State v. Loterbaugh
| Decision Date | 02 March 2020 |
| Docket Number | Case No. 19 CA 0931 |
| Citation | 2020 Ohio 1104 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JEFFREY L. LOTERBAUGH, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
OPINION AND JUDGMENT ENTRY
Atty. Steven D. Barnett, Prosecuting Attorney, Atty. Michael J. Roth, Chief Assistant. Prosecuting Attorney, 7 East Main Street, Carrollton, Ohio 44615 for Plaintiff-Appellee and
Atty. Herbert J. Morello, Morello Law Offices Ltd., 700 Courtyard Centre, 116 Cleveland Avenue, NW, Canton, Ohio 44702 for Defendant-Appellant.
{¶1} Defendant-Appellant Jeffrey L. Loterbaugh appeals the judgment entered in the Carroll County Common Pleas Court after a jury found him guilty of arson. He contests the sufficiency of the evidence and claims the jury verdict was against the manifest weight of the evidence. He raises ineffective assistance of counsel for failing to show him photographs before trial and for failing to subpoena one of the two law enforcement officers who responded to the fire. Lastly, Appellant argues the trial court should have granted his mistrial motion as his mother testified that he was in jail before the offense. For the following reasons, the trial court's judgment is affirmed.
{¶2} On November 9, 2018, Appellant was indicted on two counts of aggravated arson. The case was tried to a jury. Testimony established that the sheriff's department and the local fire department responded to an emergency call about a mobile home fire in Malvern, Ohio, which was received at 11:52 p.m. on October 15, 2018. The fire chief testified that he arrived within ten minutes and saw Appellant walking around the yard of the mobile home and smoke coming from the front door. (Tr. 104, 107, 110). He briefly attempted to obtain information from Appellant in order to formulate a plan for approaching the fire; however, Appellant did not provide coherent responses and asked to enter the fire chief's vehicle. (Tr. 108-109, 123). The fire chief circled the mobile home to assess the situation, and the volunteer firefighters soon arrived with the fire trucks. (Tr. 106, 108, 110).
{¶3} The firefighters opened the front door and encountered heavy smoke and a fire near the door, which they extinguished. (Tr. 111-112). Thereafter, the fire chief observed three separate rooms with evidence of different fires. He testified: (1) in the living room, the furniture and carpet was burned and the walls showed charring; (2) in the east bedroom, a mattress was burned; and (3) in the west bedroom, a mattress was burned and the walls showed heat damage. (Tr. 113-118). The soot blackening the interior sides of these bedroom doors indicated they were closed during the fires. (Tr. 113-114). The fire chief noticed the smoke detectors had been taken off the walls. (Tr. 113).
{¶4} A deputy sheriff arrived at the scene and saw Appellant in the front yard and smoke coming from the closed front door. (Tr. 134). The deputy testified that Appellant smelled like burnt material, looked ashy, and had charred hairs on his head and arms. (Tr. 134-135, 149). Initially, Appellant denied suffering any injury and said he fell asleep with a cigarette. (Tr. 152). The deputy said Appellant was talking extremely fast, rhyming, talking about the walls, "not making any sense," and rubbing his hands. (Tr. 134). Confirming the deputy's belief that Appellant was impaired, Appellant said he was high on methamphetamine and drank vodka. (Tr. 134-136).
{¶5} Appellant's mother, who owned the mobile home but did not live there, arrived at the scene and appeared to be upset with Appellant. The deputy overheard Appellant tell his mother "he had been (inaudible) for insurance purposes," which prompted the deputy to place Appellant under arrest as he understood the statement to mean "that he intentionally set the fire * * *." (Tr. 134, 140-141). Appellant requested treatment for smoke inhalation; the deputy heard him coughing and saw evidence of smoke inhalation around his nostrils. (Tr. 137, 142, 149-150). He was transported to the hospital by ambulance.
