[Cite as State v. Crytzer, 2019-Ohio-2285.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                      ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                    :        OPINION

                    Plaintiff-Appellee,            :
                                                            CASE NO. 2018-A-0077
          - vs -                                   :

 KYLE ROBERT CRYTZER,                              :

                    Defendant-Appellant.           :


 Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR
 00373.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047 (For Plaintiff-Appellee).

 Christopher J. Boeman, P.O. Box 583, Willoughby, OH                44096 (For Defendant-
 Appellant).



MARY JANE TRAPP, J.

        {¶1}       Appellant, Kyle Robert Crytzer (“Mr. Crytzer”), appeals from the judgment

of the Ashtabula County Court of Common Pleas, which sentenced him to an eleven-year

prison sentence after a jury found him guilty of two counts of aggravated arson and one

count of domestic violence.

        {¶2}       Mr. Crytzer contends the trial court abused its discretion and he received

ineffective assistance of counsel because a recorded statement made by the victim
shortly after the house fire was not played for the jury and because the trial court

encouraged the jury to deliberate quickly so the trial would be finished in one day.

          {¶3}   A thorough review of the record reveals Mr. Crytzer’s assignments of error

are without merit. First, the victim’s statements to the investigator were not inconsistent

with her trial testimony. Second, while the trial court did inquire if the jury was available

and willing to deliberate into the evening so they would not have to return the following

day, we find the trial court did not pressure the jury to rush into a decision, and there is

no evidence the jury did not seriously consider the charges against Mr. Crytzer.

                            Substantive and Procedural History

          {¶4}   On a summer evening in 2017, the victim, Danyelle Mullins (“Ms. Mullins”),

planned a “girl’s night out” with her friend, Chelsea Tuttle (“Ms. Tuttle”). They were in a

downtown Ashtabula tavern when Mr. Crytzer texted Ms. Mullins, his ex-girlfriend and

mother of his three-year old child, asking if he could join them. Ms. Mullins agreed, and

he met them at the first tavern. The three then went into several more bars, and on to the

way to the third, Mr. Crytzer left the two ladies and went in the other direction to meet a

friend.

          {¶5}   Ms. Mullins and Ms. Tuttle decided to order a pizza to be delivered to Ms.

Mullins’ home and stopped at one more bar. The two shared a drink and noticed Mr.

Crytzer sitting alone in a booth watching them. Mr. Crytzer walked back with them to Ms.

Mullins’ home. Ms. Mullins and Mr. Crytzer argued on her porch. He pushed his way

inside and grabbed a piece of pizza. The two ladies then pushed him out of the house.

Mr. Crytzer was outside on the porch, knocking on the windows and the door. He

screamed that “he was gonna light the house on fire.”




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       {¶6}   Scared, the two ladies ran upstairs. Ms. Mullins called her brother, and Ms.

Tuttle called the police. The porch was on fire, melting the siding. Ms. Mullins was able

to extinguish the fire with a couple of Gatorade bottles. Investigators found orange-brown

deck stain splashed all over the deck and a neighbor’s ladder propped up against the side

of the house going to a second story window.

       {¶7}   Mr. Crytzer was seen standing shirtless with his dog approximately two

houses down, watching the fire, and was apprehended a short while later. His jeans and

hands had orange-brown deck stain splattered on them, and he had a lighter in his pocket.

At trial, Captain Stephen Chase of the City of Ashtabula Fire Department (“Captain

Chase”) opined that the fire was caused by “the deck stain that was splattered on the

deck,” which was ignited by an “open flame device.”

       {¶8}   Captain Chase was the fire investigator who interviewed Ms. Mullins

regarding the night of the fire, and that interview is the subject of assigned error in this

appeal.

                                 The Court Proceedings

       {¶9}   Mr. Crytzer was indicted on two counts of aggravated arson in violation of

R.C. 2909.02(A)(1) and R.C. 2909.02(A)(2), felonies of the first and second degree,

respectively; breaking and entering in violation of R.C. 2911.13(B), a felony of the fifth

degree; attempted burglary in violation of R.C. 2923.03(A)/2919.19(A)(1), a felony of the

third degree; and domestic violence in violation of R.C. 2919.25(A), a misdemeanor of

the first degree.

       {¶10} There were two jury trials in this case. The first jury found Mr. Cyrtzer not

guilty of breaking and entering and attempted burglary, but deadlocked on the remaining




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counts of aggravated arson and domestic violence. The case was reset for a new jury

trial on the remaining counts.

       {¶11} At the second two-day trial, the state presented evidence and the testimony

of Ms. Mullins; Nikki Harson, Ms. Mullins’ neighbor who observed the fire; Mr. Crytzer

standing watching the fire with his dog a few houses down; Dustin Pal, Ms. Mullins’

brother whom Ms. Mullins called during the incident; Ms. Tuttle; Patrolman Eric Massie,

who was at the scene; and Captain Chase. Mr. Crytzer presented the testimony of

Michael Alan Keyes and Danielle Colicchio, his alibi witnesses.

       {¶12} After Ms. Mullins testified, the defense asked to play the recorded interview

between Captain Chase and Ms. Mullins for the jury. The defense argued Ms. Mullins

portrayed herself as a virtuous woman on the stand, but in the interview she admitted to

Captain Chase she was quite intoxicated the evening of the fire. Mr. Crytzer argued the

statements made by Ms. Mullins in her interview with Captain Chase were inconsistent

with her trial testimony.    The trial court reviewed the statements and found no

inconsistencies.

       {¶13} Explaining the ruling, the trial court remarked, “I didn’t get the impression

that someone that claims they have two kids with two different guys and is not married

and had five drinks in four different bars in the course of an evening portrayed herself

incredibly virtuous. That isn’t the impression I got from her; and she didn’t deny that she

made the statements you claim she did, she just said she doesn’t recall.” The trial court

also noted, “[a]n omission is not an inconsistent statement.”

       {¶14} After the trial court denied the request to play the recording for the jury,

defense counsel proffered the recording.




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         {¶15} Just before closing arguments, the trial court inquired of the jurors whether

they wanted to stay past 4:30 p.m. to deliberate. There were no objections at the start of

closing arguments at about 2:30 p.m. The trial court again inquired of the jurors if there

was any reason they could not stay past 4:30 p.m., and there were no objections. The

closing arguments were made. The jury was charged. The trial court again asked if there

was any reason the jurors could not stay to deliberate. The jury retired at 4:01 p.m.,

deliberated, and returned their verdict in the early evening at 5:13 p.m.

         {¶16} The jury found Mr. Crytzer guilty on all three counts.

         {¶17} At the sentencing hearing on October 5, 2018, the trial court denied Mr.

Crytzer’s pro se motion for a new trial as well as his counsel’s motion for new trial. Both

motions argued many of the same points, but the trial court allowed Mr. Crytzer to argue

on his own behalf. The trial court then sentenced Mr. Crytzer to an eleven-year term of

imprisonment on the counts of aggravated arson (Count 2 merged into Count 1) and a

concurrent six-month term of imprisonment on the count of domestic violence.

         {¶18} Mr. Crytzer subsequently appealed and now raises four assignments of

error:

         {¶19} “[1.] The Trial Court abused its discretion to the prejudice of Mr. Crytzer

when it did not allow Defense Counsel to impeach witness Ms. Mullins by playing portions

of her recorded interview with Captain Chase for the jury.

         {¶20} “[2.]   Mr. Crytzer was denied effective assistance of counsel because

Defense Counsel did not properly seek to use the recorded interview of Ms. Mullins by

Captain Chase to impeach her testimony at trial.




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       {¶21} “[3.] The Trial Court abused its discretion to the prejudice of Mr. Crytzer in

making statements to the jury prior to deliberations that implied that they had to reach a

verdict in a short period of time.

       {¶22} “[4.]   Mr. Crytzer was denied effective assistance of counsel because

Defense Counsel did not object to the Trial Court’s statements to the jury implying that

they had to reach a verdict in a short period of time.”

       {¶23} We will address Mr. Crytzer’s contentions out of order because our

discussion of Mr. Crytzer’s first and third assignments of error are determinative of his

claims of ineffective assistance of counsel.

           Evidentiary Rulings - Abuse of Discretion Standard of Review

       {¶24} “A trial court has broad discretion in determining the admissibility of

evidence. State v. Hymore, 9 Ohio St.2d 122, 128 (1967). Unless an abuse of discretion

is apparent from a review of the record, appellate courts will not disturb evidentiary rulings.

Id. An ‘abuse of discretion’ is one of art, connoting judgment exercised by a court, which

does not comport with reason or the record. State v. Underwood, 11th Dist. Lake No.

2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678

(1925).” State v. Raia, 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, ¶9. Stated

differently, an abuse of discretion is “the trial court’s ‘failure to exercise sound,

reasonable, and legal decision-making.’” Id., quoting State v. Beecher, 2d Dist. Clark No.

09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004).

“When an appellate court is reviewing a pure issue of law, ‘the mere fact that the reviewing

court would decide the issue differently is enough to find error[.] * * * By contrast, where

the issue on review has been confined to the discretion of the trial court, the mere fact




                                               6
that the reviewing court would have reached a different result is not enough, without more,

to find error.’” Id., quoting Beechler at ¶67.

