COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72588 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND MICHAEL WEBB, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: JUNE 25, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-344832 JUDGMENT: Affirmed in Part; Reversed and Remanded for Re-sentencing. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender DANIEL M. MARGOLIS ROBERT M. INGERSOLL Assistant Prosecuting Attorney Assistant Public Defender The Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 -2- KARPINSKI, J.: Defendant-appellant, Michael Webb, appeals from the judgment of the trial court which found him guilty of two counts of aggravated arson. On appeal, defendant raises three assignments of error, which contest (1) his sentence, (2) the sufficiency of the evidence, and (3) the weight of the evidence. The state has conceded the validity of the first assignment; the second and third assignment, however, lack merit. Therefore, we affirm in part and reverse and remand the case for the limited purpose of re- sentencing. The relevant facts follow. Defendant was charged with two counts of aggravated arson. The state alleged that defendant set fire to two different houses on separate occasions. THE AUGUST 11, 1996 FIRE. The first fire was on August 11, 1996 at Audrey Holt's house, located at 1915 West 45th Street. In support of the allegations against defendant, the state presented various witnesses, who (1) provided a motive for defendant to burn the home, (2) placed defendant at the point where the fire stated, and (3) provided expert testimony that the fire was not accidently set. Regarding motive, Audrey Holt, defendant's neighbor and friend, testified that defendant was angry with Holt prior to the fire. (Tr. 387,398.) Matt Holbrook, defendant's roommate, portrayed defendant as having a Jeckyl/Hyde personality, for he would be friends with the neighbors one moment and angry another. Holbrook specifically remembers defendant being angry with Holt -3- prior to the fire. (Tr. 379-381.) Another roommate of defendant, Lawrence Metelski, also testified that defendant was angry with Holt in August of 1996. (Tr. 463.) Finally, when defendant took the stand, he admitted that he was angry with Holt in August of 1996 because she betrayed his confidence. (Tr. 501.) The testimony also placed defendant at the location of the August 11, 1996 fire around the time it started. Andres Nieves testified that three to five minutes after he saw defendant walking away from Holt's house, he heard another man screaming that Holt's house was on fire. (Tr. 120.) Jessica Reyes remembered seeing defendant smoking a cigarette and sitting on a van seat outside Holt's house. This seat was later determined to be the point of origin of the fire. Two minutes after she observed defendant walk back to his house, she heard a scream that Holt's house was on fire. Also placing him at the scene was Angela Marie Vandergriff, who saw defendant smoking a cigarette and sitting in a chair near Holt's back porch. (Tr. 201.) In addition, the state presented testimony that the fire was not accidently set. Lieutenant Dan Kovacic stated that the point of origin of the fire was the van seat that was next to the house. He believed the fire was deliberately set by an open flame source such as a match or a lighter, not a cigarette. Another witness, Captain Mark Hollenback, stated he initially reported that he believed the fire was accidently started by a discarded cigarette. After talking to the arson investigators, however, he changed his mind and revised his report to list arson as the cause of the fire. -4- THE OCTOBER 9, 1996 FIRE The second fire for which defendant was charged was the October 9, 1996 fire to the Brown residence. Again the state presented (1) testimony establishing defendant's motive, (2) testimony placing defendant at the scene of the fire, and (3) scientific evidence to support the state's theory of arson. Defendant was a neighbor of the Browns. Holbrook remembered that defendant exhibited the same responses to the Browns as he had to Holt: he was nice to the Browns one minute and angry with them the next. The primary state witness placing defendant at the scene of this fire was Wilberto DeJesus. On the night of the Brown fire, he returned home from his custodial job at approximately 2:17 a.m. At this time he saw defendant kneeling by the side of the Brown house for fifteen minutes. DeJesus thought it was weird for someone to be kneeling next to a house so long at that time of night. DeJesus saw defendant go back to his own house and, five to ten minutes later, return to the porch of the Brown residence. DeJesus then went back to his own apartment and, approximately twelve minutes later, heard shouts of fire. (Tr. 360.) When he observed the fire, he noted that it was the same side of the house where defendant had been kneeling. Cleveland Fire Department Battalion Chief Brent Collins was suspicious that this fire was intentionally set and called the fire investigators. (Tr. 224.) Lieutenant John Patrick Colleran opined that the fire was not started by either an accident or a discarded -5- cigarette. As a result of his analysis, he concluded the fire was set when some orange plastic bags filled with paper were ignited with an open flame. (Tr. 239, 242.) Lieutenant Kovacic believed it was obvious that the fire was intentionally set by an open flame. (Tr. 285-286.) The jury found defendant guilty of aggravated arson on both counts. Defendant timely appealed and raised the following assignments of error. I. MICHAEL WEBB HAS BEEN DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS SENTENCES IN THE CASE AT BAR, WHICH DO NOT CONFORM TO THE DICTATES OF THE OHIO REVISED CODE. In this assignment, defendant argues that the trial court erred by not sentencing him pursuant to Ohio's new sentencing law, commonly known as Senate Bill 2. The new sentencing scheme was intended to be applied to crimes committed after July 1, 1996. Defendant argues that the crimes for which he was charged occurred on August 11, 1996 and October 9, 1996; therefore, he should have been sentenced under the new law. The state agrees and has conceded this assignment of error. Accordingly, this assignment of error is well taken. On remand the court shall sentence defendant under Ohio's new sentencing law effective July 1, 1996. Defendant's second assignment states as follows: II. MICHAEL WEBB HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS FOR AGGRAVATED ARSON, WHEN NEITHER CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. -6- In this assignment defendant challenges the sufficiency of the evidence to convict him of aggravated arson. R.C. 2909.02 states in pertinent part as follows: (A) No person, by means of fire or explosion, shall knowingly do any of the following: (1) Create a substantial risk of serious physical harm to any person other that the offender; (2) Cause physical harm to any occupied structure ***. The bulk of defendant's argument under this assignment focuses on the circumstantial evidence on which the state's case is built, there being no eyewitness testimony of defendant actually starting the fire. Defendant also points out that one of the investigators originally thought the fire was an accident. These arguments do not warrant a reversal on grounds of sufficiency. In a criminal prosecution, the state bears the burden of proof with respect to each statutory element of an offense. The standard for evaluating whether the state has presented sufficient evidence 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. Recently, the Ohio Supreme Court explained that a challenge to the sufficiency of the evidence is separate and distinct from a challenge to the weight of the evidence. State v. Thompkins (1991), 78 Ohio St.3d 380, 386. The Court stated as follows: the legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. -7- With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction. In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Id. at 386-387. In the case at bar, defendant was convicted of two counts of aggravated arson. Often, in arson cases, there is no eyewitness to the arson. Courts in this state have consistently found that circumstantial evidence can be sufficient to sustain an arson conviction. State v. Zayed (Aug. 7, 1997), Cuyahoga App. No. 71039, unreported; State v. Wills (June 5, 1997), Cuyahoga App. No. 70988, unreported; State v. Weber (Dec. 23, 1997), Franklin App. No. 97APA03-323, unreported; State v. Alba (June 2, 1995), Sandusky App. No. S-94-018, unreported; State v. Wright (Dec. 30, 1994), Crawford App. No. 3-92-24, unreported. Of necessity, proof of arson must often rely heavily on circumstantial evidence because of the nature of the crime. But, as in all crimes, circumstantial evidence may establish any given element of the offense. Motive and opportunity are facts which can weigh heavily in establishing arson. State v. Hoak (Aug. 9, 1995), Lorain App. No. 94CA005917, unreported at 5, quoting State v. Shaver (Dec. 20, 1989), Lorain -8- App. No. 89CA0004505, unreported at 7. As the Supreme Court said in State v. Jenks, supra, at 272, Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. In the case at bar, the state presented sufficient evidence to support the aggravated arson convictions. The state heard testimony from multiple witnesses placing defendant at the exact location where the fire started at each house and in the early morning hours a few minutes before each fire was started. The investigatorsall testified that the fires were intentionally set. The fact that defendant is seen suspiciously at the times and locations where two separate fires were intentionally set is certainly sufficient evidence, even if circumstantial, to support a conviction of aggravated arson. III. MICHAEL WEBB'S CONVICTION FOR THE FIRE AT THE BROWN'S HOUSE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, defendant argues that the conviction for the aggravated arson of the second house was against the manifest weight of the evidence. To support this argument, defendant attacks the testimony of DeJesus, who stated he saw defendant near the Brown's porch in the early morning hours just prior to the fire at the house. Defendant further goes on to cite the testimony of his sister, who was living with defendant at the time of the fire at the Brown's house. She stated that she was near the Brown's house prior to the fire and did not see defendant near the home. -9- Moreover, she stated that when she went to her home, defendant was there. The Thompkins Court, in addition to elaborating on the sufficiency standard, also discussed a challenge to the weight of the evidence. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns the inclinination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's, supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). Thompkins at 387. In the case at bar, the jury did not lose its way and create a manifest miscarriage of justice when it found defendant guilty of aggravated arson of the Brown house. The jury was in the best -10- position to evaluate the testimony of DeJesus and determine whether he was lying or mistaken about seeing defendant on the night of the fire at the Brown's house. Moreover, because of Smith's relation to defendant, it is reasonable for the jury to find DeJesus' testimony more credible. Therefore, because the verdict was not against the manifest weight of the evidence, the third assignment is overruled. Judgment affirmed in part and reversed and remanded for re- sentencing. -11- It is ordered that appellee and appellant share the costs equally. 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. Case remanded to the trial court for re-sentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, A.J., LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI 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 .