COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59554 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION FREDERICK GREENE, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 7, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-239,174 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Donald Green Assistant Public Defender The Marion Building Room 307 1276 West Third Street Cleveland, Ohio 44113 -2- NAHRA, J.: Frederick Greene appeals his conviction of aggravated arson with aggravated felony specifications. For the reasons set forth below, the conviction is affirmed. On March 17, 1989, a two-family house at 6507 Quimby in Cleveland burned down. Eugenia Griffin and her three children had lived on the second floor of the house. Mary Cain, who owned the house, had lived on the first floor. Appellant had been living with Griffin at the Quimby house for about four months prior to the fire, although he had few possessions at the house. He was the father of one of Griffin's children. Griffin testified that on the morning of March 17, appellant accused her of having an affair. He pushed her down the stairs and choked her. Mary Cain heard the argument and saw appellant try to prevent Griffin from leaving the house. Griffin asked Cain to call the police but left before they arrived. Griffin went to the police later that day. She returned to the house with a police escort at about 5:00 or 5:30 P.M. The police searched the house but did not find anyone. Griffin left because appellant's clothes were still in the house. She found somewhere else to stay and went back with the police to move her things at about 7:30 or 8:00 P.M. When she arrived, the house was locked. The television was on and appellant's scarf and jacket were in the bedroom. The police searched, but not as thoroughly, and found no one. Griffin locked and chained the front doors to the apartment and left by the back door which was -3- bolted and could not be opened from the outside. Griffin stated that she, her sister, her children and appellant had the only house keys. She stated that her sister was at work on the evening of March 17, and that her children were with her. Mary Cain testified that she saw appellant come and go several times on March 17, using his keys. She saw him come to the house before Griffin's second trip home with the police but did not see him leave. She also heard someone walking around upstairs in Griffin's apartment after Griffin left. After 8:00 P.M., some boys ran to her house to tell her it was on fire. Cleveland firefighters received a call that the house was on fire between 9:00 and 10:00 P.M. on March 17. Albert Lugo, an expert arson investigator, testified that the fire had been intentionally set. He stated that a combustible liquid had been used to start the fire in the dining room, and that a second fire had been set in the back hallway with combustible objects such as paper. Mary Cain testified that she kept a container of gasoline for her lawn mower on the back landing, which was accessible from Griffin's apartment. No evidence of forced entry to the house was produced at trial. The fire rendered the house uninhabitable, and Eugenia Griffin's personal property was destroyed. Mary Cain collected about $10,000 in insurance proceeds after the mortgage was paid. Appellant's sister, Marian Greene, and his cousin's ex-wife, Antoinette Young, testified as alibi witnesses. They claimed that appellant was going back and forth between their two homes -4- on the afternoon and evening of March 17. Their homes were both located about five miles from 6507 Quimby. Although appellant had no car, Marian Greene stated that appellant came over every day by bus. Marian Greene testified that appellant left her house at 8:00 or 8:30 P.M. on March 17, and returned at 10:00 P.M. Antoinette Young stated that appellant was at her house from 7:30 until 9:00 P.M. that evening. Neither could account for appellant between 9:00 and 10:00 P.M. Moreover, Young stated that she remembers the evening because it was St. Patrick's Day; a school night; and she was helping her children with a school project. However, March 17, 1989 was a Friday. Appellant was indicted for aggravated arson with aggravated felony specifications from his previous convictions for felonious assault and first degree manslaughter. The jury found him guilty. Appellant brought this appeal upon leave of court. Appellant's single assignment of error reads as follows: FREDERICK GREENE'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE AGGRAVATED ARSON ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION. The Ohio Supreme Court recently set forth the legal standard for sufficiency of evidence as follows: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry -5- 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. State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. R.C. 2909.02(A) provides in pertinent part as follows: No person, by means of fire or explosion, shall knowingly . . . (2) Cause physical harm to any occupied structure; . . . In this case, the jury could have reasonably found beyond a reasonable doubt that appellant intentionally set the fire in Griffin's home at 6507 Quimby. There was evidence of a fight on the day of the fire between appellant and Griffin. Griffin so feared appellant that she returned to the home with a police escort to move her things elsewhere. There was evidence that the apartment was locked and no evidence of forced entry. Appellant was the only person with keys to the apartment who was not accounted for when the fire broke out. Cain had seen him come and go several times; she saw him come but not go before Griffin chained the inside apartment door. Cain also heard footsteps upstairs after Griffin left, and stated that she left the can of gas on the back landing. Appellant claims that the state relied on circumstantial evidence alone. He argues that reasonable doubt is created when circumstantial evidence is consistent with a theory of innocence, relying on his alibi witnesses. -6- In State v. Jenks, see supra, the court held in paragraph one of the syllabus as follows: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Appellant's assignment of error is overruled. Affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .