State v. Jackson, No. 02AP-867 (Ohio App. 11/20/2003)
| Decision Date | 20 November 2003 |
| Docket Number | No. 02AP-867.,02AP-867. |
| Parties | State of Ohio, Plaintiff-Appellee, v. Ricardo E. Jackson, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 01CR-07-3970.
Ron O'Brien, Prosecuting Attorney, and Susan E. Day, for appellee.
Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.
{¶1} Defendant-appellant, Ricardo E. Jackson, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty of one count of aggravated arson and one count of intimidation of a crime witness and sentencing him accordingly. Because appellant's intimidation conviction is not supported by sufficient evidence, we reverse that portion of the judgment, but affirm the judgment with respect to the aggravated arson conviction. We also remand the case to the trial court to correct the portion of the judgment entry which mistakenly identifies the aggravated arson conviction as a first degree felony rather than a second degree felony.
{¶2} By indictment filed July 13, 2001, appellant was charged with two counts of aggravated arson in violation of R.C. 2909.02(A) and one count of intimidation of a crime victim or witness in violation of R.C. 2921.04. These charges arose from events which occurred on July 4 and 5, 2001, at 44 Woodland Avenue in Columbus, Ohio. Appellant entered a not guilty plea to the charges and the case proceeded to a jury trial.
{¶3} The state presented the following evidence at trial. Sheila Gardner was the first witness to testify. Gardner stated that appellant had been living with her in her apartment at 44 Woodland Avenue for about one year. On the morning of July 4, 2001, she and appellant went to the grocery store and bought food to grill and alcoholic beverages. After returning to her apartment, appellant lit a charcoal smoker-type grill between 1:30 and 2:00 p.m. that day. The smoker was located on an elevated deck on the back of Gardner's apartment. Although Gardner did not see appellant prepare or light the smoker, she saw large flames after it was lit. She warned appellant about the height of the flames and told him that the fire could burn the rail of the deck. Appellant then moved the smoker away from the rail.
{¶4} Gardner further testified that appellant grilled food for two hours. During that time, he apparently had to use more charcoal and lighter fluid to keep the food cooking. Also during those two hours, she and appellant argued because she had refused to buy drugs for him. According to Gardner, the two argued on and off during the day, although she was trying to stay away from him as much as she could.
{¶5} By 9:30 that night, Gardner said that appellant was drunk and becoming more hostile. Subsequently, appellant moved inside the apartment and Gardner was cleaning up the back deck. She testified that, at approximately 10:00 to 10:30 p.m., appellant began yelling at her to come inside or he was going to beat her. Gardner, now afraid of appellant, ran down the steps of the back deck and went over to a security guard of a nearby condominium complex. Gardner stated that there was nothing wrong with the deck when she left. Gardner called 911 and told the police that she had been threatened and felt afraid.
{¶6} A police officer arrived about an hour later. Two more officers arrived at the scene and proceeded to enter Gardner's apartment. Gardner initially stayed behind, but eventually went back to the apartment after the police arrested appellant. She saw her clothes, mattress and other personal property thrown outside of her apartment. The tires on her car were also slashed. As Gardner walked up the back steps of her deck, the officers warned her to avoid a smoldering hole on the back deck near the steps. Gardner saw smoke coming from the hole in the deck, although she did not see any flames. Upon entering her apartment, she noticed that her television was disconnected from the VCR and was overturned. Subsequently, three of Gardner's friends came over to help her gather her personal property.
{¶7} In the early morning hours of July 5, 2001, Gardner's phone rang several times. The caller identification on Gardner's phone displayed "Franklin County" and she assumed the calls were from appellant calling from the Franklin County jail. After a few phone calls, one of Gardner's friends, Patrice Barrow, answered the phone and spoke to appellant. Gardner did not speak with appellant.
{¶8} On cross-examination, Gardner admitted telling appellant's investigator that, when appellant began cooking around noon, some coals fell out of the smoker and onto the deck. However, Gardner testified that the coals were not hot and that appellant picked up the coals. Gardner also admitted that she had previously written a statement of events in which she indicated that appellant was smoking food until 6:00 or 8:00 p.m. She had previously stated that appellant finished cooking between 4:00 and 5:00 p.m. In another written statement, Gardner stated that appellant restarted the smoker around 5:00 p.m.
{¶9} Next to testify was Steven Magaw, a Columbus Police Officer, who was dispatched to Gardner's apartment on July 4, 2001, in response to a call. He arrived on the scene at about 11:30 p.m. When he arrived, another officer was already talking to Gardner. Officer Magaw stated that Gardner was hysterical, screaming and quite scared. As Officer Magaw walked to the rear of Gardner's apartment, he saw clothes, a mattress and other personal property strewn about on the ground. He and his partner, Officer Burich, then walked up the steps to the back deck. Officer Magaw noticed smoke coming from a smoldering hole in the deck.
{¶10} After a few minutes on the deck, the officers spoke with appellant. Officer Magaw described appellant as extremely intoxicated, angry and yelling. Appellant also had a strong odor of alcohol about him and he exhibited slurred speech. When Officer Magaw asked him who had caused the mess inside and outside the apartment, appellant told him that "she just made me mad, so I threw it out." Appellant was then arrested and placed into the police cruiser. Officer Magaw described appellant as very upset. Appellant was also cursing at the officers. Shortly thereafter, appellant urinated in the cruiser.
{¶11} Columbus Police Officer Jeffrey Tabor testified next. Officer Tabor was the first officer to arrive at the scene, a little before 11:30 p.m. He spoke with Gardner and described her as very excited, crying and afraid. While Officers Magaw and Burich walked around to the rear of Gardner's apartment, Officer Tabor remained with Gardner. When he received word from the other officers that appellant was no longer in the apartment, he went up to the apartment. As Officer Tabor went up the steps to the deck, he saw that a fire was burning a hole in the deck. Officer Tabor testified that he tried to put out the fire by dumping a pan of water on it but he could not completely put it out. Although he was able to put out the flames visible on the top of the deck, there were still flames on the bottom of the deck, which he could not extinguish. He then called the fire department.
{¶12} Next to testify was Captain William E. Robinson, Jr., of the Columbus Division of Fire. Captain Robinson was among the first fire fighters to arrive at the scene. He testified that, as he walked to the rear of the apartment building, he saw personal belongings scattered everywhere. Captain Robinson walked to the top of the back deck where he saw a fire that was still smoldering and burning. He did not see any flames from the fire but the fire was still smoking. He testified that he thought the fire had been a substantial fire for a short period of time.
{¶13} Captain Robinson then began to determine whether the fire looked accidental or intentional. He ruled out electrical causes for the fire, as there was no electricity near the hole. He also ruled out lightning as a cause, as it had not rained that night. Captain Robinson saw the smoker in the corner of the deck a couple feet away from the hole. He put his hand on the smoker and it felt cool to the touch. He did not believe the smoker was close enough to have started the fire. He also opined that, even if a coal or ember had accidentally fallen from the smoker, it is unlikely to have generated enough heat to ignite the deck. Nor did he see any evidence that an accelerant, such as lighter fluid, caused the fire. Finally, Captain Robinson spoke with Gardner. She told him that she thought appellant set the fire and wanted to kill her. All of this raised Captain Robinson's concerns. He then called a fire investigator to further examine the fire scene.
{¶14} After being qualified as an expert witness, Larry Pfeifer, an investigator for the Columbus Division of Fire, testified that he arrived at the scene between 12:30 and 1:00 a.m., and walked past clothes and other items scattered across the back yard. He also saw a car with four punctured tires. He then walked up the back steps and saw a hole in the deck. Pfeifer testified that the deck was made of pressure-treated lumber that was relatively new. Treated lumber is infused with a solution to prevent rotting and destruction by insects. Treated lumber has more moisture in it than non-treated lumber and, because of that extra moisture, is much more difficult to ignite and burn than non-treated lumber.
{¶15} Pfeifer's investigation of the scene eliminated the smoker as a source of the fire. He testified that the shape of the hole was not indicative of a round object and did not conform to the round bottom of the smoker located on the deck. He also felt the smoker would not have been hot enough to start a fire, as he was able to touch the smoker's bottom with his bare hand. Pfeifer also eliminated an accidental coal falling out of the smoker as the cause of the fire....
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