State v. Johnson , 119 N.E.3d 914 ( 2018 )

[Cite as State v. Johnson, 2018-Ohio-3670.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106450
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RANAU D. JOHNSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; VACATED IN PART;
REVERSED IN PART; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-613109-A
BEFORE: S. Gallagher, P.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: September 13, 2018
[Cite as State v. Johnson, 2018-Ohio-3670.]
ATTORNEY FOR APPELLANT
Donald Butler
Donald Butler & Associates
75 Public Square, Suite 600
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Kelly Needham
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Johnson, 2018-Ohio-3670.]
SEAN C. GALLAGHER, P.J.:
{¶1} Appellant Ranau D. Johnson appeals his convictions and sentence. Upon
review, we affirm all the convictions for aggravated arson and the sentence imposed on
Counts 3 and 4, vacate as void the conviction and sentence on Count 1 for attempted
felony murder, reverse the award of restitution, and remand the case to the trial court for a
resentencing hearing on Count 2 only and for an evidentiary hearing to determine the
appropriate amount of restitution.
{¶2} Appellant was charged under a four-count indictment. Count 1 charged
appellant with attempted murder, a felony of the first degree, in violation of R.C. 2923.02
and 2903.02(B). Counts 2 and 3 charged appellant with aggravated arson, felonies of the
first degree, in violation of R.C. 2909.02(A)(1), with each count pertaining to a separate
victim. Count 4 charged appellant with aggravated arson, a felony of the second degree,
in violation of R.C. 2909.02(A)(2). Appellant entered a plea of not guilty, and the case
proceeded to a bench trial.
{¶3} The trial court found appellant guilty on all four counts as charged.
Following merger of Counts 1 and 2, the court sentenced appellant to a prison term of 10
years for Count 1, 10 years for Count 3, and 7 years for Count 4, with all terms ordered to
run consecutive for a total aggregate prison term of 27 years. The court also ordered
appellant to pay restitution to S.A. in the amount of $5,000.
{¶4} As an initial matter, although not raised by appellant, we must vacate
appellant’s conviction and sentence on Count 1 for attempted felony murder on the
authority of State v. Nolan, 141 Ohio St. 3d 454, 2014-Ohio-4800, 25 N.E.3d 1016. See
State v. Brooks, 2016-Ohio-489, 56 N.E.3d 357, ¶ 27 (8th Dist.) (sua sponte vacating
conviction for attempted felony murder on the authority of Nolan).
{¶5} On Count 1, appellant was convicted of attempted felony murder in violation
of R.C. 2923.02 and 2903.02(B). In Nolan, the Supreme Court of Ohio held that
attempted felony murder in violation of R.C. 2923.02 and 2903.02(B) is not a cognizable
crime under Ohio law because it is impossible to commit. Id. at ¶ 5-10. The court
recognized that an attempt crime must be committed purposely or knowingly, but that
intent to kill need not be proven for a felony-murder conviction under R.C. 2903.02(B)
because it is essentially a strict-liability crime so that a person can be convicted even
though the death was unintended. Id. at ¶ 8-10.
{¶6} Because attempted felony murder charged under R.C. 2903.02(B) is not a
cognizable crime in Ohio, appellant’s conviction on Count 1 is void and his conviction
and sentence on that count must be vacated. See State v. Bozek, 11th Dist. Portage No.
2015-P-0018, 2016-Ohio-1305, ¶ 21; Brooks at ¶ 27. However, because appellant’s
conviction for aggravated arson under Count 2 was merged with the attempted murder
conviction for sentencing, we must remand for resentencing on Count 2. See State v.
Baker, 2d Dist. Greene No. 2017-CA-55, 2018-Ohio-1865, ¶ 22 (recognizing court has
the authority to resentence on a merged count). As stated in Baker, “Where offenses are
merged for sentencing and the conviction for the offense upon which the defendant was
sentenced is vacated, the trial court must resentence the defendant on the offense that was
merged with the vacated offense, again merging any offenses as appropriate.” Id.; see
also State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966, ¶ 35
(remanding for resentencing on counts that merged with attempted felony murder).