                      Prior Inconsistent Statements – Evid.R. 613

       {¶25} In his first assignment of error, Mr. Crytzer contends the trial court should

have permitted him, under Evid.R. 613 (“Impeachment by self-contradiction”), to impeach

Ms. Mullins’ testimony by introducing portions of Captain Chase’s recorded interview with

Ms. Mullins.

       {¶26} Pursuant to Evid.R. 613(B), a party may introduce extrinsic evidence of a

witness’s prior inconsistent statement to impeach the witness’s credibility. The rule

states, in pertinent part:

       {¶27} “Extrinsic evidence of a prior inconsistent statement by a witness is

admissible if both of the following apply:

       {¶28} “(1) If the statement is offered solely for the purpose of impeaching the

witness, the witness is afforded a prior opportunity to explain or deny the statement and

the opposite party is afforded an opportunity to interrogate the witness on the statement

or the interests of justice require;

       {¶29} “(2) The subject matter of the statement is one of the following:

       {¶30} “(a) A fact that is of consequence to the determination of the action other

than the credibility of a witness; (b) A fact that may be shown by extrinsic evidence under

Evid.R. 608(A), 609, 616(A), or 616(B); (c) A fact that may be shown by extrinsic evidence

under the common law of impeachment if not in conflict with the Rules of Evidence.”

       {¶31} As Mr. Crytzer noted in his brief, “[t]he Rules of Evidence do not define when

a statement is inconsistent. However, [a] general definition of an inconsistent statement




                                                 7
is: It is enough if the proffered testimony, taken as a whole, either by what it says or by

what it omits to say, affords some indication that the fact was different from the testimony

of the witness whom it is sought to contradict. Ohio’s courts should be liberal when

determining whether two statements are inconsistent. A trial court has the discretion to

determine whether two statements are inconsistent and whether any difference between

prior statements and trial testimony are material inconsistencies.”          (Citations and

quotation omitted.) Raia at ¶26, quoting State v. Freeman, 7th Dist. Jefferson No. 07 JE

5, 2008-Ohio-2925, ¶53.

       {¶32} Mr. Crytzer argues Ms. Mullins’ testimony is inconsistent with her recorded

interview with Captain Chase. When defense counsel asked Ms. Mullins what she told

Captain Chase regarding the number of alcoholic beverages she consumed and how

inebriated she was, Ms. Mullins replied that she did not remember. Later, defense

counsel also inquired if she told Captain Chase that she was “very intoxicated and that

[she] didn’t remember much.” Ms. Mullins replied that she did not recall the exact

statement, but that she was in a state of shock and had very little sleep since the incident.

       {¶33} A review of both the recorded interview and Ms. Mullins’ testimony reveals

the trial court did not abuse its discretion in excluding the recording because there were

no material inconsistencies. During her testimony, Ms. Mullins never denied she was

intoxicated on the night of the incident. She specifically stated the number of alcoholic

beverages she consumed that night at each establishment. Defense counsel argued the

recorded interview presented a very different version of events, but a review of the

testimony at trial does not present any inconsistency. There was no dispute that Ms.

Mullins was inebriated on the night of the incident. She did not deny or downplay her own




                                             8
actions. The timeline and description of events leading up to the fire as described to

Captain Chase and as described to the trial court were consistent.

       {¶34} Quite simply, there were no inconsistencies of fact, material or otherwise,

between the recorded interview and Ms. Mullins’s testimony.

       {¶35} Mr. Crytzer’s first assignment of error is without merit.

                                    Jury Deliberations

       {¶36} In his third assignment of error, Mr. Crytzer contends the trial court abused

its discretion to his prejudice in making statements to the jury prior to deliberations that

indicated they had to reach a verdict in a short period of time.

       {¶37} Because Mr. Crytzer failed to object to the trial court’s statements at trial,

we review only for plain error, which “‘does not exist unless it can be said that, but for the

error, the outcome of the trial would clearly have been otherwise.’” State v. Casino, 8th

Dist. Cuyahoga No. 92536, 2010-Ohio-510, ¶11, quoting State v. Moreland, 50 Ohio St.3d

58, 62 (1990).

