State v. Foster ( 2024 )

[Cite as State v. Foster, 2024-Ohio-4657.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30914
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THOMAS FOSTER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2021-06-2153
DECISION AND JOURNAL ENTRY
Dated: September 25, 2024
SUTTON, Presiding Judge.
{¶1} Defendant-Appellant Thomas Foster appeals the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
Relevant Background Information
{¶2} This matter arises from a residential fire on June 2, 2021, at 29 Vesper Avenue,
where Mr. Foster was residing with several individuals including his mother. Several people heard
Mr. Foster threaten to burn the house down that day after a fight with C.R., Mr. Foster’s ex-
girlfriend, who also lived in the residence. One dog, owned by B.F., Mr. Foster’s mother, and
three cats, owned by J.S., perished as a result of the fire. Mr. Foster was charged with: (1) one
count of aggravated arson in violation of R.C. 2909.02(A)(1)/(B)(2), a felony of the first degree;
(2) one count of aggravated arson in violation of R.C. 2909.02(A)(2)/(B)(3), a felony of the second
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degree; and (3) four counts of cruelty to companion animals in violation of R.C. 959.131(C)/(E)(2),
felonies of the fifth degree.
{¶3} Mr. Foster pleaded not guilty and the matter proceeded to jury trial. The jury
returned a guilty verdict on all counts and the trial court sentenced Mr. Foster to an aggregate
minimum prison term of 14 years and an aggregate maximum prison term of 16 and ½ years.
{¶4} Mr. Foster now appeals raising four assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
[MR. FOSTER’S] CONVICTIONS WERE NOT BASED UPON
SUFFICIENT EVIDENCE AS A MATTER OF LAW.
{¶5} In his first assignment of error, Mr. Foster argues his convictions were not based
upon sufficient evidence. Specifically, Mr. Foster argues the State failed to prove the serious
physical harm element of his cruelty to companion animals convictions and the State failed to
prove Mr. Foster was the person responsible for the arson.
{¶6} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 2009-Ohio-6955, ¶ 18 (9th Dist.), citing State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the prosecution has
met its burden of production by presenting sufficient evidence to sustain a conviction. Thompkins
at 390. For purposes of a sufficiency analysis, this Court must view the evidence in the light most
favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not evaluate
credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio
St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to reasonably conclude
that the essential elements of the crime were proven beyond a reasonable doubt. Id.3
Cruelty to Companion Animals
{¶7} R.C. 959.131(C) states: “[n]o person shall knowingly cause serious physical harm
to a companion animal.” Further, R.C. 959.131(A)(12) states:
“Serious physical harm” means any of the following:
(a) Physical harm that carries an unnecessary or unjustifiable substantial risk of
death;
(b) Physical harm that involves either partial or total permanent incapacity;
(c) Physical harm that involves acute pain of a duration that results in substantial
suffering or that involves any degree of prolonged or intractable pain.
{¶8} Mr. Foster’s sole argument is the State failed to prove serious physical harm
because, instead, it proved the dog and three cats died as a result of their injuries from the fire.
Based upon this record, it is obvious death, as occurred here, constitutes serious physical harm.
As a result of their injuries from being trapped inside a burning home, the dog and three cats
suffered the ultimate total permanent incapacity of death. See State v. Lloyd, 2022-Ohio-4259, ¶
22 (“the serious physical harm that occurred was the victim’s death.”). (Emphasis in original.)
Thus, Mr. Foster’s argument is not well-taken.
Aggravated Arson
{¶9} R.C. 2909.02(A) states, in relevant part:
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; [or]
(2) Cause physical harm to any occupied structure[.]
{¶10} Mr. Foster claims the evidence was insufficient to support his convictions because
no one witnessed him “ignite the fire.” “The identity of a perpetrator must be proved by the State
beyond a reasonable doubt.” State v. Dumas, 2021-Ohio-1534, ¶ 7 (9th Dist.). “Like any other
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element of an offense, identity may be established through direct or circumstantial evidence.” State
v. Jackson, 2017-Ohio-635, ¶ 7 (9th Dist.). “Circumstantial evidence and direct evidence
inherently possess the same probative value[.]” Jenks at paragraph one of the syllabus.
{¶11} At trial, the State presented the testimony of three witnesses who heard Mr. Foster
threaten to burn the house down the day of the fire. Witnesses testified Mr. Foster was angry that
day and argued with C.R., his ex-girlfriend, who also lived in the house. C.R. testified Mr. Foster
had lighters because he smoked cigarettes. C.R. also testified after Mr. Foster initially argued with
her in the early morning hours of June 2, 2021, C.R. went next door to the other side of the duplex
and Mr. Foster remained in the basement bedroom where the fire started. C.R. also testified Mr.
Foster told her, through the door between the duplexes, that another resident was fighting with Mr.
Foster’s mother and C.R. had to leave the basement to look into it or he would burn the place
down. C.R. indicated when she approached Mr. Foster’s mother and the other resident they did
not know what C.R. was talking about and denied fighting. Further, the fire investigator testified
the fire originated in the basement bedroom, which C.R. and Mr. Foster shared at the time of the
fire.
{¶12} Viewing the evidence in a light most favorable to the State, a rational trier of fact
could have found the State proved the issue of identity, that Mr. Foster committed the arson,
beyond a reasonable doubt.
{¶13} Accordingly, Mr. Foster’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
[MR. FOSTER’S] CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶14} In his second assignment of error, Mr. Foster argues his convictions are against the
manifest weight of the evidence.
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{¶15} When considering a challenge to the manifest weight of the evidence, this Court is
required to consider the entire record, “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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.
1986). “A reversal on this basis is reserved for the exceptional case in which the evidence weighs
heavily against the conviction.” State v. Croghan, 2019-Ohio-3970, ¶ 26 (9th Dist.). This Court
“will not overturn a conviction as being against the manifest weight of the evidence simply because
the trier of fact chose to believe the State's version of events over another version.” State v. Warren,
2020-Ohio-6990, ¶ 25 (9th Dist.), quoting State v. Tolliver, 2017-Ohio-4214, ¶ 15 (9th Dist.).
Cruelty to Companion Animals
{¶16} As to cruelty to companion animals, Mr. Foster argues “the government presented
no evidence that [Mr.] Foster put the animals through serious physical harm.” This argument,
however, sounds in sufficiency, not manifest weight. Sufficiency and manifest weight are separate
and distinct questions under the law. Accordingly, consistent with our precedent, we “will not
create or develop a manifest weight argument on [Mr. Foster’s] behalf.” State v. Jackson, 2018-
Ohio-1285, ¶ 47 (9th Dist.).
Aggravated Arson
{¶17} As to aggravated arson, Mr. Foster argues individuals living in the house had biases
against Mr. Foster, there was no forensic evidence linking Mr. Foster to the fire, Mr. Foster’s
mother testified he did not threaten to burn down the house, and C.R. testified she did not know
Mr. Foster’s location in the 20 minutes preceding the fire.
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{¶18} Indeed, “the weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts[,]” who is “free to believe all, part, or none of the testimony of
each witness.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus; Prince
v. Jordan, 2004-Ohio-7184, ¶ 35 (9th Dist.). “This Court will not overturn the trial court’s verdict
on a manifest weight of the evidence challenge only because the trier of fact chose to believe
certain witness testimony over the testimony of others.” State v. Hill, 2013-Ohio-4022, ¶ 15. Here,
the jury heard testimony, including cross-examination, of all the witnesses including Mr. Foster
and Mr. Foster’s mother. Nothing in this record indicates 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.
{¶19} Accordingly, Mr. Foster’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
[MR. FOSTER] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
{¶20} In his third assignment of error, Mr. Foster argues he was denied the effective
assistance of counsel. Specifically, Mr. Foster argues his counsel was ineffective for failing to
make a Crim.R. 29 motion regarding aggravated arson and failing to make any argument when
renewing the Crim.R. 29 motion regarding cruelty to companion animals.
{¶21} “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor,
2006-Ohio-6679, ¶ 62. To prevail on a claim of ineffective assistance of counsel, Mr. Foster must
establish (1) that his counsel’s performance was deficient to the extent that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). A deficient performance is one that falls below an objective standard of reasonable
representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To
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establish prejudice, Mr. Foster must show there existed a reasonable probability that, but for his
counsel’s errors, the outcome of the proceeding would have been different. State v. Sowell, 2016-
Ohio-8025, ¶ 138. “Debatable strategic and tactical decisions may not form the basis of a claim
for ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been
available.” State v. Koch, 2019-Ohio-4099, ¶ 57 (2d Dist.), citing State v. Cook, 65 Ohio St.3d
516, 524 (1992).
