STATE OF OHIO v. JAUVAUGHN PENN
C.A. No. 29296
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: June 3, 2020
[Cite as State v. Penn, 2020-Ohio-3158.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. C4 2018-04-1369
TEODOSIO, Judge.
{¶1} Defendant-Appellant, Jauvaughn Penn, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} One Monday in February 2018, shortly before 4:00 p.m., the Akron Fire Department received a 911 call about a house fire on West Miller Avenue. Mr. Penn‘s girlfriend, C.M., had rented the house for herself and her children, but was not present when the fire broke out. She had received her keys just two days earlier and was in the process of moving in. The fire destroyed the items she had already brought there and rendered the house uninhabitable.
{¶3} Up until mid-February, Mr. Penn, C.M., her four children, and her aunt had shared a home on Hampton Road. Yet, Mr. Penn and C.M.‘s relationship was tumultuous, and several events that occurred around that time led to a falling out between the two. The day of the fire, C.M. left her new home by 7:00 a.m. She returned to the Hampton Road residence for the purpose
{¶4} A sheriff‘s deputy served Mr. Penn with the ex parte order at the Hampton Road residence and was still on site with him when C.M. returned. Mr. Penn and C.M. then quarreled, forcing the deputy to separate them. After C.M. entered the residence, Mr. Penn packed a few of his belongings and left with a friend who had come to pick him up. At Mr. Penn‘s request, the friend drove him to West Miller Avenue. The friend parked outside C.M.‘s new house while Mr. Penn exited the car, disappeared behind the house for a few minutes, and returned to the car. The friend and Mr. Penn then drove away. Within ten to fifteen minutes of their departure, the fire department was notified of a fire at the house. After extinguishing the fire and inspecting the premises, fire investigators determined that the fire had been set intentionally.
{¶5} A grand jury indicted Mr. Penn on one count of aggravated arson and one count of burglary. The matter proceeded to trial, at the conclusion of which a jury found him guilty of both counts. Mr. Penn then filed a motion for new trial, and the trial court denied it. The court sentenced him to eight years in prison on his aggravated arson count and six years in prison on his burglary count. It further ordered him to serve those sentences consecutively for a total of fourteen years in prison.
{¶6} Mr. Penn now appeals from his convictions and raises seven assignments of error for our review. To facilitate our analysis, we rearrange several of his assignments of error.
ASSIGNMENT OF ERROR SIX
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED QUESTIONS DURING VOIR DIRE WHICH CAUSED PREJUDICE FOR THE APPELLANT.
{¶7} In his sixth assignment of error, Mr. Penn argues that the trial court abused its discretion when it allowed the State to pose a certain hypothetical to the jury venire during voir dire. According to Mr. Penn, the hypothetical was improper because it directly paralleled the facts herein and invited the venire to form an opinion about the case in advance of trial. We do not agree.
{¶8} “The manner in which voir dire is to be conducted lies within the sound discretion of the trial judge.” State v. Lorraine, 66 Ohio St.3d 414, 418 (1993). “Absent a clear abuse of discretion, prejudicial error cannot be assigned to the examination of the venire.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 44. A trial court may be found to have abused its discretion if it rules in an unreasonable, arbitrary, or unconscionable manner. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶9} “[C]ounsel is afforded reasonable latitude on the voir dire examination.” State v. Saxton, 9th Dist. Lorain Nos. 02CA008029 and 02CA008030, 2003-Ohio-3158, ¶ 43.
“The scope of the inquiry will not be confined strictly to the subjects which constitute grounds for the sustaining of a challenge for cause; but if it extends beyond such subjects it must be conducted in good faith with the object of obtaining a fair and impartial jury and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, a prejudice, or an unfair attitude toward any litigant.”
{¶10} When conducting her voir dire, the prosecutor discussed with the jury venire the concepts of reasonable doubt and circumstantial evidence. One potential juror indicated that reasonable doubt meant a person would “have absolutely no doubt” about a defendant‘s guilt. In correcting that misunderstanding, the prosecutor accurately defined the term and provided the venire with several hypothetical situations wherein one might conclude that the standard had been met. The prosecutor then went on to discuss the concepts of direct and circumstantial evidence. She provided the venire with two hypothetical situations to help explain circumstantial evidence. Her second hypothetical provided:
[S]o let‘s say that I‘m driving into work last week and [A.] cuts me off in the parking garage.
