[Cite as State v. Plotts, 2011-Ohio-900.]




                        IN THE COURT OF APPEALS OF OHIO
                            THIRD APPELLATE DISTRICT
                                VAN WERT COUNTY



STATE OF OHIO,                                              CASE NO. 15-10-08

    PLAINTIFF-APPELLEE,

  v.

JOHN PLOTTS,                                                  OPINION

    DEFENDANT-APPELLANT.



                Appeal from Van Wert County Common Pleas Court
                          Trial Court No. CR-09-12-184

                                        Judgment Affirmed

                            Date of Decision: February 28, 2011




APPEARANCES:

        William F. Kluge for Appellant

        Kevin H. Taylor for Appellee
Case No. 15-10-08




ROGERS, P.J.

         {¶1} Defendant-Appellant, John Plotts, appeals the judgment of the Court

of Common Pleas of Van Wert County, convicting him of arson, aggravated arson,

and insurance fraud. On appeal, Plotts contends that the trial court committed

plain error by admitting physical evidence for which the State did not sufficiently

demonstrate the chain of custody. Plotts also contends that he received ineffective

assistance of counsel, and was prejudiced as a result. Finding that a sufficient

chain of custody was established as to all of the physical evidence and that Plotts

was provided effective assistance of counsel, we affirm the judgment of the trial

court.

         {¶2} In September 2009, the Van Wert County Grand Jury indicted Plotts

on Count One, aggravated arson in violation of R.C. 2909.02(A)(1), a felony of

the first degree; Count Two, aggravated arson in violation of R.C. 2909.02(A)(2),

a felony of the second degree; Count Three, arson in violation of R.C.

2909.03(A)(2), a felony of the fourth degree; Count Four, insurance fraud in

violation of R.C. 2913.47(B)(1),(C), a felony of the fourth degree; Count Five,

aggravated arson in violation of R.C. 2909.02(A)(1), a felony of the first degree;

Count Six, aggravated arson in violation of R.C. 2909.02(A)(2), a felony of the

second degree; Count Seven, arson in violation of R.C. 2909.03(A)(2), a felony of

the fourth degree; Count Eight, insurance fraud in violation of R.C.

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2913.47(B)(1),(C), a misdemeanor of the first degree. The indictment arose from

two separate fires at Plotts’ residence on April 8, 2009, and April 10, 2009, for

which he attempted to collect insurance proceeds from Erie Insurance Company

(“Erie”).

       {¶3} In December 2009, Plotts entered a plea of not guilty as to all counts

in the indictment, and in June 2010, the case proceeded to jury trial, during which

the following pertinent testimony was heard.

       {¶4} Plotts testified that on April 8, 2009, he resided at his residence,

located at 630 Monroe, Van Wert, Ohio; that he left his residence for class in

Lima, Ohio, driving a green car; that he returned home to retrieve a book; that

upon arrival, he discovered his residence on fire, and called 9-1-1 on his cell

phone; that after the fire was under control, he met with Frank Ritemeyer, an

Assistant State Fire Marshal; that he signed a consent form allowing Ritemeyer to

enter the residence, inspect it, and collect evidence; that upon exiting the

residence, the front door was locked; and, that as a result of the fire, he made a

claim with his home insurance provider, Erie, representing to them that he had no

active role in starting the fire.

       {¶5} Plotts further testified that on April 9, 2009, he met with Rick

Spencer, a licensed investigator specializing in fires, and Doug Kristof, a forensic




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engineer specializing in electrical engineering; and, that Spencer and Kristof

toured the home.

       {¶6} Plotts further testified that on April 10, 2009, he met with Nate

Swartz, an estimator with Swartz Contracting, and Brad Case, a manager with

ServiceMaster, at his residence; that they visually inspected the damage

throughout the residence; and, that upon completion of the inspection they left the

residence, locking the front door.

       {¶7} Cody Fife, a resident of Van Wert, Ohio, testified that, on April 8,

2009, he was locked out of his home; that as he waited on his porch for his wife,

Karri Fife, he noticed a green car circling the block; that upon his wife’s return

home, they took his wife’s car and followed the green car; that, eventually, the

green car pulled into a driveway located on Monroe Street; and, that, shortly

thereafter, he heard fire engines approaching the area.

       {¶8} Karri testified that, on April 8, 2009, upon returning home, Cody and

her followed a green car circling the block; that, eventually, the green car pulled

into a driveway, and a man stepped out and walked toward the home with a cell

phone out; and, that, shortly thereafter, the fire department arrived at the home

where the green car had parked.




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       {¶9} Chief James Steele of the Van Wert Fire Department testified that, on

April 8, 2009, he responded to a fire at Plotts’ residence; and, that after the scene

was secured he waited at the residence until Ritemeyer arrived.

       {¶10} Nate Swartz testified that, on April 10, 2009, he met with Case and

Plotts at Plotts’ residence to survey the damage caused by the first fire; that all

three men toured the residence together, and were never separated until they left

the residence; that he took pictures of the residence; and, that, at some point after

the walk-through, he was contacted by Spencer to place a new lock on the front

door, which was accomplished.

       {¶11} Patrick Freeman, firefighter for the Van Wert Fire Department,

testified that, on April 10, 2009, he responded to a fire at Plotts’ residence; and,

that once the fire had been suppressed, the scene was secured with fire tape, and

he waited for Ritemeyer.

       {¶12} Ritemeyer testified that, on April 8, 2009, he received a call about a

house fire in Van Wert; that he presented a consent form to Plotts to enter the

residence, inspect it, and collect evidence; that the heaviest fire damage was

located in the living room; that he slightly moved a burned sweatshirt lying near

the entertainment center, which was located in the living room, so he could

photograph the sweatshirt; that he moved the entertainment center away from the




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wall and back again; and, that he did not collect any physical evidence from

Plotts’ residence on that day.

       {¶13} Ritemeyer further testified that he returned to the residence, on April

10, 2009; that, on that day, he did another inspection of the residence; and, that the

heaviest fire damage was located in the master bedroom.

       {¶14} Kristof testified that he met with Spencer, on April 9, 2009, to

investigate the cause of the fire at Plotts’ residence; that neither Spencer nor he

removed any physical evidence from the residence; and, that upon exiting the

residence he locked the front door.

       {¶15} Kristof further testified that he returned to Plotts’ residence on April

23, 2009, to continue his investigation; that he helped Spencer place all the items

of interest from the living room into plastic bags; that the items included a blue

electric box, an electrical outlet, a power cord for a Sony television, a circuit

breaker, a bag of electric wires, a bag of debris, a television stand, a Sony

television, a video game cartridge, a power supply unit, a Sony Play Station 3, a

Direct T.V. satellite receiver, a Sony DVD player, a power strip, a cable and

power cord for Direct T.V., a V-tec video game controller, a video game, an

electro-mechanical device, miscellaneous wire debris, a game controller, a

sweatshirt, and a remote control; and, that he never took custody or removed the

physical evidence from Plotts’ residence.


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       {¶16} Spencer testified that he took pictures of Plotts’ residence, on April

8, 2009, after the fire; that he met with Kristof, on April 9, 2009, to investigate the

cause of the first fire; that neither Kristof nor he removed any physical evidence

from the residence on that day; that exterior windows of Plotts’ residence were

boarded-up with plywood; and, that upon exiting the residence the front door was

locked.

       {¶17} Spencer further testified that he returned to Plotts’ residence, on

April 23, 2009, to continue his investigation; that he had all the physical evidence

located in, on, and around the living room television stand placed into plastic bags;

that no one present at Plotts’ residence, on April 23, 2009, took any physical

evidence from the residence; that the residence stayed locked until he gathered the

physical evidence on May 7, 2009; that all the physical evidence was left at Plotts’

residence until May 7, 2009, when he retrieved it and took it to his personal

storage facility, which he locked; that, on May 26, 2009, he took the evidence to

SEA, Ltd (“SEA”) for investigation; that he was present and oversaw Kristof and

Randy Bills, a forensic engineer at SEA, during the investigation; that upon

completion of the investigation he transported all of the physical evidence back to

his storage facility, which he locked; and, that all of the physical evidence was

locked in his storage facility from that time until he brought it to the Van Wert

County Court House in June 2010, for trial.


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       {¶18} Ralph Kisor, an investigator with Erie, testified that Plotts called Erie

to submit claims for both fires; that the first fire caused $77,863.41 in damage, and

the second fire caused $51,951.42 in damage.

       {¶19} At the close of the trial, the court asked Plotts if he objected to the

admission of any of the physical evidence presented at trial. Plotts did not object,

and the physical evidence was admitted into evidence.

       {¶20} The jury returned a verdict convicting Plotts on all eight counts. The

trial court proceeded to find that Counts One, Two, and Three were allied offenses

and merged them into Count One for sentencing purposes. The trial court also

found Counts Five, Six, and Seven were allied offenses and merged them into

Count Five for sentencing purposes. The trial court then sentenced Plotts to a

three-year prison term for Count One; an eighteen-month prison term for Count

Four; a three-year prison term for Count Five; and, a six-month prison term for

Count Eight.

       {¶21} It is from this judgment Plotts appeals, presenting the following

assignments of error for our review.

                            Assignment of Error No. I

       THE CHAIN OF EVIDENCE FOR ALL PHYSICAL
       EXHIBITS WAS NOT ESTABLISHED BY PROOF BEYOND
       A REASONABLE DOUBT.




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                            Assignment of Error No. II

       COUNSEL FOR THE APPELLANT FAILED TO PROVIDE
       REASONABLE      REPRESENTATION     AND     WAS
       INEFFECTIVE IN REPRESENTING THE APPELLANT.

                             Assignment of Error No. I

       {¶22} In his first assignment of error, Plotts contends that the admission of

physical evidence from the scene of the fires was plain error. Specifically, he

contends that the State failed to sufficiently establish the chain of custody as to the

physical evidence, and thus admission of the evidence resulted in plain error. We

disagree.

       {¶23} A trial court is vested with broad discretion in the admission of

evidence. Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164. Its evidentiary

rulings will not form the basis for a reversal on appeal absent a clear abuse of

discretion, which is materially prejudicial to the appellant. State v. Maurer (1984),

15 Ohio St.3d 239, 265. We note, however, that the abuse of discretion standard

does not apply in the case sub judice, as Plotts did not object to the admission of

the physical evidence. Accordingly, we review for plain error. State v. Coats, 3d

Dist. Nos. 10-10-05, 10-10-06, 2010 -Ohio- 4822, ¶20.

       {¶24} In order to have plain error under Crim.R. 52(B) there must be an

error, the error must be an “obvious” defect in the trial proceedings, and the error

must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27,


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2002-Ohio-68. Plain error is to be used “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. Plain error exists only in the event that it can be said that “but for the error, the

outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio

St.3d 426, 431, 1997-Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-

Ohio-825.

       {¶25} Evid. R. 901 provides that “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” A chain of custody is part of the authentication and identification

mandate set forth in the rule, and the State has the burden of establishing the chain

of custody of a specific piece of evidence before it can be admitted at trial. State

v. Brown (1995), 107 Ohio App.3d 194, 200.

       {¶26} “[A] strict chain of custody is not always required in order for

physical evidence to be admissible.” State v. Wilkins (1980), 64 Ohio St.2d 382,

389. Rather, “[t]he state need only establish that it is reasonably certain that

substitution, alteration or tampering did not occur.” Brown, 107 Ohio App.3d at

200, citing State v. Blevins (1987), 36 Ohio App.3d 147, 150. Further, any breaks

in the chain of custody after establishment of such a reasonable certainty go to the

weight afforded the evidence rather than its admissibility. Id.


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        {¶27} The testimony at trial sets forth a sufficient chain of custody. After

both fires, Plotts’ residence was secured by the fire department.                            Individuals

entering the residence immediately following the fires did so to investigate the

fires’ cause and survey the damage. As to those initial investigations, Ritemeyer,

Kristof, and Spencer testified that they removed nothing from the residence, while

Swartz and Case testified that they only conducted a visual inspection of the

residence, taking pictures of the damage.1 In addition, several witnesses testified

that the residence was locked upon their departure.

        {¶28} On April 23, 2009, the physical evidence was placed into plastic bags

by Kristof and Spencer. However, both men testified that none of the physical

evidence was removed from Plotts’ residence that day. Spencer testified that

Plotts’ residence was locked until he returned there on May, 7, 2009, to retrieve

the physical evidence bagged in late April.2

        {¶29} After retrieving the physical evidence from Plotts’ residence,

Spencer placed the evidence in his personal storage facility, which he locked.

From that point on, Spencer maintained custody of all the physical evidence


1
  We note that the record did reflect some slight movement of debris and physical evidence during the
investigation of the fires, such as Ritemeyer’s slight movement of the sweatshirt. We, however, do not find
these movements to constitute the type of substitution, alteration or tampering required to invalidate the
chain of custody, as there was testimony that prior to any movement the scene was photographed and that
such movements are necessary to properly and thoroughly investigate the cause of the fire.
2
  We note that while Spencer could not have known that the residence was continually locked between
April 23, 2009, and May 7, 2009, nothing in the record suggests that anyone unlocked, or otherwise entered
Plotts’ residence during that period of time. Accordingly, there is no evidence in the record to suggest any
substitution, alteration or tampering took place during that period of time.

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retrieved from Plotts’ residence, until he delivered it to the Van Wert County

Court House for trial.

       {¶30} In light of the following, we find that the State, with reasonable

certainty, established that no substitution, alteration or tampering occurred with

regard to the physical evidence presented at trial. And although the chain of

custody is not pristine in the case sub judice, and it rarely is, Plotts has failed to

identify evidence within the record, which demonstrates substitution, alteration or

tampering of the physical evidence.       Rather, Plotts’ argument addresses the

weaknesses, or breaks, in the chain of custody, in particular, the period of time the

physical evidence remained in his residence after the fire, but before Spencer took

the evidence into his custody on May 7, 2009. Any weaknesses in the chain,

however, go to the weight of the evidence, not its admissibility.

       {¶31} Having found that the State presented sufficient evidence to establish

the chain of custody, we cannot say that the trial court committed plain error by

allowing the physical evidence from Plotts’ residence to be introduced at trial.

       {¶32} Accordingly, we overrule Plotts’ first assignment of error.

                             Assignment of Error No. II

       {¶33} In his second assignment of error, Plotts contends that he was denied

effective assistance of counsel. Specifically, he contends that trial counsel failed

to call expert witnesses, inappropriately alluded to a conspiracy between the


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insurance companies and independent contractors, failed to effectively cross-

examine eyewitnesses, and, failed to challenge the absence of proof of loss forms

in evidence. We disagree.

       {¶34} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio

St.3d 136, paragraph two of syllabus.         To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.     Id. at paragraph three of syllabus.     “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103, 1997-Ohio-355.

       {¶35} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone

(1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not

exist merely because counsel failed ‘to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.

Murray (1986), 477 U.S. 527.


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       {¶36} First, Plotts contends that trial counsel was ineffective because he did

not call an expert to the stand, and thus relied solely on cross-examination. The

decision to call an expert is a matter of trial strategy. State v. Thompson (1987),

33 Ohio St.3d 1, 10-11. The failure to call an expert and instead rely on cross-

examination does not constitute ineffective assistance of counsel.           State v.

Nicholas (1993), 66 Ohio St.3d 431, 436. Accordingly, we do not find this issue

prejudicial to Plotts.

       {¶37} Second, Plotts contends that trial counsel was ineffective because he

alluded to a conspiracy between the insurance companies and independent

contractors. Attorneys licensed by the State of Ohio are presumed to provide

competent representation, State v. Pierce, 3d Dist. No. 11-09-05, 2010-Ohio-478,

¶33, citing State v. Hoffman (1998), 129 Ohio App.3d 403, 407, thus we must

afford a high level of deference to the performance of trial counsel. Bradley, 42

Ohio St.3d at 142. Trial counsel’s allusion to a possible conspiracy falls within

the realm of trial strategy. Perhaps trial counsel was attempting to highlight the

close working relationship among insurance companies and independent

contractors in an attempt to demonstrate bias. Whatever the reason for counsel’s

allusion to a conspiracy, we do not find counsel’s strategy prejudicial to Plotts.

       {¶38} Third, Plotts contends that trial counsel was ineffective because he

did not have Karri or Cody identify Plotts as the driver of the green car at trial.


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Close review of the record reveals that Karri and Cody were asked whether they

saw the driver of the green car. Karri stated that she saw the driver from a

distance, but if given the opportunity, she would not be able to recognize the

driver if she saw him again. Cody, on the other hand, stated that he did not see the

driver exit the car. From his testimony, a trier-of-fact could infer that Cody, if

given an opportunity, would be unable to identify the driver. Consequently, trial

counsel’s failure to ask Karri and Cody to identify whether Plotts was the driver of

the green car, would have added little to the trial, as both witnesses testified as

either not being able to identify the driver or never seeing the driver. Accordingly,

we do not find counsel’s failure to ask Karri and Cody whether Plotts was the

driver of the green car prejudicial to Plotts.

       {¶39} Finally, Plotts contends that trial counsel was ineffective because he

did not challenge the State’s failure to submit proof of loss forms from either fire.

The State, however, was not required to submit a written proof of loss form to

prove Plotts committed insurance fraud, because the crime can be committed via

an oral statement. The offense of insurance fraud provides as follows:

       (B) No person, with purpose to defraud or knowing that the
       person is facilitating a fraud, shall do either of the following:

       (1) Present to, or cause to be presented to, an insurer any written
       or oral statement that is part of, or in support of, an application
       for insurance, a claim for payment pursuant to a policy, or a
       claim for any other benefit pursuant to a policy, knowing that


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       the statement, or any part of the statement, is false or deceptive.
       [Emphasis Added]

       (C) Whoever violates this section is guilty of insurance fraud.
       Except as otherwise provided in this division, insurance fraud is
       a misdemeanor of the first degree. If the amount of the claim
       that is false or deceptive is five hundred dollars or more and is
       less than five thousand dollars, insurance fraud is a felony of the
       fifth degree. If the amount of the claim that is false or deceptive
       is five thousand dollars or more and is less than one hundred
       thousand dollars, insurance fraud is a felony of the fourth
       degree. If the amount of the claim that is false or deceptive is one
       hundred thousand dollars or more, insurance fraud is a felony of
       the third degree.

R.C. 2913.47(B)(1),(C).

       {¶40} In the case sub judice, Ralph Kisor, an investigator with Erie,

testified that Plotts called Erie to file claims for both fires. Accordingly, the

claims were filed orally, which is sufficient to support a conviction of insurance

fraud, pursuant to R.C. 2913.47(B)(1). In addition, Kisor testified that the damage

caused by the fires totaled $77,863.41 and $51,951.42, respectively. Thus, the

record contained enough evidence for the jury to convict Plotts on both counts of

insurance fraud.    Consequently, Plotts’ trial counsel did not error when he failed

to challenge the absence of proof of loss forms, because Plotts submitted the

claims orally. Accordingly, we find counsel’s failure to challenge the absence of

the proof of loss forms did not prejudice Plotts.

       {¶41} Consequently, because we find no error in trial counsel’s failure to

call experts, allusion to conspiracy among the insurance companies and

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independent contractors, failure to ask Karri and Cody to identify Plotts at trial, or

failure to challenge the absence of proof of loss forms, we find no error in trial

counsel’s performance.

       {¶42} Accordingly, we overrule Plotts’ second assignment of error.

       {¶43} Having found no error prejudicial to Plotts herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jnc




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