COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69489 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES RINI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION APRIL 10, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-314019 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES EDWARD A. HEFFERNAN, ESQ. Cuyahoga County Prosecutor MICHAEL R. SHANABRUCH, ESQ. PAUL J. DALEY, Assistant 668 Euclid Avenue Prosecuting Attorney Suite 535 1200 Ontario Street Cleveland, Ohio 44114 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Charles Rini appeals from his conviction following a bench trial for aggravated arson (R.C. 2909.02) for allegedly setting fire to his residential property to obtain insurance proceeds. Defendant claims the trial court erred in not excluding evidence obtained from the site without a warrant; in not granting a new trial due to prosecutorial misconduct; and in ordering restitution in violation of double jeopardy. The defendant also maintains the judgment was against the manifest weight of the evidence. We find no error and affirm. The fire in question started at around 10:00 p.m. on June 21, 1994 at 8423 Wyatt Road, Broadview Heights, Ohio. Defendant Charles Rini and his mother, Eileen Rini, purchased the property in March 1994 for $44,500. Defendant and his mother each contributed $10,000 toward the down payment. The house was in poor shape, but they planned to rehabilitate it. Eileen Rini, who owned her own home, is an experienced real estate agent. Rini, a carpenter by trade, owns his own home and is employed by Carbone Construction Co. The Rinis believed that with defendant's talent for remodeling, the house could be rehabilitated for approximately $12,000, the estimated cost of materials. Defendant began working on the house in March 1994. Since the house had neither a garage nor a basement Rini used the room on the north side of the house as a workroom/garage where he stored his construction materials, flammable materials and tools, including a - 3 - power lawn mower. By June, Rini had made improvements to the bathroom, dug a footer, tore out the kitchen floor, built cabinets for the kitchen and met with the building department about an addition to the house. On the night of the fire, Rini left his mother's house after dinner and went to the property while it was still light out. According to Rini's statement to the police, the fire accidentally started when he was filling his lawn mower with gasoline from a two gallon can. In the course of fueling his mower, he spilled a small quantity of gasoline, creating a puddle on the floor of the north room. Although this explanation and the point of ignition were the subject of disputed evidence at trial, defendant's expert found that the vapor from the gas puddle migrated toward the partial wall between the north room and the utility room where it was ignited by the spark from the relay and compressor unit on a dormitory-sized refrigerator located a few feet away. According to Rini, he dropped the gasoline can and ran out the north door of the house. He ran to a neighbor's house and told them to call 911 to report the fire. Broadview Heights Patrolman Brian Brandenburg was the first person to arrive at the scene of the fire about 10:13 p.m. Upon approaching with a fire extinguisher, he encountered Rini. He established that Rini was the owner and that no one else was in the house. They went to the southeast corner of the house where the fire was intense. Seeing the fire was too much for his - 4 - extinguisher, he and Rini awaited the fire department which arrived momentarily. Rini told Brandenburg he had just gotten to the house to do some work and while he was working on his lawn mower it caught fire. The Broadview Heights Fire Department first arrived on the scene at 10:15 p.m., eleven minutes after the alarm was turned in pursuant to the 911 call. Several firefighters testified. Michael Bandsuck, a Broadview Heights firefighter, responded to the fire, spoke briefly to officer Brandenburg, and unscrewed the hydrant caps. The pumper fire truck arrived and Bandsuck backed up Tom Lisy on one of the hoses. Lisy started into the house but backed out because the heat was too intense. Bandsuck looked at the electric meter and saw that it was not moving and pulled the electric meter. When the fire was out, Bandsuck overheard Capt. Cloonan ask questions of Rini. He overheard Rini say that he was filling his lawn mower and it caught fire. Bandsuck also testified that the lawn mower was right in the open doorway; that the fire flashed when they first started to put water on it; and there were gasoline cans in the house after the fire. Firefighter Thomas Lisy arrived on the first pumper truck. He was in full protective gear with self-contained breathing apparatus. He took the first hose and approached the fire. As he kept getting closer and closer to the fire, he realized that the heat from the fire was so intense his left arm and shoulder were - 5 - being burned. He was the first one inside the house. He noticed that an area of the floor was burning quite a bit and when he hit that area with water it erupted. He testified that the water itself was also burning which meant there was some type of accelerant on the water. Lisy described the second and first degree burns he suffered fighting the fire for which he received medical treatment. Broadview Heights firefighter Gary Munich testified that when he arrived, the house was totally engulfed in flames. He suited up and assisted in the knockdown of the fire through the north door. He was then directed to make sure the utilities were off. The house owner (Rini) offered to assist him. He declined and told Rini to back away from the house. He located the gas meter and shut it down and sealed the meter. He found the electric meter and found it had already been pulled. Munich removed the oxygen regulator from his face piece and helped in picking up drywall that was on the floor and leaned it against the north wall. At that time, he noticed a strong odor of gasoline. He also heard Rini tell Capt. Cloonan that he was pouring gasoline into the lawn mower when it ignited. He noted that Rini's appearance and clothing looked very clean for someone who just had a gasoline explosion right under his face. Rini had no burns, singe or soot on him. Donald Putrzycki, a State Fire Marshal, testified, although his testimony was ultimately stricken by the trial court because it - 6 - was based on information obtained during a warrantless investigation at the site. (Tr. 1271). Craig Balliet, a laboratory chemist hired by Nationwide Insurance, performed a chemical analysis of samples taken from the fire scene by Ralph Dolence, Nationwide's expert. Balliet performed a gas chromatograph on the debris samples that were taken. He found the samples exhibited the presence of gasoline residue and an accelerant termed an isoparaffinic hydrocarbon. The compound is most commonly found in lighter fluid. On cross- examination, Balliet stated that paint thinner, paint and caulking could also possibly contain isoparaffinic hydrocarbons, but that he had never seen it himself in these products. Edwin Egut, a firefighter/paramedic/inspector/investigator for the City of Brecksville testified that there was a reciprocity agreement between Brecksville and Broadview Heights to help each other out. He was called in by Capt. Cloonan. His primary function was to help to determine the cause and origin of the fire in question. He testified to his investigation immediately following the fire. He noted: the furnace controls were in the off position; he observed unusual melting on the hot water tank control mechanism; the flex tube gas supply line and the coupling on the hot water tank had an unusual burn pattern; and the coupling was loose to the touch; the north side entrance door burn pattern indicated it was open at the time of the fire; the burn pattern around and on the lawn mower was lower than he would have expected, - 7 - indicating that the fire originated at the floor level; and the gasoline odor was present when he walked into the house. Rini told Egut that he was filling the lawn mower and he heard a whoosh and saw a bluish-orange flame. Egut also noted that Rini was not injured and showed no signs of being exposed to heat. On cross-examination, the defense requested that Egut's report be entered as an exhibit. His photos showed that there was water running from the hot water tank. Egut stated he never said there wasn't any water in the tank. He witnessed the water flowing out of the tank, and stated that it was because the plastic valve had probably melted on the hot water tank. The witness also gave a demonstration of what the defendant demonstrated to him at the time the fire started. Terrence Leonard, the chief building official for Broadview Heights, testified that on some date prior to the fire he went to the house because building activity was noticed on Rini's property. He told Rini that he needed to submit drawings to and get permits from the Building Department. Leonard identified an application with drawings submitted by Rini to renovate the Wyatt Road house. Leonard indicated that his department had no objection to Rini putting in footers for the new addition he wanted to build on the house. However, on his inspection, he realized the age of the house was such, that it was built pre-codes and had no foundation under the house itself. - 8 - Leonard advised Rini at that point to get an engineer or architect to help him install some underpinning to the house itself. Underpinning required digging under the existing house and putting concrete footers under the entire house. Leonard did not issue an official stop work order, but advised Rini to stop work on the house since some renovation of the interior of the house had already been done at that time. Leonard indicated that he was still waiting for Rini to submit architect or engineer reports as to how to solve the underpinning problem. He had a conversation with Rini about the property in late May early June and told Rini the property alone was worth what he had bought the house and property for, to which Rini replied, "Find me somebody that would buy it." Leonard suggested that the Building Department had a list of contractors to whom Rini could refer for possible purchasers. Leonard testified that the last hang-up to getting a permit was to get an architect for the underpinning to continue building on the house. Mr. Rini never was issued the appropriate building permit(s) for his renovations. Broadview Heights firefighter Ray Kopchak testified that he found the lawn mower right in the entrance doorway at the time of the fire and he dragged the lawn mower outside. His cross- examination covered the role of the fire department in helping the insurance company investigators in their examination of the premises. - 9 - Robert Gartner testified that he was a special investigator for Nationwide Insurance and an investigator for Geauga County Fire Investigation Unit. He had 32 years of fire service as a retired Assistant Fire Chief from the Monroeville Fire Department and is presently with the Hamilton Fire Department Investigation Unit. Gartner testified to the training and use of the K-9 accelerant detecting dog at the premises. He diagramed a chart of the premises in question. With the use of an overlay he explained where the dog alerted to the presence of an accelerant in eleven areas in the north room and where the samples of debris were gathered to be sent to the chemist. He placed the lawn mower back in the building for safe keeping. Gartner took a recorded statement from Rini on June 23, 1994, two days after the fire. The parties stipulated to a transcript of the tape given to the court. On this tape, Rini gave Nationwide permission to enter onto the property to conduct its investigation and remove evidence. Gartner also stated that Rini's insurance contract gave Nationwide authorization to enter the property. Gartner testified as to a diagram that Rini drew for him. He testified that Rini's diagram put the lawn mower against the south wall of the main room, contrary to the firefighters' testimony it was in the open doorway. After interviewing Rini, Gartner contacted Ralph Dolence to set up a cause and origin investigation of the Rini property. He indicated the property was insured with Nationwide for $44,500 and $31,150 on its contents. - 10 - The parties stipulated to documents and testimony from Roger Bowerman, the Nationwide insurance agent whose agency wrote Mr. Rini's insurance policy. Bowerman was on vacation when the policy was written. When he returned and checked into the property, he decided it was not a risk they should be covering. He sent Rini a cancellation notice on May 24, 1994, to be effective June 28, 1994. Nationwide sent a premium reimbursement check which was cashed by Rini on July 5, 1994. On July 27, Bowerman and Rini had a conversation about obtaining more insurance on Rini's property for liability, as Rini was concerned about liability if someone was injured on his property. Ralph Dolence, Nationwide's cause and origin expert, testified and his full cause and origin report was admitted by stipulation. Dolence testified about slides he had prepared from photos contained in his report to summarize his investigation. He explained and showed by slides: that the electric meter and electric service to the house itself was ruled out as a factor in the cause of the fire as it was still intact; how the interior main circuit disconnection was ruled out as a cause as the circuit breakers and wiring were still intact; that the lawn mower was ruled out as a source of the fire as the rubber wheels and fuel tank were still intact and the fuel tank lid was still on. Dolence commented on how it was inconsistent with Rini's report of how the fire started. He stated if the fire originated with the mower as Rini alleged, there would be no fuel tank left. He also noted that - 11 - the carburetor would have been damaged and that it was not in fact damaged. Dolence presented slides depicting what was determined to be a pour pattern and how that was distinguished from leaking fuel and run off where the slope of the floor ran away from where the samples were taken; and slides depicting how the fire originated at floor level. He also testified to the slides of the hot water tank indicating there was a unique burn pattern at the connection of the natural gas line to the hot water tank where the coupling was loose to the touch, indicating the gas was leaking during the fire. He noted in photos the carbon sooting on the male and female threads at the loose coupling. He testified about the hot water tank and a line that was disconnected from the system and whether or not it was operable; whether or not water was in it, and whether or not the disconnected line was a supply line. Dolence eliminated the hot water tank as a source because there was an absence of fire damage in the burner area of the hot water tank, and the backside of the tank was clean. Dolence ruled out the furnace as a source since it was not functional at the time. However, he found that the cold air return venting the north room allowed an avenue for gasoline vapors to enter the utility room so that once the fire ignited it would follow the vapors through the cold air return thereby creating a chimney effect. - 12 - Dolence testified that the lawn mower was placed where it was found at the time of the fire by the north door, which was different than where Rini had indicated. He next showed slides of Pyra, the accelerant detecting dog, alerting to gasoline vapors during the investigation at various places. Dolence reviewed Gartner's typed interview with Rini and used that as a factor in making his cause and origin determination. He explained that there were many inconsistencies in terms of the physical evidence he found at the scene and what Rini said. For instance, Rini told Gartner he was making a two-cycle mix for the lawn mower, but the lawn mower is a four-cycle mower. He also determined that the lawn mower was not the source of ignition for this fire because the fuel tank was intact with the lid on. If the mower was being filled or overfilled as Rini claimed, the tank would have been consumed by the fire. He eliminated the electrical system in the house as a possible source of ignition. He gave his opinion testimony about all the possible sources of accidental ignition and how they were eliminated. He ruled out the small refrigerator as a source of ignition due to the lack of damage to the relay and compressor unit. Plus, the refrigerator was set on cinder blocks, twenty-one inches off the floor. This is too high to ignite gasoline vapors on the floor. He opined that the fire was deliberately set. He determined the point of origin was the ignition of the poured accelerant in the north room. - 13 - On cross-examination, the defense brought out that Dolence had mislabeled the intake and outtake pipes to the hot water tank. The defense's primary theory evident from the cross was to establish that the relay and compressor unit of a small refrigerator was the source of ignition. The defense's expert in his testimony would later say that the refrigerator relay switch ignited the fire. On redirect, Dolence reiterated why he ruled out the refrigerator as a source of ignition. He indicated that the compressor relay was intact and that it was too high off the floor to ignite the vapor which was low to the floor. In summary, Dolence explained why each of the possible accidental ignition sources were ruled out. Det. Robert Lipton of the Broadview Heights Police Department testified to his involvement in the investigation. He spoke to neighbors including Becky Warner who was the girl who took the video of the fire in progress. The main part of his investigation involved a tape recorded interrogation of Rini admitted in evidence. He also retrieved some documents from the bank respecting Rini's financial matters via a subpoena issued by the fire marshal. Although there was discussion about Rini taking a polygraph test, they were never able to get together with Rini to do so. Lipton was cross-examined at length about the taped interrogation of Rini by Capt. Cloonan and Lipton. Various statements and questions asked of Rini by Cloonan and Lipton that were not exactly true were part of their interrogation technique to - 14 - get Rini to admit to setting the fire. The State rested following the admission of exhibits. Defense counsel made a motion for acquittal which was denied. Defense counsel then presented defendant's case. Eileen Rini, the defendant's mother, testified for the defense. She explained she and her son purchased the Wyatt Road property together as an investment. She acknowledged it was in bad shape, but they hoped to fix it up because her son was a carpenter and could do the work himself. She identified photos showing some improvements made to the house. On cross-examination, it was brought out that Mrs. Rini was a licensed real estate agent; that the property itself, without a house, would be worth $40,000; that Rini and his wife were seeing a counselor because of problems Rini was having with the wife's son from a prior marriage; she was aware before the fire that the insurance company was cancelling the insurance; and she had discussed that with her son. Robert Taylor, the defense's cause and origin expert, identified a computer model of the fire he had done for him by Dr. Marcelo Hirschlor based on information he gave to Dr. Hirschlor. He testified to a video made of the fire scene. He admitted he had never been to the fire site personally. Taylor gave his opinion that the cause and origin was that the refrigerator created a spark when it kicked on thereby igniting the flammable liquid vapor and that the incident was accidental. - 15 - On cross-examination, Taylor conceded he did not have an investigator's license in the State of Ohio, and that the Department of Commerce recommended against him obtaining one. Taylor was convicted of investigating a fire without a license and the Department of Commerce disagreed with him on his excuses for doing so. The State then offered evidence showing that Taylor had received orders from the State to cease and desist from activity as a fire investigator. Taylor was not recognized in Ohio as a practicing engineer by the Professional Engineers and Surveyors. The State moved to strike his testimony because he was not a licensed investigator or a licensed engineer which prevented him from visiting the site in this case. The trial court overruled the motion. Mr. Taylor persisted in his opinion that the refrigerator started the fire and acknowledged that the hot water tank, the furnace and the general house electrical system did not cause the fire. He also stated that a person would not necessarily be singed in such a fire, as the initial flash would settle down very quickly into vapors before it would ignite into a full fledged fire. Taylor on redirect opined that if there was a high concentration of gas vapor and the hot water tank had an open flame, it could ignite it but it would blow the walls and windows out and everyone in the neighborhood would instantly know. Taylor also stated on recross that if the gas spill was closer to the open - 16 - door the fire would not have happened; i.e., the vapors would be dispersed in the open air. Dr. Marcelo Hirschler, a chemist used by Taylor in formulating his cause and origin opinion, testified to information that was given to him by Taylor and testified to the testing he performed with the computer model. He opined that if the fire originated in the north room as the State contended, there would have been more severe damage, especially if three gallons of gasoline was poured in that room as the State claimed. He stated the gas fumes from a small spill could have been ignited by the refrigerator or the water heater, but that he did not know for sure what the ignition source was. He also stated a person would not be singed by such a fire unless he was standing right over it. He also pointed to inaccurate testing relating to the chromography done by the State's expert. He stated that some of the chromography testing had high peaks going off the charts preventing accurate analysis. He admitted he was not an expert on gas chromography. He conceded everything he testified to was based on what he was told by Taylor, Rini and defense counsel; that he had no independent knowledge of the circumstances or conditions in existence at the time of the fire; that he never saw the neighbor's video of the fire in progress; he did not know the point of origin of the fire; that he was not a cause and origin expert; that if the refrigerator relay was the ignition source there would be some indication of scorching there, but he could not tell from the photograph whether the - 17 - refrigerator sustained damage consistent with it being the ignition source; that if there was gas leaking from the gas line to the hot water tank it would accelerate the burning in the utility room. At the conclusion of the case, the court granted the defense motion to strike Fire Marshall Pietrzycki's testimony and report on the grounds he had gathered his information without a warrant or permission to be on the property. The court held, however, that the State could rely on evidence gathered by Nationwide turned over to the State. (Tr. 1271). The Court denied the State's request to strike Dr. Herschlor's testimony. Defense counsel then rested without renewing his motion for acquittal. On June 20, 1995, the court announced its verdict convicting defendant of the crime charged. The sentencing hearing was held on July 31. Defendant was placed on probation on various conditions including the stipulation that he repay $20,000 to the State and Broadview Heights for the cost of the investigation and prosecution of the case pursuant to R.C. 2929.28 and reimburse Nationwide for its expenses ($3,500). A timely appeal ensued. We will address the assignments of error in the order presented. - 18 - I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO EXCLUDE ALL EVIDENCE DISCOVERED AS A RESULT OF THE JOINT INVESTIGATION CONDUCTED BY NATIONWIDE INSURANCE AND THE BROADVIEW HEIGHTS FIRE DEPARTMENT ON JUNE 25, 1994. This issue was raised and decided on defendant's pretrial motion to suppress when the motion was granted in part and overruled in part. The court ruled (Tr. 223) that evidence taken by the Broadview Heights Fire Department after June 23, 1994 without a warrant violated the unreasonable search and seizure rights of defendant under the Fourth Amendment. This was pursuant to Michigan v. Clifford (1984), 469 U.S. 287, which modified Michigan v. Taylor (1978), 436 U.S. 499. However, the court overruled the suppression of the Nationwide Insurance investigation, rejecting the defendant's argument that the Nationwide Insurance investigator was working hand-in-hand with the Broadview Heights Fire and Police Departments and hence was a de facto agent of those departments. The trial court found that Nationwide's investigation was independent of the Broadview Heights Fire and Police Departments and that the involvement of the police and fire departments was minimal during the course of the insurance company investigation. The court specifically held that "the mere presence of officials of those departments does not make the investigation and collection of evidence by Nationwide inadmissible." (Tr. 227). - 19 - This Court in State v. Curry (1994), 95 Ohio App.3d 93, 96 set forth the standard of review of a motion to suppress ruling as follows: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See, State v. Schiebel (1990), 55 Ohio St.3d 71. However, without deference to the trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627. A review of the suppression hearing transcript herein supports the trial court's findings. Robert Gartner, the insurance investigator, testified that the insurance investigation was separate and apart from the fire department's investigation. (Tr. 123). He also stated that the fire personnel that were on the scene while the insurance company was doing its investigation "did not participate in our investigation." (Tr. 113). He also stated that he had no idea if the fire department was waiting for his investigation before it proceeded to start the process of having the prosecutor charge Rini with arson. He and Capt. Cloonan of the fire department also testified that Cloonan did not share any of his information regarding the scene with Gartner. (Tr. 54, 139). Cloonan stated that he did not direct the insurance investigation in any manner. (Tr. 27). Gartner also testified that the fire department did not request that Nationwide investigate the scene. - 20 - He stated that it was routine for the insurance investigator to investigate all fires requested by the adjustor. (Tr. 146). Based on these facts, it appears that the insurance investigation was separate from the fire and police departments. That is, the insurance company's investigation was purely for its own benefit and not for the benefit of the police and fire department. The Ohio Supreme Court in State v. Grant (1993), 67 Ohio St.3d 465, 471 held that the results of a warrantless search by a private insurance investigator were admissible because the search of the premises by "private individuals for private purposes does not violate the Fourth Amendment even though [officials] are present and participate." See, also, State v. Morris (1975), 42 Ohio St.2d 307, paragraph two of syllabus (search done by private citizen for private purpose does not violate the Fourth Amendment). In the case herein, the facts clearly present a situation where the insurance company was performing its own investigation relating to defendant's insurance coverage for loss resulting from the fire. The State did not assist or direct this investigation. Therefore, based on the law and facts, we find the trial court did not err in refusing to suppress evidence relating to the insurance investigation. Although Gartner shared his investigation results with fire and police officials, pursuant to R.C. 3737.16 the insurance investigators had a legal duty to share their investigation with these authorities. R.C. 3737.16(A) requires insurance companies to - 21 - give fire officials, law enforcement agencies and prosecuting attorneys complete and unrestricted access to their claim investigation files concerning losses from a fire of suspicious origins. Insurance companies are also required pursuant to R.C. 3737.16(B) to notify appropriate authorities of losses suffered by their insureds which are caused by fires of incendiary means. See Harmon v. Republic-Franklin Ins. Co. (Oct. 19, 1987), Butler App. No. CA87-03-046, unreported. Therefore, the investigator's sharing of this information did not make it an agent of the state. At the time of performing the investigation, it was for the private purposes of the insurance company. Assignment of Error I is overruled. II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE FIRE MARSHAL TO TESTIFY AS A CAUSE AND ORIGIN EXPERT SINCE THE FIRE MARSHAL'S OPINION WAS BASED UPON EVIDENCE OBTAINED IN THE COURSE OF HIS WARRANTLESS SEARCH OF THE FIRE SCENE. Assignment of Error II is without merit. The issue is moot because the trial judge excluded the fire marshal's testimony. Defendant argues that the trial court's exclusion of the evidence was not sufficient because the court still heard it. We will not presume that the trial court did something improper - when it says it excluded the evidence, we must take it at its word. "We presume that in a 'bench trial in a criminal case the court considered only the relevant material and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.'" State v. Fautenberry (1995), 72 Ohio St.3d 435, 439, - 22 - citing State v. Post (1987), 32 Ohio St.3d 380, 384. Defendant has failed to show the trial court was influenced by this evidence. Assignment of Error II is overruled. III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL, WHICH WAS BASED ON PROSECUTORIAL MISCONDUCT PURSUANT TO CRIMINAL RULE 33(A)(2). The defendant subdivided this assignment of error into three parts. First, defendant contends that the prosecutor asked a question without a factual basis. Defendant argues that the question put to Mrs. Rini, as follows, was prejudicial as to showing motive on the part of defendant: "Were you aware that in order to meet the Broadview Heights building code that [defendant] had to move that house back 80 feet?" (Tr. 966). There was no evidence to support the supposition contained within the question. But, this statement was inconsequential given the other evidence of motive. Defendant and his mother bought the property cheap for the location in question. They felt it could be renovated for approximately $12,000. The underlying lot alone was worth what they paid for the house and land together. But, they found out that the entire house would have to be underpinned and that defendant had to submit architectural or engineering plans on how it was going to be brought up to code before he could get a permit for an addition and complete renovation. He never did obtain a permit or meet compliance before the fire. They received notice prior to the fire that their insurance on the property was going to - 23 - be cancelled, effective on June 28, 1994, approximately a week after the fire occurred. Defendant's mental state was unstable given his domestic and financial difficulties. These reasons, plus the inconsistencies in his own statement of how the fire started, the actual physical and circumstantial evidence, strongly suggested that defendant had a motive for setting the fire to obtain the insurance proceeds. In State v. Lucaj (May 17, 1990), Cuyahoga App. No. 56933, unreported, this Court, in discussing several improper questions of the prosecution, held as follows: A prosecutor may not, by a question, assert the truth of an unproved allegation which is substantially harmful to a defendant and, upon receiving a negative reply, fail to produce evidence thereof. State v. Daugherty (1987), 41 Ohio App.3d 91. See State v. Liberatore, supra. It is unprofessional for a prosecutor to ask a question which implies the existence of a fact which he cannot support by evidence. State v. DePew, supra, at 289. Although we believe that these questions were unprofessional and improper, we cannot say that they denied the defendant a fair trial. Accordingly, the second, fourth and sixth assignments of error fail. If that was the case, in Lucaj, supra, the aforementioned single question in this case did not deny defendant a fair trial in the face of two weeks of testimony. Defendant next attacks the State's closing argument in that the prosecutor made reference to matters not in evidence, to wit: his own experience as a father that "his kids come first." The trial court noted that prosecution should not be arguing from a - 24 - personal perspective but a general one. When the prosecutor brought up the fact that he himself paid child support and that he himself paid his mortgage and was therefore an accountable person, the trial court sustained the defendant's objections. (Tr. 1352). We must presume the trial court followed its own rulings as we must presume it only considers competent evidence in arriving at its judgment. State v. Smith (1991), 61 Ohio St.3d 284, 292. The United States Supreme Court has recognized that: "[i]f every remark made by counsel outside of the testimony were grounds for a reversal, comparatively few verdicts would stand. Since in the ardor of advocacy, and in the excitement of trial, even the most experienced of counsel are occasionally carried away by this temptation." Rahman, supra, at 154, quoting Dunlop v. United States (1897), 165 U.S. 486, 498. The State acknowledges that it got carried away during closing argument and relied on personal experiences, a fact the court archly noted. (Tr. 1346). These kind of errors are of far less significance when the case is tried to the bench because the court with its mature experience and knowledge of the law will give such irrelevancies no credit. That is not to say that such hyperbole is to be encouraged or is a credit to the State. Defendant argues that the State misstated in its closing argument the evidence as to the building permit requirements. The defendant's reference to the testimony does not support the allegations. The State stated as follows: Terry Leonard then testified next. Basically Terry Leonard testified to the problems that - 25 - Mr. Rini was having in getting a permit because of the condition of this house and the necessity of underpinning the entire structure before he could make any additions to the house, and that to the date of the fire Mr. Rini never did. They were never able to obtain a permit. (State Final Argument, Tr. 1285). Our review of Leonard's testimony discloses that this is a fair inference to be drawn on summation of his testimony. It remained a fact that defendant did not have