So we‘re walking into work and I say, “You are not going to be in that parking spot for long,” and say the day after [M.] walks me over to her parking spot and I have a bat. And then [M.] leaves me alone and let‘s say, [potential juror], that you are watching me in the garage and you see me walk up to her car. And then you turn around.
Let‘s say a couple minutes later [A.] reports that her car windows have been bashed in. What is the logical inference that we can make? Who do we think bashed [A.‘s] car windows in?
The foregoing hypothetical drew an objection from Mr. Penn, as he believed the prosecutor had gone “too much into the specific facts of this case * * *.” He acknowledged that he had not been charged with breaking windows, but argued that he had been accused of engaging in “a similar fact pattern to start the fire.” After the prosecutor represented that it was her intention to explain circumstantial evidence to the jury through logical inference, the court overruled the objection.
{¶12} Upon review, Mr. Penn has not shown that the trial court abused its discretion when it overruled his objection to the prosecutor‘s second hypothetical. The prosecutor did not use the specific facts of this case to fashion her hypothetical. Moreover, even if she extrapolated from those facts, “prospective jurors need not be totally ignorant of the facts and issues involved [in a case] to be qualified as jurors.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 49. They are qualified to serve so long as they can remain fair and impartial. See id. The prosecutor‘s hypothetical did not ask the venire to commit to a position on any given issue. Compare State v. Lundgren, 73 Ohio St.3d 474, 481 (1995); Bedford, 39 Ohio St.3d at 129. Nor did it “‘go so far beyond the parties and the issues directly involved that it [was] likely to create a bias, a prejudice, or an unfair attitude toward [Mr. Penn].‘” Atalla, 2004-Ohio-3414, ¶ 11, quoting Vega, 128 Ohio St. 535, at paragraph two of the syllabus. The record supports the conclusion that the prosecutor posed her hypotheticals to the jury as a means of explaining various legal concepts (i.e., beyond a reasonable doubt and circumstantial evidence). Moreover, the trial court specifically instructed the jury not “to place any significance upon the questions asked [during voir dire] as to how they may pertain to the trial.” See State v. Garner, 74 Ohio St.3d 49, 59 (1995) (“A jury is presumed to follow the instructions, including curative instructions, given it by a trial judge.“). Because Mr. Penn has not shown that the trial court abused its discretion when it overruled his objection to the prosecutor‘s voir dire, his sixth assignment of error is overruled.
THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE FAILED TO ESTABLISH ON THE RECORD THAT THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.
{¶13} In his fourth assignment of error, Mr. Penn argues that his convictions are based on insufficient evidence. We disagree.
{¶14} Whether a conviction is supported by sufficient evidence is a question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns the burden of production and tests whether the prosecution presented adequate evidence for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “‘The 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.‘” Id., quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
{¶15} “No person, by means of fire or explosion, shall knowingly * * * [c]ause physical harm to any occupied structure * * *.”
{¶16} A person may not,
by force, stealth, or deception, * * * [t]respass in an occupied structure * * * that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense * * *.
{¶17} C.M. testified that she and Mr. Penn were romantically involved for about two years before the fire. The two lived together in a house on Hampton Road along with her four children and her aunt. C.M. admitted that she and Mr. Penn frequently argued. About twelve days before the fire, one of their fights turned violent. C.M. destroyed some of Mr. Penn‘s possessions, and he called the police. The officers informed C.M. and Mr. Penn that one of them would have to leave, so C.M. decided to go to her mother‘s house. She testified that she left her children with her aunt and began looking for a new place to live. According to C.M., Mr. Penn called her “a million times” while she was gone and was very upset when he learned that she had signed a lease on a new house. From that point forward, C.M. testified, things continued to escalate.