       {¶38} “While performing his or her duties, a trial judge must recognize the effect

his comments may have upon a jury.” Id. at ¶12, citing State v. Thomas, 36 Ohio St.2d

68, 71 (1973). “There is no doubt that juries tend to give great deference to a trial judge’s

words.” Id., citing Thomas at 71. “Therefore, certain improper remarks by a trial judge

may prejudice a defendant’s constitutional rights to a fair trial.” Id., citing State v. Wade,

53 Ohio St.2d 182, 188 (1978).

       {¶39} “Generally, in determining whether a trial judge’s remarks were prejudicial,

the courts will adhere to the following rules: (1) The burden of proof is placed upon the

defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best




                                              9
position to decide when a breach is committed and what corrective measures are called

for, (3) the remarks are to considered in light of the circumstances under which they are

made, (4) consideration is to be given to their possible effect upon the jury, and (5) to

their possible impairment of the effectiveness of counsel.” Id. at ¶13, citing Wade; see

generally, Annotation, 62 A.L.R.2d 166 (1958).

       {¶40} Mr. Crytzer contends that the trial court prejudiced the jury by inquiring

whether they “really want to come tomorrow” and then stating, “so, we’re gonna stay here

and get it done.” The trial court explained, “[t]he plan is for you guys to wrap this thing up

today so that you don’t have to come back tomorrow. So, is there any reason why you

can’t stay even if we go – if we go past 4:30? Most people want to get it done. That’s my

experience. I’m seeing no Jurors to be in acknowledgement, that you just want to stay

and conclude this today so that you don’t have to come back. So that will be what we’re

going to do.”

       {¶41} The record reflects the trial court inquired at three separate points before

closing arguments began whether there would be any problem with jurors staying until

they reached a verdict, so they would not have to return to court the following day. At

each point, no juror expressed a problem with the plan for deliberations.             Closing

arguments began at about 2:30 p.m. The jury began their deliberations at about 4:00

p.m. and returned their verdict in about an hour and fifteen minutes.

       {¶42} In Casino, supra, the Eighth District Court of Appeals addressed a similar

situation, where the trial court indicated it “hoped the matter could have a verdict that

day,” and proposed that the jury eat their lunches while deliberating and avoid asking




                                             10
unnecessary questions of the court in order to save time. Id. at ¶20. The court found that

these statements did not indicate any pressure being asserted upon the jury. Id.

        {¶43}    In this case, apart from the statements about staying past 4:30 p.m., the

trial court, as in the Casino case, made other comments indicating his desire for the jury

to reach a calculated and well-considered decision. Thus, in Casino, the trial court

“cautioned the jurors to only decide the case after discussing the matter thoroughly with

their fellow jurors. He further provided that they ‘should not surrender honest convictions

in order to be congenial or to reach a verdict solely because of the opinions of your fellow

jurors.’” Id. at ¶21. See also, State v. Hobbs, 8th Dist. Cuyahoga No. 81533, 2003-Ohio-

4338, ¶31 (“* * * the judge merely instructed the jury that he was ‘hopeful’ that a decision

could be reached that day. He did not urge the jury to hurry its decision and stated that

they would be permitted to go home and come back the next day or another day if they

could not reach a verdict. He did not comment on the defendant’s guilt or the strength of

the State’s case. * * * [T]here is no evidence that defendant was prejudiced by the trial

court’s statements.”

        {¶44} The trial court in this case properly instructed and cautioned the jurors in a

nearly identical manner to the trial court in Casino. He told the jurors: “You must not be

influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh

the evidence, to decide the disputed questions of fact, to apply the instructions of law to

your findings, and to render your verdict accordingly. Your duty as Jurors is to arrive at

a just verdict. * * *”

        {¶45} Further, the trial court instructed the jurors to ask questions and inquire if

they had difficulty remembering the instructions they were given. He concluded by saying




                                             11
“Your initial conduct upon commencing deliberations is important. It is not wise to express

immediately a determination or insist upon a certain verdict. * * *”

         {¶46} Under these circumstances, we do not find the trial court’s comments

coercive or prejudicial in any manner. Mr. Crytzer’s third assignment of error is without

merit.

                            Ineffective Assistance of Counsel

         {¶47} In his second and fourth assignments of error, Mr. Crytzer raises claims of

ineffective assistance of counsel.

         {¶48} “In determining whether counsel’s performance constitutes ineffective

assistance, an appellate court must find that counsel’s actions fell below an objective

standard of reasonableness and that appellant was prejudiced as a result.” (Citations

omitted.) State v. Stoutamire, 11th Dist. Trumbull No. 2008-T-0108, 2009-Ohio-6228,

¶50; see also Strickland v. Washington, 466 U.S. 668 (1984). “In performing its review,

an appellate court is not required to examine counsel’s performance under the first prong

of the Strickland test if an appellant fails to prove the second prong of prejudicial effect.”

(Citations omitted.) Id. “In demonstrating prejudice, an appellant must show that there is

a reasonable probability that, but for counsel’s errors, the result of the trial would have

been different.” (Citations omitted.) Id. Further, “[a] strong presumption exists that a

licensed attorney is competent and that the challenged action is the product of sound trial

strategy and falls within the wide range of professional assistance.” (Citations omitted.)

Id.

         {¶49} In his second assignment of error, Mr. Crytzer argues his counsel was

ineffective for not properly seeking to use the recorded interview of Ms. Mullins by Captain




                                             12
Chase to impeach her testimony at trial. Mr. Crytzer also argues in his brief that defense

counsel did properly seek to use the recording but “[s]hould the appellate court determine

that defense counsel made some procedural error in how defense counsel confronted

Ms. Mullins with her prior inconsistent statements, then Mr. Crytzer received ineffective

assistance of counsel.”

       {¶50} In his fourth assignment of error, Mr. Crytzer argues he was denied effective

assistance of counsel because defense counsel did not object to the trial court’s

statements to the jury implying that they had to reach a verdict in a short period of time.

       {¶51} Because we have separately addressed the underlying grounds for these

two assignments of error and found them to be without merit, Mr. Crytzer’s claims of

ineffective assistance of counsel based upon the same grounds are likewise without

merit. See State v. Henderson, 39 Ohio St.3d 24, 33 (1988) (“The grounds which underlie

each of these instances have already been separately addressed and found to be without

merit. Accordingly, we need not address the counsel-performance component of these

grounds.”); See also Hobbs, supra, at ¶26.

       {¶52} Mr. Crytzer’s second and fourth assignments of error are without merit.

       {¶53} The judgment of the Ashtabula County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

MATT LYNCH, J., concurs with a Concurring Opinion.



                                    ____________________




                                             13
MATT LYNCH, J., concurs with a Concurring Opinion.

       {¶54} I concur in the judgment and opinion of the majority, affirming Crytzer’s

convictions. I write separately with respect to the third assignment of error, to express

my reservations regarding the propriety of the trial judge’s comments urging the jury to

reach a verdict on the day trial concluded so as to avoid having to return for a second day

of deliberations. To the extent that the majority did not find these comments prejudicial,

I concur in the disposition of this assignment of error as well.

       {¶55} As a general proposition, any comments by a trial court which have the

effect of depriving a defendant of a fair trial may be grounds for reversal. E.g., State v.

McCarley, 9th Dist. Summit No. 22562, 2006-Ohio-1176, ¶ 16 (statements made

bolstering the credibility of a witness); State v. Collins, 8th Dist. Cuyahoga No. 89808,

2008-Ohio-3016, ¶ 18 (comments regarding the defendant’s incarceration and potential

security threat); State v. Smith, 11th Dist. Portage Nos. 2006-P-0101 and 2006-P-0102,

2008-Ohio-3251, ¶ 78 (criticism and rebuking of defense counsel). With regard to jury

deliberations specifically, the court may not pressure a jury to reach a verdict in derogation

of its oath to reach a fair and impartial decision. State v. Casino, 8th Dist. Cuyahoga No.

92536, 2010-Ohio-510, ¶ 18; Noble v. Aldred, Cal.App. No. D042196, 2004 WL 1354260,

*8 (“[b]y repeatedly commenting on the undesirability of deliberations having to continue

beyond that Friday afternoon, the trial judge pressured-or at least encouraged-the jury to

reach a verdict through ‘compromise or concession to expediency’”).

       {¶56} In the present case, the trial court made multiple comments to the jury

indicating that “the plan” was to reach a verdict “so that you don’t have to come back

tomorrow.” Also: “I like to get things done a day at a time”; “is there anyone that likes



                                             14
looking at me so much that you just really want to come back tomorrow”; “most people

want to get it done”; and “I’m seeing * * * that you just want to stay and conclude this

today so that you don’t have to come back.” Certainly, the court’s anxiety to “wrap things

up” in a day might suggest to the jury that the imperative of reaching an impartial verdict

could be tempered by considerations of expediency.

       {¶57} The potentially deleterious effect of the trial court’s comments, however,

was offset in the present case by the court’s diligence in instructing the jury “to arrive at

a just verdict” without partiality or bias and not to “surrender honest convictions in order

to be congenial or to reach a verdict.” The court was also solicitous to inquire whether

jurors had any physical limitations or domestic obligations that would prevent them from

giving due consideration to the evidence in reaching their verdict. In the absence of any

indication that the jury was motivated by considerations of expediency in returning a

verdict, it cannot be said that the court’s comments were prejudicial.

       {¶58} With these reservations, I concur in the judgment and opinion.




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