COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61351 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CHARLES WILSON : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-242039 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RICHARD A. NEFF Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID H. BODIKER Ohio Public Defender JOHN FELON Assistant State Public Defender Ohio Public Defender Commission 8 East Long Street - 11th Floor Columbus, Ohio 43266-0587 - 3 - O'DONNELL, J.: Charles Wilson filed this delayed appeal from a 1990 judgment of the Common Pleas Court entered pursuant to a jury verdict finding him guilty of Aggravated Arson. The record reveals that sometime during 1988, Wilson moved in and lived with Delores Price in an multi-unit apartment building located at 1278 E. 124th Street in Cleveland, Ohio. During the late evening and early morning hours of July 19, 1989, Wilson and Price began arguing in their apartment and the police came to calm the disturbance, but made no arrest. The following morning, Wilson and Price continued arguing because Price and Wilson were breaking up and she wanted Wilson to vacate the apartment. Wilson, over protest and at the insistence of the landlord and owner of the building, Fletcher Ricks, moved his personal items from the building, and went across the street to Diddy's Bar where he worked. Ricks later went to the bar to obtain Wilson's apartment keys. Wilson then followed Ricks back to the apartment building complaining that Price should also have to vacate the premises and during his argument with Ricks, Wilson threatened to burn the building. Shortly thereafter, when Wilson disposed of a vacuum cleaner in the dumpster at the rear of the building, he passed beneath Price's apartment and noticed smoke coming from Price's apartment window. He went to the bar and obtained a fire extinguisher but - 4 - did not gain access to the apartment. When the fire department arrived, he returned the fire extinguisher and went to his mother's home. After the fire department extinguished the fire, a Cleveland Fire Department Investigator, John Coleran, began to investigate the fire which totally destroyed the living room in Price's apartment and its contents. He learned that Price, who at the time was inside her apartment, claimed she first heard Wilson yell, "Here's something that will bring you out of the building", and then heard something crash through the window of her apartment which immediately ignited. The grand jury returned indictments against Wilson which resulted in a jury trial. At trial, Coleran, while testifying on cross-examination, related what Price told him Wilson had yelled prior to the fire in her apartment. In addition, Clayton Brooks, a tenant in the building testified that he had heard Wilson arguing with Ricks on the morning of the fire and that Wilson threatened to burn the building. Wilson also testified at trial and denied setting fire to the building or threatening to do so. The jury returned its verdict finding Wilson guilty of Aggravated Arson and the judge, in accordance with a stipulated prior aggravated felony specification, sentenced him to 13-25 years in prison. - 5 - Wilson now appeals challenging in two assignments of error, the court's admission of the hearsay statement and the effective- ness of his counsel. The first assignment of error states: I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING HEARSAY TESTIMONY WHICH WENT TO THE ULTIMATE ISSUE OF THE CASE AND THEREBY DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONTATION OF WITNESSES AND TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1, OF THE OHIO CONSTITUTION. Wilson asserts the trial court erred in admitting the hearsay testimony of Delores Price through fire investigator John Coleran and thereby denied his right to confront the witnesses against him. The state urges that the court did not err because Wilson's defense counsel elicited this testimony during cross-examination of Coleran and counsel failed to timely object to it, and thus did not properly preserve it for appellate review. The issue presented for our review then concerns whether or not the court erred in admitting this evidence at trial. In State v. Joseph (1995), 73 Ohio St.3d 450, 455, stated the following: "An appellate court need not consider an error which was not called to the attention of the trial court at a time when such error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St.2d 112, 117, ***. As a result, such error is waived absent plain error. State v. Moreland (1990), 50 Ohio St.3d 58, 62 - 6 - ***. Plain error does not exists unless, but for the error, the outcome at trial would have been different. Id." As applied to this case, it is immediately apparent that no objection appears in the record regarding the testimony offered by Coleran in response to defense counsel's questioning on cross- examination. Hence, we need not consider this issue except as plain error. Upon examining the record in this case, we note that the testimony of both Fletcher Ricks and Clayton Brooks independently establish an incriminating statement made by Wilson as to his intention to burn the apartment building. Further, the testimony of Wilson himself permits an inference of his presence at the time and in a location where he had an opportunity to commit the offense. Further, his absence from the apartment prior to the fire gave him time to obtain the ingredients and assemble a firebomb. We cannot conclude that but for the hearsay testimony elicited by defense counsel from Coleran on cross-examination the outcome of the trial would not have been different. Admission of this statement in this case does not constitute plain error. Accordingly, this assignment of error is overruled. The second assignment of error states: II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE 1, OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. - 7 - Here, Wilson contends his counsel denied him effective assistance of counsel by failing to object to the hearsay testimony of John Coleran at trial. The state believes Wilson's position is not well taken and urges that our court should not consider the trial strategy employed by the defense counsel at trial. The issue presented here for our consideration is whether Wilson has been denied effective assistance of counsel in this case. In State v. Bradley (1989), 42 Ohio St.3d 136, the court held in its syllabus: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle (1976), 48 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed.) 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. In this case, while challenging Investigator Coleran's conclusion that something had been thrown through Price's apartment window, defense counsel pointed out to the jury that since all the glass had been removed from the window before he arrived, Coleran could not definitively determine whether it had - 8 - been broken inward by a thrown object. In this context, defense counsel inadvertently elicited from Coleran, Price's statement that she heard Wilson yell, "Here's something that will bring you out of the building", but successfully established a basis for the jury to question the validity of Coleran's conclusion. However, to successfully argue ineffective performance of defense counsel in eliciting this response, Wilson must prove a reasonable probability exists that, but for this question and answer, the trial result would have been different. The record in this case contains the trial testimony of both Clayton Brooks and Fletcher Ricks, each of whom heard Wilson threaten to burn the building shortly before the fire started. In addition, the appellant admitted being in the area beneath Price's second floor apartment window about the time the fire ignited. Considering this circumstantial evidence we cannot conclude appellant has demonstrated that but for the answer defense counsel elicited from Investigator Coleran the trial outcome would have been different. Accordingly, this assignment of error is not well taken. Judgment affirmed. - 9 - 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. PORTER, P.J., and ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .