COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72898 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : PAUL K. TORNSTROM : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-348490 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: BLAISE D. THOMAS, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: WILLIAM T. DOYLE, ESQ. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 DYKE, J.: Defendant Paul K. Tornstrom appeals from his conviction for aggravated arson for hire. For the reasons set forth below, we affirm. -2- On November 28, 1995, defendant and Eddie Bailey were jointly indicted in case no. 330583 for one count of aggravated arson in connection with a fire which occurred at a rental home owned by defendant. By October 1996, Bailey entered into a plea agreement with the state. The prosecuting attorney entered a nolle prosequi of the charge against defendant in order to toll the time for commencing trial pursuant to R.C. 2945.71 and to obtain additional information surrounding the crime from Bailey. On March 11, 1997, defendant was re-indicted for aggravated arson for hire in case no. 348490 and the matter immediately proceeded to trial. The state demonstrated that in 1986, defendant purchased a home located at 23338 Williams Avenue in Euclid. At the time of the purchase, the city noted 33 housing code violations at the premises, responsibility for which was assumed by defendant. Defendant rented the property to tenants who were the subjects of numerous police reports. The police in turn notified the city's housing department that there were code violations at the premises. By 1993, neighbors began to lodge complaints with the Euclid housing officials regarding the condition of the property. Defendant also owned rental property at 26430 Shirley Avenue in Euclid and there were numerous housing code violations at that location. Housing investigator Ronald Petkovic informed defendant that if he did not improve the premises, Petkovic would sign warrants referring the matter to the Euclid Municipal Court. Petkovic opined that the city provided defendant with ample opportunity to repair the premises but he was essentially -3- noncompliant. In 1994, defendant applied for a pre-sale inspection of the Williams Avenue premises. At this time, the city noted 48 violations, including that the driveway was in poor condition, the garage was deteriorating, and there were holes throughout the plaster, walls and ceiling of the interior. The matter was subsequently stayed pending defendant's eviction of his tenants but the city determined that the structure could not be inhabited in its present condition. The state also demonstrated that the Williams Avenue property was insured by State Farm for $49,000, plus coverage for lost rents and debris removal, and $7,450 for personal property. In 1994, State Farm determined that the structure had not been inspected for over five years. On June 21, 1994, State Farm's agent inspected the premises to determine if the home was in proper condition for re-issuance of insurance. In his post-inspection report, the agent noted that the house was probably vacant. He described the premises as a big mess --- house and garage and yard and he listed the overall risk as below average. In a subsequent discussion with defendant, the State Farm agent stated that in his opinion, the insurance would be canceled because the house was vacant and in terrible condition. On July 6, 1994, however, State Farm sent defendant a computer-generated and batch-billed notice of renewal of the policy. There was some evidence that the agent's reinspection report was not received by the regional office until after the automatic policy renewal was mailed to defendant. In any -4- event, there was also evidence that State Farm had the contractual right to terminate the policy after issuing it if the property were in poor condition and vacant. On July 29, 1994, one of defendant's employees notified State Farm that there had been a fire at the Williams Avenue home. State Farm eventually paid a total of $55,555.85 for the loss, which included approximately $40,000 to pay the mortgage on the property. The house was eventually razed, but defendant retained the land and listed it for sale for $18,900. With regard to the fire, the state demonstrated that the Euclid Fire Department responded to the scene at 5:27 p.m. on July 29, 1994. Eddie Bailey, who had been hired by defendant to repair the premises, was present and was hurt in the fire. Firefighters observed fire shooting out of the windows and roof. The glass had been blown out and both the first and second floors were burning. Firefighters battled the flames from the outside for 15-25 minutes then went inside with smaller hoses. They became suspicious when fire at the bottom of the stairway kept reigniting, above a puddle of water. A gasoline can was nearby and a second gasoline can was also found in the home. In addition, the fire burned with extreme intensity even though the home was vacant and did not have electric or gas service. Eddie Bailey testified pursuant to a plea agreement with the state. Bailey acknowledged that he had agreed to become a cooperating witness for the state and, in exchange, he was permitted to plead guilty to the reduced charge of attempted -5- aggravated arson. Bailey stated that he was not promised a specific sentence and he anticipated having to serve time in jail. Bailey stated that he worked next to defendant's business in Aurora. In June 1994, defendant hired him to do repair work and renovating at the Williams Avenue structure in the evenings and on weekends and agreed to pay him $10 per hour. Defendant paid Bailey over $2,000 pursuant to this arrangement but by late June, defendant informed Bailey that it was going to be too costly to renovate the house. Bailey jokingly suggested that for a price someone would burn down the house. According to Bailey, defendant then offered Bailey $1,000 to burn the home. Bailey refused and defendant instructed him to complete what he was doing by the end of the month. Bailey further stated that defendant asked him to leave a package at the house and they reportedly agreed that defendant would pay Bailey $1,000 to sprinkle gasoline in the house as an apparent diversion from the package which was designed to ignite the fire. On July 28, 1994, Bailey, who was planning to move to Missouri, slept at the Williams Avenue house then went to his day job in Aurora. Bailey presented defendant with his most recent itemization of repairs and, according to Bailey, defendant gave him a check for work which had been performed plus an additional $1,000 in cash. Defendant indicated that there was gasoline at the house and that all Bailey had to do was to sprinkle it around downstairs. Defendant anticipated that the pre-placed cardboard package would ignite at approximately 11:00 p.m. -6- Bailey returned to the Williams Avenue home in the early evening on July 29, 1994. He was seen taking items from the home and putting them into him van. At approximately 5:00 p.m., Bailey called his girlfriend in Missouri. He completed this call at 5:13 p.m. Bailey then started sprinkling gas, using the can that defendant had left there. Bailey sprinkled gas in the downstairs bedrooms, the kitchen and the livingroom. He stated that the house caught fire as he proceeded up the steps and before he could reach the upstairs. Bailey fell back and landed at the bottom of the steps. His hair was on fire and he fled through the rear of the house. A neighbor assisted him outside and he then observed an explosion which blew out the windows of the house. Bailey spoke with police who responded to the scene but he reported only his observations about the fire after it had ignited. He made a second statement after being released from the hospital. He then proceeded to defendant's home in Hudson. Defendant reportedly told him not to say anything to anyone then gave him $2,000. After leaving defendant's home, Bailey drove directly to Missouri. On cross-examination, Bailey was extremely vague and evasive about the amount of work which he had actually completed at the Williams Avenue home. He also admitted that had made a remark to his former landlord regarding the burning of her property after she asked him to move. He also acknowledged that prior to the fire, the house was vandalized and the letters NWA were spray painted inside. Defendant maintained that this referred to a white -7- supremist group, but the state maintained that it was simply the name of a rap group. A company which specializes in boarding up burned structures notified defendant of the fire and defendant subsequently contacted the police. Although the police stated that the cause of the fire was under investigation, defendant repeatedly asked why someone would burn it down. He then gave police the names of various people who were potentially responsible for the fire but he did not name Bailey. The following day, defendant left the country for a brief vacation. The police acknowledged, however, that there were recorded complaints of trespassers and vandals at the premises. The state also demonstrated that following the fire, investigations were undertaken by the City of Euclid Fire Department and by Spencer Consulting, a company retained by State Farm. The city's fire officials detected a pour pattern, or hotter portions of the fire possibly caused by accelerants, on the second floor and down the steps to the first floor. In addition, there were adjacent areas of no damage, further suggesting the presence of an accelerant. The investigation also revealed that the house had been pushed off of its foundation, there was wood splintering, and there was a report of an explosion occurring with the fire. According to the city's assistant fire chief, the upper floor of the dwelling had heavy damage, suggesting that the fire had a point of origin on this floor. Investigators also confirmed the presence of gasoline in the home and also on Bailey's shoes. Despite heavy damage to the -8- upstairs, samples taken from the second floor were negative for gasoline or other accelerants, but the city's assistant chief stated that it was possible for some accelerants to be consumed within intense flames. He opined that the point of origin was at the base of the stairway, but there was not necessarily a single point of origin. The expert retained by State Farm found evidence of an accelerant on the second floor and also opined that the accelerant may have been consumed in the intense upper story flames. He detected two points of origin; one on the floor of the livingroom and one on the floor of the upstairs dormer. With regard to Bailey's statement that he was on the phone and fled fire emanating from the upstairs, the state's witnesses testified that it was unlikely that Bailey was at the base of the steps when the fire occurred in light of the explosion which occurred and the speed with which the fire spread. They did not identify the source of the ignition of the fire. The state next introduced telephone records which demonstrated that following the fire, calls were made from defendant's company to Bailey's sisters, parents and home in Missouri. Calls were also placed from these locations to defendant's company. Defendant elected to present evidence and produced various witnesses, including Bailey's family members, who testified that Bailey does not have a good reputation for truth and veracity and had stolen even from his closest friends and family. Apart from the incident involving his former landlord, Bailey had also -9- threatened to burn down his former girlfriend's home, and his stepson's cabin. Defendant also testified. He stated that he has a Ph.D. in organic chemistry and also owned four rental properties in Euclid and one in South Carolina which were purchased as investments for his retirement. He stated that he has met the city's housing pre- sale inspection requirements for properties which he has sold. With regard to the Williams Avenue property, defendant stated that he was aware of the electric violation noted in the garage of this property and he stated that he personally removed the electrical outlet but the tenant reconnected it without his knowledge or permission. He also stated that the tenant for this property agreed to perform any necessary repairs and deduct the amount from her rental payment. He did not learn of the deplorable state of the unit until December 1993 when he was contacted by a city housing inspector. By March 1994, defendant instituted eviction proceedings against the tenant. Shortly thereafter, he filed for a point of sale inspection. He anticipated having to pay approximately $6,000 to repair the property in order to sell it and was prepared to do so. He later learned that the unit had been vandalized. Defendant stated that he met Bailey in 1993 and that Bailey's workplace was in a building which defendant partially owns. Bailey performed odd jobs at defendant's home and in 1994, when defendant obtained a list of the pre-sale violations listed for the Williams Avenue property, defendant hired Bailey to correct the items on the -10- list. In July 1994, Bailey presented him with three itemized lists of completed repairs and defendant paid Bailey close to $2,000. Defendant did not go to the property, however, to inspect Bailey's work. At approximately 6:30 p.m., on July 29, 1994, a construction company specializing in the boarding of burned houses notified defendant that the house had burned, and his repairman was hurt. Defendant called Euclid General Hospital to check on Bailey. Bailey later went to defendant's house and explained that he was on the telephone and smelled a strange odor. Bailey reportedly started upstairs but a fireball came down the steps and he fled. Defendant denied offering Bailey money to burn the house and denied showing him a cardboard box designed to ignite. Defendant spoke with the police and gave them information concerning the mortgage and insurance at the premises. Defendant claimed that he learned Bailey went to Missouri after State Farm representatives indicated that they needed to speak with him. Defendant acknowledged calling Bailey but stated that he did so out of concern for his condition. He admitted that Bailey's mother called him after Bailey was arrested and said that he would start talking if defendant did not provide him with money and an attorney. Defendant also testified that he returned to the house in August 1994. At this time he observed that many repair items for which he had paid Bailey were not performed. He eventually formed the belief that Bailey had started the fire to conceal the fact -11- that he had charged for numerous repairs which he did not complete. On cross-examination, defendant admitted that from his knowledge of chemistry, he is aware that certain chemicals will react when placed together and that chemicals can interact with their containers. In addition, the environmental temperature can affect the speed of such reaction. Among the possible reactions between incompatible chemicals is rapid oxidation which can result in fire. Defendant stated that he had familiarity with a class of chemicals called pyrophors which can spontaneously ignite with air. Defendant admitted that his Ph.D. thesis considered the sometimes explosive reaction which some peroxides can initiate. Defendant was subsequently convicted of aggravated arson and sentenced to five to twenty-five years imprisonment. Defendant now appeals and assigns five errors for our review which, for the sake of clarity, we shall address out of their predesignated order. Defendant's third assignment of error states: THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS FOR LACK OF A SPEEDY TRIAL IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO STATE CONSTITUTION. Within this assignment of error, defendant complains that the time within which he was to be brought to trial was not tolled following the dismissal of the first indictment filed in this matter, and he was therefore denied his right to a speedy trial. In support of this claim, defendant contends that speedy trial time elapsed while the original indictment was still pending. Defendant -12- additionally contends that he remained on bond during the time period within which the charges were dismissed and no tolling therefore occurred even after the first indictment was dismissed. Under the speedy trial statute, R.C. 2945.71(C)(2), "[a] person against whom a charge of felony is pending *** [s]hall be brought to trial within two hundred seventy days after his arrest." The Ohio speedy trial statute is constitutional, mandatory, and must be strictly construed against the state. State v. Mays (1996), 108 Ohio App.3d 598, 609; State v. Singer (1977), 50 Ohio St.2d 103, 109. Once the two-hundred-seventy-day statutory limit has expired, the defendant has established a prima facie case for dismissal. State v. Howard (1992), 79 Ohio App.3d 705, 707; State v. Geraldo (1983), 13 Ohio App.3d 27, 28. The burden is then upon the state to demonstrate any tolling or extension of the time limit. State v. Mays, supra; State v. Howard, supra, at 707; State v. Bowman (1987), 41 Ohio App.3d 318, 319. If the speedy trial mandates have not been met, the defendant must be discharged. State v. Benson (1985), 29 Ohio App.3d 321, 324. The law is clear, however, that a claimed violation of speedy trial rights cannot be raised for the first time on appeal. State v. Baldauf (1990), 67 Ohio App.3d 190, 196-197; Worthington v. Ogilby (1982), 8 Ohio App.3d 25, 27. Thus, we cannot credit defendant's contention that his speedy trial rights were violated while the first indictment was still pending because this claim was not raised at any time in the trial court and indeed, no appeal has been taken in case no. 330583. -13- As to defendant's additional claim that no tolling occurred after the first indictment was dismissed, the supreme court in State v. Broughton (1991), 62 Ohio St.3d 253, 259-260, paragraph one of the syllabus, held: For purposes of computing how much time has run against the state under R.C. 2945.71 et seq., the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised upon the same facts as the original indictment, shall not be counted unless the defendant is held in jail or released on bail pursuant to Crim.R. 12(I). Accord State v. DePue (1994), 96 Ohio App.3d 513, 517. The supreme court explained that although a person who is under investigation but not subject to any formal charge may be anxious or apprehensive, he is no longer under any restraint and is free to come and go as he pleases. Moreover, it is the formal charge that keeps the speedy trial clock running. Oregon v. Kohne (1997), 117 Ohio App.3d 179, 181. In this matter, we have carefully examined the trial proceedings taken in connection with the first and second indictments. Defendant notes that as case no. 348490 began, the trial court stated that the bond in the previous case will apply to this case ***. (Tr. 26) He therefore asserts that he was in fact released on bail in case no. 330583 which precluded the tolling of speedy trial time. In our view, however, the correct focus of this matter is not what the trial court stated at the beginning of case no. 348490, but rather, what the court ordered at the conclusion of case no. 330583. We have reviewed the record in case no. 330583 and it indicates that the trial court issued the -14- following entry at the termination of the proceedings: Upon state's motion, case dismissed without prejudice. Defendant discharged. State has notified the defendant that upon re-indictment, case will proceed rapidly due to speedy trial constraints. (Emphasis added.) Thus, noting that a court speaks only through its journal, see State v. Gary (1996), 117 Ohio App.3d 286, 288, we find that defendant was simply discharged. There is nothing in the record of case no. 330583 from which we may conclude that defendant's bond was continued following the dismissal of that case. In light of the foregoing, prejudicial error has not been demonstrated and we must therefore reject this assignment of error. Defendant's fourth assignment of error states: THE TRIAL COURT ERRED IN PREVIOUSLY DISMISSING THIS CASE AT THE REQUEST OF THE PROSECUTOR ABSENT A SHOWING OF GOOD CAUSE. Defendant next maintains that the trial court erroneously permitted the state to dismiss the first indictment without good cause shown in violation of R.C. 2941.33. As an initial matter, we note that no appeal was taken from the nolle of the first indictment in case no. 330583; this matter is now before us following defendant's conviction upon the second indictment in case no. 348490. Nonetheless, in fairness, and with the awareness that the nolle is germane to the question of whether the trial occurred within the speedy trial limitations, we consider the question in depth herein. R.C. 2941.33 provides: "The prosecuting attorney shall not enter a nolle -15- prosequi in any cause without leave of the court, on good cause shown, in open court. A nolle prosequi entered contrary to this section is invalid." Likewise, Crim.R. 48(A) provides that the state, by leave of court, in open court, may file an entry of dismissal. This rule contemplates that a nolle prosequi be sought by the prosecuting attorney, and after review of the basis of such motion, the trial court has the discretion to enter such nolle prosequi as of the record. State v. Spitzer (1995), 107 Ohio App.3d 707, 711. A properly entered nolle does not prevent re-indictment and trial. State v. Sutton (1979), 64 Ohio App.2d 105, 107; State v. Dixon (1984), 14 Ohio App.3d 396, 396-397. In evaluating a challenge to the determination of whether good cause has been demonstrated, we note that insufficiency of proof has always been regarded as good cause for the nolle prosequi of an indictment. Lakewood v. Pfeifer (1992), 83 Ohio App.3d 47, 51, citing State v. Sutton, supra. See, also, State v. Dixon (1984), 14 Ohio App.3d 396, 397, (state's realization that further investigation was necessary for prosecution constituted "good cause"). In this instance, the record clearly demonstrates that the first indictment was nolled after the state reached a plea agreement with Bailey. This in turn necessitated further investigationwith little time remaining within which to bring the matter to trial. We therefore are unable to determine that the trial court abused its discretion in determining that there was good cause to support the nolle of the first indictment and the -16- second indictment was therefore not barred. The fourth assignment of error is without merit. Defendant's first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29(A) OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT. Defendant next asserts that the trial court should have dismissed this matter for lack of sufficient evidence because Bailey's testimony is not credible, there is no independent evidence to corroborate the alleged conspiracy pursuant to R.C. 2923.01(H), and there was no evidence that the fire occurred at an occupied structure. With regard to procedure, we note that the standard to be employed by a trial court in deciding a Crim.R. 29 motion is set out in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus as follows: Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. With regard to the substantive aspects of defendant's contentions we note that R.C. 2923.01(H)(1) states as follows: "(H)(1) No person shall be convicted of conspiracy upon the testimony of a person with whom he conspired, unsupported by other evidence." In State v. Pretzer (November 21, 1985), Cuyahoga App. No. 49736, unreported, this court considered the issue of whether a -17- conviction had been sufficiently corroborated with other evidence and stated: the test as to the sufficiency of the corroboration by "other evidence" is: to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Edwards v. State (Tex. Crim. App. 1968), 427 S.W. 2d 629, 632. In State v. Allsup (1980), 67 Ohio App. 2d 131, the Mercer County Court of Appeals further interpreted the test to hold: [W]hat is basically required is some evidence, independent of the statement by the accomplice, that "'tends to connect the defendant"' (Forbes, supra, at page 76) with the crime charged. It would appear that this "other evidence" need not be necessarily of sufficient strength to, by itself, constitute proof beyond a reasonable doubt, but must directly, or by reasonable inference, connect the defendant with the crime. (Emphasis added.) We further note that in State v. Milo (1982), 6 Ohio App.3d 19, at 24, the court explained: " *** It is not necessary that the crime be proved independently of the testimony of the accomplice, or that the testimony of the accomplice be corroborated in every particular, but only that there be circumstantial evidence, or testimony of some other witness, tending to connect defendant with the crime and to prove some of the material facts testified to by the accomplice. *** " Accord State v. Woods (1983), 13 Ohio App.3d 49, 51. In this connection, we note that in State v. Contreras (August 6, 1982), Wood County App. No. WD-82-17, the court determined that the defendant's conviction for aggravated arson did not contravene R.C. 2923.01(H) because, inter alia, the defendant had removed some of her property from the structure before the fire occurred. -18- Finally, conspiracy may also be shown from defendant's subsequent conduct. State v. Pruett (1971), 28 Ohio App.2d 29, 34. Applying the foregoing, we conclude that the trial court properly denied defendant's motion for acquittal. The evidence adduced by the state permitted reasonable minds to reach different conclusions as to whether defendant committed aggravated arson as alleged by the state. We conclude that sufficient corroborating evidence was presented, apart from Bailey's testimony, to permit reasonable minds to differ as to whether defendant conspired with Bailey to burn the Williams Avenue home. That is, the state presented the following evidence to connect defendant with this crime: the Williams Avenue home was in deplorable condition; city housing officials determined that defendant was noncompliant in remedying the violations at the premises and indicated that they would pursue the matter in court; State Farm's agent determined that the premises was no longer insurable and told defendant that insurance would likely be terminated; State Farm had the contractual right to terminate such insurance mid-policy; defendant owned a chemical company and had advanced knowledge of the incendiary qualities of various compounds; defendant asked the police who would burn the house while the cause of the fire was still undetermined; defendant strenuously attempted to place blame for the fire but at no time questioned Bailey's involvement even though Bailey was present when the fire occurred and was burned at the scene; and the phone records of defendant's company indicate numerous calls to and from Bailey following the fire. While this -19- evidence is circumstantial, we reiterate that it is not necessary that the crime be proved independently of the testimony of the accomplice, or that the testimony of the accomplice be corroborated in every particular, but only that there be circumstantial evidence, or testimony of some other witness, tending to connect defendant with the crime and to prove some of the material facts testified to by the accomplice. State v. Milo, supra. Moreover: [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. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. As to defendant's claim that this matter did not involve an occupied structure within the meaning of R.C. 2909.02(A), we note that the court in State v. Heyden (1992), 81 Ohio App.3d 272, 277- 278, stated as follows: An "occupied structure" is defined in R.C. 2909.01 as: "*** any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies: "(A) Which is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied, and whether or not any person is actually present; "(B) Which at the time is occupied as the permanent or temporary habitation of any person, whether or not any -20- person is actually present; "(C) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present; "(D) In which at the time any person is present or likely to be present." In the case at bar, the destroyed house was an occupied structure. It was maintained as a permanent dwelling, even [610 N.E.2d 1071] though temporarily unoccupied and even though no person was actually present. (FN2) R.C. 2909.01(A). The Committee Comment supports this determination: "Under division (A) of the section, all dwellings are classed as occupied structures, regardless of the actual presence of any person. Whether or not the dwelling is used as a permanent or temporary home is immaterial, so long as it is maintained for that purpose. Thus the definition includes not only the mansion on Main Street, but also the summer cottage, and the tin shack in the hobo jungle. ***" Further, courts considering the definition of occupied structure set forth in R.C. 2909.01 have been careful to observe that this definition focuses upon the purposes for which the structure is maintained. The Tenth District Court of Appeals in State v. Green (1984), 18 Ohio App.3d 69, 71-71, stated: "[I]t is obvious that the General Assembly, in adopting the definition of 'occupied structure' found in R.C. 2909.01, intended to broaden the concept of the offense of burglary from one of an offense against the security of habitation, to one concerned with the serious risk of harm created by the actual or likely presence of a person in a structure of any nature. In that context, it is noteworthy that the General Assembly utilized the word 'maintained' in division (A), as opposed to 'occupied,' although it did use that latter word in division (B), which deals with structures other than dwellings. We believe that the distinction between 'maintained' and 'occupied' is significant, in the sense that the former alludes more to the character or type of use for which the dwelling is intended to be subjected, whereas the latter is more closely related to the actual use to which the structure is presently being subjected. -21- "Thus, a structure which is dedicated and intended for residential use, and which is not presently occupied as a person's habitation, but, which has neither been permanently abandoned nor vacant for a prolonged period of time, can be regarded as a structure 'maintained' as a dwelling within the meaning of division (A). In this context, then, division (A) includes a dwelling whose usual occupant is absent on prolonged vacation, a dwelling whose usual occupant is receiving long-term care in a nursing home, a summer cottage, or a residential rental unit which is temporarily vacant. In all these examples, even though the dwelling is not being presently occupied as a place of habitation, that situation is temporary, and persons are likely to be present from time to time to look after the property -- to help 'maintain' its character as a dwelling." Accord, State v. McLemore (Aug. 30, 1995), Lorain Cty. App. No. 006037, unreported, State v. Wooten (June 10, 1994), Holmes Cty. App. No. 484, unreported. Thus, a structure which is dedicated and intended for residential use, and which is not presently occupied as a person's habitation, but has neither been permanently abandoned nor vacant for a prolonged period of time, can be regarded as maintained within the meaning of R.C. 2909.01. State v. Wooten (June 10, 1994), Holmes App. No. 484, unreported. Moreover, in State v. Bock(1984), 16 Ohio App.3d 146, 149-150, the court held that where the evidence was such that reasonable minds could differ, the question of whether there has been a fire at an occupied structure is for the jury. In this matter, the evidence presented by the state demonstrated that the house had recently been rented and was maintained as a permanent dwelling, even though it was unoccupied at the time of the fire. Further, although it was vacant while -22- undergoing repairs by Bailey, reasonable minds could conclude that this was a temporary situation and the house had not been abandoned. The trial court therefore properly submitted this issue to the jury. The first assignment of error lacks merit. Defendant's second assignment of error states: THE DEFENDANT-APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant next challenges the weight of the evidence supporting his conviction. In State v. Thompkins (1997), 78 Ohio St.3d 380, 387, the Supreme Court held as follows: 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 [v. Florida (1982), 457 U.S. 31], 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 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.") Moreover, the credibility of witnesses and the weight attri- butable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. -23- In this instance, we are unable to conclude that the jury lost its way. Although Bailey was obviously impeached with his previous denial and did, by all accounts, appear to omit key observations concerning the origin of the fire, we are compelled to remark that the state's preparation of this matter was exceptional. The prosecuting attorney provided an abundance of information including defendant's graduate school work, his financial records, and the records pertaining to his rental properties, which gave a comprehensive and plausible explanation of defendant's involvement. The state also meticulously and diligently extracted defendant's knowledge of reactive chemicals and his access to them. In addition, the state's witnesses, for the most part, testified in relation to contemporaneously prepared business documents in which they recorded key information. Conversely, some of defendant's testimony was contradictory and at times, simply incredible. As a non-exhaustive list of examples of implausible testimony from defendant, we cite: defendant's contradictory statements regarding whether he believed that the fire had been intentionally set; his claims regarding who may have been responsible for the fire which were coupled with a staunch defense of Bailey; the inadvertent manner in which he purportedly learned of Bailey's court dates; his certainty regarding some aspects of the pe-sale inspection as contrasted with his inability to recall the names of anyone with whom he had discussed purchasing the property; and his insistence that he had been cooperative with the housing department as contrasted with his -24- admitted confrontation with the inspector and his fear that he would ultimately be jailed for noncompliance. Defendant also related different answers during different days of testifying, offering as an explanation for this discrepancy that he could not recall what he had testified to previously or that in fact both answers were accurate. In short, we are unable to conclude that the jury lost its way and created a manifest miscarriage of justice in convicting defendant of aggravated arson. This assignment of error is without merit. Defendant's fifth assignment of error states: THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL BASED ON THE MISCONDUCT OF THE PROSECUTING ATTORNEY. Within this assignment of error, defendant complains that the prosecuting attorney committed prejudicial misconduct in stating that defendant was a rich man and that he had a rich man's lawyer to defend him. In evaluating a claim of prosecutorial misconduct, we note that the misconduct of the prosecutor during trial must be shown to have a material effect on the jury and its deliberations in order to constitute a reversible error. State v. Liberatore (1982), 69 Ohio St.2d 583, 589-90. Such material effect must be determined by viewing the entire trial, bearing in mind the nature of evidence already established. When the misconduct viewed from the entire trial is found to have prejudicially affected the substantial -25- rights of the accused, then reversible error has occurred. See State v. Smith (1984), 14 Ohio St.3d 13, 14. We have reviewed the prosecuting attorney's remarks and while they were unnecessary, we are unable to conclude that they were prejudicial. In opposition to the state's contention that the fire was motivated by financial reasons, it was the essential position of the defense that the Tornstroms were not in any financial difficulty. The challenged remarks were consistent with the defense's assertion that the loss stemming from the purchase of the home in Hudson was relatively insignificant and that defendant had sufficient resources to fully renovate the Williams Avenue home for sale. This assignment of error is overruled. Affirmed. -26- 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 O'DONNELL, J., CONCUR. ANN DYKE 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 .