State v. Yvonne Gwin

• Court: Ohio Court of Appeals
• Writing for the Court: PATTON, J.
• Decision Date: 08 March 1984
• Docket Number: 84-LW-4080,47135
• Citation: State v. Yvonne Gwin, 47135, 84-LW-4080 (Ohio App. Mar 08, 1984)
• Parties: STATE OF OHIO, Plaintiff-Appellee v. YVONNE GWIN, Defendant-Appellant

STATE OF OHIO, Plaintiff-Appellee v. YVONNE GWIN, Defendant-Appellant

No. 47135.

84-LW-4080 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

March 8, 1984

Criminal appeal from Court of Common Pleas Case No. CR-173270.

For Plaintiff-Appellee: John T. Corrigan, Prosecuting Attorney of Cuyahoga County, Justice Center - Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

For Defendant-Appellant: Hyman Friedman, Cuyahoga County Public Defender, Marion Building, Room 307, 1276 West Third Street Cleveland, Ohio 44113.

JOURNAL ENTRY and OPINION

PATTON J.

Appellant, Yvonne Gwin, appeals from her conviction for aggravated arson in a jury trial in Cuyahoga County Common Pleas Court.

Appellant was indicted on April 19, 1982 for one count of aggravated arson, in violation of R.C. 2909.02, and for one count of grand theft, in violation of R.C. 2913.02. She pled not guilty to both counts. Trial was held on May 24th and 25th, and the jury returned its verdict on May 26th. Appellant was found not guilty of grand theft and guilty of aggravated arson. She was sentenced on that same day to seven to twenty-five years. She now appeals her conviction and sentence.

At the trial below, Greeley Bryant testified that he met appellant at a bus stop in November of 1981, and after conversing with her for some time, the two decided that appellant should move into his home on Knolton Avenue in Cleveland. The relationship remained a good one until the last part of January, 1982, when, at that time, the parties had differences concerning sex. Though they had no hard feelings toward each other, on February 2, 1982, Bryant requested that appellant find another place to live. The next day Bryant received a call at work during the afternoon that fire trucks were outside his home. He returned to find his home damaged by fire and smoke and his television and phone missing.

Kim McDonald testified that she lived next door to Bryant. Early in February, 1982, she was distracted from her television watching by the sound a car horn. She looked out her window and observed two women on the porch of Bryant's home and a car in Bryant's driveway. A man was inside the car. McDonald stated that she saw the women carrying out loaded garbage bags and a television and phone. The items were packed in the car. McDonald then testified that she saw the two women return inside the house and, minutes later, come rushing out to the car, which then pulled away. A couple of minutes later, she noticed a cloud of smoke and Bryant's curtains on fire. McDonald had noted the license plate of the car, which was parked in Bryant's driveway and eventually gave that information to Bryant. At trial, McDonald identified one of the women she saw at Bryant's home as the appellant.

Richard Patton, Fire Investigator for the Cleveland Fire Department, testified that he observed Bryant's home at about 2:00 in the afternoon of February 3, 1982. The Department had received the alarm at 1:36. His opinion was that the fire originated in a first floor closet and had been purposely set. He based his opinion on the fact that the fire was of short duration, that there were no electrical outlets or heating devices by which an accidental fire could have started, that a heavy char was left on the wall. On cross-examination, he stated that a test conducted to discover whether any hydrocarbons, such as gasoline, had been used was negative.

The last of the state's witnesses, Floyd Clark, testified that a "Kathy", with whom he had some acquaintence, had called him on the morning of February 3rd so that he could drive her to her sister's home. Clark drove Kathy to Bryant's house. There, he testified, Kathy and appellant carried out a television and a table from the house and placed them in his car's trunk and back seat. The sisters went back inside and, shortly thereafter, returned carrying bags. These were then packed in the car and all three then drove away. Clark testified that he never at any time used his car horn.

Appellant first presented her sister, Kathleen Gwin. She testified that she engaged Clark on February 3rd in order to pick up the appellant and her belongings so that the appellant could move in with her. She stated that she never got farther than just inside the front door of Bryant's house. It was Kathleen Gwin testimony that she was able to observe her sister at all times while she was there and that she never saw appellant start any firm. According to Kathleen, she was there for about 15 to 20 minutes, packed appellant's belongings into the car, and she, the appellant, and Clark left. In addition, Gwin also stated that she had previously learned from her sister that she had been given Bryant's television set as a Christmas present.

Next, the appellant herself testified. She denied ever setting a fire, and said that when she left Bryant's house on the afternoon of February 3rd with her sister, the front door was left unlocked. The appellant never did own a key to the house, and Bryant was aware of that. Appellant also stated that Clark never blew his car horn that day.

The police assigned to investigate the fire never did locate appellant until she appeared at a suburban police station in order to report that she had been robbed. She was then informed that a warrant was out for her arrest. By this time, she had been indicted for the theft of Bryant's television, telephone, television stand, and clothes, as well as for aggravated arson. She was brought to trial and found guilty on the arson count and not guilty on the grand theft count. She now appeals and assigns two errors.

The errors read as follows:

I. APPELLANT WAS CONVICTED WITH EVIDENCE INSUFFICIENT AS A MATTER OF LAW, THEREBY DENYING HER DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I ] 16 OF THE OHIO CONSTITUTION.

II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM SENTENCE PERMITTED WITHOUT CONSIDERING THE FACTORS ENUMERATED IN OHIO REVISED CODE ] 2929.12, BY DENYING A DEFENSE REQUEST FOR A PRE-SENTENCE INVESTIGATION, AND DISREGARDING PROPORTIONALITY PRINCIPLES IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

I.

Appellant's first assignment alleges that the evidence adduced at trial was insufficient to convict her of aggravated arson. Specifically, appellant points to the lack of evidence that would demonstrate that the fire at Bryant's house was set by anyone at all. According to appellant, the evidence, all circumstantial, is as consistent with a reasonable theory of innocence as with a theory of guilt. Therefore, she argues, it cannot support a finding of guilt beyond a reasonable doubt. State v. Kulig (1974), 37 Ohio St. 2d 157.

It is settled that a fact may be proved to a moral certainty by circumstantial evidence. State v. Hankerson (1982), 70 Ohio St. 2d 87; State v. Nevius (1947), 147 Ohio St. 263. this would include the fact that the fire in Bryant's house was purposely set by someone.

Moreover, in order to prove an essential element of a crime by circumstantial evidence, such evidence must be consistent only with the theory of guilt and irreconcilable with any reasonable theory of innocence. Hankerson, supra; State v. Sorgee (1978), 54 Ohio St. 2d 464; State v. Kulig, supra.

Whether a theory of innocence is reasonable must be determined in view of the weight and credibility that the fact finder gives the evidence, and an appellate court can reverse a conviction based in part on circumstantial evidence only where the evidence is insufficient as a matter of law to enable the fact finder to exclude a reasonable hypothesis of innocence.

Hankerson, supra at 92.

We assume then that the jury rejected the testimony of all the defense witnesses as incredible, and accepted completely the testimony of the prosecution witnesses. Hankerson, supra at 92. In such case, the jury considered that the appellant and her sister were observed loading up their car with bags, a television, and a phone taken from inside Bryant's house. They went back inside and shortly thereafter came rushing out to their car and drove away. Minutes later, fire was seen in Bryant's house. Furthermore, the fire was determined to have originated in the closet, where no electrical outlet, heating device, or other thing capable of sparking an accidental fire was near. The arson expert's opinion was that the fire was purposely set.

We hold that this evidence was sufficient to enable the fact finder to exclude the hypothesis that the fire was accidentally started. Therefore, under Kulig, Hankerson, and Sorgee, we will not reverse the conviction as being unsupported by the evidence.

Appellant's first assignment is without merit.

II.

In her second assignment, appellant alleges that the trial court abused its discretion in imposing the maximum sentence.®1¯ As grounds, appellant argues that the court failed to consider the criteria set forth in R.C. 2929.12 and that the sentence was unconstitutionally disproportionate to the crime.

Footnote 1 Revised Code 2909.02 defines aggravated arson as a first degree felony. Revised Code 2929.11 provides that the minimum term for such offense shall be four, five, six, or seven years, and the maximum term shall be 25 years.

Section 2929.12 of the Revised Code reads in part as follows:

(A) In determining the minimum term of imprisonment to be imposed for felony, and in determining whether to impose a fine for felony and the amount and method of payment of a fine, the court shall consider the risk that the offender will commit another crime and the need for protecting the public from the risk; the nature and circumstances of the offense; the victim impact statement

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