{¶7} We shall proceed to address the challenges raised herein as they pertain to the
aggravated arson counts. The underlying facts are as follows.
{¶8} At trial, S.A. testified that she had been in a relationship with appellant from
March 2016 until December 31, 2016. The two did not live together. At the time of the
fire, S.A. had been residing at her uncle’s home for approximately three weeks. Her
bedroom was located in the basement. Appellant had helped S.A. move into her uncle’s
home; he came over almost daily, and he knew where her bedroom was located.
{¶9} According to S.A., she and appellant had a falling-out on New Year’s Eve.
Two days later, appellant came to S.A.’s home and tried to explain that he was not
cheating on S.A. with an ex-girlfriend.
{¶10} S.A. testified that on January 3, 2016, she sent appellant a text message
indicating she wanted to end their relationship. Appellant responded to S.A. with a text
threatening to set her car on fire. After the conversation, appellant began parking her car
inside the garage.
{¶11} S.A. testified that on January 4, 2016, before midnight, she was in the
basement lying in her bed, using her tablet and her phone. S.A. confirmed that she took
medication and was normally sleeping by 10:00 p.m. at night. However, she had not
taken her sleep aid on the night of the fire because she was on a fast.
{¶12} S.A. testified that she heard a window break, and a piece of the glass fell
onto her bed. She then saw liquid that smelled like gasoline being poured in through the
window. She was able to see the opening and the handle along the top of a Hawaiian
Punch container pouring the liquid. She testified that she recognized the bottle as the
same bottle in which appellant kept gasoline. S.A. also stated she could see appellant’s
hand “through the slit” and that she recognized a bump on his finger.
{¶13} S.A. testified that she noticed the gasoline coming down the wall and saw
the bottle being shaken. The gasoline splashed onto a blanket, which was covering S.A.
in the bed. S.A. jumped out of bed and ran to the doorway. When she turned around,
she saw flames coming down the wall, traveling onto the floor, and over to her bed.
{¶14} S.A. testified that she ran upstairs and out the front door. She yelled for her
uncle to call the police. When she got outside, she saw appellant’s car parked in the
driveway next to the house. She described his car and identified the vehicle in a
photograph introduced at trial. She testified that she saw appellant walking to the car
and that he was wearing a brown hoodie and some blue jeans. She indicated that when
she called appellant’s name, he turned around and gave her “a crooked grin.” According
to S.A., appellant had the Hawaiian Punch container in his hand and put it in the backseat
of his car. He then drove away. S.A. and her uncle attempted to put the fire out with
pails of water, but were unsuccessful.
{¶15} S.A.’s uncle, K.P., testified that he also heard the window break. After
checking a few windows in his home, he looked outside and saw appellant walking to his
car. He provided a description of what appellant was wearing. K.P. testified he called
to S.A., who answered “there’s a fire.” She and K.P. were unable to put the fire out.
K.P. testified that he spoke to the police and a fire detective and provided a statement.
He indicated that he was unable to write the statement himself because of a physical
impairment. The record reflects that S.A. scripted the statement for her uncle in the
presence of Detective Richard Mizikar. K.P. testified that he signed the statement and
the statement was true. Neither S.A. nor K.P. were injured by the fire.
{¶16} The Cleveland police department, the Cleveland fire department, and EMS
responded to the scene. Officer Geoffrey Walter arrived at the scene and learned the
name of the suspect, a description of his vehicle, and the address where appellant was
residing, which was appellant’s grandmother’s home. Officer Walter and his partner
went to the address. They found appellant sitting in his vehicle, which was located
parked in the driveway, and arrested appellant. Officer Walter observed that appellant
appeared intoxicated. No gasoline containers or other incriminating evidence was found
in the vehicle. No odor of gasoline was detected. Appellant repeatedly denied any
involvement with the fire.
{¶17} Battalion Chief William Gorey III testified that when he arrived at the scene
of the fire, he observed smoke coming from a basement window. He stated that when he
opened a side door, “the smoke was already billowing out from the basement out the side
door at me.” He testified to observing “black smoke” and the dangers it poses to people.
He discussed the steps taken to put out the fire. He stated that it took ten minutes to put
out the fire, that there then remained a “significant amount of smoke” in the home, and
that they had to look for “hot spots.” He testified to the risks involved and to the fire
damage to the home. He indicated that the origin of the fire was “at the window, down
the wall and in the window” and further stated “by the fact that the black smoke was was
[sic] majority coming out that window and white smoke coming out the door on the side,
the obvious ignition * * * the seat was at that window area of the bedroom downstairs.”
He testified he was aware an accelerant was used and assumed it to be gasoline. Chief
Gorey also testified that when he arrived at the scene, S.A. almost immediately stated, “I
can’t believe that my ex-boyfriend lit this house on fire. Through the window he poured
gasoline on me.”
{¶18} Detective Richard Mizikar testified to the fire investigation. He testified to
his training and experience as a firefighter in the fire investigation unit. Upon arriving at
the scene of the fire, he was informed by Chief Gorey that there was a possible suspect
and that the fire was reported to have been started by dispensing gasoline through the
basement window. Det. Mizikar walked around the structure and took photographs. He
testified to two specific burn patterns in the basement, one directly below the window and
the other off to the right-hand side where the bed was situated. He indicated there was a
“V pattern” associated with both of them, which helps determine where the point of
origin or source of the fire may have started. He stated that “[b]ecause the V pattern
under the window doesn’t descend all the way to the floor, the fire had started a little
higher,” that the V pattern started where there was an accelerant, and that the fire
communicated to the bed and started to grow up the other wall.
{¶19} Detective Mizikar testified that in the fire investigation, he used a
“photoionizer detector” (“PID”), which is an instrument used “to detect the presence of
hydrocarbons, which are flammable vapors.” He obtained readings indicative of
flammable vapors located in the area of the window frame outside the home, on the
windowsill inside the basement, and at the believed point of origin at the bottom of the V
pattern under the window, which gave a reading consistent with a lot of flammable vapor
indicative of an accelerant having been used. Upon his investigation, Det. Mizikar
determined that the fire was intentionally started with an open flame and that the point of
origin was “in the vent window in the glass block.”
{¶20} Det. Mizikar testified that after conducting the fire investigation at the
home, he went to the address where appellant was being detained. He used the PID
around appellant’s hands and feet but received no significant reading. He also stated that
it is not difficult to wash accelerant off your hands with soap and water. Det. Mizikar
further testified that the description given of appellant had him wearing a brown
sweatshirt, but that appellant was wearing a gray sweatshirt at the time Mizikar saw him.
He estimated 40 to 45 minutes had passed between the time he arrived at the scene of the
fire and the time of appellant’s arrest.
{¶21} The PID monitor was not used inside of appellant’s vehicle. Det. Mizikar
was unaware of the Hawaiian Punch container and did not know to look for the same
because S.A. had not informed him of this detail or of the container having been thrown
into the backseat of appellant’s vehicle. On cross-examination, Det. Mizikar testified
that the PID is accurate and that with his training and experience he had calibrated the
instrument correctly. Defense counsel’s questioning reflected that counsel was aware
that the PID is a highly accurate instrument. Counsel acknowledged the detective’s
testimony that he had cleaned the instrument with fresh air before deploying the
instrument again.
{¶22} Defense counsel made a Crim.R. 29 motion for acquittal that was denied by
the trial court. The defense called four witnesses, including appellant’s cousin, who
testified as an alibi witness. Appellant’s cousin testified that when he arrived at his
grandmother’s home at 10:20 p.m., appellant was outside, sitting in his car, and that they
went to get something to eat and then returned. The cousin conceded he never informed
the police of this.
{¶23} The 911 call reporting the fire was placed at 10:36 p.m. Cell phone records
placed appellant’s phone near the victims’ residence at the time of the incident.
{¶24} The trial court convicted appellant of all counts as charged and sentenced
appellant. Appellant timely filed this appeal. He raises four assignments of error for
our review.
{¶25} Under his first assignment of error, appellant claims his convictions were
against the manifest weight of the evidence. Relevant hereto, appellant was convicted of
aggravated arson under R.C. 2909.02(A)(1) and (2), which provide as follows:
(A) No person, by means of fire or explosion, shall knowingly do any of the
following:
(1) Create a substantial risk of serious physical harm to any person other
than the offender;
(2) Cause physical harm to any occupied structure[.]
{¶26} When reviewing a claim challenging the manifest weight of the evidence,
the court, reviewing the entire record, must weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered. State
v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Reversing a
conviction as being against the manifest weight of the evidence should be reserved for
only the exceptional case in which the evidence weighs heavily against the conviction.
Id.
{¶27} Appellant first argues that the testimony of S.A. and K.P. was not credible.
Appellant claims that the testimony of S.A. was incredible because she told the police
right away that her ex-boyfriend started the fire and she omitted telling the police about
the Hawaiian Punch container, the bump on appellant’s finger, and whether she saw
appellant strike the match that started the fire. Our review reflects that S.A. provided a
credible account of what occurred that was consistent with other testimony and evidence
in the case. She was aptly cross-examined concerning the stated omissions. She
testified that she did tell the police she saw a bottle and that she did not report the specific
detail of it being a Hawaiian Punch bottle because she believed it was a small detail in a
big picture.
{¶28} Appellant also claims that K.P.’s statement was a sham and questions the
credibility of K.P.’s testimony. Appellant further claims there were contradictions in the
testimony of Det. Mizikar and Chief Gorey.
{¶29} Although appellant attacks the credibility of the state’s witnesses and
focuses on discrepencies in the testimony, he ignores the other evidence offered that
corroborated S.A.’s detailed account of the incident. S.A.’s testimony was corroborated
by K.P.’s testimony, and the testimony of Det. Mizikar and Chief Gorey. K.P. testified
to seeing appellant walking to his vehicle and provided a description of what he was
wearing. Also, the fire investigation determined the fire’s point of origin was at, or
around, the basement window. While appellant attempted to establish an alibi at the time
of the incident, the police were never informed of an alibi and cell phone records placed
appellant’s phone near the scene of the crime at the relevant time frame.
{¶30} The evidence in this case established that appellant, by means of fire, (1)
knowingly created a substantial risk of serious physical harm to the victims, and (2)
caused physical harm to an occupied structure. Upon our review, we are unable to find
the trier of fact clearly lost its way. Moreover, this is not the exceptional case in which
the evidence weighs heavily against the conviction. Appellant’s first assignment of error
is overruled.
{¶31} Under his second assignment of error, appellant argues his convictions for
aggravated arson under R.C. 2909.02(A)(1) were based upon insufficient evidence.
{¶32} A claim of insufficient evidence raises the question whether the evidence is
legally sufficient to support the verdict as a matter of law. Thompkins, 78 Ohio St. 3d at
386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
{¶33} With regard to the challenged counts, appellant was convicted of aggravated
arson in violation of R.C. 2909.02(A)(1), which states that “[n]o person, by means of fire
* * *, shall knowingly * * * [c]reate a substantial risk of serious physical harm to any
person other than the offender[.]”
{¶34} “A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B). In cases involving aggravated
arson, it has been found that
[t]he “knowingly” element in an aggravated arson case refers to a
defendant’s state of mind when he set a fire — i.e. the defendant is aware
that the fire or explosion he set will probably create a substantial risk of
serious physical harm. The requisite proof is not dependant [sic] upon the
actual result of the fire but is based upon the risk of harm created by the
defendant’s actions.
State v. Pfeiffer, 3d Dist. Seneca No. 13-15-22, 2015-Ohio-4312, ¶ 46.
{¶35} A “substantial risk” is defined in R.C. 2901.01(A)(8) as “a strong
possibility, as contrasted with a remote or significant possibility, that a certain result may
occur or that certain circumstances may exist.” “Serious physical harm to persons” is
defined as any of the following:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether
partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that
involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result
in substantial suffering or that involves any degree of prolonged or
intractable pain.
R.C. 2901.01(A)(5).
{¶36} Appellant claims that the state failed to demonstrate that S.A. or K.P. were
exposed to a “substantial risk” of “serious physical harm.” Appellant argues that neither
victim sustained any injury and that they both felt comfortable enough to return to the
basement to attempt to extinguish the fire. He also argues that the firefighters put the
fire out in ten minutes and none were injured.
{¶37} Our review reflects that evidence was presented to show appellant
intentionally set fire to an occupied home with the use of an accelerant he poured in
through the basement window. There was evidence that appellant shook the bottle and
that some of the accelerant splashed onto the blanket covering S.A. S.A., who normally
would be asleep at the time, was awake and managed to escape the home with her uncle
and call 911. The fire department quickly responded to the scene and extinguished the
fire. There was testimony of “black smoke” coming out of the basement window and
that there was “heavy smoke where you couldn’t get down to the basement without a
SCBA breathing apparatus on you.” Chief Gorey testified to the dangers of black smoke,
the risks presented by the fire, and the damage to the home. There was testimony that the
firefighters had to break out some windows, that the fire had burned through the mattress
by the window and impinged on an electrical box, that there was visible soot and staining
damage, and that personal items were destroyed.
{¶38} Our review reflects that testimony was presented to establish appellant knew
that a fire was going to result from his actions and that this fire would create a substantial
risk of serious physical harm to the persons inside the home. After viewing the evidence
in the light most favorable to the prosecution, we find that any rational trier of fact could
have found the essential elements of aggravated arson beyond a reasonable doubt.
Appellant’s second assignment of error is overruled.
{¶39} Under his third assignment of error, appellant challenges his conviction for
attempted felony murder and claims the state failed to establish that he attempted to cause
S.A.’s death as a proximate result of aggravated arson. Because we have already
determined appellant’s conviction for attempted felony murder is void, the third
assignment of error is moot.
{¶40} Under his fourth assignment of error, appellant argues that the fire
investigation conducted by Det. Mizikar produced manifestly unreliable results.
Appellant argues that Det. Mizikar was not qualified as an expert arson investigator under
Evid.R. 702(B) and that his opinion as to the cause of the fire was not reliable “because it
was not based on any scientifically valid principles and methods[.]”
{¶41} Pursuant to Evid.R. 702, a witness may testify as an expert if (1) “[t]he
witness’ testimony either relates to matters beyond the knowledge or experience
possessed by lay persons or dispels a misconception common among lay persons”; (2)
“the witness is qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony”; and (3) “[t]he
witness’ testimony is based on reliable scientific, technical, or other specialized
information.” A trial court’s admission of expert testimony is reviewed for an abuse of
discretion. State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶
161.
{¶42} In this case, Det. Mizikar’s expert testimony was based upon his knowledge
and experience in fire investigations and his examination of the scene of the fire. Det.
Mizikar testified that he was first a police officer and then went through the fire academy
and an apprenticeship of the fire department. Although Det. Mizikar did not have
specialized training or education in arson investigation, he testified that he had 17 and
one-half years of experience with the fire department and had been in the fire
investigation unit since 2007, during which he had “probably investigated in the area of
1,000 fires.” The record reflects that Det. Mizikar was qualified to testify as an expert in
this matter.
{¶43} Insofar as appellant challenges the reliability of Det. Mizikar’s conclusions
and claims they were not based on scientifically valid principles and methods, the record
reflects that no objection was raised at trial. Because no objection was raised at trial with
regard to Det. Mizikar’s testimony, appellant has forfeited all but plain error. Under
Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” “Plain error exists when it
can be said that but for the error, the outcome of the trial would clearly have been
otherwise.” State v. Issa, 93 Ohio St. 3d 49, 56, 2001-Ohio-1290, 752 N.E.2d 904, citing
State v. Moreland, 50 Ohio St. 3d 58, 62, 552 N.E.2d 894 (1990). A reviewing court
must recognize plain error “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.
{¶44} In determining whether an expert’s opinions are reliable under Evid.R.
702(C), the court’s focus is on whether the principles and methods the expert employed to
reach his opinions are reliable, rather than whether the conclusions are correct. State
Farm Fire & Cas. Co. v. Holland, 12th Dist. Madison No. CA2007-08-025,
2008-Ohio-4436, ¶ 21, citing Miller v. Bike Athletic Co., 80 Ohio St. 3d 607, 611,
1998-Ohio-178, 687 N.E.2d 735. Evid.R. 703 provides that “[t]he facts or data in the
particular case upon which an expert bases an opinion or inference may be those
perceived by the expert or admitted in evidence at the hearing.” “[W]here an expert
bases his opinion, in whole or in major part, on facts or data perceived by him, the
requirement of Evid.R. 703 has been satisfied.” State v. Solomon, 59 Ohio St. 3d 124,
126, 570 N.E.2d 1118 (1991).
{¶45} Here, the record reflects that Det. Mizikar interviewed the witnesses and
physically examined the site of the fire and the burn patterns. He utilized his PID device,
the accuracy of which was conceded, and determined that an accelerant had been used.
He determined from the facts and data perceived by him that the fire had been
intentionally started and that the point of origin was “in the vent window in the glass
block.” We conclude that the trial court did not abuse its discretion by permitting Det.
Mizikar to testify as an expert as to the cause and origin of the fire.
{¶46} Also, we are not persuaded by appellant’s comparison to Gilmore v. Village
Green Mgt. Co., 178 Ohio App. 3d 294, 2008-Ohio-4566, 897 N.E.2d 1142 (8th Dist.),
and to Sanders v. Nationwide Mut. Ins. Co., 8th Dist. Cuyahoga No. 99954,
2014-Ohio-2386. Further, even if an error had occurred, it cannot be said that but for the
error, the outcome of the trial would clearly have been otherwise in light of the other
testimony and evidence in this case. Appellant’s fourth assignment of error is overruled.
{¶47} Under his fifth assignment of error, appellant challenges the imposition of
consecutive sentences. Because the sentence on Count 1 is vacated, we shall review this
count only as to the consecutive sentences imposed on Counts 3 and 4.
{¶48} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 16. Pursuant to R.C. 2953.08(G)(2), a reviewing court may overturn the imposition of
consecutive sentences only if it clearly and convincingly finds that either (1) “the record
does not support the sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the
sentence is otherwise contrary to law.”
{¶49} Before a trial court may impose consecutive sentences, the court must first
make specific findings mandated by R.C. 2929.14(C)(4) and incorporate those findings in
the sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 37. The trial court is not required to state its reasons to support its findings, nor is
it required to give a rote recitation of the statutory language. Id. Further, “as long as the
reviewing court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive sentences
should be upheld.” Id. at ¶ 29.
{¶50} The record reflects that the trial court stated the following when imposing
the consecutive sentences:
The Court finds pursuant to Ohio Revised Code Section
2929.14(C)(4) that the defendant is required to serve these prison sentences
consecutively because a consecutive sentence is necessary to protect the
public from future crime and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public.
Furthermore, this sentence is necessary because the defendant
committed the offenses resulting in the near death of two people and
destruction of a home with the use of accelerant poured into the window of
one of the victims’ rooms, which could have resulted in her incineration due
to the structure of the basement of the home, harm so severe that a single
prison sentence for the offenses would not adequately reflect the
seriousness of the crime.
{¶51} Here, there is no dispute that the trial court made the requisite findings
under R.C. 2929.14(C)(4) for the imposition consecutive sentences and incorporated
those findings in the sentencing entry. Appellant claims that the record does not support
the trial court’s justification for imposing consecutive sentences and claims that the
statements of “near death of two people” and “destruction of a home” are not supported
by the record. Appellant also challenges the court’s speculation as to what “could have
resulted” as being unsupported by the record.
{¶52} Our review is not limited to the remarks made by the trial court at the time
of imposing consecutive sentences. Rather, support for the trial court’s findings may
appear anywhere in the record. State v. Gatewood, 8th Dist. Cuyahoga No. 101271,
2015-Ohio-1288, ¶ 13, citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 11 (8th
Dist.). As previously recognized, “R.C. 2929.14(E)(4) is satisfied when we can glean
from the tenor of the trial court’s comments, its findings, and the evidence that imposition
of consecutive sentences is justified.” State v. Kessler, 8th Dist. Cuyahoga No. 82956,
2003-Ohio-6052, ¶ 14.
{¶53} Upon our review of the entire record, we conclude that the tenor of the trial
court’s comments, its findings, and the evidence were sufficient to impose consecutive
sentences. While neither victim died and the home was not completely destroyed, there
was testimony showing that appellant intentionally set fire to a home in which the two
victims resided, one of whom was located in the basement of the home. There also was
testimony showing the fire and smoke damage caused to the property and the loss of
personal belongings. After careful review of the record, we cannot clearly and
convincingly find that the record does not support the trial court’s findings. Appellant’s
fifth assignment of error is overruled.
{¶54} Under his sixth assignment of error, appellant claims the trial court erred by
ordering him to pay $5,000 in restitution. He argues that there was a lack of any
competent, credible evidence of economic loss to S.A.
{¶55} R.C. 2929.18(A)(1) limits the amount of restitution to the amount of the
economic loss suffered by the victim as a direct and proximate result of the commission
of the offense. The statute allows the court to base the amount of restitution it orders to
“an amount recommended by the victim, the offender, a presentence investigation report,
estimates or receipts indicating the cost of repairing or replacing property, and other
information.” (Emphasis added.) Id. “The amount of the restitution must be supported
by competent, credible evidence from which the court can discern the amount of the
restitution to a reasonable degree of certainty.” State v. Gears, 135 Ohio App. 3d 297,
300, 733 N.E.2d 683 (6th Dist.1999). “Although the decision to impose restitution is
discretionary with the court, its determination of the amount of loss is a factual question
that we review under the competent, credible evidence standard.” State v. Walls, 8th
Dist. Cuyahoga No. 100801, 2014-Ohio-3502, ¶ 2, citing State v. Warner, 55 Ohio St. 3d
31, 69, 564 N.E.2d 18 (1990); State v. Didion, 173 Ohio App. 3d 130, 2007-Ohio-4494,
877 N.E.2d 725, ¶ 20 (3d Dist.).
{¶56} S.A. testified that all of her personal items were in the basement of the
home. Her personal items included clothes, shoes, hygiene products, medical equipment,
her phone, and two tablets. Although she did not have any receipts, she represented that
she had lost her file cabinet in the fire. S.A. testified that she was able to replace some of
the items after the fire through the Red Cross, which gave her a voucher for clothing that
she had to split with her uncle. She also was able to replace her phone, but was not able
to get a new tablet. She testified that the situation was a big loss for her. Her victim
impact statement included a claim of $5,000 of damaged personal property. However,
there was a lack of evidence presented to support this figure.
{¶57} Although the record indicates that S.A. suffered an economic loss, we do
not find that the state presented sufficient evidence from which the trial court was able to
discern the appropriate amount of restitution to a reasonable degree of certainty. Upon
review, we find the restitution imposed by the trial court was arbitrary and that the
amount of $5,000 was not supported by competent, credible evidence in the record. The
judgment on restitution is reversed, and the matter is remanded to the trial court for the
purpose of holding an evidentiary hearing to determine the appropriate amount of
restitution owed to S.A. Appellant’s sixth assignment of error is sustained.
{¶58} In conclusion, we affirm all the convictions for aggravated arson and the
sentences imposed on Counts 3 and 4, vacate the conviction and sentence on Count 1 for
attempted felony murder, reverse the award of restitution, and remand the case to the trial
court for a resentencing hearing on Count 2 only and for an evidentiary hearing to
determine the appropriate amount of restitution.
{¶59} Judgment affirmed in part; vacated in part; reversed in part; and case
remanded.
It is ordered that appellant and appellee share 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.
[Cite as State v. Johnson, 2018-Ohio-3670.]
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR