COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69554 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ERNEST MARTIN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-321715. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Robert Glickman Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Robert M. Ingersoll Assistant County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1513 SWEENEY, JAMES D., J.: Defendant-appellant Ernest Martin appeals his convictions for aggravated arson in violation of R.C. 2909.02 and attempted murder in violation of R.C. 2903.02 and 2923.02. The appellant was sentenced to a term of incarceration of nine to twenty-five years for aggravated arson. The conviction of attempted murder was deemed to be an allied offense for which no sentence was imposed. On March 9, 1995, Ernest Martin doused Rene Dutkofski with kerosene and set her on fire. The appellant and Ms. Dutkofski met at the Ford Motor Company where they both worked and the appellant moved into the victim's home in Parma, Ohio, in August or September 1989. Ms. Dutkofski testified that when the appellant moved into her home, the house was in good condition. The utilities, such as water, electricity and telephone, were connected. These conditions lasted for a few years. At some point, the appellant began to use cocaine which lead to the loss of his job at Ford. In the three or four months prior to his setting her on fire, the appellant's use of drugs increased. Ms. Dutkofski's paychecks no longer went to pay the bills, but instead were used to purchase the appellant's drugs. No longer was there running water, heat, or telephone service to the home. The only reason the home had electricity was because the appellant had "hot wired" the electric pole outside. The inside of the home was a mess with garbage and clothing strewn about. The appellant and - 3 - Ms. Dutkofski were sleeping in the living room on a sofa and a loveseat. Kerosene heaters were used to keep them warm. Ms. Dutkofski testified that the appellant was possessive and that he physically abused her. Although the appellant threatened to throw kerosene on her a month before this incident, she did not take the threat seriously. On March 8, 1985, Ms. Dutkofski began her normal work shift at 3:00 p.m. She knew prior to arriving at work that she would be receiving her profit sharing check for $2,200 that evening. At approximately 8:00 p.m. the appellant arrived at Ford and told her to inform her supervisor that there was an emergency. The appellant and Ms. Dutkofski left Ford together and cashed the profit sharing check at the Sky Bar. Ms. Dutkofski gave the appellant $450 dollars with which to pay off debts. After cashing the check, the appellant and Ms. Dutkofski first went to the appellant's mother's home to repay a debt to her. The appellant entered the house and Ms. Dutkofski remained in the car. Next they stopped to purchase drugs for the appellant and then stopped at a neighbor's home to pay a debt. Ms. Dutkofski's memories about the night she was set on fire are vague. She remembers changing into her nightclothes, the appellant throwing kerosene on her, the appellant lighting a piece of paper, and going up in flames. The kerosene landed on her face; in her eyes; on her left shoulder, arm and chest; both legs and on her stomach. - 4 - Ms. Dutkofski remembers that once she was on fire, the appellant tired to rip off her clothing and that he threw water on her from the aquarium. After the fire was extinguished she begged the appellant to take her to the hospital because she thought she was dying. He responded to her request by stating that they would throw him in jail. The appellant agreed to take Ms. Dutkofski to the hospital after she promised to say that she knocked over the kerosene heater. The appellant drove Ms. Dutkofski to Parma Hospital where the decision was made to lifeflight her to the MetroHealth Medical Center. Ms. Dutkofski remained in the MetroHealth Burn Unit for one month where she underwent multiple skin grafts. Approximately five days after her admittance, Ms. Dutkofski informed Parma Police Detective Hennessey the truth about her burns. While in the hospital, Ms. Dutkofski permitted the appellant to visit as long as there was supervision. Ms. Dutkofski testified that she wanted the appellant to see what had happened to her. Ms. Dutkofski also testified that in the past she had engaged in self-destructive behavior such as attempting suicide and in setting two small fires in the home. Although Ms. Dutkofski admitted to this destructive behavior, she testified that "I ain't that crazy to throw kerosene on me and light myself up." (T. 78.) Police Detective William Hennessey investigates arson related cases for the Parma Police Department. When he arrived at approximately 9:00 a.m., Fire Inspectors Harhay and Armagno were - 5 - present on the scene. Upon inspection of the house, Detective Hennessey found it to be uninhabitable because of the conditions, such as the lack of utilities and restroom facilities. Detective Hennessey found no visible fire or smoke damage to the house except for the sofa, blanket and pillow. The sofa had three separate locations where there was visible fire damage. The testimony of Detective Hennessey regarding the conditions of the home and of the sofa were corroborated by Firefighter Allen Cunningham who was also called to the scene. On the first occasion Detective Hennessey visited the victim in the hospital she was on a respirator and unable to speak. At this time he spoke with the appellant who informed him that the fire began when Ms. Dutkofski was standing and filling the kerosene heater. Detective Hennessey and Firefighter Cunningham both testified that when the home was inspected there was no evidence of fire damage either to the kerosene heater or the floor near the heater. At a later date when Detective Hennessey spoke to Ms. Dutkofski he found her to be severely injured and in a great deal of pain. Photographs of the victim were identified by the detective as ones he had taken at the time of this interview. The interview with Ms. Dutkofski led to the indictment of the appellant. Inspector Ronald Armagno of the Parma Fire Department testified that he received notice of the fire at the victim's home - 6 - at approximately 7:00 a.m. on March 9, 1995. He also testified that the house was uninhabitable because it was filled with clothing, litter and trash. The only fire damage he observed was to the sofa which had three distinct burn patterns. The sofa cushions and a blanket also showed burn marks. Inspector Armagno stated that the nightclothing of the victim smelled strongly of kerosene and were burnt. Inside the kerosene container were several ounces of kerosene. The State Fire Marshall tested evidence for accellerants and determined that the kerosene in the can had been used to start the fire. The appellant was interviewed by Inspector Armagno. The inspector testified that the appellant explained that the fire started when the victim was pouring kerosene into the heater. When the kerosene heater was examined, Inspector Armagno found that the safety devise was functional and would have turned the heater off automatically had it been jarred or knocked over accidentally. The filler cap on the heater was in place and secured tightly and there was no kerosene in the heater. Additionally, there was no fire damage to the heater itself or the floor and the victim did not suffer burns to her legs and feet. Inspector Armagno testified that this evidence, along with the burns to the couch, are inconsistent with the theory that the fire started when the victim attempted to fill the heater with kerosene. The inspector also found the evidence to be inconsistent with the theory that the victim had poured the kerosene on herself. - 7 - Inspector Armagno arrived at this conclusion based upon the burn patterns on the couch and the victim's injuries. The inspector testified that the evidence supported the explanation given by the victim as to how the fire began. The appellant's brother, sister-in-law, and mother testified on his behalf. They testified that they, along with the appellant, visited Ms. Dutkofski in the hospital and that she never appeared to be afraid of the appellant. The appellant testified that the victim's home was never well kept; that he did attempt to clean up the house, but that Ms. Dutkofski would not permit him to throw anything out; that at one point he borrowed money from his mother to have the water turned on; that he earned money by working on cars for other people; that he loves Ms. Dutkofski; that he never abused her and did not set her on fire; and that she suffered from mental health problems and that he did his best to protect her from being re-hospitalized. The appellant stated that Ms. Dutkofski started five fires in the home on previous occasions. The appellant stated that when he and the victim returned from their errands that evening, Ms. Dutkofski changed her clothing and he began to eat the food they had picked up on the way home. He first noticed her on fire as she was standing near the couch. He jumped up, placed the victim on the couch, and ripped her clothes off and extinguished the fire. He also put out the fire on the couch and pillow, and used water from the aquarium. He sustained - 8 - burns to his face, hands and legs which required hospitalization. He stated that the victim did not beg him to take her to the hospital, but rather he picked her up and ran to the car driving sixty miles an hour to the hospital. While in the emergency room the appellant admitted to using drugs, but stated that he had not used them that day. The appellant testified that he, unsupervised, visited Ms. Dutkofski in the hospital as they were in the same ward and that she never appeared fearful