[Cite as State v. Dudley, 2012-Ohio-1558.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 11 CA 0078
ROBERT G. DUDLEY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 11 CR 024


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 4, 2012



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH OSWALT                                 DAVID A. BARTH
PROSECUTING ATTORNEY                           35 South Park Place
20 South Second Street, 4th Floor              Suite 201
Newark, Ohio 43055                             Newark, Ohio 43055
Licking County, Case No. 2011 CA 00078                                                     2

Wise, J.

       {¶1}   Defendant-Appellant Robert G. Dudley appeals his conviction in the

Licking County Common Pleas Court on one count of Aggravated Arson.

       {¶2}   Plaintiff-Appellee is the State of Ohio.

                        STATEMENT OF THE CASE AND FACTS

       {¶3}   On October 15, 2010, the Newark Police Department responded to a fire

at 123 Maholm Street, which is an occupied structure.             (T. at 86-87). The building

housed Behavioral Healthcare Partners of Central Ohio, which used to be known as

Moundbuilders, which runs a transition home at that location for people who are

homeless. (T. at 96).

       {¶4}   The arson investigator’s opinion was that the fire at 123 Maholm Street

was caused by a person shooting the house with a flare gun. (T. at 133, 150).

       {¶5}   The police investigation led them to Appellant, who, when interviewed by

police about the fire, denied starting the fire and claimed to have been in Columbus

when the fire occurred. (T. at 154-156). Appellant refused to tell police where he was

residing in Columbus or who he was with the night of the fire. (T. at 154-156).

       {¶6}   On January 13, 2011, Appellant Robert G. Dudley was indicted on one

count of Aggravated Arson, in violation of R.C. 2902.02(A)(2), a second degree felony.

       {¶7}   On June 13, 2011, this matter was tried before a jury.

       {¶8}   At trial, the jury heard the following testimony:

       {¶9}   Clint Eskins testified that he is a detective with the Newark Police

Department, (T. at 73). On September 27, 2010, he had contact with the Appellant, who

was found in possession of a flare gun that had been fired into the air. (T. at 74).
Licking County, Case No. 11 CA 0078                                                             3


       {¶10} David Kerr testified that he is a friend to the Appellant and that Appellant

was known to carry a flare gun (T. at 91-92). In September of 2010, the police had

contact with Appellant and took away his flare gun. However, Appellant was able to get

another one. (T. at 92).

       {¶11} Jim Pfister testified that he is employed by Behavioral Healthcare Partners

of Central Ohio, which used to be known as Moundbuilders (T at. 96). They run a

transition home at 123 Maholm Street for people who are homeless (T at 96). On

August 2, 2010, Appellant was asked to leave, since he was not following the rules of

the transition house. (T. at 99). Appellant was upset that he had been asked to leave

and would often return to the transition house. (T. at 98-99).

       {¶12} Serena Cook testified that she knew Appellant and that she took him to a

house on Maholm Street to pick up his clothes. (T. at 175, 177).             She stated that

Appellant was upset at that time and a few weeks later admitted to her that he had shot

the house with a flare gun. (Tr. 176, 178).

       {¶13} Sonja Smith testified that she knew Appellant from the neighborhood (T at.

182). Ms. Smith explained that Appellant had dropped off some clothes and asked her

to keep them for him. (T. at 183). She further testified that Appellant admitted to her that

he had shot a house with a flare and started a fire. (T. at 183-184). She stated that

Appellant told her that he planned to turn himself into the police for starting the fire. Id.

       {¶14} Max Cullop testified that he is a friend of Appellant, and that Appellant told

him that he was going to shoot the Moundbuilders house with a flare gun. (T. at 162,

163-164, 166, 168). He stated that the day after the fire, Appellant asked him for a ride
Licking County, Case No. 11 CA 0078                                                       4


to Columbus. During the ride to Columbus, Appellant admitted that he had in fact shot a

flare at the Moundbuilder’s house. (T. at 166, 168).

       {¶15} A’Leheija Ohara testified that on October 15, 2010, he was at his

girlfriend's house, located at 116 Maholm Street, which is across the street from where

the fire occurred. (T. at 105). He stated that he heard what sounded like a gunshot,

went outside to investigate and saw a spark or flash of light and fire coming from a hole

on the side of the house at 123 Maholm Street. (T. at 108-111). He said that he also

saw Appellant was riding down the street on a bicycle, and that he was the only person

on the street. (T. at 108-109). Mr. Ohara stated that he knew that a man named Michael

Justice lived at the 123 Maholm Street residence. (T. at 111). He also stated that he

knew that Appellant was known to carry a flare gun. (T. at 113).

       {¶16} Michael Justice was not present at the trial but had testified at a prior trial

involving Appellant. The defense sought to introduce his prior testimony. The State

initially objected to this testimony, but withdrew the objection when the trial court

advised it would continue the trial in order to permit the defense to introduce said

testimony. (T. at 201-213).

       {¶17} Mr. Justice’s testimony was that Appellant had resided at the transition

home on Maholm Street but had been asked to leave. (T. at 219). Appellant was upset

about being asked to leave and continued to return to the home. (T. at. 219). On the

night of the fire, Mr. Justice claimed he saw Appellant leaving the scene on a bicycle.

(T. at 231).
Licking County, Case No. 11 CA 0078                                                    5


       {¶18} The jury also heard testimony from William Eberts, an officer with the

Newark Police Department. (T. at 85). On October 15, 2010, he responded to a fire at

123 Maholm Street, which is an occupied structure. (T. at 86-87).

       {¶19} Tim Smith testified that he is an arson investigator with the City of Newark

and an expert in arson investigation. (T. at 130, 133). Mr. Smith testified that in his

opinion, the fire at 123 Maholm Street was caused by a person shooting the house with

a flare gun. (T. at 133, 150).

       {¶20} Ray Ladrick, a criminalist with the State Fire Marshall, testified that he

examined evidence from the source of the fire and found that there were chemicals

consistent with a flare being used to start the fire. (T. at 238, 241, 243-244).

       {¶21} At the conclusion of the trial, the jury returned a verdict of guilty as

charged.

       {¶22} On June 15, 2011, Appellant was sentenced to five (5) years

incarceration.

       {¶23} Appellant now appeals, assigning the following sole error for review:

                                 ASSIGNMENT OF ERROR

       {¶24} “I. THE TRIAL COURT VIOLATED APPELLANT'S STATE AND

FEDERAL RIGHTS TO DUE PROCESS AS WELL AS BEING DENIED A FAIR AND

IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10,

ARTICLE I .OF THE OHIO CONSTITUTION BY USING EVIDENCE INSUFFICIENT AS

A MATTER OF LAW TO SUPPORT THE CONVICTION. IN ESSENCE, THE

TESTIMONY OF THE WITNESSES AND THE FACTS AT HAND DID NOT SHOW
Licking County, Case No. 11 CA 0078                                                   6


THAT THE APPELLANT COULD IN ANY WAY BE IDENTIFIED AS BEING AT THE

SCENE OF THE CRIME AT OR SHORTLY AFTER THE CRIME WAS ALLEGEDLY

COMMITTED AS WELL AS THE WITNESSES WHO ALLEGEDLY TESTIFIED AS TO

APPELLANT'S      CONFESSIONS         WERE       UNRELIABLE,    INCONSISTENT        AND

UNTRUTHFUL.”

                                           I.

       {¶25} In Appellant’s sole assignment of error, Appellant argues that his

conviction was against the manifest weight of the evidence. We disagree.

       {¶26} Our standard of review for manifest weight in criminal matters is as

follows: “The court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the [finder 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. Martin (1983), 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 20 Ohio

App.3d 172, 485 N.E.2d 717; See also State v. Thompkins (1997), 78 Ohio St.3d 380,

1997 Ohio 52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.”

Martin at 175, 485 N.E.2d 717.

       {¶27} In the case sub judice, Appellant was convicted of aggravated arson, a

violation of R.C. §2902.02(A)(2), which provides:

       {¶28} “R.C. §2909.02 Aggravated arson

       {¶29} “(A) No person, by means of fire or explosion, shall knowingly do any of

the following:
Licking County, Case No. 11 CA 0078                                                       7


       {¶30} “(1) ***

       {¶31} “(2) Cause physical harm to any occupied structure;”

       {¶32} Thus, to find Appellant guilty of aggravated arson, the jury had to find that

Appellant, by means of fire or explosion, knowingly caused physical harm to any

occupied structure.

       {¶33} Here, we find that the jury had before it ample evidence to find that

Appellant knowingly caused the fire herein by firing a flare at the house, which was

occupied.

       {¶34} As set forth above, the jury heard expert testimony that the fire herein was

caused by a flare. Additionally, they heard from two witnesses, A’Leheija Ohara and

Michael Justice, who stated that they saw Appellant leaving the scene of the fire.

Further, they heard testimony from Sonja Smith and Max Cullop who stated that

Appellant admitted to them that he started the fire by firing a flare at the house. The jury

also heard testimony that Appellant had recently been a resident at the transition house

but had been asked to leave, which he was unhappy about.

       {¶35} Appellant herein argues that the eye witnesses in this case were not

credible, and the witnesses who testified as to his alleged confessions were unreliable,

inconsistent and untruthful.

       {¶36} As an appellate court, we are not the trier of fact. Our role is to determine

whether there is relevant, competent, and credible evidence upon which the factfinder

could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768, 936

N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries (Feb. 10, 1982),

Stark App. No. CA–5758, 1982 WL 2911. It is well-established that the trier of fact is in
Licking County, Case No. 11 CA 0078                                                     8

a far better position to observe the witnesses' demeanor and weigh their credibility. See,

e.g., Taralla v. Taralla, Tuscarawas App.No. 2005 AP 02 0018, 2005–Ohio–6767, ¶ 31,

citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212

      {¶37} Based on the foregoing, we find that Appellant’s conviction for aggravated

arson was not against the manifest weight of the evidence.

      {¶38} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0307
Licking County, Case No. 2011 CA 00078                                        9


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ROBERT G. DUDLEY                           :
                                           :
       Defendant-Appellant                 :         Case No. 11 CA 0078




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