{¶18} Three days before the fire, Mr. Penn posted several inappropriate pictures of C.M. on social media. The pictures embarrassed her greatly, and C.M. vowed that she would get even with Mr. Penn. She explained, however, that she meant to do so by refusing to relinquish their lease when it came time for her to leave the house on Hampton Road. The following day (i.e., two days before the fire), she received the keys to her new house on West Miller Avenue and began
{¶19} C.M. testified that she stayed at the new house the following evening as well. The next morning (i.e., the day of the fire), she got dressed at the new house and headed back to the house on Hampton Road to take her children to school. Although she had planned on collecting more things from the house, Mr. Penn was there when she arrived and would not allow her to remove anything else. Accordingly, after she took her children to school, C.M. went to the courthouse for an ex parte protection order. The order granted her exclusive possession of the Hampton Road house and commanded Mr. Penn to vacate the premises.
{¶20} C.M. estimated that she arrived back at the Hampton Road house around 1:30 p.m. The sheriff who had come to serve Mr. Penn with the ex parte order was still there when she arrived, and Mr. Penn was in the process of clearing out his belongings. C.M. testified that Mr. Penn eventually left with a friend who had come to give him a ride, and she remained at the house. Sometime around 4:00 p.m., she received a call from her new landlord, indicating that her new house was on fire. C.M. testified that the fire destroyed everything she had brought to the house. She estimated that those items were valued at more than $6,000.
{¶21} Deputy Michael Hawsman served Mr. Penn with the ex parte order at the Hampton Road house. He testified that Mr. Penn was angry when he saw the order and became even angrier when C.M. arrived. The two began to argue, and the deputy was forced to separate them. The deputy testified that a man later came to the house to pick up Mr. Penn.
{¶22} Mr. Penn‘s friend confirmed that he picked up Mr. Penn at the Hampton Road house on the day of the fire. He agreed that State‘s Exhibit 3 was a photograph of his car. At Mr.
{¶23} A resident of West Miller Avenue, who lived across the street from C.M.‘s house, also testified for the State. He indicated that he was feeding his son lunch when he saw a car pull up outside the house across the street. He confirmed that the car depicted in State‘s Exhibit 3 matched the one he saw outside that day. As he watched the car, he saw a black male get out, walk around the back of the house, and return to the car shortly thereafter. He then saw the car drive away. The resident testified that, within ten minutes, fire trucks pulled up outside the house. He confirmed that, between the time the black man left and the time the fire trucks arrived, he did not see anyone else approach the house.
{¶24} A crime analyst for the Akron Police Department testified that she examined Mr. Penn‘s cell phone records in connection with this investigation. She explained that several calls he made or received on the day of the fire resulted in incoming or outgoing signals that allowed her to pinpoint his position, relative to the cell phone towers that serviced his calls. She testified that the records showed Mr. Penn was still in the area of Hampton Road around 2:00 p.m., but that he began to travel shortly thereafter. Between 3:45 p.m. and 3:51 p.m., the records showed that Mr. Penn was in the area of West Miller Avenue. There was testimony that the police were dispatched to West Miller Avenue at 3:54 p.m. in response to a 911 call about the fire.
{¶26} Investigator Matthew D‘Avello testified that he acted as a follow-up investigator for Investigator Hoch. He was never able to set foot inside the West Miller Avenue house because it was boarded up by the time he arrived there. Nevertheless, he reviewed the pictures Investigator Hoch had taken inside the house, interviewed the neighbor across the street, interviewed C.M., attempted to reach Mr. Penn, and subpoenaed Mr. Penn‘s cell phone records. Investigator D‘Avello testified that fire investigations are often pending for some time and, as an investigation unfolds, investigators can learn additional facts that impact their determination about the cause of a fire. Much like Investigator Hoch, he testified that the darkened, charred area of C.M.‘s dining room was the origin point for the fire. He stated that it was impossible the fire had started in either the basement or an upstairs bedroom, given the burn patterns that were present in the dining room. Additionally, he rejected the possibility that the fire had been caused by an unattended cigarette,
{¶27} Mr. Penn argues that his convictions are based on insufficient evidence because the State did not establish that he committed either offense. According to Mr. Penn, the testimony of Investigator Hoch and Investigator D‘Avello was the only evidence the State presented to link him to the fire and to show that it started inside the house. He argues that their testimony was inadmissible, so it could not serve as the basis for his convictions. See Discussion of the First and Second Assignments of Error, infra. Because the State failed to prove how or why the fire began, Mr. Penn asserts, the record contains insufficient evidence in support of his convictions.
{¶28} Viewing the evidence in a light most favorable to the State, a rational trier of fact could have concluded that the State proved, beyond a reasonable doubt, that Mr. Penn committed the offenses of aggravated arson and burglary. See Jenks, 61 Ohio St.3d 259, at paragraph two of the syllabus. The State set forth evidence that the fire started in the dining room at the back of C.M.‘s house and that authorities were notified of the fire at 3:54 p.m. The evidence showed that Mr. Penn came to the house within ten minutes of the fire, walked to the back, remerged after a few minutes, and instructed his friend to drive away. There was testimony that, directly before he came to the house, Mr. Penn had been served with an ex parte order, forcing him to vacate his home in favor of C.M. Further, there was testimony that he was angry at C.M. for leaving and had planned on stopping her from removing any more possessions from their home. The fire
{¶29} Mr. Penn primarily challenges the sufficiency of the State‘s evidence on the basis that some of that evidence was improperly admitted at trial. Yet, in reviewing the sufficiency of the evidence, an appellate court must consider “all evidence presented by the State in its case in chief, whether such evidence was properly admitted or not.” (Emphasis added.) State v. Dixon, 9th Dist. Medina Nos. 11CA0065-M, 11CA0087-M, 2012-Ohio-4428, ¶ 18, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19. The question of whether certain evidence ought not to have been admitted is, therefore, not relevant to our sufficiency determination. Upon review, Mr. Penn has not shown that his convictions are based on insufficient evidence. As such, his fourth assignment of error is overruled.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED EXPERT TESTIMONY BY TWO WITNESSES OVER OBJECTIONS, WHEN THE WITNESSES WERE NOT QUALIFIED AS EXPERT WITNESSES.
{¶30} In his first assignment of error, Mr. Penn argues that the trial court erred when it allowed two of the State‘s witnesses to testify as experts. Specifically, he argues that the court should not have permitted Investigator Hoch and Investigator D‘Avello to offer any opinions or draw any conclusions about the fire, as they were never qualified as experts. For the following reasons, we reject his argument.
{¶32} As previously noted, Inspector Hoch and Inspector D‘Avello investigated the fire herein and testified about various aspects of their investigation. Both testified about the fire‘s point of origin, the fact that no accelerants were detected, and the outcome of their investigation (i.e., that the fire had been set intentionally). Although Inspector Hoch testified mainly in generalities, Inspector D‘Avello offered several specific opinions. He opined that the fire burned for 15 to 30 minutes, that an unattended cigarette could not have caused it, that it was caused by an open flame, and that Mr. Penn started it. Mr. Penn objected numerous times as each investigator testified. He argued that their testimony lacked a proper foundation and that the State was eliciting expert testimony without the investigators having been tendered or qualified as experts. Though the court sustained several of his objections to specific questions, it admitted the foregoing testimony.
{¶34} “Whether or not ‘origin’ and ‘cause’ require an expert opinion for their establishment depends upon the facts and circumstances of each case.” Fidelity & Guaranty Ins. Underwriters, Inc. v. Gary Douglas Elec., Inc., 48 Ohio App.2d 319, 322 (9th Dist.1974). Under these facts and circumstances, we cannot conclude that the trial court abused its discretion when it allowed Investigator Hoch and Investigator D‘Avello to testify that the most likely point of origin for the fire was the floor of C.M.‘s dining room. Investigator Hoch personally observed the damage from the fire, and Investigator D‘Avello reviewed his photographs from the scene. Both men were experienced firefighters and well-versed in fire investigation. They both explained that fire investigators routinely determine how fires originate and that a fire‘s point of origin may be determined based upon levels of charring. Investigator Hoch‘s photographs clearly showed that the floor of C.M.‘s dining room was the area of the house with the most significant charring. Because the investigators’ testimony about the fire‘s most likely point of origin was rationally based on their perceptions as qualified investigators and was helpful to the jury, we cannot conclude that the court erred by admitting it. See State v. McCoy, 9th Dist. Summit No. 28103, 2017-Ohio-4163, ¶ 29-30; State v. Klein, 9th Dist. Summit No. 26573, 2013-Ohio-3514, ¶ 18-19; State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 11. See also
{¶35} As for the remaining opinions the investigators offered, the record reflects that any error in the admission of their testimony was harmless beyond a reasonable doubt. See State v. Boaston, Slip Opinion No. 2020-Ohio-1061, ¶ 60-71; State v. Graham, 9th Dist. Medina No. 3052-M, 2001 WL 22482, *6 (Jan. 10, 2001). The State set forth overwhelming evidence that Mr. Penn set the fire at C.M.‘s house. See State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, ¶ 37. The evidence showed that she left the house more than eight hours before the fire started, making it highly unlikely that it was caused by any negligence on her part. The evidence showed that Mr. Penn was angry with her, that he had behaved vindictively toward her in the past when she had upset him (e.g., by posting inappropriate pictures of her on social media), and that he did not want her to move out. It showed that, shortly before the fire, he was ordered to immediately vacate the house on Hampton Road in favor of C.M., that he had no knowledge the order was forthcoming, and that he was angry when the sheriff served him with it. The evidence showed that Mr. Penn and C.M. argued at the Hampton Road house and, following that exchange, Mr. Penn asked his friend to drive him to C.M.‘s house. Mr. Penn did not inform his friend that the house was C.M.‘s. Nor did he indicate why they were there. The evidence showed that he walked around the back of the house, remained there for a few minutes, returned to his friend‘s car, and left the area. Within minutes of his departure, the fire was reported, and the evidence showed that its most likely point of origin was the dining room floor. There was evidence that the dining room was located at the back corner of the house, just off a sliding glass door, in the area toward which Mr. Penn had been seeking walking. Accordingly, the State set forth a wealth of circumstantial evidence implicating Mr. Penn. See Jenks, 61 Ohio St.3d 259, at paragraph one of the syllabus.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S MOTION FOR NEW TRIAL.
{¶37} In his second assignment of error, Mr. Penn argues that the trial court abused its discretion when it denied his motion for a new trial. We disagree.
{¶38}
{¶39} Mr. Penn moved for a new trial based on the admission of Inspector D‘Avello‘s testimony. He argued that the trial court should not have allowed the inspector to offer expert opinion testimony without being qualified to testify as an expert. On appeal, he maintains that the State did not lay a proper foundation for the investigator to testify as an expert. Further, he maintains that the State never provided him with an expert report, pursuant to
{¶40} We have already determined that a portion of Inspector D‘Avello‘s testimony was admissible as lay opinion testimony under
APPELLANT‘S CONVICTION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE, AND THE TRIAL COURT LOST ITS WAY WHEN IT FOUND THE APPELLANT GUILTY.
{¶41} In his third assignment of error, Mr. Penn argues that his convictions are against the manifest weight of the evidence. We disagree.
{¶42} This Court has stated:
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review 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). “[W]hen reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power “should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). See also Otten at 340.
{¶43} Mr. Penn testified in his own defense at trial. He agreed that he and C.M. had a tumultuous relationship and claimed that she was both verbally and physically abusive. According to Mr. Penn, C.M. had falsely accused him of domestic violence in the past and had threatened revenge against him after he posted inappropriate pictures of her online. It was his impression that she obtained an ex parte order against him because she wanted to take some of his belongings with her when she left their house on Hampton Road. He testified that the two argued when she arrived
{¶44} Mr. Penn admitted that he asked his friend to take him to C.M.‘s house after the sheriff served him with the ex parte order. He claimed that he went there because he wanted to see if any of his possessions were at the house. Mr. Penn testified that he walked around the back of the house and peered through the back, glass sliding door to look for his possessions. He denied that he had a lighter with him or that he set the fire. According to Mr. Penn, he left when he did not see his things and did not learn about the fire until later that day. He testified that C.M. smoked and that she constantly left lit cigarettes burning on dressers and other items of furniture because she did not use ashtrays. The defense theorized that the fire was either accidental, due to C.M.‘s carelessness, or that she intentionally set it to frame Mr. Penn.
{¶45} Mr. Penn argues that his convictions are against the manifest weight of the evidence because much of the State‘s evidence against him was improper (i.e., the testimony of Inspector Hoch and Inspector D‘Avello). He argues that there was no direct evidence he ever entered C.M.‘s house or that he had a lighter with him when he went there. He notes that the fire department was never able to definitively determine the ignition source for the fire. Further, he notes that there was evidence C.M. routinely left unattended cigarettes burning. Because the evidence properly admitted at trial weighed heavily against his convictions, Mr. Penn argues, the jury lost its way when it found him guilty.
{¶46} Having reviewed the record, we cannot conclude that the jury lost its way when it found Mr. Penn guilty of aggravated arson and burglary. See Otten, 33 Ohio App.3d at 340. The jury heard testimony that Mr. Penn was angry with C.M., that he was angry about the ex parte order, that he went to her new house after being served with the ex parte order, and that the fire
{¶47} “This Court has repeatedly held that the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15 Additionally, we have repeatedly held that “[a] verdict is not against the manifest weight of the evidence because the finder of fact chose to believe the State‘s witnesses rather than the defendant‘s version of the events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Mr. Penn has not shown that this is the exceptional case where the jury lost its way by convicting him. See Otten, 33 Ohio App.3d at 340. Accordingly, his third assignment of error is overruled.
ASSIGNMENT OF ERROR FIVE
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN IMPOSING APPELLANT‘S SENTENCE.
{¶48} In his fifth assignment of error, Mr. Penn argues that the trial court erred when it sentenced him to fourteen years in prison. First, he argues that his convictions should have merged as allied offenses of similar import. Second, he argues that the court abused its discretion when it
Allied Offenses of Similar Import
{¶49} ”
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶50} “This Court generally applies a de novo standard of review when reviewing a trial court‘s decision regarding the merger of convictions for the purposes of sentencing.” State v. Harris, 9th Dist. Medina No. 16CA0054-M, 2017-Ohio-8263, ¶ 25, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. “When applying the de novo standard of review, this Court gives no deference to the trial court‘s legal determinations.” State v. West, 9th Dist. Lorain No. 04CA008554, 2005-Ohio-990, ¶ 33.
{¶52} At sentencing, the prosecutor indicated that she believed Mr. Penn‘s two convictions merged. She asked the court to sentence him on the aggravated arson count, but also asked for a total of sixteen years in prison in the event the court did not agree that the convictions merged. Meanwhile, Mr. Penn agreed his offenses merged. He noted that the State‘s theory of the case was that he committed the burglary in order to commit the aggravated arson. Because his burglary conviction depended upon his having committed arson, he asked the court to merge the two.
{¶53} The trial court determined that Mr. Penn‘s convictions were not subject to merger. The court reasoned:
If you look at the past case law, burglary does not merge necessarily with the underlying offense because the purpose to commit doesn‘t mean you have to be successful.
Once you cross the threshold of that house that does not belong to you when someone is present or likely to be present to commit any offense you‘ve committed a burglary, and therefore the arson does not need to be committed for there to be a burglary, and, therefore, they are not offenses of similar import and do not merge. The conduct constitutes offenses of dissimilar import.
The conduct shows that the offenses were committed separately and the conduct shows the offenses were committed with a separate animus.
[Mr. Penn] testified [he] went in there to get [his] property back, not to commit an aggravated arson. I think there‘s evidence to show that they don‘t merge * * *.
{¶54} Upon review, we do not agree that the trial court erred when it refused to merge Mr. Penn‘s convictions as allied offenses of similar import. The general rule is that the crime of burglary is complete upon an offender‘s forced entry into an occupied structure. See State v. Frazier, 58 Ohio St.2d 253, 256 (1979). See also State v. Evett, 9th Dist. Medina No. 14CA0008-M, 2015-Ohio-2722, ¶ 39; State v. Linde, 9th Dist. Summit No. 26714, 2013-Ohio-3503, ¶ 18. This case is no exception to the general rule because Mr. Penn‘s burglary charge did not require him to engage in additional conduct after he broke into C.M.‘s house. Compare State v. Shears, 1st Dist. Hamilton No. C-120212, 2013-Ohio-1196, ¶ 41 (aggravated burglary and aggravated robbery did not merge because both required, as an essential element, that the offender caused the victim physical harm). Once he entered C.M.‘s house for the purpose of committing an arson, he committed the crime of burglary. See
Maximum Sentence on Aggravated Arson
{¶55} An appellate court‘s standard for review of a felony sentence is not whether the sentencing court abused its discretion.
{¶56} Mr. Penn argues that the trial court abused its discretion when it sentenced him to eight years in prison on his conviction for aggravated arson. He argues that he did not have any prior felonies on his record, he had a stable job, he was a contributing member of society, and he was unlikely to reoffend. Because his sentence was contrary to law and not reasonably calculated to fulfill the overriding principles of felony sentencing, Mr. Penn argues, the court abused its discretion in issuing his sentence.
{¶57} This Court may not overturn a felony sentence based on a perceived abuse of discretion. See
{¶58} Upon review, the record does not support the conclusion that the trial court erred when it sentenced Mr. Penn to eight years in prison on his aggravated arson count. Mr. Penn‘s sentence fell within the statutory range for second degree-felonies, see
ASSIGNMENT OF ERROR SEVEN
THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED THE APPELLANT THE RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, R.C. 2901.04, AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION.
{¶59} In his seventh assignment of error, Mr. Penn argues that cumulative error deprived him of a fair trial. We disagree.
{¶61} After reviewing the record, this Court cannot say that Mr. Penn‘s trial was plagued with numerous errors or that his constitutional right to a fair trial was violated. Therefore, his seventh assignment of error is overruled.
III.
{¶62} Mr. Penn‘s 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
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, J. CONCURS.
CARR, J. CONCURRING IN PART, AND DISSENTING IN PART.
{¶63} I concur in the majority‘s resolution of the fourth assignment of error. As noted in the majority opinion, this Court must consider all of the evidence presented by the State when resolving a sufficiency challenge, regardless of whether the evidence was properly admitted at trial. See State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19. With the aid of the testimony from Mr. Hoch and Mr. D‘Avello as to the origin and cause of the fire, the State presented sufficient evidence to support Penn‘s convictions.
{¶64} I respectfully dissent in regard to the majority‘s resolution of the first assignment of error as I would conclude that the trial court abused its discretion when it permitted Mr. Hoch and Mr. D‘Avello to give expert testimony at trial. I disagree with the notion that Mr. Hoch and Mr. D‘Avello merely offered lay opinions about the origin and cause of the fire. Expert testimony relates to matters beyond the knowledge or experience possessed by lay persons.
{¶65} In this case, the testimony of Mr. Hoch and Mr. D‘Avello went beyond rational perceptions that were rooted in their experience as fire investigators. Although neither Mr. Hoch nor Mr. D‘Avello were qualified as experts, both were permitted to testify in an expert capacity regarding the origin and cause of the fire. As noted by the majority, Mr. D‘Avello based his testimony on photographs because he was not able to enter the house. Mr. Hoch and Mr. D‘Avello expressed definitive opinions on the origin of the fire. These opinions were largely predicated on an understanding of charring levels and burn patterns on the walls. Testimony regarding the origin of a fire based on analysis of charring levels and burn patterns observed during a visual inspection frequently falls within the purview of expert testimony. See generally State v. Stewart, 9th Dist. Summit No. 25857, 2012-Ohio-3671, ¶ 16; State v. Adams, 9th Dist. Wayne No. 07-CA-0086, 2008-Ohio-4939, ¶ 46-47.
{¶67} Based on the foregoing, I would conclude that the trial court abused its discretion when it permitted Mr. Hoch and Mr. D‘Avello to give expert testimony regarding the origin and cause of the fire. As this case turned on whether the evidence demonstrated that Penn entered the house and started the fire, I would conclude that the admission of the expert testimony was not harmless error.
APPEARANCES:
DANIEL R. BACHE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.