a permit at the time of the fire. Defendant also contends that the trial court erred in permitting the prosecutor during closing argument to comment on the defendant's marital problems, the fact that his wife unknowingly signed over her collateral to the Seven Hills home to secure the Wyatt Road property and that it would take the Rini's life savings to bring the house up to code, as none of this was supported by the record. We find that these inferences and comments were supported by the record. In the taped interview, Gartner asked Rini, "So you're separated?" Mr. Rini replied, "Not legally but we're separated." Gartner then asked, "Have you gone into a legal separation agreement yet or anything?" Rini replied, "No, we've discussed it, we've been to counselling at one point, my problem is with the two children, it's not really with my wife." (Tr. at 4). He also stated that he did not always live at home due to the family difficulties, but sometimes stayed with his mother or at the Wyatt - 26 - Road property. (Tr. 4, 5). This permitted the inference that defendant was having domestic problems, which could have affected his mental stability. In his oral statement to Det. Lipton, which was taped, Rini admitted that he was $19,000 in debt and that his Seven Hills home was the collateral for the Wyatt Road property. Although no evidence was presented showing that Rini's wife signed over her collateral in the house unknowingly, given all the evidence against the defendant, we cannot say this comment was prejudicial. The prosecutor's reference in closing argument to Rini's stating that the the lawn mower was a two-cycle mower, when in fact it was a four-cycle mower, is also supported by the evidence. In his taped statement to Gartner, Rini stated that he mixed a "two cycle gas mix" for the mower consisting of oil and gasoline. (Tape Tr. 8, 11). This supports the prosecutor's comment on the inconsistency regarding the type of mower. Furthermore, none of the above comments constituted prejudicial error. As the Ohio Supreme Court in State v. Zimmerman (1985), 18 Ohio St.3d 43, 45 held: *** [t]he prosector's improper comments do not require automatic reversal of the accused's conviction. The conviction must be affirmed if its concluded, based on the whole record, that the prosecutor's improper comments were harmless beyond any reasonable doubt. The defendant also claims that the prosecutor failed to comply with defendant's discovery requests pursuant to Crim.R. 16(A) and that such evidence should have been excluded. - 27 - The Ohio Supreme Court in Lakewood v. Papadelis (1987), 32 Ohio St.3d 1,5 held that: *** [A] trial court must inquire into the circumstances surrounding a violation of Crim.R. 16 prior to imposing sanctions pursuant to Crim.R. 16(E)(3). Factors to be considered by the trial court include the extent to which the [opposing party] will be surprised or prejudiced by the witness' testimony, the impact of witness preclusion on the evidence at trial and the outcome of the case, whether violation of the discovery rules was willful or in bad faith, and the effectiveness of less severe sanctions. Defendant contends that the prosecutor failed to provide defense counsel with copies of the oral statements Rini made to firefighters Bandsuch and Munich and Inspector Egut. The prosecutor gave these statements to the defendant once they were discovered, and upon defense counsel's objection to the lateness of the discovery, the trial court permitted defense counsel time to review the materials and to speak with the witnesses before proceeding. (Tr. 10, 16). It is hard to imagine how defense counsel was prejudiced given he was allotted time to eliminate any element of surprise. Furthermore, Rini's statements explaining that the fire started while he was filling the lawn mower with gasoline, does not conflict with the other evidence presented or Rini's statement to the police or Gartner. Defendant also argues he was prejudiced by inspector Egut's failure to provide defendant a copy of his report; the prosecutor's failure to provide defense counsel with a copy of Rini's oral statement to Egut; and the prosecutor's failure to provide Capt. - 28 - Cloonan's fire incident report. Defendant was provided with all of these items when it was brought up prior to trial. The trial court also gave defense counsel time to review the items before proceeding. These items did not conflict with any of the evidence on the tapes and no prejudice resulted. Inspector Egut's failure to provide defense counsel the photograph depicting the water heater with flowing water was harmless. Both the State's expert and defendant's expert testified that the water heater was not the source of the fire. Failure of the prosecutor to give defense counsel a copy of Capt. Cloonan's written statement where he allegedly agreed with Rini regarding the cause of the fire is also not prejudicial. He was never called as a witness by either party and his opinion was never at issue. Defendant also contends that the State failed to provide him with the copies of the slides used in the direct examination of Lt. Dolence and failed to provide copies of the charts and graphs used by Mr. Balient. Pursuant to the record, the slides were the same as the photographs that defense counsel had seen. They were converted to slides for easier presentation. (Tr. 618). He was also given an opportunity to view the slide presentation before it was presented. (Tr. 148). No prejudice resulted in defendant not having the slide version of the photographs. Failure to give Mr. Balient the charts was also not prejudicial as most of the graphs dealt with the chemist's analysis and were in the chemist's possession and probably would have meant nothing to the defendant - 29 - without the chemist's explanation. The State had given the defense all of the documents it had in its control regarding the testing and results of the samples. Defense counsel also seemed to be able to adequately cross examine his own expert on these graphs. The record does not support defendant's contention that the State was willful in withholding discovery. On the contrary, the record affirmatively shows that the defendant's subpoenaed witnesses included almost all of the State's witnesses so defendant had ample opportunity to question them if he chose to do so. The defendant cites as alleged misconduct the matters and manner in which Det. Lipton and Capt. Cloonan interrogated defendant. These questions and comments were part of their interrogation technique and do not fall under the purview of prosecutorial misconduct as this took place prior to any formal complaint being filed. Defense was given full discovery of this tape and he adequately cross examined Det. Lipton on these points. We find no error here. The other episodes of alleged prosecutor misconduct we find to be without merit. They were not objected to and were not prejudicial. Whatever error may have existed was harmless. The trial court gave considerable leeway to both sides in this lengthy and complicated trial. We find no prosecutorial misconduct leading to an unfair trial. Assignment of Error III is overruled. - 30 - IV. THE JUDGMENT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. The two principal issues at trial were: (1) was this fire incendiary or intentionally set?; (2) if so, did defendant do it? As to the former, it is generally a case of whether to credit Dolence's expert testimony or Taylor's. On this issue, the court obviously was more convinced of the truth of Dolence's report and opinion. On the second issue, the court was apparently convinced, as we are here, that there was substantial circumstantial and physical evidence, as well as obvious arson motive implicating defendant and sufficient to convict him beyond a reasonable doubt. - 31 - As to evidence weighing against defendant: he was the only one at the scene of the fire; his acts started the fire; we have his statement that the fire started "whoosh" as he was filling or had just filled the lawn mower; but he was totally clean of any soot or singe from the fire; in his statements he placed the lawn mower at or near the south wall of the north room, but this was contradicted by the neighbor girl's video showing it was obviously visible at or near the north doorway. These circumstances were coupled with the fact that the defendant and his mother bought this house at a bargain and figured they could fix it up cheaply, until they ran into Broadview Heights building regulations. The entire existing house had to be underpinned. Defendant had to submit architectural or engineering plans for approval. Then they were informed the insurance was going to be cancelled. All the while this was happening, there were domestic problems and financial problems. This scenario supplied a motive for defendant to set the fire hoping to eliminate some of his problems by obtaining the insurance money. We find after reviewing the record that there was substantial evidence for the trier of fact to conclude beyond a reasonable doubt that the fire was deliberately set by the defendant. Certainly the verdict was not against the manifest weight of the evidence. Assignment of Error IV is overruled. - 32 - V. THE TRIAL COURT EXPOSED DEFENDANT TO DOUBLE JEOPARDY WHEN IT ORDERED HIM TO MAKE RESTITUTION IN AN AMOUNT THAT WAS NOT REASONABLY RELATED TO THE COST OF FIGHTING AND INVESTIGATING THE BLAZE. The prosecution presented a sentencing memorandum to the trial court and defense counsel making claim to a certain sum of money for reimbursement of costs pursuant to R.C. 2929.28. Cost is defined at 2929.28(A)(5): "Cost" means the reasonable value of the time spent by an officer or employee of any agency on the aggravated arson, arson, or criminal damaging or endangering case, any moneys spent by the agency on that case, and the reasonable fair market value of resources used or expended by the agency on that case. At the sentencing hearing on July 31, 1995, the restitution amount was stipulated to be $23,000 rather than have a hearing on cost and ability to pay. (Tr. 1369, 1370). Defendant-appellant argues that the court's order of restitution in the amount of $23,000 constituted double jeopardy. This argument has no merit. First, defense counsel failed to raise an objection to the order of restitution in the trial court below, and therefore waived this argument. State v. Hamann (1993), 90 Ohio App.3d 654, 67. Even if properly objected to, the restitution was clearly ordered as a condition of defendant's probation and not in addition to his sentence. (Tr. 1373). That is, it was not ordered in addition to any jail time. This Court in State v. Loesser (Oct. 19, 1995), Cuyahoga App. No. 66762, unreported, addressed in depth the trial - 33 - court's authority in ordering restitution as a condition of probation and found that pursuant to R.C. 2951.02(C), i.e., prior to the July 1996 modifications, the trial court may impose restitution as a condition of probation. Id. at 15. See, also, State v. DeJohn (June 6, 1996), Cuyahoga App. No. 69297, unreported; City of Brook Park v. Smith (Aug. 14, 1986), Cuyahoga App. No. 51013, unreported; State v. Donnelly (Feb. 28, 1996), Cuyahoga App. No. 95CA006121, unreported. Since the amount Rini would pay as restitution was stipulated, any dispute as to the reasonableness of the amount has been waived. (Tr. 1369, 1372). Assignment of Error V is overruled. Judgment affirmed. - 34 - 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 Court of Common Pleas 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. O'DONNELL, J., and ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE 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 of decision by the .