State v. Ortiz , 2023 Ohio 2114 ( 2023 )

[Cite as State v. Ortiz, 2023-Ohio-2114.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-061
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
GERARDO ORTIZ, JR.,
Trial Court No. 2021 CR 001050
Defendant-Appellant.
OPINION
Decided: June 26, 2023
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, Assistant Prosecutor, and
Adam M. Downing, Assistant Prosecutor, Lake County Administration Building, 105
Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Jay F. Crook, Jay F. Crook, Attorney at Law, LLC, 30601 Euclid Avenue, Wickliffe, OH
44092 (For Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Gerardo Ortiz Jr., appeals his conviction for Aggravated Arson,
a first-degree felony, in violation of R.C. 2909.02(A)(1), from the Lake County Court of
Common Pleas. Appellant was in a relationship with Rebecca Nall and was convicted of
Aggravated Arson for setting fire to her residence while she and others were present in
the building. Appellant has raised two assignments of error arguing that the trial court
erred when it allowed the State’s expert witness to testify that a dresser was an accelerant
based on a picture of it. He also argues that the evidence against him was circumstantial,
and his conviction was against the manifest weight of the evidence.
{¶2} After review of the record and the applicable caselaw, we find appellant’s
assignments of error are without merit. The trial court did not abuse its discretion in
permitting the State’s expert witnesses to testify that an accelerant can be “anything that
makes a fire move faster” and that a dresser found at the origin of the basement fire
looked like it was made of manmade, petroleum based materials and could have acted
as an accelerant that caused the fire to spread more quickly. Next, appellant’s conviction
was not against the manifest weight of the evidence. Although there was no direct
evidence appellant set the fire, an expert fire investigator determined the fire had two
points of origin and was set by human hands. Appellant had previously burned several of
Nall’s items and had threatened to burn the house down. Further, appellant was at the
house the morning of the fire, argued with Nall, and was seen on a security camera
leaving the house approximately five minutes before visible smoke started coming from
the residence.
{¶3} Therefore, we affirm the judgment of the Lake County Court of Common
Pleas.
Substantive and Procedural History
{¶4} Rebecca Nall lived at 7488 Southwood Drive with housemates Angela
Perfetti, Ricky Belvins, Angel Miler, and Phillip Jenkins. Appellant and Nall were in a
relationship. On August 3, 2021, appellant and Nall argued. During the argument,
appellant told Nall “You have no idea what I was about to do.” Appellant left the house
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and within minutes, the occupants and neighbors saw smoke coming from the basement.
Nall exclaimed that appellant had set the house on fire. A fire investigator determined that
there were two points of origin for the fire, the basement and the pantry.
{¶5} On February 21, 2021, appellant was indicted on one count of Aggravated
Arson, a first-degree felony, in violation of R.C. 2909.02(A)(1), and one count of Arson, a
second-degree felony, in violation of R.C. 2909.02(A)(2).
{¶6} On April 25, 2022, appellant’s case proceeded to a jury trial. The State
called 21 witnesses and presented the following evidence:
{¶7} Angel Miller testified that she stayed in the upstairs bedroom of 7488
Southwood. Miller said Nall used to stay in a basement bedroom, but that a flood made
Nall move to a second floor bedroom. Miller identified a pre-fire picture of a pink colored
Victoria’s Secret armoire that belonged to Nall and had been in the basement bedroom.
{¶8} Appellant and Nall were dating and had a toxic relationship with frequent
arguments, appellant set Nall’s table on fire outside the house a few days before the
house fire.
{¶9} Miller came home from work around 2:30 a.m. on August 3 and appellant
was at the house. She said that before she fell asleep, she heard appellant and Nall
arguing. Miller woke up around 9:00 a.m. when she heard Nall screaming “my house is
on fire.” She left her bedroom and could feel the heat from the fire; it was particularly hot
near the stairs. She saw smoke rolling out of the basement. Miller retrieved her dog from
her bedroom, but was unable to retrieve her pet lizard and left it behind because by the
time she returned to her bedroom, it was filled with smoke and the room was hot. Other
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than the lizard, the fire destroyed all of her personal belongings. Miller had a prior
conviction in 2011 for trafficking in drugs.