{¶22} Here, this Court determined above the State presented sufficient evidence to convict
Mr. Foster of aggravated arson and cruelty to companion animals. As such, even though Mr.
Foster’s trial counsel did not make a Crim.R. 29 motion as to aggravated arson and did not make
an argument when he renewed his Crim.R. 29 motion as to cruelty to companion animals, Mr.
Foster has not demonstrated how counsel’s decision in this regard prejudiced him. See State v.
Williams, 2024-Ohio-2295, ¶ 15 (9th Dist.); see also State v. Chapman, 2018-Ohio-1142, ¶ 18 (9th
Dist.).
{¶23} Accordingly, Mr. Foster’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT IMPROPERLY EXCLUDED EVIDENCE FROM
THE JURY.
{¶24} In his fourth assignment of error, Mr. Foster argues the trial court improperly
excluded evidence of drug dealing in the house from the jury. Specifically, Mr. Foster argues the
trial court excluded “relevant” evidence because Mr. Foster wanted to argue that someone else
started the fire. Mr. Foster claims “[i]f any of the occupants of the duplex were dealing drugs and
a customer was unsatisfied with their purchase, that would provide motive to burn the [d]uplex
down.”
{¶25} Evid.R. 103 states in relevant part:
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(A) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected; and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or
motion to strike appears of record, stating the specific ground of objection, if the
specific ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of
the evidence was made known to the court by offer or was apparent from the context
within which questions were asked. Offer of proof is not necessary if evidence is
excluded during cross-examination.
Once the court rules definitely on the record, either before or at trial, a party need
not renew an objection or offer of proof to preserve a claim of error for appeal.
(Emphasis in original.)
{¶26} Before the start of Mr. Foster’s case-in-chief, the State moved, in limine, to exclude
alleged evidence of drug use or drug dealing by the State’s witnesses. The State argued, “[y]ou
can’t use uncharged prior bad acts, crimes, so on and so forth, to impeach someone’s credibility.”
Mr. Foster’s counsel responded, “Your Honor, Mr. Foster believes that it is relevant information
that the jury should hear and it goes towards his defense. However, we will respect whatever the
[c]ourt’s ruling will be on that matter.” Mr. Foster’s counsel then stated he should be allowed to
bring in a witness that knows a person’s “reputation in the community for being honest or
dishonest.” The State conceded pursuant to Evid.R. 608, Mr. Foster could attack the credibility of
a witness for truthfulness or untruthfulness, but “that allegations of drug dealing or drug use do
not relate to character for truthfulness or untruthfulness.” The trial court then stated:
All right. So, getting into any sort of drug activity, drug dealing, is not going to be
allowed. If somebody wants to speak as to somebody’s reputation, that’s fine, but
I’m going to give you a really short leash. There are really no credibility issues that
are put forth at this time. So limit that, and you need to instruct your witnesses as
well.
Although Mr. Foster engaged in this discussion with the State and trial court, he did not object to
the trial court’s ruling or offer any evidence regarding what his witnesses would have testified to
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regarding the State’s witnesses’ alleged drug dealing or drug use. Moreover, Mr. Foster did not
explain the substance of the alleged testimony, other than it would generally be about drug use or
drug dealing in the home. Further, Mr. Foster did not indicate which of his witnesses would testify
to the alleged drug dealing or drug use.
{¶27} Because Mr. Foster did not properly preserve this error at the trial court level, it is
forfeited for purposes of appeal. See State v. Parsons, 2019-Ohio-5021, ¶ 6 (9th Dist.). While Mr.
Foster could still argue plain error on appeal, he has not done so. See Evid.R. 103(D). “[T]his
court will not sua sponte undertake a plain-error analysis if a defendant fails to do so.” State v.
Cross, 2011-Ohio-3250, ¶ 41 (9th Dist.).
{¶28} Accordingly, Mr. Foster’s fourth assignment of error is overruled.
III.
{¶29} Mr. Foster’s first, second, third, and fourth assignments of error are overruled. The
judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
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mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
HENSAL, J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
WESLEY C. BUCHANAN, Attorney at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellee.