State v. RisnerState v. Risner
This is an appeal from the judgment and sentence imposed by the Common Pleas Court of Putnam County upon a jury verdict, finding appellant, Tommy Ray Risner, guilty of aggravatеd arson.
On March 16, 1990, a house owned by appellant’s mother was destroyed by fire. Investigation by the assistant fire marshal disclosed evidence that the loss resulted frоm arson.
Appellant was indicted on one count of aggravated arson, in violation of
The assignment of error is:
“I. It was plain error for the trial court to allow testimony of the existence of a conspiracy and to instruct the jury on conspiracy when it was not an element of the crime for which the defendant-appellant was indicted and therefore was not an issue for the jury to decide.”
Appellant argues that the trial court erred by receiving in evidence the testimony оf appellant’s half-brother, fifteen-year-old Harold Wayne McKnight, reporting a conversation held in his presence by appellant and their mother, during thе course of which appellant’s mother offered to pay appellant $1,000 of the insurance proceeds if he would burn the house.
Here on appeal, appellant concedes that the trial court correctly overruled the objection of trial counsel interposed on grounds of hеarsay. Rather, appellant argues, the testimony should have been excluded by the court on the grounds of irrelevance notwithstanding the failure of trial counsel to advise the court of that reason for objection. The omission of the trial court to recognize the ground and exclude the testimony, argues aрpellant, was plain error.
Appellant was charged with aggravated arson, a violation of R.C. 2909.-02(A)(2), which is:
“No person, by means of fire or explosion, shall knowingly:
“ * * *
“(2) Cause physical harm to any occupied structure[.]”
The testimony of McKnight, argues appellant, is not probative of any element of
The foregoing reasoning also underlies appellant’s assertion of the court’s plain error by instructing the jury about conspiracy in thе absence of a charge of conspiracy laid against appellant in the indictment.
Here, the prosecution presented and argued its case upon a theory of complicity pursuant to
“(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
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“(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(t * * *
“(F) whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted as if he were a principal offender. A charge of complicity may be stated in terms of this seсtion, or in terms of the principal offense.”
Among the several circumstances proscribed by
“(A) No person, with purpose tо commit or to promote or facilitate the commission of * * * aggravated arson, arson, * * * shall do either of the following:
“(1) With another person or persons, plan or aid in planning the commission of any such offense;
“(2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any such offense.
“(B) No person shall be convicted of conspiracy unless a substantial overt act in furtherancе of the conspiracy is alleged and proved to have been done by him or a person with whom he conspired, subsequent to the accused’s entrance into the conspiracy. For purposes of this section, an overt act is substantial when it is of such character as to manifest a purpose on thе part of the actor that the object of the conspiracy should be completed.
a * * *
“(G) When a person is convicted of committing or attempting tо commit a specific offense or of complicity in the commission of or attempt to commit the
The offense of complicity may be charged either under
Thus, in circumstances described by
Appellant was indicted for violation of
To prove its case, the state offered evidence, unrebutted, that destruction of the residence in question was procured by arson.
The elements of appellant’s complicity by conspiracy, undertaken by the state to be proven to have been done knowingly, were a plan or agreement by appellant with another person or persons to commit aggravated arson or arson, coupled with appellant’s overt act showing his intention that the object of the plan or agreement be accomplished.
To carry its burden of proof, the state offered the testimony of McKnight, reporting the conversation of appellant with their mоther, referred to earlier, together with appellant’s admissions during that conversation and in other conversations with McKnight. Among these admissions is that related to McKnight by appellant regarding appellant’s consultation with Ralph Jones about the best way to set the fire. Another is that overheard by McKnight before the firе in which appellant told his mother to leave the gasoline in the garage and the candles on the water heater. McKnight testified that after the fire, aрpellant bragged that he “did a good job.” McKnight further testified about appellant’s participation in providing a truck some days before the fire to remove household goods and furnishings from his mother’s house to be stored. We believe the relevance of such testimony is obvious, as is the statement of appellаnt’s mother by which she solicited appellant to burn her house. See
State v. Martin
(1983),
“Relevant evidence” is defined as that having a tendency to make the existence оf any act that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Based on the foregoing, we believe the relevancy of the challenged statements to show appellant’s participation in the planning of and furtherance of a conspiracy to сommit aggravated arson or arson may not be gainsaid.
“Plain error or defects affecting substantial rights may be noticed although they were not brought to the attеntion of the court.”
We hold that the trial court did not err in the admission of testimony as challenged by appellant here on appeal.
Nonetheless, appellant’s assignment of error, insofar as the trial court’s instructions to the jury are challenged as plain error, is also without merit, for as analysis has shown, conspiracy is an element of the offense for which appellant was indicted and tried, requiring instruction of the jury. Review of the instruction given discloses that it is a correct statement of law, from the giving of which appellant has suffered no prejudice.
Accordingly, appellant’s assignment of error is overruled in all respects.
The judgment of the Common Pleas Court of Putnam County is affirmed.
Judgment affirmed.