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Date: 07-28-2020
Case Style:
STATE OF OHIO v. JAUVAUGHN PENN
Case Number: 29296
Judge: Linda Tucci Teodosio
Court: IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
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{¶2} One Monday in February 2018, shortly before 4:00 p.m., the Akron Fire
Department received a 911 call about a house fire on West Miller Avenue. Mr. Penn’s girlfriend,
C.M., had rented the house for herself and her children, but was not present when the fire broke
out. She had received her keys just two days earlier and was in the process of moving in. The fire
destroyed the items she had already brought there and rendered the house uninhabitable.
{¶3} Up until mid-February, Mr. Penn, C.M., her four children, and her aunt had shared
a home on Hampton Road. Yet, Mr. Penn and C.M.’s relationship was tumultuous, and several
events that occurred around that time led to a falling out between the two. The day of the fire,
C.M. left her new home by 7:00 a.m. She returned to the Hampton Road residence for the purpose
2
of readying her children for school and removing more of her belongings. Mr. Penn was there
when she arrived, however, and indicated that he would not allow her to remove anything else
from the home. Consequently, after C.M. took her children to school, she went to the courthouse
and filed for an ex parte protection order against Mr. Penn. The ex parte order called for him to
immediately vacate the Hampton Road residence and granted C.M. exclusive possession.
{¶4} A sheriff’s deputy served Mr. Penn with the ex parte order at the Hampton Road
residence and was still on site with him when C.M. returned. Mr. Penn and C.M. then quarreled,
forcing the deputy to separate them. After C.M. entered the residence, Mr. Penn packed a few of
his belongings and left with a friend who had come to pick him up. At Mr. Penn’s request, the
friend drove him to West Miller Avenue. The friend parked outside C.M.’s new house while Mr.
Penn exited the car, disappeared behind the house for a few minutes, and returned to the car. The
friend and Mr. Penn then drove away. Within ten to fifteen minutes of their departure, the fire
department was notified of a fire at the house. After extinguishing the fire and inspecting the
premises, fire investigators determined that the fire had been set intentionally.
{¶5} A grand jury indicted Mr. Penn on one count of aggravated arson and one count of
burglary. The matter proceeded to trial, at the conclusion of which a jury found him guilty of both
counts. Mr. Penn then filed a motion for new trial, and the trial court denied it. The court sentenced
him to eight years in prison on his aggravated arson count and six years in prison on his burglary
count. It further ordered him to serve those sentences consecutively for a total of fourteen years
in prison.
{¶6} Mr. Penn now appeals from his convictions and raises seven assignments of error
for our review. To facilitate our analysis, we rearrange several of his assignments of error.
3
II.
ASSIGNMENT OF ERROR SIX
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED
QUESTIONS DURING VOIR DIRE WHICH CAUSED PREJUDICE FOR THE
APPELLANT.
{¶7} In his sixth assignment of error, Mr. Penn argues that the trial court abused its
discretion when it allowed the State to pose a certain hypothetical to the jury venire during voir
dire. According to Mr. Penn, the hypothetical was improper because it directly paralleled the facts
herein and invited the venire to form an opinion about the case in advance of trial. We do not
agree.
{¶8} “The manner in which voir dire is to be conducted lies within the sound discretion
of the trial judge.” State v. Lorraine, 66 Ohio St.3d 414, 418 (1993). “Absent a clear abuse of
discretion, prejudicial error cannot be assigned to the examination of the venire.” State v. Davis,
116 Ohio St.3d 404, 2008-Ohio-2, ¶ 44. A trial court may be found to have abused its discretion
if it rules in an unreasonable, arbitrary, or unconscionable manner. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not
substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619,
621 (1993).
{¶9} “[C]ounsel is afforded reasonable latitude on the voir dire examination.” State v.
Saxton, 9th Dist. Lorain Nos. 02CA008029 and 02CA008030, 2003-Ohio-3158, ¶ 43.
“The scope of the inquiry will not be confined strictly to the subjects which
constitute grounds for the sustaining of a challenge for cause; but if it extends
beyond such subjects it must be conducted in good faith with the object of obtaining
a fair and impartial jury and must not go so far beyond the parties and the issues
directly involved that it is likely to create a bias, a prejudice, or an unfair attitude
toward any litigant.”
4
State v. Atalla, 157 Ohio App.3d 698, 2004-Ohio-3414, ¶ 11 (9th Dist.), quoting Vega v. Evans,
128 Ohio St. 535 (1934), at paragraph two of the syllabus. “The scope of voir dire * * * varies
depending on the circumstances of each case.” State v. Bedford, 39 Ohio St.3d 122, 129 (1988).
{¶10} When conducting her voir dire, the prosecutor discussed with the jury venire the
concepts of reasonable doubt and circumstantial evidence. One potential juror indicated that
reasonable doubt meant a person would “have absolutely no doubt” about a defendant’s guilt. In
correcting that misunderstanding, the prosecutor accurately defined the term and provided the
venire with several hypothetical situations wherein one might conclude that the standard had been
met. The prosecutor then went on to discuss the concepts of direct and circumstantial evidence.
She provided the venire with two hypothetical situations to help explain circumstantial evidence.
Her second hypothetical provided:
[S]o let’s say that I’m driving into work last week and [A.] cuts me off in the
parking garage.
So we’re walking into work and I say, “You are not going to be in that parking spot
for long,” and say the day after [M.] walks me over to her parking spot and I have
a bat. And then [M.] leaves me alone and let’s say, [potential juror], that you are
watching me in the garage and you see me walk up to her car. And then you turn
around.
Let’s say a couple minutes later [A.] reports that her car windows have been bashed
in. What is the logical inference that we can make? Who do we think bashed [A.’s]
car windows in?
The foregoing hypothetical drew an objection from Mr. Penn, as he believed the prosecutor had
gone “too much into the specific facts of this case * * *.” He acknowledged that he had not been
charged with breaking windows, but argued that he had been accused of engaging in “a similar
fact pattern to start the fire.” After the prosecutor represented that it was her intention to explain
circumstantial evidence to the jury through logical inference, the court overruled the objection.
5
{¶11} Mr. Penn argues that the trial court abused its discretion when it overruled his
objection. He maintains that the prosecutor’s hypothetical was improper because it paralleled the
facts herein and “predispose[d] jurors to react a certain way to the anticipated evidence.”
{¶12} Upon review, Mr. Penn has not shown that the trial court abused its discretion when
it overruled his objection to the prosecutor’s second hypothetical. The prosecutor did not use the
specific facts of this case to fashion her hypothetical. Moreover, even if she extrapolated from
those facts, “prospective jurors need not be totally ignorant of the facts and issues involved [in a
case] to be qualified as jurors.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 49. They
are qualified to serve so long as they can remain fair and impartial. See id. The prosecutor’s
hypothetical did not ask the venire to commit to a position on any given issue. Compare State v.
Lundgren, 73 Ohio St.3d 474, 481 (1995); State v. Bedford, 39 Ohio St.3d 122, 129 (1988). Nor
did it “‘go so far beyond the parties and the issues directly involved that it [was] likely to create a
bias, a prejudice, or an unfair attitude toward [Mr. Penn].’” Atalla, 2004-Ohio-3414, ¶ 11, quoting
Vega, 128 Ohio St. 535, at paragraph two of the syllabus. The record supports the conclusion that
the prosecutor posed her hypotheticals to the jury as a means of explaining various legal concepts
(i.e., beyond a reasonable doubt and circumstantial evidence). Moreover, the trial court
specifically instructed the jury not “to place any significance upon the questions asked [during voir
dire] as to how they may pertain to the trial.” See State v. Garner, 74 Ohio St.3d 49, 59 (1995)
(“A jury is presumed to follow the instructions, including curative instructions, given it by a trial
judge.”). Because Mr. Penn has not shown that the trial court abused its discretion when it
overruled his objection to the prosecutor’s voir dire, his sixth assignment of error is overruled.
6
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE
FAILED TO ESTABLISH ON THE RECORD THAT THERE WAS
SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.
{¶13} In his fourth assignment of error, Mr. Penn argues that his convictions are based on
insufficient evidence. We disagree.
{¶14} Whether a conviction is supported by sufficient evidence is a question of law, which
this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “Sufficiency
concerns the burden of production and tests whether the prosecution presented adequate evidence
for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶
25, citing Thompkins at 386. “‘The relevant inquiry 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.’” Id., quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary
conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact.”
State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
{¶15} “No person, by means of fire or explosion, shall knowingly * * * [c]ause physical
harm to any occupied structure * * *.” R.C. 2909.02(A)(2). Physical harm to property occurs if a
person causes “any tangible or intangible damage to [it] that, in any degree, results in loss of its
value or interferes with its use or enjoyment.” R.C. 2901.01(A)(4). “A person acts knowingly,
regardless of purpose, when [he] is aware that [his] conduct will probably cause a certain result or
will probably be of a certain nature.” R.C. 2901.22(B). The phrase “occupied structure” includes
a house that is “maintained as a permanent or temporary dwelling, even though it is temporarily
7
unoccupied and whether or not any person is actually present.” R.C. 2909.01(C)(1). Whoever
commits the foregoing offense is guilty of aggravated arson. R.C. 2909.02(B)(1).
{¶16} A person may not,
by force, stealth, or deception, * * * [t]respass in an occupied structure * * * that is
a permanent or temporary habitation of any person when any person other than an
accomplice of the offender is present or likely to be present, with purpose to commit
in the habitation any criminal offense * * *.
R.C. 2911.12(A)(2). A person trespasses if he “[k]nowingly enter[s] * * * the land or premises of
another * * *” without privilege to do so. R.C. 2911.21(A)(1). See also R.C. 2911.10 (defining
trespass, for purposes of the burglary statute, as a violation of R.C. 2911.21). Whoever commits
the foregoing offense is guilty of burglary. R.C. 2911.12(D).
{¶17} C.M. testified that she and Mr. Penn were romantically involved for about two years
before the fire. The two lived together in a house on Hampton Road along with her four children
and her aunt. C.M. admitted that she and Mr. Penn frequently argued. About twelve days before
the fire, one of their fights turned violent. C.M. destroyed some of Mr. Penn’s possessions, and
he called the police. The officers informed C.M. and Mr. Penn that one of them would have to
leave, so C.M. decided to go to her mother’s house. She testified that she left her children with
her aunt and began looking for a new place to live. According to C.M., Mr. Penn called her “a
million times” while she was gone and was very upset when he learned that she had signed a lease
on a new house. From that point forward, C.M. testified, things continued to escalate.
{¶18} Three days before the fire, Mr. Penn posted several inappropriate pictures of C.M.
on social media. The pictures embarrassed her greatly, and C.M. vowed that she would get even
with Mr. Penn. She explained, however, that she meant to do so by refusing to relinquish their
lease when it came time for her to leave the house on Hampton Road. The following day (i.e., two
days before the fire), she received the keys to her new house on West Miller Avenue and began
8
the moving process. She rented a U-haul that same day, transferred many of her possessions to
her new house, and slept there that night. She stated that Mr. Penn called her around 4:00 a.m.
and, at one point during their conversation, scared her by indicating that he knew where she lived.
{¶19} C.M. testified that she stayed at the new house the following evening as well. The
next morning (i.e., the day of the fire), she got dressed at the new house and headed back to the
house on Hampton Road to take her children to school. Although she had planned on collecting
more things from the house, Mr. Penn was there when she arrived and would not allow her to
remove anything else. Accordingly, after she took her children to school, C.M. went to the
courthouse for an ex parte protection order. The order granted her exclusive possession of the
Hampton Road house and commanded Mr. Penn to vacate the premises.
{¶20} C.M. estimated that she arrived back at the Hampton Road house around 1:30 p.m.
The sheriff who had come to serve Mr. Penn with the ex parte order was still there when she
arrived, and Mr. Penn was in the process of clearing out his belongings. C.M. testified that Mr.
Penn eventually left with a friend who had come to give him a ride, and she remained at the house.
Sometime around 4:00 p.m., she received a call from her new landlord, indicating that her new
house was on fire. C.M. testified that the fire destroyed everything she had brought to the house.
She estimated that those items were valued at more than $6,000.
{¶21} Deputy Michael Hawsman served Mr. Penn with the ex parte order at the Hampton
Road house. He testified that Mr. Penn was angry when he saw the order and became even angrier
when C.M. arrived. The two began to argue, and the deputy was forced to separate them. The
deputy testified that a man later came to the house to pick up Mr. Penn.
{¶22} Mr. Penn’s friend confirmed that he picked up Mr. Penn at the Hampton Road
house on the day of the fire. He agreed that State’s Exhibit 3 was a photograph of his car. At Mr.
9
Penn’s request, the friend drove him to a house on West Miller Avenue. He testified that he waited
inside the car while Mr. Penn got out, walked up the driveway, disappeared behind the house for
several minutes, and returned to the car. Although he never saw anything in Mr. Penn’s hands,
the friend confirmed that Mr. Penn was a smoker and routinely carried a lighter. He indicated that,
at the time he drove Mr. Penn to the house on West Miller Avenue, he did not know who lived
there or why Mr. Penn wanted to go to there.
{¶23} A resident of West Miller Avenue, who lived across the street from C.M.’s house,
also testified for the State. He indicated that he was feeding his son lunch when he saw a car pull
up outside the house across the street. He confirmed that the car depicted in State’s Exhibit 3
matched the one he saw outside that day. As he watched the car, he saw a black male get out, walk
around the back of the house, and return to the car shortly thereafter. He then saw the car drive
away. The resident testified that, within ten minutes, fire trucks pulled up outside the house. He
confirmed that, between the time the black man left and the time the fire trucks arrived, he did not
see anyone else approach the house.
{¶24} A crime analyst for the Akron Police Department testified that she examined Mr.
Penn’s cell phone records in connection with this investigation. She explained that several calls
he made or received on the day of the fire resulted in incoming or outgoing signals that allowed
her to pinpoint his position, relative to the cell phone towers that serviced his calls. She testified
that the records showed Mr. Penn was still in the area of Hampton Road around 2:00 p.m., but that
he began to travel shortly thereafter. Between 3:45 p.m. and 3:51 p.m., the records showed that
Mr. Penn was in the area of West Miller Avenue. There was testimony that the police were
dispatched to West Miller Avenue at 3:54 p.m. in response to a 911 call about the fire.
10
{¶25} Two members of the Akron Fire Department’s Fire Investigation Unit testified
about the fire. Investigator Andrew Hoch responded to the scene of the fire after it was
extinguished and took pictures inside and outside of the house. The pictures showed significant
damage to the first floor of the house, with extremely dark charring on floor of the dining room
near the back, sliding glass patio door. Fireman Hoch testified that the heaviest area of char usually
indicates the point of origin for a fire, so his department concluded that the fire herein originated
in the dining room. He testified that samples were taken from that area to test for ignitable liquids,
but none were detected. Further, he testified, the department was unable to determine that there
were any accidental explanations for the fire, such as the presence of a faulty electrical outlet. He
agreed that a fire of the magnitude that occurred herein could have been caused by an open flame
without the use of an accelerant. While he was unable to say who had started the fire, he testified
that it had been intentionally set.
{¶26} Investigator Matthew D’Avello testified that he acted as a follow-up investigator
for Investigator Hoch. He was never able to set foot inside the West Miller Avenue house because
it was boarded up by the time he arrived there. Nevertheless, he reviewed the pictures Investigator
Hoch had taken inside the house, interviewed the neighbor across the street, interviewed C.M.,
attempted to reach Mr. Penn, and subpoenaed Mr. Penn’s cell phone records. Investigator
D’Avello testified that fire investigations are often pending for some time and, as an investigation
unfolds, investigators can learn additional facts that impact their determination about the cause of
a fire. Much like Investigator Hoch, he testified that the darkened, charred area of C.M.’s dining
room was the origin point for the fire. He stated that it was impossible the fire had started in either
the basement or an upstairs bedroom, given the burn patterns that were present in the dining room.
Additionally, he rejected the possibility that the fire had been caused by an unattended cigarette,
11
as the burn pattern he observed was distinct from the type of burn pattern that occurs with a slow,
smoldering fire. He opined, based on his experience, that the fire had burned for 15 to 30 minutes
before it was extinguished. According to the investigator, the only possible ignition source for the
fire was an open flame, as the fire department eliminated every other possibility. Investigator
D’Avello ultimately opined, based on his entire investigation, that Mr. Penn was the individual
who set the fire.
{¶27} Mr. Penn argues that his convictions are based on insufficient evidence because the
State did not establish that he committed either offense. According to Mr. Penn, the testimony of
Investigator Hoch and Investigator D’Avello was the only evidence the State presented to link him
to the fire and to show that it started inside the house. He argues that their testimony was
inadmissible, so it could not serve as the basis for his convictions. See Discussion of the First and
Second Assignments of Error, infra. Because the State failed to prove how or why the fire began,
Mr. Penn asserts, the record contains insufficient evidence in support of his convictions.
{¶28} Viewing the evidence in a light most favorable to the State, a rational trier of fact
could have concluded that the State proved, beyond a reasonable doubt, that Mr. Penn committed
the offenses of aggravated arson and burglary. See Jenks, 61 Ohio St.3d 259, at paragraph two of
the syllabus. The State set forth evidence that the fire started in the dining room at the back of
C.M.’s house and that authorities were notified of the fire at 3:54 p.m. The evidence showed that
Mr. Penn came to the house within ten minutes of the fire, walked to the back, remerged after a
few minutes, and instructed his friend to drive away. There was testimony that, directly before
he came to the house, Mr. Penn had been served with an ex parte order, forcing him to vacate his
home in favor of C.M. Further, there was testimony that he was angry at C.M. for leaving and had
planned on stopping her from removing any more possessions from their home. The fire
12
department was not able to identify any possible ignition sources for the fire apart from an open
flame, and there was testimony that Mr. Penn habitually carried a lighter with him. Although no
one saw him set the fire, the jury reasonably could have inferred that he did so, given the timing
of the fire relative to his trip to the house and the events leading up to the fire. See id. at paragraph
one of the syllabus (“Circumstantial evidence and direct evidence inherently possess the same
probative value * * *.”).
{¶29} Mr. Penn primarily challenges the sufficiency of the State’s evidence on the basis
that some of that evidence was improperly admitted at trial. Yet, in reviewing the sufficiency of
the evidence, an appellate court must consider “all evidence presented by the State in its case in
chief, whether such evidence was properly admitted or not.” (Emphasis added.) State v. Dixon,
9th Dist. Medina Nos. 11CA0065-M, 11CA0087-M, 2012-Ohio-4428, ¶ 18, citing State v. Brewer,
121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19. The question of whether certain evidence ought not to
have been admitted is, therefore, not relevant to our sufficiency determination. Upon review, Mr.
Penn has not shown that his convictions are based on insufficient evidence. As such, his fourth
assignment of error is overruled.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED
EXPERT TESTIMONY BY TWO WITNESSES OVER OBJECTIONS, WHEN
THE WITNESSES WERE NOT QUALIFIED AS EXPERT WITNESSES.
{¶30} In his first assignment of error, Mr. Penn argues that the trial court erred when it
allowed two of the State’s witnesses to testify as experts. Specifically, he argues that the court
should not have permitted Investigator Hoch and Investigator D’Avello to offer any opinions or
draw any conclusions about the fire, as they were never qualified as experts. For the following
reasons, we reject his argument.
13
{¶31} A witness may offer an expert opinion only if he has prepared a written report and
it has been disclosed in accordance with the strictures of Crim.R. 16(K). Expert opinion testimony
must relate to matters beyond the common knowledge of the jury, must be relevant and reliable,
and must be given by one qualified to speak as an expert due to specialized knowledge or
experience. Evid.R. 702. Conversely, lay opinion testimony is admissible so long as it is
“rationally based on the perception of the witness” and “helpful to a clear understanding of [his]
testimony or the determination of a fact in issue.” Evid.R. 701. This Court reviews for an abuse
of discretion a trial court’s decision to admit lay opinion testimony under Evid.R. 701. State v.
Heller, 9th Dist. Lorain No. 18CA011304, 2019-Ohio-4722, ¶ 7. A trial court may be found to
have abused its discretion if it rules in an unreasonable, arbitrary, or unconscionable manner.
Blakemore, 5 Ohio St.3d at 219.
{¶32} As previously noted, Inspector Hoch and Inspector D’Avello investigated the fire
herein and testified about various aspects of their investigation. Both testified about the fire’s
point of origin, the fact that no accelerants were detected, and the outcome of their investigation
(i.e., that the fire had been set intentionally). Although Inspector Hoch testified mainly in
generalities, Inspector D’Avello offered several specific opinions. He opined that the fire burned
for 15 to 30 minutes, that an unattended cigarette could not have caused it, that it was caused by
an open flame, and that Mr. Penn started it. Mr. Penn objected numerous times as each investigator
testified. He argued that their testimony lacked a proper foundation and that the State was eliciting
expert testimony without the investigators having been tendered or qualified as experts. Though
the court sustained several of his objections to specific questions, it admitted the foregoing
testimony.
14
{¶33} Mr. Penn argues that the trial court abused its discretion when it allowed the
investigators to testify how, when, and why the fire started. He argues that their testimony
exceeded the scope of lay opinion testimony permitted by Evid.R. 701. He further argues that
their testimony was inadmissible under Evid.R. 702 because neither investigator demonstrated that
he possessed the qualifications necessary to testify as an expert. Mr. Penn asserts that he was
prejudiced by the admission of their testimony because it was the only evidence the fire was
intentionally set and that it began inside the house. According to Mr. Penn, without that testimony,
the State would not have been able to prove that an arson occurred or that he entered the home to
set it (i.e., that he committed a burglary).
{¶34} “Whether or not ‘origin’ and ‘cause’ require an expert opinion for their
establishment depends upon the facts and circumstances of each case.” Fidelity & Guaranty Ins.
Underwriters, Inc. v. Gary Douglas Elec., Inc., 48 Ohio App.2d 319, 322 (9th Dist.1974). Under
these facts and circumstances, we cannot conclude that the trial court abused its discretion when it
allowed Investigator Hoch and Investigator D’Avello to testify that the most likely point of origin
for the fire was the floor of C.M.’s dining room. Investigator Hoch personally observed the
damage from the fire, and Investigator D’Avello reviewed his photographs from the scene. Both
men were experienced firefighters and well-versed in fire investigation. They both explained that
fire investigators routinely determine how fires originate and that a fire’s point of origin may be
determined based upon levels of charring. Investigator Hoch’s photographs clearly showed that
the floor of C.M.’s dining room was the area of the house with the most significant charring.
Because the investigators’ testimony about the fire’s most likely point of origin was rationally
based on their perceptions as qualified investigators and was helpful to the jury, we cannot
conclude that the court erred by admitting it. See State v. McCoy, 9th Dist. Summit No. 28103,
15
2017-Ohio-4163, ¶ 29-30; State v. Klein, 9th Dist. Summit No. 26573, 2013-Ohio-3514, ¶ 18-19;
State v. Williams, 9th Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 11. See also Evid.R. 701.
{¶35} As for the remaining opinions the investigators offered, the record reflects that any
error in the admission of their testimony was harmless beyond a reasonable doubt. See State v.
Boaston, Slip Opinion No. 2020-Ohio-1061, ¶ 60-71; State v. Graham, 9th Dist. Medina No. 3052-
M, 2001 WL 22482, *6 (Jan. 10, 2001). The State set forth overwhelming evidence that Mr. Penn
set the fire at C.M.’s house. See State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, ¶ 37. The
evidence showed that she left the house more than eight hours before the fire started, making it
highly unlikely that it was caused by any negligence on her part. The evidence showed that Mr.
Penn was angry with her, that he had behaved vindictively toward her in the past when she had
upset him (e.g., by posting inappropriate pictures of her on social media), and that he did not want
her to move out. It showed that, shortly before the fire, he was ordered to immediately vacate the
house on Hampton Road in favor of C.M., that he had no knowledge the order was forthcoming,
and that he was angry when the sheriff served him with it. The evidence showed that Mr. Penn
and C.M. argued at the Hampton Road house and, following that exchange, Mr. Penn asked his
friend to drive him to C.M.’s house. Mr. Penn did not inform his friend that the house was C.M.’s.
Nor did he indicate why they were there. The evidence showed that he walked around the back of
the house, remained there for a few minutes, returned to his friend’s car, and left the area. Within
minutes of his departure, the fire was reported, and the evidence showed that its most likely point
of origin was the dining room floor. There was evidence that the dining room was located at the
back corner of the house, just off a sliding glass door, in the area toward which Mr. Penn had been
seeking walking. Accordingly, the State set forth a wealth of circumstantial evidence implicating
Mr. Penn. See Jenks, 61 Ohio St.3d 259, at paragraph one of the syllabus.
16
{¶36} The record also supports the conclusion that the additional opinion testimony
Investigator Hoch and Investigator D’Avello offered did not impact the verdict in this matter. See
Harris at ¶ 37. Many of the opinions they offered were merely cumulative of other evidence
presented at trial. For instance, Inspector D’Avello’s testimony that the fire burned for 15 to 30
minutes was cumulative of the evidence that the fire department was notified of the fire at 3:54
p.m. and that fire trucks arrived within ten minutes of Mr. Penn’s departure. See Boaston at ¶ 64.
Likewise, his opinion that Mr. Penn caused the fire was simply based on his review of the evidence,
including Mr. Penn’s presence at the scene immediately before the fire and his tumultuous
relationship with C.M. The jury had that same evidence before it at trial and was able to draw its
own conclusion. It is also unclear how the investigators’ testimony that no accelerants were
detected harmed Mr. Penn. If anything, that testimony was helpful to the defense, as the presence
of an accelerant would have lent weight to the conclusion that an arson had occurred. Because the
evidence against Mr. Penn was overwhelming and he has not shown that the investigators’
additional opinions affected the verdict, we must conclude that any error in the admission of that
testimony was harmless beyond a reasonable doubt. See id. at ¶ 60-70; Harris at ¶ 37. Compare
State v. Green, 9th Dist. Summit No. 29120, 2019-Ohio-4967, ¶ 27-28. Accordingly, Mr. Penn’s
first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION FOR NEW TRIAL.
{¶37} In his second assignment of error, Mr. Penn argues that the trial court abused its
discretion when it denied his motion for a new trial. We disagree.
{¶38} Crim.R. 33(A) allows a defendant to move for a new trial when his substantial
rights have been materially affected. Grounds for a new trial include an irregularity in the
17
proceedings, an abuse of discretion by the trial court, and an error of law occurring at trial. Crim.R.
33(A)(1), (5). A defendant may not prevail upon a motion for new trial due to “[t]he admission *
* * of any evidence offered against * * * [him], unless [he] was or may have been prejudiced
thereby * * *.” Crim.R. 33(E)(3). Accord State v. Linton, 9th Dist. Summit No. 19170, 1999 WL
771709, *4 (Sept. 29, 1999). This Court reviews a trial court’s decision to deny a motion for new
trial for an abuse of discretion. State v. Pyle, 9th Dist. Summit No. 28802, 2018-Ohio-3160, ¶ 47.
{¶39} Mr. Penn moved for a new trial based on the admission of Inspector D’Avello’s
testimony. He argued that the trial court should not have allowed the inspector to offer expert
opinion testimony without being qualified to testify as an expert. On appeal, he maintains that the
State did not lay a proper foundation for the investigator to testify as an expert. Further, he
maintains that the State never provided him with an expert report, pursuant to Crim.R. 16(K), to
put him on notice that the investigator would be testifying as an expert. Because an irregularity in
the proceedings or an error of law occurred, Mr. Penn argues, the trial court erred when it denied
his motion for a new trial.
{¶40} We have already determined that a portion of Inspector D’Avello’s testimony was
admissible as lay opinion testimony under Evid.R. 701 and that any error in the admission of the
remainder of his testimony was harmless beyond a reasonable doubt. See Discussion of
Assignment of Error One, supra. Because any error the court committed in the admission of the
inspector’s testimony did not affect Mr. Penn’s substantial rights, we cannot conclude that it
abused its discretion when it overruled his motion for a new trial. See Crim.R. 33(E)(3); Linton,
1999 WL 771709, at *4. As such, Mr. Penn’s second assignment of error is overruled.
18
ASSIGNMENT OF ERROR THREE
APPELLANT’S CONVICTION WAS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE, AND THE TRIAL COURT LOST ITS WAY
WHEN IT FOUND THE APPELLANT GUILTY.
{¶41} In his third assignment of error, Mr. Penn argues that his convictions are against
the manifest weight of the evidence. We disagree.
{¶42} This Court has stated:
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist. 1986). “[W]hen reversing a conviction on the
basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth
juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.” State v. Tucker,
9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power “should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist. 1983). See also Otten at 340.
{¶43} Mr. Penn testified in his own defense at trial. He agreed that he and C.M. had a
tumultuous relationship and claimed that she was both verbally and physically abusive. According
to Mr. Penn, C.M. had falsely accused him of domestic violence in the past and had threatened
revenge against him after he posted inappropriate pictures of her online. It was his impression that
she obtained an ex parte order against him because she wanted to take some of his belongings with
her when she left their house on Hampton Road. He testified that the two argued when she arrived
19
at the house because he discovered some of his possessions were already missing and believed she
was responsible for their absence.
{¶44} Mr. Penn admitted that he asked his friend to take him to C.M.’s house after the
sheriff served him with the ex parte order. He claimed that he went there because he wanted to
see if any of his possessions were at the house. Mr. Penn testified that he walked around the back
of the house and peered through the back, glass sliding door to look for his possessions. He denied
that he had a lighter with him or that he set the fire. According to Mr. Penn, he left when he did
not see his things and did not learn about the fire until later that day. He testified that C.M. smoked
and that she constantly left lit cigarettes burning on dressers and other items of furniture because
she did not use ashtrays. The defense theorized that the fire was either accidental, due to C.M.’s
carelessness, or that she intentionally set it to frame Mr. Penn.
{¶45} Mr. Penn argues that his convictions are against the manifest weight of the evidence
because much of the State’s evidence against him was improper (i.e., the testimony of Inspector
Hoch and Inspector D’Avello). He argues that there was no direct evidence he ever entered C.M.’s
house or that he had a lighter with him when he went there. He notes that the fire department was
never able to definitively determine the ignition source for the fire. Further, he notes that there
was evidence C.M. routinely left unattended cigarettes burning. Because the evidence properly
admitted at trial weighed heavily against his convictions, Mr. Penn argues, the jury lost its way
when it found him guilty.
{¶46} Having reviewed the record, we cannot conclude that the jury lost its way when it
found Mr. Penn guilty of aggravated arson and burglary. See Otten, 33 Ohio App.3d at 340. The
jury heard testimony that Mr. Penn was angry with C.M., that he was angry about the ex parte
order, that he went to her new house after being served with the ex parte order, and that the fire
20
was reported within ten minutes of his departure. Although Mr. Penn claimed that C.M. frequently
left unattended cigarettes burning, the evidence showed that she had been away from the house for
more than eight hours before the fire started. It also showed that Mr. Penn routinely carried a
lighter, and that the most likely point of origin for the fire was the floor of C.M.’s dining room.
The jury, therefore, reasonably could have concluded that he forced his way through the glass
sliding door to start the fire rather than merely peering inside to look for possessions he claimed
were missing. The jury also reasonably could have rejected his theory that C.M. intentionally set
the fire, given that she was at the Hampton Road house when it started and that it destroyed more
than $6,000 worth of her possessions.
{¶47} “This Court has repeatedly held that the trier of fact is in the best position to
determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson,
9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15 Additionally, we have repeatedly held that
“[a] verdict is not against the manifest weight of the evidence because the finder of fact chose to
believe the State’s witnesses rather than the defendant’s version of the events.” State v. Martinez,
9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Mr. Penn has not shown that this is the
exceptional case where the jury lost its way by convicting him. See Otten, 33 Ohio App.3d at 340.
Accordingly, his third assignment of error is overruled.
ASSIGNMENT OF ERROR FIVE
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN IMPOSING
APPELLANT’S SENTENCE.
{¶48} In his fifth assignment of error, Mr. Penn argues that the trial court erred when it
sentenced him to fourteen years in prison. First, he argues that his convictions should have merged
as allied offenses of similar import. Second, he argues that the court abused its discretion when it
21
sentenced him to eight years in prison on his aggravated arson count. We consider each argument
in turn.
Allied Offenses of Similar Import
{¶49} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and [Article I, Section 10,] of the Ohio Constitution,
which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, ¶ 23. The statute provides, in relevant part:
(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or similar
kind committed separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the defendant may be
convicted of all of them.
R.C. 2941.25(A), (B). The Supreme Court of Ohio has held that when a defendant’s conduct
supports multiple offenses, that defendant may be convicted of all offenses if “(1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were committed with separate animus.” State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus.
{¶50} “This Court generally applies a de novo standard of review when reviewing a trial
court’s decision regarding the merger of convictions for the purposes of sentencing.” State v.
Harris, 9th Dist. Medina No. 16CA0054-M, 2017-Ohio-8263, ¶ 25, citing State v. Williams, 134
Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. “When applying the de novo standard of review, this Court
gives no deference to the trial court’s legal determinations.” State v. West, 9th Dist. Lorain No.
04CA008554, 2005-Ohio-990, ¶ 33.
22
{¶51} Mr. Penn’s aggravated arson conviction required the State to prove that he
knowingly caused physical harm to C.M.’s house by means of fire or explosion. R.C.
2909.02(A)(2). His burglary conviction required the State to prove that he forcibly trespassed in
her house, when someone was likely to be present, with a purpose to commit a criminal offense.
R.C. 2911.12(A)(2). It is undisputed that Mr. Penn’s aggravated arson charge was the underlying
criminal offense the State alleged in support of his burglary charge.
{¶52} At sentencing, the prosecutor indicated that she believed Mr. Penn’s two
convictions merged. She asked the court to sentence him on the aggravated arson count, but also
asked for a total of sixteen years in prison in the event the court did not agree that the convictions
merged. Meanwhile, Mr. Penn agreed his offenses merged. He noted that the State’s theory of
the case was that he committed the burglary in order to commit the aggravated arson. Because his
burglary conviction depended upon his having committed arson, he asked the court to merge the
two.
{¶53} The trial court determined that Mr. Penn’s convictions were not subject to merger.
The court reasoned:
If you look at the past case law, burglary does not merge necessarily with the
underlying offense because the purpose to commit doesn’t mean you have to be
successful.
Once you cross the threshold of that house that does not belong to you when
someone is present or likely to be present to commit any offense you’ve committed
a burglary, and therefore the arson does not need to be committed for there to be a
burglary, and, therefore, they are not offenses of similar import and do not merge.
The conduct constitutes offenses of dissimilar import.
The conduct shows that the offenses were committed separately and the conduct
shows the offenses were committed with a separate animus.
[Mr. Penn] testified [he] went in there to get [his] property back, not to commit an
aggravated arson. I think there’s evidence to show that they don’t merge * * *.
23
Mr. Penn argues that the court erred when it failed to merge his convictions because they were
committed in a single, continuous course of conduct, with a single animus, and the burglary was
not complete until he committed aggravated arson.
{¶54} Upon review, we do not agree that the trial court erred when it refused to merge
Mr. Penn’s convictions as allied offenses of similar import. The general rule is that the crime of
burglary is complete upon an offender’s forced entry into an occupied structure. See State v.
Frazier, 58 Ohio St.2d 253, 256 (1979). See also State v. Evett, 9th Dist. Medina No. 14CA0008-
M, 2015-Ohio-2722, ¶ 39; State v. Linde, 9th Dist. Summit No. 26714, 2013-Ohio-3503, ¶ 18.
This case is no exception to the general rule because Mr. Penn’s burglary charge did not require
him to engage in additional conduct after he broke into C.M.’s house. Compare State v. Shears,
1st Dist. Hamilton No. C-120212, 2013-Ohio-1196, ¶ 41 (aggravated burglary and aggravated
robbery did not merge because both required, as an essential element, that the offender caused the
victim physical harm). Once he entered C.M.’s house for the purpose of committing an arson, he
committed the crime of burglary. See R.C. 2911.12(A)(2). At that point, he had the choice to
leave without committing a second offense inside the home. See Frazier at 256. Instead of doing
so, he set the fire that caused physical harm to her property. See R.C. 2909.02(A)(2). His offenses,
therefore, were separately committed and not subject to merger. See Evett at ¶ 39. See also State
v. Redmyer, 9th Dist. Medina No. 15CA0012-M, 2017-Ohio-572, ¶ 11; State v. Fields, 12th Dist.
Clermont No. CA2014-03-025, 2015-Ohio-1345, ¶ 18. Mr. Penn’s argument to the contrary lacks
merit.
Maximum Sentence on Aggravated Arson
{¶55} An appellate court’s standard for review of a felony sentence is not whether the
sentencing court abused its discretion. R.C. 2953.08(G)(2). The Ohio Supreme Court has held
24
that “an appellate court may vacate or modify a felony sentence on appeal only if it determines by
clear and convincing evidence that the record does not support the trial court’s findings under
relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, ¶ 1; R.C. 2953.08(G)(2). “Clear and convincing evidence is that
measure or degree of proof which will produce in the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477
(1954).
{¶56} Mr. Penn argues that the trial court abused its discretion when it sentenced him to
eight years in prison on his conviction for aggravated arson. He argues that he did not have any
prior felonies on his record, he had a stable job, he was a contributing member of society, and he
was unlikely to reoffend. Because his sentence was contrary to law and not reasonably calculated
to fulfill the overriding principles of felony sentencing, Mr. Penn argues, the court abused its
discretion in issuing his sentence.
{¶57} This Court may not overturn a felony sentence based on a perceived abuse of
discretion. See R.C. 2953.08(G)(2). “[A] trial court has ‘full discretion to impose a prison
sentence within the statutory range’ and is ‘no longer required to make findings or give * * *
reasons for imposing maximum * * * sentences.’” State v. Brundage, 9th Dist. Summit No. 29477,
2020-Ohio-653, ¶ 12, quoting State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, paragraph three
of the syllabus. Trial courts must consider the statutory sentencing factors set forth in R.C. 2929.11
and 2929.12, but they need not expressly outline their considerations. See State v. Archer, 9th
Dist. Medina No. 18CA0010-M, 2019-Ohio-171, ¶ 6. “Unless the record shows that [a] court
failed to consider the factors, or that the sentence is ‘strikingly inconsistent’ with the factors, the
court is presumed to have considered the statutory factors if the sentence is within the statutory
25
range.” State v. Fernandez, 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8, quoting
State v. Boysel, 2d Dist. Clark No. 2013-CA-78, 2014-Ohio-1272, ¶ 13.
{¶58} Upon review, the record does not support the conclusion that the trial court erred
when it sentenced Mr. Penn to eight years in prison on his aggravated arson count. Mr. Penn’s
sentence fell within the statutory range for second degree-felonies, see Former R.C. 2929.14(A)(2),
and, in issuing his sentence, the trial court specifically noted that it had considered the sentencing
factors set forth in R.C. 2929.11 and 2929.12. The court noted that Mr. Penn had been arrested
for domestic violence on numerous occasions and that he had violated temporary protection orders.
It further noted that his conduct was extremely serious and damaged both C.M. and her landlord,
who owned the house that was destroyed in the fire. Moreover, contrary to Mr. Penn’s argument,
the risk assessment conducted for his pre-sentence investigation report indicated that he was at a
moderate risk of reoffending. It further indicated that he lacked remorse or accountability for his
actions. Because the record supports the trial court’s sentencing determination and Mr. Penn has
not shown that his sentence is otherwise contrary to law, we cannot conclude that the court erred
when it imposed his eight-year sentence. See Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, at ¶
1; R.C. 2953.08(G)(2). Mr. Penn’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR SEVEN
THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED THE
APPELLANT THE RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, R.C. 2901.04, AND ARTICLE 1 SECTION 10 OF THE OHIO
CONSTITUTION.
{¶59} In his seventh assignment of error, Mr. Penn argues that cumulative error deprived
him of a fair trial. We disagree.
26
{¶60} Cumulative error exists only where the errors during trial actually “deprive[d] a
defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987),
paragraph two of the syllabus. “‘[T]here can be no such thing as an error-free, perfect trial, and *
* * the Constitution does not guarantee such a trial.’” State v. Hill, 75 Ohio St.3d 195, 212 (1996),
quoting United States v. Hasting, 461 U.S. 499, 508–509 (1983). Moreover, “errors cannot
become prejudicial by sheer weight of numbers.” Hill at 212.
{¶61} After reviewing the record, this Court cannot say that Mr. Penn’s trial was plagued
with numerous errors or that his constitutional right to a fair trial was violated. Therefore, his
seventh assignment of error is overruled.
Outcome: Mr. Penn’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: