COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71039 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and : -vs- : OPINION : AHMED ZAYED : : Defendant-Appellant : : DATE OF ANNOUNCEMENT August 7, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-331738 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS-JONES, ESQ. BARRY GOLOBOFF, ESQ. Cuyahoga County Prosecutor 2561 Elmhurst Drive EDWARD O. PATTON, ESQ. Cleveland, Ohio 44122-1505 Assistant County Prosecutor 8th Floor Justice Center Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.: Ahmed Zayed, defendant-appellant, appeals a trial court's 2 decision finding him guilty of arson and sentencing him accordingly. Zayed assigns the following six errors for our review: I. THE STATE FAILED TO OFFER SUFFICIENT PROOF THAT JAMES CHURCHWELL AND OR JOHN YATSON WERE EXPERT WITNESSES. II. THE COURT INAPPROPRIATELY ALLOWED TESTIMONY UPON EXPERT BASIS. III. THE STATE FAILED TO PROVE EACH ELEMENT OF THE CRIME OF ARSON BEYOND A REASONABLE DOUBT. IV. THE COURT IMPROPERLY FOUND THAT CIRCUMSTANTIAL EVIDENCE WAS SUFFICIENT TO SUPPORT A VERDICT OF GUILTY, WHEN EVIDENCE OF INNOCENCE WAS IGNORED. V. THE COURT IMPROPERLY APPLIED A THIRD DEGREE FELONY WHEN ONLY A FOURTH DEGREE FELONY IS APPROPRIATE UNDER THE VERDICT OF THE COURT. VI. THE COURT IMPROPERLY FAILED TO GRANT A HEARING UPON DEFENDANT'S MOTION FOR NEW TRIAL DENYING NEWLY DISCOVERED EVIDENCE WHICH WOULD HAVE SUPPORTED HIS INNOCENCE PLEA. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On October 16, 1995, at approximately 9:18 PM, Cleveland firefighters responded to a call of a fire at Buckeye Foods, a store owned by Ahmed Zayed, defendant-appellant. Firefighters noticed light smoke coming from the store. The exterior of the store was completely locked and firefighters had to break in to fight the fire. They found no combustion on the first floor. Firefighters traced the origin of the fire to a pile of clothes on the basement floor. A further investigation revealed that holes 3 had been punched in the basement ceiling in four places. Charred paper was found in the holes. Arson investigators determined the fire was intentionally set by using an open flame to ignite the pile of clothes on the basement floor. They also stated the burned paper that was inserted into the holes in the ceiling had burned without igniting the sheet rock in the ceiling or the wooden floor above it. Investigators further determined the fire had been burning only a short time when they arrived at the scene. They specifically concluded the fire was not caused by a cigarette or by an electrical problem. Zayed told investigators he was the last person to leave the store at approximately 9:00 PM. He also said he locked the doors and activated the security system. However, records from the security company later revealed that the security system had not been activated on the night of the fire. Zayed also told investigators that his rent was current at the time of the fire. However, Betty Kash, owner of the building in which the store was housed, later testified that Zayed had only paid one month's rent during the eight months he occupied the store. She also stated that Zayed approached her after the fire and asked her to tell investigators his rent was current. Instead Kash told the investigators that Zayed was delinquent in his rent payments. Several witnesses testified the store was not very well stocked during the days before the fire. Vendor Martin Goldfarb stated he made a delivery to the store on October 5, 1995, less than two weeks before the fire. Zayed gave Goldfarb a post-dated 4 check as payment for the shipment. When Goldfarb attempted to cash the check, it was returned for non-sufficient funds. According to Goldfarb, when he called Zayed about the money, Zayed replied, F*** you. Screw you. I'm going to burn my place down and you are going to get nothing. James Roddy, a fire restoration worker, testified that he contacted Zayed after the fire and offered to board up the store and install temporary lighting. Roddy also prepared an inventory of the store's stock. Fire Chief, John Yatson, testified that the inventory list submitted by Zayed to his insurance company was substantially different than the inventory compiled by Roddy. According to Yatson, Zayed consistently listed greater quantities and higher prices for the items listed on his insurance claim as opposed to the inventory list created by Roddy. After his bench trial, Zayed was convicted of arson and sentenced to one year in prison. This appeal followed. In his first and second assignments of error, Zayed argues the trial court erroneously permitted expert testimony by James Churchwell and John Yatson about the cause of the fire. He argues the state failed to establish that either man had the necessary expertise to give expert testimony. The admission of expert testimony is within the discretion of the trial court. State v. Biros (1997), 78 Ohio St.3d 426, 452. Under Evid.R. 702, an expert may be qualified by knowledge, skill, experience, training, or education to give an opinion which will assist the jury to understand the evidence and determine a fact 5 issue. Id. [citing State v. Wogenstahl (1996), 75 Ohio St.3d 344, 362.] Churchwell testified that he trained as a fire investigator at SEA engineering company for six months. He also attended and gave various seminars on arson, fire and explosion investigation and taught fire investigation at the University of Akron for nine years. Churchwell testified he was a member of the National Association of Fire Investigators and was certified as a fire and explosion investigator. He testified as an expert in court or by deposition over one hundred times. Though Zayed names Yatson in his assignment of error, the argument section of his brief lists testimony by Kovacic. Kovacic testified that he had been an arson investigator for five years and had ten years of experience as a firefighter. He also stated he took various classes and seminars involving the detection of cause and origin of fires. He testified that he had investigated at least two hundred fires a year during his five and one-half years as an arson investigator and had given expert testimony about the origins, nature, and causes of fires dozens of times. We conclude Kovacic and Churchwell provided sufficient testimony as to their knowledge, skill, experience, training, and education to qualify as experts. Zayed's first and second assignments of error are overruled. In his third and fourth assignments of error, Zayed argues the state failed to produce sufficient evidence to prove each element of the crime of arson. Specifically, Zayed argues there was only 6 circumstantial evidence that he set the fire and that the state failed to prove his guilt beyond reasonable doubt. In State v. Jenks (1991), 61 Ohio St.3d 259 at paragraph one of the syllabus, the Ohio Supreme Court held: [C]ircumstantial 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. Zayed was charged with violating R.C. 2909.03 which provides that no person, by means of fire or explosion, shall knowingly cause or create a substantial risk of harm to any property of another without his consent. The state presented evidence that Zayed was the last person to leave the store on the night of the fire. Though he had activated the store's alarm system every night during the month of October, he left the alarm off that night. When firefighters arrived at the store, all doors were locked. Firefighters were forced to break into the store to gain entry. The state presented evidence that the fire had not been burning long when it was discovered and that it was deliberately set by manual ignition in four different areas of the basement. Accidental causes were conclusively ruled out. Furthermore, Zayed lied to investigators when asked if his rent was delinquent at the time of the fire and asked the building's owner to lie to investigators for him. Less than two weeks before the fire, Zayed told a vendor he was going to burn 7 down the store. This evidence, though circumstantial, was sufficient to support Zayed's conviction for arson. Zayed's third and fourth assignments of error are overruled. In his fifth assignment of error, Zayed argues the trial court improperly convicted him of a third degree felony when R.C. 2909.03 as revised effective July 1, 1996, defines arson as a fourth degree felony when the value of the property involved is five hundred dollars or more. Under R.C. 2909.03(B)(2)(b), if the value of the property or the amount of the physical harm involved is three hundred dollars or more but less than five thousand dollars, arson is a felony of the third degree. Though the statute was changed effective July 1, 1996, the fire occurred on October 16, 1995. Section 5, Am.Sub.S.B. No. 2, of the 121st General Assembly provides that the provisions of the Revised Code, in effect prior to July 1, 1996, shall apply to a person sentenced after that date for an offense that was committed before that date. The trial court properly sentenced Zayed for a third degree felony. Accordingly, Zayed's fifth assignment of error is overruled. In his sixth assignment of error, Zayed argues the trial court erroneously failed to grant a hearing on his motion for a new trial based upon newly discovered evidence. Zayed filed the motion under Crim.R. 33(3), (4), (5), and (6) alleging that, on the night of the fire, the store was without telephone service. Zayed argues that, without the telephone service, Zayed's call to activate the store's security system would not have been completed. However, Zayed 8 failed to attach any affidavit in support of the motion. Generally, a trial court's ruling on a motion for a new trial will not be reversed on appeal absent a clear showing that the court abused its discretion. State v. Grant (1993), 67 Ohio St.3d 465, 480. However, when the motion for new trial is not accompanied by a sworn affidavit, the court made summarily deny the motion without a hearing. State v. Rogers (1990), 68 Ohio App.3d 4, 7. In this case, Zayed failed to attach an affidavit to his motion for new trial. Accordingly, the trial court properly denied the motion without a hearing. Because Zayed has failed to establish the trial court abused its discretion in denying the motion for new trial, Zayed's sixth assignment of error is overruled. Judgment affirmed. 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. JAMES D. SWEENEY, C.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON 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 .