{¶10} Ricky Blevins also resided at 7488 Southwood at the time of the fire. He
lived there with his girlfriend Angela Perfetti. Blevins testified to the following: appellant
had admitted to burning one of Nall’s chairs in the days before the fire, because of an
argument. Two days later, Blevins saw appellant burning Nall’s whicker table on the deck,
again due to an argument between appellant and Nall. Blevins saw appellant use a
Benzomatic torch to light the fire and Blevins later tried to put that fire out with a garden
hose. Blevins knew appellant would burn Nall’s things when he was mad at her. Appellant
had previously threatened to burn the house down on multiple occasions.
{¶11} On August 3, Blevins woke up around 7:30 a.m. and began to make
breakfast for himself and appellant. He saw appellant begin to go down to the basement,
but when appellant noticed Blevins watching him, appellant hesitated with a “deer in the
headlights” look. Appellant turned around and did not enter the basement at that time.
{¶12} Soon after, appellant began arguing with Nall. During the argument, Blevins
heard appellant say, “you have no idea what I was about to do.” Nall told appellant to
leave. Blevins said appellant did not leave immediately but was still in the house for about
10 minutes. Blevins said everyone else in the house went upstairs after appellant and
Nall argued. Blevins was in his room with Perfetti when he heard Nall scream “oh my god,
he set my house on fire.” Blevins went to wake Miller and then went down the stairs. He
said the stairs were already hot under his feet.
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{¶13} Blevins explained that the house was built on the location of an old
farmhouse and had an old cellar with an entrance to the cellar from the garage. There
were two entrances to the basement, one from inside the house and one from the garage.
He said a person could go into the garage and access the basement from there.
{¶14} Blevins acknowledged prior convictions for possession of drugs, failure to
comply with an order of a police officer, and misdemeanor theft. At the time of trial, Blevins
was incarcerated. He said he left the scene of the fire before emergency responders
arrived because he had outstanding arrest warrants. Blevins said he lost all of his
personal belongings in the fire.
{¶15} Both Blevins and Miller testified that appellant did not keep his personal
belongings at 7488 Southwood.
{¶16} Angela Perfetti testified as follows: she and Blevins were in a relationship
and lived at 7488 Southwood together. Nall and appellant had been arguing on August 3
and Nall went into the bathroom to avoid appellant. Soon after, Perfetti heard Nall say the
house was on fire. She left the scene of the fire with Blevins because he had arrest
warrants. Perfetti said she lost all of her personal belongings in the fire. Perfetti
acknowledged her prior convictions for drug possession and falsification.
{¶17} Rebecca Nall testified as a court’s witness thusly: she and her estranged
husband, David Nall, bought the house at 7488 Southwood. The two did not have a
mortgage on the house and did not maintain homeowner’s insurance. She picked
furniture or other valuable items from businesses or from the curb on residential trash
nights. She refinished and sold the items she found. Some of the furniture she had picked
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was burned before the fire, but she said she did not see who did it. One of the items she
had picked and restored was a Victoria’s Secret dresser. It was in the basement at the
time of the fire. It, and all other contents in the basement, had been ruined when the
basement flooded.
{¶18} On the evening of August 2 to the morning of August 3, Nall and appellant
went to nearby neighborhoods to pick for items left out for trash and later returned to 7488
Southwood. After returning, Nall went to sleep but appellant woke her up and the two
argued. Nall said that once the fight ended, she was trying to avoid appellant because
she was scared of him.
{¶19} Nall denied that appellant threatened her. She acknowledged telling
appellant he “terrified me.” However, she did not remember whether he responded, “you
have no idea what I was about to do” or if he said, “what do you think I’m going to do.”
