STATE OF OHIO, PLAINTIFF-APPELLEE vs. GENE A. POINTER, DEFENDANT-APPELLANT
No. 100608
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 18, 2014
2014-Ohio-4081
Stewart, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-12-566759-A and CR-13-573507-A
JUDGMENT: AFFIRMED
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Justin P. Rudin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} A jury found defendant-appellant Gene Pointer guilty of aggravated arson. The evidence against Pointer consisted of the following: an intentionally set fire occurred in a house that he rented, he had the only key to the house, he was seen leaving the house shortly before the fire was reported, and he had a motive to start the fire because he had been evicted from the house for nonpayment of rent. Pointer claims this evidence was not enough to prove that he acted knowingly to cause the fire and thus claims that there was insufficient evidence to support the jury‘s verdict and that the verdict was against the manifest weight of the evidence.
I
{¶2} We first address Pointer‘s claim that there was insufficient evidence to prove that he committed arson.
{¶3} The Due Process Clause of the
{¶5} The crucial question at trial was whether the state offered evidence from which a rational trier of fact could conclude that Pointer knowingly caused harm to the house by means of fire. In its closing argument, the state explained its theory of the case:
[O]n the night of April 15, 2013, the defendant, Gene Pointer, went into the house he was renting one last time, with revenge on his mind, and gasoline in his hands. He took that gasoline, dumped it in an empty bedroom, and then set the house on fire.
Why did he do it? Payback. Payback for getting evicted after he stiffed his landlord with the rent.
Tr. 821.
{¶6} The state had no direct evidence that Pointer was in possession of gasoline, much less that he knowingly ignited gasoline in order to damage the house. Instead, it resorted to circumstantial evidence of guilt.
{¶7} “Circumstantial” evidence is defined as “‘[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought proved.‘” State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black‘s Law Dictionary
{¶8} Viewing the facts most favorably to the prosecution shows that the landlord testified that Pointer was habitually late with his rent payments, so he told Pointer that eviction proceedings would be initiated in court. On April 14, 2013, the landlord called Pointer to tell him that he would have to move out. Pointer said that he would move out the following day, April 15, 2013. There was inconsistent testimony on whether Pointer was the only person with a key to the house, so the state is entitled to have the inconsistency construed most favorably to it to show that Pointer possessed the only key.
{¶9} On the day of April 15, 2013, Pointer‘s sister, who rented an adjoining house from the same landlord, said she saw Pointer taking “garbage bags and stuff out of the house all day.” She testified that when Pointer left the house for the last time, he exited through the front door and locked it from the outside. Pointer‘s sister testified that she saw Pointer leave the house no later than 10:05 p.m. because he did so not more than five minutes after the end of a television program she had been watching. The sister gave inconsistent testimony as to when she and her daughter first noticed the fire: she believed it could have been anywhere from 40-60 minutes after she last saw him leave. A more accurate time would have been closer to 11:23 p.m., the time when the fire department log showed the fire being reported by the daughter.
{¶11} Pointer‘s niece (his sister‘s daughter) told the police that she believed that Pointer would be staying with his brother who lived a few blocks away. When the investigators arrived at the brother‘s home at 1:30 a.m., they found Pointer. They collected air samples from his clothes and hands, but did not get any significant readings indicating the presence of flammable fluids. Likewise, the police found no gasoline cans or any evidence of the source of ignition.
{¶12} Although there was no direct evidence that Pointer started the fire, a rational trier of fact could conclude that these facts were circumstantial evidence of arson. The courts have consistently noted that arson prosecutions rely heavily on circumstantial evidence. See State v. Carter, 8th Dist. Cuyahoga No. 99925, 2014-Ohio-926, ¶ 8; State
{¶13} Pointer had the opportunity to set the fire. He was the last person seen leaving the house and the only person with a key to it. The fire started shortly after he left the house, and firefighters gave firm testimony that the house was locked when they arrived and that the fire had been started inside the house. Pointer also had a motive to start the fire given his recent eviction from the premises. On these facts, the jury could rationally conclude that the state showed that Pointer knowingly caused physical harm to the house by means of fire.
II
{¶14} Pointer next argues that the jury‘s verdict is against the manifest weight of the evidence. He argues that some of the testimony was uncertain and inconsistent; notably, testimony by his sister as to when the fire occurred. He also argues that the state‘s case suffered from the lack of any physical evidence to tie him to the crime.
{¶15} The manifest weight of the evidence standard of review requires us to 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
{¶16} Pointer‘s sister placed him at the house shortly before the fire started by saying she recalled seeing him there while she was watching her favorite television program. Pointer was able to prove that this program did not air at a time when the sister said it did. While this proof undermined the sister‘s credibility, it was not so damaging as to undermine the entirety of her testimony. The sister firmly recalled seeing Pointer leave the house not long before the fire started. While the time when he last left the house was significant in determining how long it might have taken for the fire to reach the point that it was noticeable, what was more significant was that the house was locked and otherwise undisturbed when the fire department arrived. Those facts very strongly implicated Pointer as the arsonist. Any inconsistency on when the sister might last have seen Pointer leave the house was not so great as to undermine other facts showing that Pointer was the last person to leave.
{¶17} Pointer notes that there were no traces of flammable fluids found on him or his clothes just hours after the arson, indicating a lack of physical evidence against him.
{¶18} Pointer argues that it made no sense for him to set the house afire when the evidence showed that some of his possessions, including a couch and refrigerator, were destroyed in the fire. This argument carries little weight because there was no evidence that these items had any value to him. The jury could reasonably conclude that any items remaining in the house after he left the house and locked it were abandoned.
{¶19} The inconsistencies in the state‘s evidence can be explained away; Pointer‘s motive and opportunity to start the fire cannot. The jury could reasonably conclude that Pointer, being the last person in the house and having the only key to the otherwise locked premises, had the opportunity to start the fire. He likewise had a demonstrable motive to start the fire as retaliation for being evicted. For these reasons, the jury‘s verdict was not against the manifest weight of the evidence.
III
{¶21} Pointer did not offer a contemporaneous objection to the state‘s remark; in fact, the court raised the issue and Pointer did not request a mistrial until after the jury returned its verdict. On this basis alone, the motion for a mistrial was untimely. State v. Brletich, 7th Dist. Columbiana No. 98 CO 84, 2000 Ohio App. LEXIS 2965 (June 28, 2000).
{¶22} Even if we assume for purposes of this assignment of error that the state‘s reference to Pointer‘s failure to provide an alibi was improper because it implied that Pointer had the obligation to refute the state‘s case despite having no burden of proof and
IV
{¶23} During discovery, Pointer learned that there had been an arson at the detached garage of a different residence where his sister resided more than ten years prior to the events in this case. He wished to cross-examine her with the intent to discern whether she was involved in starting that fire, but the state objected by citing
{¶24}
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness‘s character for truthfulness, other than conviction
of crime as provided in
Evid.R. 609 , may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness‘s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
{¶25} To justify his desire to question the sister on the prior fire, Pointer claimed that a police report indicated that the fire occurred in the garage of the house where the sister formerly lived. But that report stated that “persons unknown” started the fire. With the police having no suspects for that arson, Pointer had no basis for suggesting that the sister had any involvement in starting that fire such that she could plausibly be considered the person who started the fire in this case.
{¶26} Pointer maintains that he was not suggesting that the sister had been convicted of any prior arson, but that an arson had occurred in another residence where she lived. If that was truly Pointer‘s intent, the court did not err by finding it irrelevant to the issue of Pointer‘s guilt.
The sister had never been charged with arson, but Pointer wanted to put her on trial to
V
{¶27} The court allowed the state to call as a witness a police officer who was not disclosed prior to trial as a potential witness. Pointer argues that the witness should have been excluded due to noncompliance with
{¶28} We summarily overrule this assignment of error because violations of
VI
{¶29} Finally, Pointer complains that the court erred by admitting into evidence three cans that held samples of rugs and carpet taken from the house. He opposed their admission into evidence on chain of custody grounds, arguing that there was no testimony
{¶30} “A chain of custody essentially shows that the offered item of evidence is authentic as having been in the continuous possession of the state, thus eliminating the possibility that the item has been tampered with or altered from its original form.” State v. Bowling, 8th Dist. Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 32; see also 2 McCormick, Evidence, Section 213, at 14 (7th Ed.Broun Ed.2013) (chain of custody evidence typically “entail[s] testimony that traces the [possession] of the item from the moment it was found to its appearance in the courtroom.“) In order for evidence to be admissible, however, a complete chain of custody need not always be proved — its admissibility only requires evidence from which the trier of fact could reasonably believe that an item still is what the proponent claims it to be. See
{¶31} Pointer argues that it was unclear who transported the cans to the police station and that the lab analyst who tested the samples said that they were mislabeled. Beginning first with the argument that the cans were mislabeled, testimony by the lab analyst confirmed that two of the three cans were mislabeled — the samples did not match the color indicated on the outside of the can. The arson investigator collected two
{¶32} The manner of how the cans were transported to the police station is even less compelling than the mislabeling of the cans. The arson investigator testified that he not only placed the temporary marks on the cans at the scene of the fire, but that he affixed more permanent identification labels to those cans at the police station. He gave no indication that the cans had been tampered with in any way during transportation and Pointer gives us no basis for finding that they were tampered with during transport. He does nothing more than raise the possibility that tampering might have occurred. The jury could give little weight to that argument given the undeniable fact that a fire occurred and that laboratory testing confirmed that gasoline had been used as an accelerant.
{¶33} The assigned errors are overruled.
{¶34} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR