COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73890 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : FRED GROCE : OPINION : Defendant-Appellant : Date of Announcement of Decision: DECEMBER 17, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-351418 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT T. GLICKMAN, Assistant, Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: LESTER S. POTASH, ESQ. 2000 Illuminating Bldg. 55 Public Square Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Fred Groce appeals from his conviction and sentence following a bench trial for arson (R.C. 2909.03) in the destruction by fire of an automobile. Defendant contends the trial court erred in denying defendant a new trial; in imposing sentence for a fourth degree felony; in permitting cross-examination of defendant; and admitting evidence of ownership of the automobile. Defendant also contends the conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. We find no reversible error and affirm. On Sunday, April 20, 1997, at approximately 5:30 a.m., a 1990 Lincoln Town Car belonging to Louis Farmer, parked in the driveway outside his residence at 1193 East 169th Street in Cleveland, was set afire and destroyed. Some accelerant was poured onto or was by the car and was ignited. Michelle Owens and Marcus Driggens lived together in the upstairs of the two-family home at 1193 East 169th Street. Ms. Owens rented from Louis Farmer who lived downstairs. Ms. Owens and Mr. Driggens both testified they were out Saturday evening and returned to their residence Sunday morning at approximately 2:35 a.m. They observed a man outside on the steps looking through Mr. Farmer's window. They later identified this man as defendant, Fred Groce. They also noticed a plastic bottle "like a washer fluid bottle" behind the back tire of the Lincoln Town Car parked in the -3- driveway. They also testified that they smelled gasoline but that they did not know from where the odor originated. They testified that defendant walked towards the car that was parked out front, described by Ms. Owens as a "longer older car." The two went inside and up to bed. They were awakened by the clamor around the fire which occurred several hours later. The next day while talking to Mrs. Farmer about what happened, the defendant drove by the house in the same car that Ms. Owens had seen parked in front of the house the night before. Mr. Farmer lived downstairs at the 1193 East 169th address residing with Victoria Farmer and their two daughters. He married Ms. Farmer two days after the fire. Over objection, Mr. Farmer testified to having purchased the 1990 Lincoln Town Car in 1992 for $15,000 and making payments of approximately $12,000 over the intervening years leading up to the fire. He acknowledged the presentment of a claim to his insurance company which totaled the car. The insurance company paid $6,999 to Mr. Farmer and $2,500 to his bank/mortgagee. On April 20, 1997, Mr. Farmer was awakened at about 5:00 or 5:30 a.m. by his dog's barking and saw a light outside his window from the fire burning his car, which was parked outside the bedroom window. He called 911 and the fire department put the fire out. The car was totally destroyed. The State's final witness was Victoria Farmer who stated that she and Mr. Farmer were married on April 22, 1997 after a one-month courtship. Mrs. Farmer testified that she and defendant Groce had -4- dated for approximately ten years between June 1986 and February 1997. She stated that she terminated the relationship with defendant as they were having numerous problems. She claimed that defendant continued attempts to contact her at her then home at Parkgate Avenue and at her office at the Hanna Building in Cleveland until April 15, 1997, when she moved in with Mr. Farmer. She stated she was afraid of living at her home because of the defendant stalking her. Mrs. Farmer testified that during the week of April 15, 1997, while she was driving the Lincoln Town Car to work, she observed defendant driving a gray Oldsmobile following her. On the evening of April 19, 1997, Mrs. Farmer retired for the evening between 11:00 and 11:30 p.m. She woke up to the sound of her dog barking at approximately 5:00 or 5:05 a.m. on Sunday morning, April 20, 1997. She looked out the window and saw smoke coming from the Lincoln Town Car, and from her peripheral vision, she saw "the tail end of a gray car driving off" which was similar to the car defendant drove. The State rested and defendant moved for judgment of acquittal, which was overruled. The trial court found "some credible evidence from which the trier of fact could conclude that the amount of physical harm caused to the [Lincoln Town Car] exceeded $500.00." The trial court determined that the State produced legally sufficient evidence proving that the vehicle "was lost or totally destroyed." Upon the issue of whether Mr. Farmer was competent to testify as to the value of the motor vehicle, the -5- trial court held that the State introduced legally sufficient evidence. Defendant presented several alibi witnesses in his case-in- chief. Two of them testified to defendant's presence at the Honey Do Lounge at or around 2:30 a.m. on April 20. A third witness testified to leaving the Honey Do Lounge with defendant about closing time and remained with him drinking beer at defendant's home until 5:30 a.m or 6:00 a.m. of the morning in question. The defendant took the witness stand but only answered to his name and address while the State stipulated to certain documents. Over objection, the State cross-examined the defendant about his ten year relationship with Mrs. Farmer and about certain personal property disputes with her. He denied being at the Farmer residence at 2:30 a.m. in his gray Oldsmobile on the morning in question. Mrs. Farmer offered rebuttal testimony in which she testified that the defendant broke into her home a week before the arson and took her computer, vcr and several suits. After this testimony, the defendant renewed his motion for judgment of acquittal, which the trial court overruled. The trial court found defendant guilty, stating: It is appropriate for the Court to hereby find Mr. Groce guilty beyond a reasonable doubt of arson. The Court does not find entirely credible all the people that claim to have remembered things on this specific day, that he [defendant] was at a specific place where he is conceding he is at very, very frequently, and that is the Honey Do Club, so the State of Ohio did prove each and every -6- element of the crime of arson beyond a reasonable doubt. I weighed all the evidence, considered the credibility and so forth and so on and find that is the appropriate and just decision, the only decision that can be reached on the evidence, ***. (Tr. 224-225). The trial court referred Mr. Groce for a presentence report. At the sentencing hearing, the trial court stated the prior finding of guilty to arson, a fourth degree felony, and then reviewed the report prepared by the probation department noting that defendant had a long-time history of drug and alcohol abuse. At the sentencing hearing, it was first brought to the trial court's attention that Mrs. Farmer was indicted for passing bad checks and theft. She also had a previous felony conviction in 1991 for forgery mentioned in the indictment. Her criminal history was not provided to defense counsel in response to defendant's request for discovery. The trial court sentenced defendant to serve a seven month prison term. On December 26, 1997, defendant filed a motion for new trial based upon the newly discovered evidence of Mrs. Farmer's felony convictions. The State admitted to the convictions. By two separate entries, the trial court overruled defendant's motion for a new trial. The first denial stated the motion was untimely filed. The second journal entry was a general denial of the motion for new trial without comment or reason given. From these rulings, a timely notice of appeal was filed. -7- We will address defendant's assignments of error in the order presented and together where it is appropriate for discussion. I. THE TRIAL COURT ERRED IN DENYING DEFENDANT A NEW TRIAL. Defendant contends that the prosecution's failure to disclose the fact that Mrs. Farmer was under indictment for passing bad checks was newly discovered evidence which entitled the defendant to a new trial. Crim.R. 33(A) states in pertinent part: Rule 33. New trial. (A) Grounds. A new trial may be granted on motion of the defendant for any of the following cases affecting materially his substantial rights: * * * (6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. ***. As a general rule, a motion for a new trial is granted where the defendant shows that he was unavoidably prevented from discovering the evidence which is the basis of the motion during the course of the trial. State v. Gray (April 13, 1995), Cuyahoga App. No. 67574, unreported at 4; State v. Pinkerman (1993), 88 Ohio App.3d 158, 161. The evidence must have been the type that would have produced a different result at trial. State v. Edwards (Oct. 16, 1997), Cuyahoga App. No. 70985, unreported at 7. Similarly, the Ohio Supreme Court has held: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown -8- that the new evidence (1) discloses a strong possibility that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. State v. Petro (1947), 148 Ohio St. 505, syllabus. A motion for a new trial pursuant to Crim.R. 33(B) is left to the sound discretion of the trial court and its action will not be reversed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, paragraph one of syllabus. An abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. State v. Keenan (1998), 81 Ohio St.3d 133, 137; State v. Adams (1980), 62 Ohio St.2d 151, 157. The defendant cites Statev. Johnston (1988), 39 Ohio St.3d 48 in support of his argument. However, the holding in Johnston does not support the defendant's position. The Johnston Court stated: *** in determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 61, citing United States v. Bagley (1984), 473 U.S. 667, 682. The court went on to hold a "*** reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., citing Pennsylvania v. Ritchie (1987), 480 U.S. 39, 57. -9- The trial court herein concluded that the failure to disclose Mrs. Farmer's 1991 forgery conviction did not undermine the court's confidence in the outcome of the trial as the upstairs neighbors also identified the defendant at the scene. (Tr. 240, 244). Had the prior conviction been disclosed, defendant's counsel would have been able to ask Mrs. Farmer about it and then argue that it affected her credibility. The conviction, however, did not turn on Mrs. Farmer's credibility. Mrs. Farmer was called by the State primarily to describe her discovery of the burning automobile and her prior relationship with defendant. The State presented other disinterested witnesses (Ms. Owens and Mr. Driggens) who placed the defendant at the scene of the arson with an accelerant nearby. Obviously, this was far more damaging to the defendant's case than anything learned from the testimony of Mrs. Farmer. Under these circumstances, we find no abuse of discretion in the trial court's denial of defendant's motion for a new trial. Defendant's Assignment of Error I is overruled. -10- II. THE TRIAL COURT ERRED IN IMPOSING A TERM OF PRISON. Defendant contends that no factor pursuant to R.C. 2929.13(B)(1) was present that warranted his incarceration and that he should have received community control instead of incarceration. The trial court found that the crime committed by defendant did fall under R.C. 2929.13(B)(1)(b), which states in committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon. Defendant was convicted of setting an automobile on fire using an accelerant while it was parked directly next to an occupied structure. The trial court stated: [Y]ou might characterize what Mr. Groce was convicted of doing, setting an automobile on fire right outside, very close to two homes in which human beings resided in the nighttime when these people would be asleep and in the least favorable position to protect themselves, that this may well have been an attempt by Mr. Groce to cause or make an actual threat of physical harm with a weapon. The weapon being an explosive. (Tr. 231-232). Therefore, the trial court did not err in deciding to incarcerate the defendant instead of placing him on community control. Pursuant to R.C. 2929.14(B): (B) Except as provided in division (C), (D)(2), or (D)(3) of this section or in Chapter 2925. of the Revised Code if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, -11- unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. In the case herein, the trial court at sentencing stated: And then there is a more -- there is a seriousness factor present showing this is among the most -- more serious crimes, and that is the relationship with his victim facilitated the offense, and that fact that the victim was -- the victim is a former girlfriend and the victim is also her new husband. (Tr. 233). The trial court also noted the potential harm the defendant could have caused, stating: He set a car on fire outside of two homes in the middle of the night with people sleeping in their houses. Human beings could have been incinerated. *** Murder would be 15 to life ***. (Tr. 238). The trial court obviously found that defendant's actions warranted a prison term of seven months and a lesser term would demean the seriousness of the crime and would not adequately protect the public from future crimes as required by R.C. 2929.14(B). We find no error in the sentencing. Defendant's Assignment of Error II is overruled. III. THE TRIAL COURT ERRED IN COMPELLING THE CROSS- EXAMINATION OF THE DEFENDANT. The trial court is vested with discretion to determine the matters which may be explored on cross-examination. Fulwiler v. Schneider(1995), 104 Ohio App.3d 398, 409. The defendant took the -12- stand in his own defense. He was then subjected to cross- examination on relevant material. Evid.R. 611. In Ohio, cross- examination is not limited to the scope of the direct. State v. Waddy (1992), 63 Ohio St.3d 424, 433. Therefore, when defendant took the witness stand and answered minimal questions (name and address) posed to him by his attorney, he subjected himself to possible cross-examination by the State on all relevant material. As this Court in State v. Rivers (1977), 50 Ohio App.2d 129, 132, citing Smith v. State (1932), 125 Ohio St. 137, 148 held: A witness may be properly cross-examined as to all relevant facts developed by the examination in chief and as to such other relevant facts into which the party calling such witness could have inquired in order to make out his case. We find no abuse of discretion in allowing the State to cross- examine the defendant on matters relevant to the facts of the case. Defendant's Assignment of Error III is overruled. IV. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT OF A FOURTH DEGREE FELONY V. THE TRIAL COURT ERRED WHEN PERMITTING MR. FARMER TO TESTIFY AS TO HIS INTEREST IN THE AUTOMOBILE. Defendant argues that the trial court did not make a specific finding that defendant's crime caused damage over $500.00. The trial court did make such a finding when it found defendant guilty of the charge in the indictment. That indictment alleged damage in an amount greater than $500.00. Defendant goes on to argue that the State failed to introduce sufficient evidence that the value of the automobile defendant set -13- on fire was greater than $500.00. The trial court heard evidence of the cost of the vehicle ($15,000); the amount paid to the victim by his insurance company for equity in the vehicle ($6,999) after the automobile was totaled. The insurance company also paid $2,500 to the bank/mortgagee. The trial court obviously found this evidence was more than sufficient to prove the automobile's value was greater than $500.00. (Tr. 77-79). We agree. Mr. Farmer testified to his ownership of the automobile and to witnessing it being on fire. Defendant argues that the owner of property may not testify to his ownership in the context of a criminal case without producing a Certificate of Title. R.C. 4505.04(B), relied on by defendant for this proposition, deals only with the sale, disposition, mortgage or encumbrance of an automobile rather than the issue of value of ownership in a criminal case. State v. Russell (1990), 67 Ohio App.3d 81, 84 ( We do not *** interpret R.C. 4505.04 as requiring evidence of a certificate of title to prove ownership in a criminal mischief case. *** R.C. 4505.04 *** was enacted to provide protection from theft and fraud in the transfer of titles to motor vehicles. ). None of those factors apply to this case and the State was properly allowed to prove ownership through direct evidence of Mr. Farmer's interests. Defendant's Assignments of Error IV and V or overruled. VI. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL. VII. THE FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -14- The standard of review we must observe in passing on sufficiency of the evidence and manifest weight of the evidence issues were set forth by the Supreme Court of Ohio as follows in State v. Thompkins (1997), 78 Ohio St.3d 380, 386-87: The state asserts that sufficiency of the evidence and weight of the evidence are synonymous legal concepts. They are not. The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. 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. 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 inclination 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, -15- 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. ). We find there was abundant evidence on which the trial court based its findings. We find no merit to these assignments of error. There was independent evidence from the upstairs tenants that placed the defendant at the crime scene around 2:30 a.m. and a plastic bottle was noted under the rear wheel of the Lincoln Town Car. The smell of gasoline was in the air. Defendant had a motive for retaliating against Mrs. Farmer for breaking off their long- term relationship. He showed a penchant for trailing and harassing her. When the fire erupted, Mrs. Farmer saw a car matching defendant's leaving the scene. Ms. Owens saw the defendant drive by the house the next day in the same car she saw parked in front -16- of the house the night before. Defendant's alibi witnesses contradicted this evidence, but credibility was for the trier of fact. Defendant's Assignments of Error VI and VII are overruled. Judgment affirmed. -17- 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. DYKE, J., and SPELLACY, 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 .