She said he hadn’t “done anything to make me scared of him” the day of the fire. After
the fire, Nall gave a written statement to the police. In that statement, she wrote that
appellant had said “‘you have no idea what I was about to do,’ over and over again * * *
indicating it was going to be bad, worse than anything he’s done.” However, at trial, Nall
attributed her written statement to a lack of sleep, the high emotions and stress of the
day. That, she said, was not how she felt during her testimony. At trial, she likewise
minimized appellant’s prior statements about burning the house down, saying that
appellant had told her “after an argument probably at least a year prior that after we made
up he goes, I thought about burning your house down.” In her testimony, she said she did
not view this as a threat because he said he thought about doing it and had told her this
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after they had made up. She then admitted appellant had contacted her after the fire to
persuade her to testify that appellant never threatened to burn the house down and to
disclaim her written statement to the police.
{¶20} On August 3, she “100 percent believed” appellant set her house on fire.
However, she later changed her belief and reconnected with appellant. She feels there
was no physical evidence to tie appellant to the crime. When pressed about the
inconsistencies in her prior statements and her testimony, the State asked, “how can we
believe anything you’re saying?” Nall responded, “You shouldn’t.”
{¶21} A neighbor, Judy Fulton, testified as follows: she lives next to 7488
Southwood Drive and can see the house from her window. On August 3, she was in her
bedroom and heard yelling coming from 7488 Southwood. She said she could not recall
what the yelling was about, but that it was loud enough that she was concerned and went
downstairs. Downstairs, she was able to see smoke coming out of the roof and she called
911 to report the fire. After calling 911, Fulton heard Nall loudly say, “you set my f******
house on fire.”
{¶22} Another neighbor, Kathy Dziemianzuk, testified that she lives directly across
the street from 7488 Southwood. On August 3, Fulton contacted her to alert her to the
fire. Dziemianzuk ran outside and saw black smoke coming out of the window above the
garage and the kitchen near the garage. She saw Nall frantic and running out of her house
carrying her dog in her arms. She approached Nall and Nall said, “my f****** boyfriend
set my house on fire.” She said Nall was referring to a man she had never personally met,
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but who she knew as “Tito” from seeing him at 7488 Southwood. She identified appellant
as the man Nall was talking about.
{¶23} Appellant drove a red SUV, which had been at 7488 Southwood before the
fire. Dziemianzuk’s house has security cameras set up which captured appellant’s vehicle
in the driveway and depicted appellant entering his vehicle and leaving the premises
almost immediately before smoke began to exit the residence.
{¶24} Kevin Butsko, a firefighter and fire investigator for the Mentor Fire
Department, testified about his involvement in investigating the fire at 7488 Southwood.
According to Butsko, the fire department responded to the scene of the fire at 9:14 a.m.
and the fire was under control by 11:45 a.m. Butsko began his investigation shortly
thereafter. He said he found a gas can and burned materials outside of the house which
had not been part of the structure fire. He found no evidence that the fire was caused in
the kitchen or by an electrical short.
{¶25} Officer Matt Alvord, of the Mentor Police Department, responded to the 911
call reporting a fire at 7488 Southwood. Based on information gathered at the scene,
Alvord and other officers went to appellant’s place of work, a Costa oil change shop.
Appellant was arrested around 9:50 a.m. and his car was towed. Upon appellant’s arrest,
Alvord recovered his clothing as evidence.
{¶26} Edward Elek, a former manager at Costa Oil, testified about appellant’s
employment at the time of the fire. He said appellant’s first day on the job was scheduled
for August 3, 2021. He said employees are supposed to arrive by 9:00 a.m. but appellant
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arrived at 9:13 a.m. Elek said no customers had yet arrived, so he told appellant to sweep
and clean up around the shop.
{¶27} Detective John Stirewalt, of the Mentor Police Department, searched
appellant’s vehicle on August 4. He recovered several items from the vehicles which could
have been used as accelerants in starting a fire. Stirewalt recovered a butane torch and
Bic lighter from the center console as well as a can of WD-40. He also recovered the top
half of a torch, which screws onto the fuel source although he did not find a fuel source
for the torch in the car. Stirewalt also recovered a number of other flammable items from
the vehicle such as brake fluid, car waxes, greases, oils, spray paint, and glue. On cross-
examination, he agreed someone working as an auto mechanic would likely possess
many of these items.
{¶28} Lieutenant Brad Kemp, of the Lake County Narcotics Agency, investigated
the possibility that a methamphetamine lab explosion caused the fire at 7488 Southwood.
He testified that the cost of producing crystal methamphetamine in small batches actually
exceeded the cost to buy crystal methamphetamine on the street. He found no indication
of crystal methamphetamine production at 7488 Southwood. However, Kemp did not
investigate the basement.
{¶29} The State called Lt. Gordon Thompson, of the Painesville Township Fire
Department. Thompson also acts as a fire inspector for the township and is an accelerant
detection K9 handler with the Bureau of Alcohol, Tobacco, and Firearms. He testified that
his dog is trained to detect trace amounts of ignitable liquids that are typically left after a
fire. He uses the dog to rule out cases of arson. Gasoline is the most common, readily
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available, liquid used as an accelerant in arson cases. However, the K9 cannot detect
non-liquid accelerants such as paper products.
{¶30} He went to the scene of the fire with his K9 on August 3. He arrived while
units were still battling the fire. He was able to run through the house soon after the fire
was extinguished. His K9 falsely alerted to the presence of accelerants in the basement
near a mass of melted objects, likely because the items were melted plastic and may
have emitted an odor resulting in a false positive. The K9 also alerted to the presence of
ignitable liquids on a pair of jeans and boots that appellant had been wearing at the time
of his arrest. Those items were sent for further testing.
{¶31} Detective Christian Lawrence, of the Mentor Police Department, took
photographs of 7488 Southwood. They showed the heavy fire and smoke damage in the
residence after the fire had been extinguished. One of photographs showed debris on the
floor of the basement. Among the debris was a can of lighter fluid. Lawrence also found
a gas can in the garage which he photographed and secured as possible evidence.
{¶32} During the investigation, one of the house residents claimed that an air
return vent had been intentionally blocked with a t-shirt. Lawrence returned to the
residence on September 16, to verify this claim. Lawrence did find a t-shirt stuffed into a
bedroom air return vent. Nathan Carey, a forensic analysis at the Lake County Crime Lab,
performed fire debris analysis and analysis for ignitable liquids. He analyzed the clothing
recovered from appellant and determined there was the presence of ignitable liquids on
appellant’s boots, but did not detect the presence of ignitable liquids on appellant’s other
clothing. Carey determined the ignitable liquid present on the boots was gasoline. He also
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tested the mass of melted objects found in the basement, however he found no detectible
ignitable liquids.
{¶33} Rebecca Silverstein, a forensic analyst at the Lake County Crime Lab,
performed fingerprint analysis on a butane can and a gas can recovered from the house,
but she was not able to develop any usable fingerprint results. However, she said factors
such as heat or water can impact the ability to identify fingerprints on an object. Likewise,
Leann Suchanek, a DNA analyst at the Lake County Crime Lab, performed a DNA
analysis but her tests did not result in enough DNA to identification or comparison.
{¶34} Genevieve Bures, the owner of Bures Consultants, testified about her
investigation of the fire at 7488 Southwood. Bures went to the home on March 1, 2022.
In general, she said a fire accelerant,
can be just about anything. An accelerant can be a bag of potato
chips. You’d be surprised how quickly they burn. It could be wax
paper. Most people think of an accelerant right away and they think
of a chemical like gasoline or toluene. But an accelerant is anything
that makes a fire move faster. In today’s society most of our clothes
are manmade, which means they’re based on petroleum oddly
enough. They’ll burn very quickly.
{¶35} She added that draperies, furniture, and carpeting are often made from
petroleum products.
{¶36} Bures found no indication that natural gas was responsible for the fire, that
it resulted from an electrical issue in the home, or that it was caused by a household
appliance.
{¶37} Bures opined the fire had two points of origin: the pantry and the basement
under the center window of the north wall. Neither point of origin had a natural ignition
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source and the two points of origin were unrelated to each other. She said the burn
damage in the basement indicated the fire did not breach onto the main floor of the house
and that they were “two unconnected fires.” According to Bures, the fires “were set by
human hand,” although she neither could nor did opine on who set the fire. She added
this was a dangerous fire because it spread into the wall underneath the main stairwell in
the house. She opined that the shirt stuffed into the air vent would slow smoke from
entering a room.
{¶38} The State introduced a picture of the basement taken before the fire and
asked Bures if a pink Victoria’s Secret dresser in that picture could act as an accelerant.
Appellant objected to the question and the trial court overruled the objection. Bures said
the dresser can “[m]ost certainly” act as an accelerant. Supporting this conclusion, she
said it “looks like it’s made out of material. Aside from wood, but I meant the pink and
white panels look like they’re material. * * * Could be a manmade material which would
be, it would be petroleum based.”
{¶39} Detective Brian Yenkevich, of the Mentor Police Department, testified to his
investigation of the fire. Yenkevich arrested appellant at the Costa Oil shop. Yenkevich
said appellant never asked why he was placed in custody. After his arrest, Yenkevhich
interviewed appellant and the video of that interview was admitted into evidence.
{¶40} Yenkevich reviewed the neighborhood security video and testified as to the
contents of the video. The video showed appellant walk out of the house at 8:07 a.m. and
then engage in indeterminate activity outside and in the garage. At 8:35 a.m., appellant
moved his car in the driveway and remained there for several minutes. At 8:42 a.m.,
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appellant exited his vehicle, walked back to the garage, and entered the house. At 8:59
a.m., appellant walked out of the garage, entered his vehicle, and drove away at 9:00
a.m. Smoke from 7488 Southwood becomes visible on the security video at 9:06 a.m.
and people exit the house at 9:07 a.m. The first emergency responders arrived at 9:12
a.m.
{¶41} Appellant did not call any witnesses on his behalf. The jury found appellant
guilty on both counts.
{¶42} The trial court sentenced appellant on June 13, 2022. The two counts
merged for sentencing purposes, and appellant was convicted on one count of
Aggravated Arson, in violation of R.C. 2909.02(A)(1). The trial court sentenced appellant
to an indefinite prison term of 11 to 16-and-one-half years in prison, was ordered to pay
restitution, and given notice of his duty to register as an arson offender.
{¶43} Appellant timely appealed raising two assignments of error.
Assignments of Error and Analysis
{¶44} Appellant’s first assignment of error states:
{¶45} “[1.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ALLOWED THE STATE OF OHIO’S EXPERT TO TESTIFY AS TO WHETHER AN
OBJECT WAS AN ACCELERANT WITHOUT LAYING A FOUNDATION AS TO THE
NATURE/COMPOSITION OF THE ITEM AND LAYING A FOUNDATION FOR THE
BASIS OF THE EXPERT’S OPINION.”
{¶46} Appellant argues the trial court erred when it allowed Bures to testify that
the Victoria’s Secret dresser could act as an accelerant because Bures did not test the
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dresser to determine its composition. Appellant argues that there was no evidence of a
liquid accelerant at the scene and the testimony regarding the dresser was critical to the
State’s case to prove appellant used an accelerant. He further contends that proof
appellant used an accelerant is critical to the State’s case.
{¶47} The determination of the admissibility of expert testimony is within the
discretion of the trial court.” Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶
9. We will not disturb such a decision absent an abuse of discretion. Id.{¶48} “‘The term “abuse of discretion” is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record.’ State v. Underwood, 11th
Dist. Lake No. 2008-L-113, 2009-Ohio-208, ¶ 30, citing State v. Ferranto, 112 Ohio St.
667, 676-678, [148 N.E. 362] (1925).” State v. Raia, 11th Dist. Portage No. 2013-P-0020,
2014-Ohio-2707, ¶ 9. Stated differently, an abuse of discretion is “the trial court’s ‘failure
to exercise sound, reasonable, and legal decision-making.’” Id., quoting State v. Beechler,
2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11
(8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere
fact that the reviewing court would decide the issue differently is enough to find error[.] *
* * By contrast, where the issue on review has been confined to the discretion of the trial
court, the mere fact that the reviewing court would have reached a different result is not
enough, without more, to find error.’” Id., quoting Beechler at ¶ 67.
{¶49} Relevant evidence is generally admissible unless otherwise provided in the
rules of evidence or by law. Evid.R. 402. Evid.R. 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact that is of consequence
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to the determination of the action more probable or less probable than it would be without
the evidence.” Relevant evidence must be excluded where the “probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or
of misleading the jury.” Evid.R. 403(A). Relevant evidence “may be excluded if its
probative value is substantially outweighed by considerations of undue delay, or needless
presentation of cumulative evidence.” Evid.R. 403(B).
{¶50} Evid.R. 702 provides an expert witness may testify if all of the following
apply:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter
of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical,
or other specialized information.
{¶51} Here, Bures’ testimony described the origin point of the basement fire based
on specialized knowledge beyond the scope of a lay person and she was qualified to
opine on the origin of the fire based on her skill and experience in fire investigation. Her
testimony dispelled common misconceptions about the nature of accelerants and she
explained to the jury that an accelerant can be “anything that makes a fire move faster.”
She especially highlighted how manmade, petroleum based products burn very quickly.
She said petroleum based products are common in modern homes and can include items
like drapery and furniture. Therefore, she said that many common household items have
the potential to act as an accelerant because they can cause a fire to move faster.
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{¶52} The State asked Bures to opine on whether the Victoria’s Secret dresser
could be an accelerant. The item itself had been severely burned in the fire and Bures
identified the area where the dresser was found as the origin point of the basement fire.
Further, the dresser belonged to Nall. The State elicited other testimony about the dresser
to suggest appellant had a reason to burn that item in particular because he had burned
other pieces of Nall’s furniture.
{¶53} Bures did not test the dresser or take a sample from it. But, based on the
photograph, she opined that the dresser’s “pink and white panels look like they’re
material. * * Could be a manmade material which would be, it would be petroleum
based.” (Emphasis added)
{¶54} The main thrust of Bures’ testimony was to explain how fires start and
spread and to provide her opinion that this fire was man-made and had two points of
origin. Bures’ testimony about the dresser was a minimal part of her overall testimony.
More importantly, the testimony about the dresser was conditional because she said the
dresser could have manmade components on it which would be petroleum based. Based
on her conditional opinion the item had manmade elements, she believed the dresser
could be an accelerant. This answer was consistent with her prior explanation of common
household accelerants and was based on her specialized knowledge and experience.
{¶55} The trial court did not abuse its discretion when it determined Bures’ expert
testimony was admissible.
{¶56} Assuming arguendo the trial court erred by admitting Bures’ testimony about
the dresser, such error was harmless. Where, as here, the defendant has objected to a
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claimed error in the trial court, if that error did not “affect substantial rights” it “shall be
disregarded on appeal.” Crim.R. 52(A); State v. Perry, 101 Ohio St.3d 118, 2004-Ohio
297, 802 N.E.2d 643, ¶ 15.
{¶57} The harmless error standard is “‘significantly more favorable to the
defendant.’” Id., quoting United States v. Curbelo, 343 F.3d 273, 286 (4th Cir. 2003).
Under a harmless error standard, the government bears the burden of demonstrating that
the error did not affect the substantial rights of the defendant. Id. “An appellate court must
reverse a conviction if the government does not satisfy this burden * * *.” Id. “Whether the
defendant's substantial rights were affected depends on whether the error was prejudicial,
i.e., whether it affected the outcome of the trial.” State v. Jones, 160 Ohio St.3d 314,
2020-Ohio-3051, 156 N.E.3d 872, ¶ 18, citing State v. Fisher, 99 Ohio St.3d 127, 2003-
Ohio-2761, 789 N.E.2d 222, ¶ 7. Where the State fails to meet its burden, the appellate
court must reverse the conviction. Perry at ¶ 15.
{¶58} Bures’ testimony about the dresser did not affect the outcome of the trial.
The State was not required to prove the use of an accelerant and could have proved its
case without her testimony about the dresser’s status as an accelerant. As discussed in
more detail below in reference to the manifest weight of the evidence, the evidence in this
case was clear. Although Bures’ testimony was important, the testimony about the
dresser did not affect the outcome of the trial.
{¶59} Accordingly, appellant’s first assignment of error is without merit.
{¶60} “[2] THE JURY ERRED IN FINDING MR. ORTIZ GUILTY AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
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{¶61} When evaluating the weight of the evidence, we review whether the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other indicated clearly that the party having the burden
of proof was entitled to a verdict in its favor, if, on weighing the evidence in their minds,
the greater amount of credible evidence sustained the issue which is to be established
before them. “Weight is not a question of mathematics but depends on its effect in
inducing belief.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Whereas sufficiency relates to the evidence’s adequacy, weight of the evidence relates
to the evidence’s persuasiveness. Id. The reviewing court “weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether 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. The
discretionary power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio
App. 3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).
{¶62} The trier of fact is the sole judge of the weight of the evidence and the
credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-
Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The
trier of fact may believe or disbelieve any witness in whole or in part, considering the
demeanor of the witness and the manner in which a witness testifies, the interest, if any,
of the outcome of the case and the connection with the prosecution or the defendant. Id.,quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced
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at trial, is deferential to the weight and factual findings made by the factfinder. State v.
Brown, 11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at
390 and State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of
the syllabus.
{¶63} A finding that a judgment is supported by the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence. State v.
Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.
{¶64} Appellant was convicted of Aggravated Arson, in violation of R.C.
2909.02(A)(1). The State was required to prove that appellant “by means of fire or
explosion” knowingly created “a substantial risk of serious physical harm to any person
other than the offender.” 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). A substantial
risk “means a strong possibility, as contrasted with a remote or significant possibility, that
a certain result may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).
‘Serious physical harm to persons’ means 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;
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(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.
{¶65} Appellant argues that his conviction is against the manifest weight of the
evidence because the conviction was based entirely on circumstantial evidence and did
not “prove collateral facts and circumstances from which the existence of the primary fact
may be rationally inferred according to common experience.” State v. Windle, 11th Dist.
Lake No. 2010-L-033, 2011-Ohio-4171, ¶ 34. He asserts his conviction was improperly
based on a series of stacked inferences without giving appropriate weight to the actions
of other parties in the residence on the day of the fire. He highlights there were no direct
witnesses to who started the fire and no evidence of an accelerant being used.
{¶66} Bures explained the fire had two points of origin, one in the pantry and one
in the basement, and determined it was set by a human hand. None of the four occupants
of the house entered the basement in the minutes before the fire. Miller, Blevins, and
Perfetti described the dysfunctional relationship Nall and appellant had and how they
argued immediately before the fire. Blevins recalled appellant’s past threats to set the
house on fire and swore that appellant had previously burned some of Nall’s belongings.
All three described how dangerous the fire was, how hot the stairwell became, and how
quickly the home filled with smoke. All residents of the home lost all their personal
belongings in the fire.
{¶67} Although Nall denied believing appellant set the fire in her testimony, in her
prior statements to the police and other individuals on August 3, 2021, she said she
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believed appellant had set the fire. While she denied appellant had threatened to burn the
house down, she acknowledged he admitted to thinking about it and she admitted that
appellant scared her when they fought.
{¶68} Blevins’ description of the house as having a second entrance to the
basement, and the security footage showing appellant leaving the house only five minutes
before smoke becomes visible support that he set the fire.
{¶69} There was no direct evidence that appellant set the fire. Yet, a conclusion
that he did so did not rest on stacking inference upon inference. There was direct
evidence that: the fire was set by a human hand at two points which no other occupants
accessed in the minutes before the fire; appellant and Nall had a tumultuous relationship;
appellant had threatened to burn Nall’s house down; appellant had previously set Nall’s
items on fire; appellant was present in and around the house in the minutes before the
fire; and the fire was dangerous, burning hot under the main stairwell, and filled the house
with smoke. The jury made one inference from this direct evidence – that appellant set
the house on fire. Weighing the evidence and all reasonable inferences in this case does
not suggest the jury clearly lost its way. This is not the exceptional case where the
evidence weighs heavily against conviction. See Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717.
{¶70} Accordingly, appellant’s second assignment of error is without merit.
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{¶71} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.
concur.
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