{¶6} The deputy noticed Appellant's brother arrived at the scene after their mother's arrival, but the deputy did not speak to the brother, who was approached by the other responding deputy. (Tr. 150). Appellant's mother testified that when she arrived, she gave Appellant a cigarette but engaged in no conversation with him. (Tr. 189). She estimated her other son arrived twenty minutes later. (Tr. 190). She said that she performed the repairs to the mobile home, mentioning smoke damage to the walls and burnt carpeting. (Tr. 191-192).
{¶7} Appellant's brother testified that he lived at the trailer and was present when Appellant started lighting fires that night. He and Appellant arrived at the trailer after drinking alcohol at a friend's house. (Tr. 157). Because Appellant was acting belligerent, he told Appellant to go to sleep. When the brother entered the east bedroom, he noticed paper on fire on his bed which he was able to extinguish by patting it out. (Tr. 158, 161). He instructed Appellant "to go lay down before I laid him down." (Tr. 158). After returning to the east bedroom, the brother heard a smoke detector and found Appellant burning paper in an ashtray; the fire burned itself out. (Tr. 158, 163-164). He told Appellant to take the smoke detector down. Soon, the brother heard another smoke detector. As he was removing it from the wall, he felt heat emanating from the closed door of the smaller of the two west bedrooms. (Tr. 158, 164-165, 177). He opened the bedroom door and saw the bed on fire to such an extent that he could not extinguish it. (Tr. 158, 165).
{¶8} The brother noticed Appellant on the couch with the spare phone and yelled, "What the fuck are you doing? * * * you could burn the house down." (Tr. 178). The brother panicked, grabbed the phone from Appellant, and fled the mobile home. (Tr. 165, 178). He intended to call 911 but ended up calling a friend who picked him up on the road. (Tr. 158, 166, 179). The friend returned to the mobile home with him where they saw smoke coming from the front door and the friend called 911. (Tr. 158-159, 166). The brother testified that he broke a window, yelled, and heard Appellant talking (possibly to himself). (Tr. 159, 169, 181). He said the fire and police departments arrived but he left with his friend; he returned when he received a call summoning him back. (Tr. 159, 170, 183).
{¶9} The investigator from the state fire marshal's office evaluated the scene the next day and took photographs. As to the exterior, he testified there was soot visible on the trailer above the front door and window and a light smoke haze around the back door. (Tr. 204-206). He confirmed the existence of three separate originating fires: (1) in the living room, a V-shaped pattern emanated to the walls from the love seat which was burned to the frame (and another couch was burned by radiant heat); (2) in the east bedroom, the mattress was burned on the top and side; and (3) in the west bedroom, a more extensive fire burned the bed and charred the walls and ceiling. (Tr. 207-209, 215-216, 219, 224). The K-9 he used found no indication of an accelerant. (Tr. 231). The fire investigator concluded the fire was incendiary, meaning it was set by hand with an open flame device applied to combustible material. (Tr. 218, 230).
{¶10} After the court denied the acquittal and mistrial motions presented by the defense, the jury found Appellant guilty as charged and the court sentenced him. Appellant filed a timely notice of appeal from the February 7, 2019 judgment of conviction. Appellant sets forth four assignments of error.
{¶11} Appellant addresses weight of the evidence first, but we begin with the second assignment of error addressing sufficiency of the evidence as follows:
"The Convictions of Aggravated Arson Were Not Supported by Sufficient Evidence."
{¶12} Whether the evidence is legally sufficient to sustain a conviction is a question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency review as the question is whether the evidence is sufficient if believed. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency involves the state's burden of production rather than its burden of persuasion. Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). If the court finds insufficient evidence to support a conviction, then a retrial is barred. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20 ().
{¶13} We note Appellant mentions his motion for acquittal in another assignment of error. "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." Crim.R. 29(A). The test used by an appellate court to review sufficiency of the evidence is the same as used to review a motion for acquittal. See id. See also State v. Prieto, 2016-Ohio-8480, 82 N.E.3d 450, ¶ 26 (7th Dist.). Sufficiency is the legal standard used to determine whether the case may go to the jury and to determine whether the evidence was legally sufficient as a matter of law to support the...
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