. Arvizu,
534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S.
411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see also State v. Bobo, 37 Ohio St.3d 177,
524 N.E.2d 489 (1988), paragraph one of the syllabus, citing State v. Freeman, 64 Ohio St.2d
291, 414 N.E.2d 1044 (1980).
{¶49} In the instant case, under the totality of the circumstances, the police officers had a
particularized and objective basis for suspecting Wright of illegal wrongdoing. As previously
noted, when Wright approached his mother’s home the morning after the fire, his hands were
covered in the same white paint-like substance that was smeared all over the vehicle in the
driveway. At that point, the police officers had probable cause to suspect Wright of at least
vandalizing the vehicle. As such, the trial court properly overruled the motion to suppress.
Accordingly, we overrule the fourth assigned error.
Sufficiency of the Evidence
{¶50} In the fifth assigned error, Wright argues that his motion for acquittal should have
been granted because the state failed to present sufficient evidence that he was responsible for
starting the fire.
{¶51} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the
state’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and a
sufficiency of the evidence review require the same analysis. State v. Houston, 8th Dist.
Cuyahoga No. 100655, 2014-Ohio-3911, citing State v. Tenace, 109 Ohio St.3d 255,
2006-Ohio-2417, 847 N.E.2d 386.
{¶52} In analyzing whether a conviction is supported by sufficient evidence, the
reviewing court must view the evidence “in the light most favorable to the prosecution” and ask
whether “any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus; State v. Carter, 72 Ohio St.3d 545, 1995-Ohio-104, 651 N.E.2d 965.
{¶53} In the instant case, Ralph Dolence, the fire investigator hired to determine the cause
of the fire opined that the fire was deliberately set and was an act of arson. Of note, the
investigation ruled out any notion that the fire started inside the house. In addition, the fire
investigator specifically testified that the fire was set using an accelerant, containing a petroleum
distillate product, at the side of the house. Further, the same accelerant that was determined to
have been used to start the fire, was also found on the boots Wright was wearing on the morning
he was arrested.
{¶54} Further, the white substance found on Wright’s hands when he was arrested,
contained the same chemical composition as the substance found smeared on the two vehicles in
the driveway at the time of the fire. At trial, one of the slides shown during the arson
investigator’s power point presentation clearly depicts finger marks in the white substance
splattered on the vehicles.
{¶55} Consequently, construing the evidence in the light most favorable to the state,
under the facts of this case, there was sufficient evidence presented that Wright started the fire.
There was no evidence that the fire was started by anything inside the house, instead reliable
conclusive evidence that it was set outside the house, and ample evidence that Wright had motive
and intent to set the fire in retaliation and in anger for being evicted by his mother from his
childhood home. Accordingly, we overrule the fifth assigned error.
Manifest Weight of the Evidence
{¶56} In the sixth assigned error, Wright argues his convictions were against the manifest
weight of the evidence.
{¶57} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, the
Ohio Supreme Court addressed the standard of review for a criminal manifest weight challenge,
as follows:
The criminal manifest-weight-of-the-evidence standard was explained in State v.
Thompkins (1997), 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. In
Thompkins, the court distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these concepts differ both
qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that
sufficiency of the evidence is a test of adequacy as to whether the evidence is
legally sufficient to support a verdict as a matter of law, but weight of the
evidence addresses the evidence’s effect of inducing belief. Id. at 386-387, 678
N.E.2d 541. In other words, a reviewing court asks whose evidence is more
persuasive — the state’s or the defendant’s? We went on to hold that although
there may be sufficient evidence to support a judgment, it could nevertheless be
against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. “When a
court of appeals reverses a judgment of a trial court on the basis that the verdict is
against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’
and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at
387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.
2211, 72 L.Ed.2d 652.
Id. at ¶ 25.
{¶58} An appellate court may not merely substitute its view for that of the jury, but must
find that “in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins at 387. Accordingly, reversal on manifest weight grounds is reserved for “the
exceptional case that the evidence weighs heavily against the conviction.” Id.
{¶59} In the instant case Wright contends that his defense expert, Timothy Wilhelm,
hired to opine on the cause of the fire, disagreed with Dolence’s opinion that the fire was
intentionally set.
{¶60} Preliminarily, we note, Wilhelm testified that he never actually went to the scene of
the fire. Wilhelm also admitted that had he been able to go to the scene shortly after the fire, he
would have been able to produce a more thorough report. At trial, Wilhelm testified in pertinent
part as follows:
Q. You agree with the origin of this fire, correct?
A. I do.
Q. Now, you claim that you’re not able to determine the cause of this fire because
you didn’t have enough data; is that correct?
A. That’s correct.
Q. Would have physically being on the scene, smelling it and seeing it, talking to
people on the scene, observing the scene, given you more data?
A. Absolutely.
Q. Now, you mentioned that Mr. Dolence presumed this was arson from the start,
right?
A. I believe he indicated that in his report when he said that a suspect was in custody
for the fire.
Q. Where does he presume — doesn’t he not go through methodically all potential
causes of this fire: electrical, furnace, boiler, exterior electrical, lightning even?
Doesn’t he eliminate all these potential ignition causes of the fire?
A. Yes, sir, he does.
Q. He rules them out, correct?
A. He does.
Q. Based on what you reviewed, wouldn’t you agree that all of those things should be
ruled out as the cause of this fire?
A. The problem with that is just because it isn’t A, B, C, doesn’t really mean it’s D.
Q. But if it’s none of those things, is it in your opinion —
A. It wasn’t A, B, or C, correct.
Q. So all those things he went over, methodically went through at the house, you
would agree that none of those things caused the fire?
A. Absolutely.
Tr. 678-680.
{¶61} Here, despite Wright’s contention that Wilhelm disputes Dolence’s determination
that the fire was an act of arson, the above excerpt, as well as elsewhere in the record, reveals that
Wilhelm does not dispute that all other possible causes of the fire were ruled out. As such, after
weighing the evidence, all inferences, and any discrepancies, we cannot find that a manifest
miscarriage of justice occurred in this case. Consequently, Wright’s convictions are not against
the manifest weight of the evidence. Accordingly, we overrule the sixth assigned error.
{¶62} 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 be sent to said court to carry this judgment into
execution. The defendant’s convictions 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.
PATRICIA ANN BLACKMON, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR