State v. Dawson ( 2023 )

[Cite as State v. Dawson, 2023-Ohio-1965.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022 CA 17
KENNETH J. DAWSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2021 CR 94
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT KENNETH J. DAWSON
PROSECUTING ATTORNEY BELMONT CORR. INSTITUTION
MARK A. BALAZIK P.O. Box 540
ASSISTANT PROSECUTOR St. Clairsville, Ohio 43950
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 2022 CA 17 2
Wise, J.
{¶1} Appellant Kenneth Dawson appeals his conviction and sentence entered in
the Fairfield County Court of Common Pleas. Appellee is the State of Ohio. The relevant
facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 17, 2021, Appellant was indicted for one count of Arson in
violation of R.C. §2909.03(B)(1) and R.C. §2909.03(D)(2)(b), one count of Retaliation in
violation of R.C. §2921.05(A) and R.C. §2921.05(C), one count of Possessing Criminal
Tools in violation of R.C. §2923.24(A) and R.C. §2923.24(C), and one count of Unlawful
Possession of a Dangerous Ordinance in violation of R.C. §2923.17(A) and R.C.
§2923.17(D).
{¶3} On October 29, 2021, Appellant filed a Motion to Suppress Appellant’s
statements Appellant made to law enforcement that he filled a mason jar with gasoline,
inserted a fuse, lit the fuse, and threw the jar at the Fraternal Order of Police building in
Lancaster, Ohio.
{¶4} On January 13, 2022, the trial court held a hearing on Appellant’s Motion to
Suppress.
{¶5} At the suppression hearing, Detective Sinewe testified he and investigator
Flickinger went to Appellant’s apartment following up on a tip that Appellant was involved
in an arson. Appellant agreed to accompany them back to the police station for an
interview. Appellant rode with Flickinger in the front seat of his pickup truck, as Appellant
did not know the way to the station.
Fairfield County, Case No. 2022 CA 17 3
{¶6} Upon arriving at the police station, the investigators interviewed Appellant
in the detective bureau interview room. Appellant was told he was not under arrest, but
read and signed a notice of his Miranda rights.
{¶7} After thirty-six minutes, Appellant requested an attorney. Detective Sinewe
continued the interview stating Appellant was not in custody at the time, and they wanted
to get a little bit more information from him. Detective Sinewe stated he was free to leave.
{¶8} A few minutes later, Detective Sinewe decided to end the interview and take
Appellant home. Appellant asked to smoke a cigarette in the parking lot before departing.
Appellant reinitiated the conversation by talking about what will happen if he does not
want an attorney. Detective Sinewe told him it was going to the prosecutor's desk anyway,
told Appellant he was not under arrest and was free to leave. Detective Sinewe told
Appellant he would take Appellant back to his apartment if he desired.
{¶9} Appellant then told Detective Sinewe that he was very angry at the Highway
Patrol and made a very big mistake. Appellant told Detective Sinewe he wanted to go
back to the interview room and have another conversation.
{¶10} Once back in the interview room, Detective Sinewe reiterated to Appellant
that he was not under arrest, the room was not locked, he was free to leave, and they
would take him back home at any time. Appellant stated he made a mistake telling his
brother-in law he committed the arson. Appellant, after being told DNA was found at the
scene, ended the interview by stating he was done, opening the door and exiting.
Investigator Flickinger took Appellant back to his apartment. On the ride, Appellant again
initiated a conversation by asking Investigator Flickinger if the matter was going away.
Investigator Flickinger stated no it would proceed to a grand jury and a warrant would
Fairfield County, Case No. 2022 CA 17 4
likely be issued for his arrest. Appellant told Investigator Flickinger that he wanted to
speak with them again and that he “did it.”
{¶11} Investigator Flickinger testified he told Detective Sinewe Appellant wished
to speak again. Appellant did not appear to be under the influence of any drugs or alcohol.
{¶12} The conversation began outside Appellant’s apartment, and they continued
it inside. During the interview, Appellant provided a full and detailed confession of the
arson, but claimed he did not intend to burn a building down. He only wanted to throw an
incendiary device near the Fraternal Order of Police building.
{¶13} Appellant stated he was not being forced in any way to provide a statement.
Appellant told the investigators they were being nice, and that he appreciated their
professionalism. Appellant allowed Detective Sinewe to take a photograph of his truck
with the gas can still in the bed. Appellant prepared a handwritten statement
acknowledging he understood his rights and was willing to speak with detectives. At the
end of the interview, Appellant explained that he was very upset at the time of the offense
and made a bad decision.
{¶14} Appellant stated that he had worn plain colored clothes and shoes with a
tread he normally did not wear. He filled a mason jar with gasoline and used a paper towel
for a wick. He threw the device and a second later ran from the scene. He thought the fire
had most likely gone out. He said he threw out the gloves he was wearing during the
crime. Appellant then said he told his brother in-law about the incident.
{¶15} On February 24, 2022, the trial court overruled Appellant’s Motion to
Suppress.
{¶16} On April 26, 2022, a jury trial commenced.
Fairfield County, Case No. 2022 CA 17 5
{¶17} At trial, Sergeant Mackie testified that on February 27, 2021, he was
dispatched to assist a motorist, Appellant. After investigating Appellant’s impairment,
Appellant was arrested. Appellant wanted to fight Sergeant Mackie, stating Appellant
hopes his wife or child gets raped or killed. Appellant mentions his brother’s arsenal.
{¶18} Next, Benjamin Moore, Appellant’s brother in-law testified that later on
February 27, 2021, Appellant called him to say he was angry with Sergeant Mackie, that
he wanted to know where his wife and kids lived, and that he wanted to fight the highway
patrol sergeant. Appellant then told Moore that he filled a jar with gasoline, stuffed a rag
in it, and threw it underneath where the cops hang out.
{¶19} Moore told his wife, Appellant’s sister, what Appellant had said. He then
learned the fire department was fighting a fire at the Lancaster Fraternal Order of Police
building. Moore then relayed his conversation to police.
{¶20} Next, Investigator Hetterle with the Lancaster Fire Department testified the
origin of the fire at the Fraternal Order of Police building was from underneath the building.
Broken pieces of glass and a burned slab of wood were collected from the site. They were
sent for analysis. Appellant’s trial attorney stipulated to the chain of custody and accuracy
of the results on the glass and wood pieces. The results of the chemical analysis showed
the glass shards came back positive for gasoline.
{¶21} Appellant’s attorney objected to the stipulations, citing that his client did not
want the attorney to stipulate to them and for Appellee to prove its case on everything.
{¶22} The trial court overruled the objection finding Appellant was bound by the
representations and agreement of his counsel.
Fairfield County, Case No. 2022 CA 17 6
{¶23} Appellant’s counsel then informed the trial court that Appellant wanted to
represent himself since his counsel stipulated to the chemical analysis. The trial court
informed Appellant of his rights, penalties faced, and that he would be held to the same
rules of evidence and procedure as any attorney. Appellant insisted on representing
himself, signed a waiver of counsel, and proceeded pro se.
{¶24} Next Inspector Jason Coy with the Lancaster Fire Department testified he
determined the incident to be an arson event. He obtained video from a nearby business
showing a person leaving Appellant’s apartment building, then walking past the business
in a dark top, dark pants, boots, and carrying something in his hand about twenty-five
minutes before the fire was called into 9-1-1.
{¶25} Next, Detective Sinewe testified that he and Investigator Flickinger called
Appellant on March 2, 2023 to speak with him. Detective Sinewe testified consistently
with his testimony from the suppression hearing culminating in Appellant’s detailed
confession at his apartment.
{¶26} Investigator Flickinger then testified consistently with his testimony from the
suppression hearing, specifically that Appellant said, “I did it.”
{¶27} Officer Beavers, formerly with Lancaster Police, testified that following the
arson, she posed as a potential love interest online in order to locate Appellant. Appellant
told her that cops mistreated him and now they are mad, that Appellant is trained to kill
people with his hands, he’s in the best shape of his life and he will take lives if they are
threatening him, that he is not telling his location to anyone, and that unless she would
go to Colorado she is pretty far away.
Fairfield County, Case No. 2022 CA 17 7
{¶28} On April 28, 2022, the jury found Appellant guilty of all counts of the
indictment.
ASSIGNMENTS OF ERROR
{¶29} Appellant filed a timely notice of appeal. He herein raises the following
Assignments of Error:
{¶30} “I. APPELLANTS’ [sic] CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND A FAIR TRIAL UNDER THE SIXTH, [sic] AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF
THE OHIO CONSTITUTION WERE PREJUDICED BY THE INEFFECTIVE
ASSISTANCE OF TRAIL [sic] COUNSEL.
{¶31} “II. VIOLATION OF MIRANDA, COERCION, USE OF
INVOLUNTARY/INADMISSIBLE STATEMENT[.]”
I.
{¶32} In Appellant’s first Assignment of Error, Appellant argues he was deprived
of effective assistance of counsel as his trial counsel failed to obtain client’s consent
before stipulating to exhibits and subpoena witnesses. We disagree.
{¶33} Our standard is set forth in Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v.
Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged
analysis in reviewing a claim for ineffective assistance of counsel. Id. First, we must
determine whether counsel’s assistance was ineffective; whether counsel’s performance
fell below an objective standard of reasonable representation and was violative of any of
his essential duties to the client. Id. If we find ineffective assistance of counsel, we must
Fairfield County, Case No. 2022 CA 17 8
then determine whether the defense was actually prejudiced by counsel’s ineffectiveness
such that the reliability of the outcome of the trial is suspect. Id. This requires a showing
there is a reasonable probability that, but for counsel’s unprofessional error, the outcome
of the trial would have been different. Id.{¶34} Trial counsel is entitled to a strong presumption that all decisions fall within
the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,
675, 693 N.E.2d 267 (1998). Even debatable trial tactics and strategies do not constitute
ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189(1980).
{¶35} First, Appellant argues that trial counsel stipulating to the authenticity of
evidence without prior consent of Appellant constitutes ineffective assistance of counsel.
However, “[g]enerally, the decision to enter into stipulations is a tactical decision which
‘falls ‘within the wide range of reasonable professional assistance.’ ’ ” State v. Hammen,
5th Dist. Stark No. 2012CA00009, 2012-Ohio-3628, ¶16, quoting State v. James, 3rd Dist.
Allen No 1-10-20, 2010-Ohio-5411, ¶16, quoting State v. Green, 66 Ohio St.3d 141, 148,
609 N.E.2d 1253 (1993). “Trial counsel’s decision to stipulate to uncontested facts
constitutes ineffective assistance only if it results in prejudice to appellant.” Hammen at
¶16.
{¶36} We find Appellant was not prejudiced by trial counsel’s decision to enter
stipulations, and Appellant has not shown the result of the proceeding would have been
different absent the stipulations. The issue of the chain of custody and results of the
chemical analysis were uncontested, and no evidence was presented to dispute them.
We fail to see how stipulating to the uncontested facts prejudiced Appellant.
Fairfield County, Case No. 2022 CA 17 9
{¶37} Next, Appellant argues trial counsel was ineffective for failing to subpoena
witnesses. Appellant argues in his brief that he had witnesses which would testify
Appellant was not at the scene of the crime on the night in question. However, it is
Appellant’s burden to present evidence that meets a required minimum level of cogency
to support his claim. State v. King, 5th Dist. Stark No. 2021CA00140, 2022-Ohio-676, ¶33,
appeal not allowed, 167 Ohio St.3d 1408, 2022-Ohio-2047, 188 N.E.3d 1102, ¶33. A self-
serving statement generally does not meet this required minimum level of cogency Id. at
¶26. Without any other supporting evidence other than Appellant’s brief, we find Appellant
has failed to support his allegation with evidentiary quality materials supporting his
contention that trial counsel’s performance fell below an objective standard of reasonable
representation, or that any prejudice arose from the alleged ineffectiveness.
{¶38} Therefore, Appellant’s first Assignment of Error is overruled.
II.
{¶39} In Appellant’s second Assignment of Error, Appellant argues the trial court
erred in failing to suppress statements he made to investigators. We disagree.
{¶40} Appellee argues that his lack of objection to the admission of his recorded
statements at trial did not preserve this issue for appeal. However, Appellant filed a Motion
to Suppress those statements prior to trial. “An important characteristic of a motion to
suppress is that finality attaches so that the ruling of the court at the suppression hearing
prevails at trial and is, therefore, automatically appealable[.]” State v. French, 72 Ohio
St.3d 446, 449, 650 N.E.2d 887, 890 (1995). Therefore, the issue of admissibility of
Appellant’s statements was properly preserved for appeal.
Fairfield County, Case No. 2022 CA 17 10
{¶41} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. The
trial court is the finder of fact in evaluating a motion to suppress; therefore, it is in the best
position to resolve factual questions and evaluate the credibility of witnesses Id. The trial
court’s findings of fact must be accepted by an appellate court if they are supported by
competent, credible evidence. Id. “Accepting facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard.” Id. That is, the appellate court will review
the application of the legal standard to the facts de novo. Id.{¶42} There are three methods of challenging the trial court’s finding of fact. State
v. Goins, 5th Dist. Morgan No. 05-8, 2006-Ohio-74, ¶10. First, an appellant may challenge
the trial court’s finding of fact. Id. Second, an appellant may argue the trial court failed to
apply the appropriate test or correct law to the findings of fact. Id. Finally, an appellant
may argue the trial court has incorrectly decided the ultimate or final issue raised in the
motion to suppress. Id. When reviewing this type of claim, an appellate court must
independently determine, without deference to the trial court’s conclusion, whether the
facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
{¶43} The Fifth Amendment to the United States Constitution guarantees no
person shall be a witness against himself, and the Sixth Amendment to the United States
Constitution guarantees the accused shall have the assistance of counsel. Miranda v.
Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The inherently
coercive nature of custodial interrogation can “undermine the individual’s will to resist and
Fairfield County, Case No. 2022 CA 17 11
* * * compel him to speak where he would not otherwise do so freely.” J.D.B. v. North
Carolina, 564 U.S. 261, 269, 131 S.Ct. 2394, 2401, 180 L.E.2d 310 (2011), quoting
Miranda at 467; Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147
L.Ed.2d 405 (2000).
{¶44} In light of the inherent coercion involved in custodial interrogation, Miranda
established “a set of prophylactic measures” to safeguard the constitutional privilege
against self-incrimination. Dickerson at 435. Miranda held the State may not use a
defendant’s statements from custodial interrogation “unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda at 444, 86 S.Ct. 1602. Prior to questioning, the police must warn the suspect
“that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.” Id. In Miranda, the Supreme Court recognized the importance of
a suspect’s “real understanding” of his rights and his intelligent decision whether to
exercise them. Id. at 469.
{¶45} If custodial interrogation continues in the absence of an attorney after a
police officer advises a suspect of his rights, the State must demonstrate by a
preponderance of the evidence that the suspect “knowingly and intelligently waived his
privilege against self-incrimination and his right to retained or appointed counsel” before
speaking to the police. Miranda, 384 U.S. at 475. A court may not presume a valid waiver
either from the suspect’s silence after warnings are given or from the fact the suspect
eventually confessed. Id. Rather, the record must show the accused was offered counsel
Fairfield County, Case No. 2022 CA 17 12
but intelligently and understandingly rejected the offer. Id. If the state does not satisfy its
burden, “no evidence obtained as a result of interrogation can be used.” Id. at 479.
{¶46} A custodial interrogation occurs when a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way, and a law
enforcement officer questions that person. Id. The relevant inquiry is whether a
reasonable person under those circumstances would have felt they were under arrest.
State v. Schlupp, 5th Dist. Coshocton No. 2012 CA 0007, 2012-Ohio-6072.
{¶47} In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383,
116 S.Ct. 457 (1995), the Court offered the following description of the Miranda custody
test:
Two discrete inquiries are essential to the determination: first, what
were the circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave. Once the scene is set
and the players’ lines and actions are reconstructed, the court must apply
an objective test to resolve the ultimate inquiry: was there a formal arrest or
restraint on freedom of movement of the degree associated with a formal
arrest.
516 U.S., at 112, 116 S.Ct. 457. Accord, Yarborough v. Alvarado, 541 U.S. 652, 653, 124
S.Ct. 2140, 158 L.Ed.2d 938 (2004). The police and courts must “examine all of the
circumstances surrounding the interrogation,” Stansbury v. California, 511 U.S. 318, 322,
114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), including those that “would have affected how
a reasonable person” in the suspect’s position “would perceive his or her freedom to
Fairfield County, Case No. 2022 CA 17 13
leave,” Id. at 325. However, the test involves no consideration of the particular suspect’s
“actual mindset.” Yarborough, 541 U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938.
Accord, State v. Mason, 82 Ohio St.3d 144, 153, 1998-Ohio-370, 694 N.E.2d 932; State
v. Gumm, 73 Ohio St.3d 413, 429, 1995-Ohio-24, 653 N.E.2d 253 (1995).
{¶48} Prior to Appellant’s first interview, Appellant was read his Miranda rights,
and he agreed to speak with Detective Sinewe and Investigator Flickinger. They informed
Appellant that he was not under arrest, that he was free to leave at any time and he would
be driven home, and that the door to the interview room was unlocked. In this first
interview, Appellant denied throwing the gasoline filled jar at the Fraternal Order of Police
building. Appellant asked to speak with a lawyer before further questioning. Detective
Sinewe and Investigator Flickinger attempted to get him to reconsider, but he did not.
{¶49} After Appellant’s interview, Appellant asked to smoke a cigarette before
being taken home. While outside, Appellant initiated a conversation with Detective
Sinewe asking to speak with him again without an attorney to say what happened.
{¶50} Detective Sinewe and Investigator Flickinger brought Appellant back into
the interview room, reminded Appellant of his rights, told Appellant he was still not under
arrest, and that he could leave at any time. Detective Sinewe told Appellant the door is
still unlocked and that he can request an attorney at any time.
{¶51} Appellant then discussed why he told his brother in-law he threw the lit
mason jar at the Fraternal Order of Police building. He said he called the highway patrol
for assistance, and they charged him with an OVI. He again denied actually throwing the
jar and ended the interview without confessing. Detective Sinewe and Investigator
Flickinger then drove Appellant back to his house.
Fairfield County, Case No. 2022 CA 17 14
{¶52} Appellant again told Detective Sinewe and Investigator Flickinger that he
did not want to speak with a lawyer, but wanted to tell them what he did. He then
confessed that in his anger, he filled a mason jar with gasoline, walked to the Fraternal
Order of Police building, lit the fuse and threw it at the building. He did not believe or want
the building to burn down. He just thought it would leave scorch marks which would have
to be painted over.
{¶53} Based on the foregoing, we find that a reasonable person who had been
told they were not under arrest, was free to leave and end the interview, had twice
previously ended the interview only to reinitiate, and was in his or her home when
ultimately confessing, would have felt they were not under arrest at that time. Since “an
officer may continue to question a suspect [in a non-custodial setting] so long as the
officer’s persistence does not render the statements to be made involuntary” the trial court
did not err in concluding Appellant’s statements were voluntary.
{¶54} Therefore, we find that the trial court did not err in overruling Appellant’s
Motion to Suppress and allow Appellant’s statements into evidence.
Fairfield County, Case No. 2022 CA 17 15
{¶55} Appellant’s second Assignment of Error is overruled.
{¶56} For the foregoing reasons, the judgment of the Court of Common Pleas of
Fairfield County, Ohio, is hereby, affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/br 0601