of him. The appellant testified on cross- examination that he never stated to the police that the fire started when Ms. Dutkofski attempted to fill the kerosene heater, but rather he stated that that was the only way he could see it happening. Inspector Armagno testified on rebuttal that the burn patterns on the couch were not consistent with the testimony of the appellant that Ms. Dutkofski was on fire when he placed her on the couch to smother the flames. The kerosene on the couch in all three spots and the burn pattern itself indicates that kerosene was poured in those locations. The appellant sets forth two assignments of error. The first assignment of error: ERNEST MARTIN WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY BY THE INTRODUCTION OF INFLAMMATORY PHOTOGRAPHS WHOSE PREJUDICIAL EFFECT FAR OUTWEIGHED THEIR PROBATIVE VALUE. - 9 - The appellant argues that the trial court erred when it admitted as evidence the photographs of the victim taken in the burn unit. The appellant contends that these photographs were prejudicial because they are gruesome and that the photographs are cumulative; and that since there is no dispute as to the manner and cause of the victim's burns, the photographs should have been excluded. The Ohio Supreme Court has held that the admission of photographs is within the trial court's discretion under Evid.R. 403 and 611(A). State v. Gumm (1995), 73 Ohio St.3d 413, 425 and State v. Watson (1991), 61 Ohio St.3d 1, 7. In each of these cases the court cited to State v. Maurer (1984), 15 Ohio St.3d 239, and reiterated that in a capital case, nonrepetitive photographs, even if gruesome, are admissible if relevant and of probative value as long as the probative value of each photograph outweighs the danger of material prejudice to the defendant. In the case sub judice, the court admitted as evidence five photographs of Ms. Dutkofski. These pictures each depict Ms. Dutkofski in the hospital with tubes in her nose and bandages in place. Each photograph is a different view and a different injury. Clearly these photographs are relevant and of probative value. Keeping in mind that an abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable arbitrary, or unconscionable, State v. Eberling (April 9, 1992), Cuyahoga App. Nos. 58559, 50560, unreported citing - 10 - to State v. Montgomery (1991), 61 Ohio St.3d 410, this court finds that the probative value of the photographs outweigh any prejudice to the appellant. The photographs are not so gruesome or so repetitive that their admission by the trial court constituted an abuse of discretion. The appellant's first assignment of error is overruled. The second assignment of error: ERNEST MARTIN WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY BY THE INTRODUCTION OF IMPERMISSIBLE OTHER ACTS EVIDENCE THE EXISTENCE OF WHICH PROMPTED THE JURY TO CONVICT HIM BECAUSE OF HIS CHARACTER. The appellant argues in this assignment of error that the trial court erred when it admitted evidence of the appellant's prior acts. Specifically, the appellant contends that evidence of his prior drug abuse and his physical abuse of the victim were placed before the jury in the State's opening argument, in the victim's testimony, by the admission of his medical records and toxicology report, and by the admission of the appellant's medical records. In State v. Gumm, supra, the court held that Evid.R 404(B) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See also State v. Woodard (1993), 68 Ohio St.3d 70. In - 11 - State v. Linton (Dec. 6, 1994), Franklin App. No. 94 APA 03-300, unreported, the court found that prior abuse was admissible to show that a child's death was not an accident. Likewise, the evidence admitted in this case was used to show a continuing course of conduct and an absence of mistake or accident. The appellant's continued use of drugs lead to the physical abuse. The victim's testimony revealed that the appellant had not only previously physically abused her, but that he had threatened to throw kerosene on her on a prior occasion. In Gumm, supra, the court held, even assuming the questionable evidence was inadmissible, that on the basis of the record as a whole that the appellant had received a fair trial and that it was beyond a reasonable doubt that the jury would have convicted and sentenced to death the appellant. Applying this standard, and assuming, arguendo, that the evidence complained of by the appellant was inadmissible, the appellant received a fair trial. Based upon the testimony of the victim and the police and fire officials it is beyond a reasonable doubt that the jury would have convicted the appellant. The appellant's second assignment of error is overruled. Judgment affirmed. - 12 - 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. LEO M. SPELLACY, C.J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY 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 .