[Cite as State v. Rabatin, 2019-Ohio-1295.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2017-P-0036
        - vs -                                  :

MARC C. RABATIN,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR
00696.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Wesley A. Johnston, P.O. Box 6041 Youngstown, OH 44501, and Eric D. Hall, P.O.
Box 232, Medina, OH 44258 (For Defendant-Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Marc C. Rabatin, appeals his convictions for

Aggravated Arson following a jury trial in the Portage County Court of Common Pleas.

For the following reasons, we affirm the convictions.

        {¶2}     On September 22, 2016, the Portage County Grand Jury returned an

Indictment charging Rabatin with the following: two counts of Aggravated Arson,

felonies of the first degree in violation of R.C. 2909.02(A)(1) and (B)(1); two counts of

Operating Vehicle While Intoxicated, misdemeanors of the first degree in violation of
R.C. 4511.19(A)(1)(a) and (f) and R.C. 4511.19(G); Refusal to Submit to Chemical

Tests, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(2); Menacing, a

misdemeanor of the fourth degree in violation of R.C. 2903.22; and Assault on Peace

Officer, a felony of the fourth degree in violation of R.C. 2903.13(A) and (C)([5]).

       {¶3}   On September 23, 2016, Rabatin was arraigned and entered a plea of Not

Guilty to the charges contained in the Indictment.

       {¶4}   Between April 25 and 27, 2017, Rabatin’s case was tried to a jury. The

following testimony, relevant to the issues raised on appeal, was given at trial:

       {¶5}   Officer Samantha Burton of the Kent Police Department testified that, on

September 17, 2016, she received “a dispatch for a report of an intoxicated male who

was causing problems at the [Kent] farmer’s market.” En route, she came upon a

vehicle matching the description of the suspect’s vehicle given in the dispatch and

initiated a traffic stop. Officer Burton identified Rabatin as the operator of the vehicle.

After administering field sobriety tests, she placed Rabatin under arrest for OVI and

drove him to the Kent Police Department.

       {¶6}   At the police station, Rabatin’s conduct was alternatively aggressively

combative and passively noncompliant. Rabatin was verbally abusive not only toward

police officers and municipal employees, but also toward an African-American prisoner.

       {¶7}   Officer Burton testified that Rabatin began making suicidal threats upon

arriving at the sally port, threatening to kill himself and everybody else. Rabatin refused

to exit the patrol car and fellow Kent Police Officer, John Phillip Gormsen, assisted

Burton in taking Rabatin into booking. The officers would also be required to carry

Rabatin into his jail cell. Rabatin was searched and his boots, belt, and wallet were




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removed before he was placed in Cell 3. At the time he entered the cell, Rabatin was

wearing socks, jeans, and a red T-shirt.

       {¶8}    Officer Gormsen also testified regarding the events at the City of Kent jail.

       {¶9}    Detention Officer Jill Herman of the municipal jail testified regarding

Rabatin’s booking. Rabatin was “screaming and yelling and ranting and raving” as he

was placed in Cell 3. She described Cell 3 as having a toilet, a sink, a bunk, and a

mattress.

       {¶10} About forty minutes after Rabatin was placed in the cell, Officer Herman

heard him shout, “help fire.” Immediately the jail’s alarm bells and whistles sounded.

She found Rabatin lying on the floor of the cell with his head against the door, wearing

only underwear and socks. One leg of his jeans was tied around his neck and the other

leg was tied to the bars of the cell. The mattress was on fire. Herman had to push his

head forward to slide open the door of the cell. She tried to untie the pant leg around

his neck but Rabatin resisted by pushing her hands away and clinging to the pant leg.

Officers Burton and Gormsen arrived to assist Herman, at which time Rabatin became

unresponsive. The officers dragged Rabatin from the cell, handcuffed him, and took

him out of the jail.

       {¶11} Several videos recorded events at the jail including Rabatin’s booking and

removal after the fire which were entered into evidence and played for the jury.

       {¶12} Jackson Alan Pangburn was being held at the jail on September 17, 2016,

in a cell adjoining Cell 3. Although he could not see what Rabatin was doing, he heard

Rabatin “yelling and screaming” and “moving around” in his cell. Among other things,

Rabatin said he would “burn this place to the ground.”




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        {¶13} Captain David Moore of the Kent Fire Department responded to the fire at

the jail. He found a mattress “on fire” in Cell 3 and took the mattress out of the building.

He returned to the cell and found a small fire on the ground: “it looked like whatever I

had when I pulled that mattress off something dropped down on the ground * * * in the

middle of the cell.” Because it was a small fire, Moore “tried to stomp it out with [his]

boot,” but it did not go out. The fire – a burning T-shirt – was then extinguished with a

pressurized water can.

        {¶14} Captain Moore testified regarding spontaneous combustion: “Spontaneous

combustion is combustion of material either by organic or biological process that

creates within that material enough heat to generate ignition of that item.”                  Moore

claimed “quite a bit” of experience with spontaneous combustion and provided

examples such as mulch fires. Moore noted that spontaneous combustion requires a

“lengthy time” and tends to produce “a lot of smoke” prior to ignition.1 Moore did not

think the cell fire was consistent with spontaneous combustion.

        {¶15} Captain Moore noted that the mattress was designed to be flame

resistant, meaning that it “can burn, but [it] will not sustain its own ignition.” Something

other than the mattress had to create sufficient heat to start the mattress burning.

        {¶16} Captain William Myers of the Kent Fire Department also responded to the

jail fire.   He testified that the fire began with Rabatin’s T-shirt and spread to the

mattress. Myers rejected the idea that other material, such as toilet paper, could have

ignited the mattress: “I think it would’ve taken a more sustained temperature in order to

catch that mattress on fire.”

1. Captain Moore: “So it’s burning off the moisture, which shows up as smoke and then as that material
starts to break down to its ignition temperature it’s gonna become more accurate [sic], that smoke is
going to become very obnoxious.”


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       {¶17} Neither Captain Moore nor Captain Myers could determine how the fire

had been started.

       {¶18} Mollie Jordan, a criminalist with the Ohio Department of Commerce,

Division of the State Marshall Forensic Laboratory, testified on behalf of Rabatin. She

tested the mattress from Cell 3 and Rabatin’s T-shirt for the presence of ignitable

liquids, i.e., accelerants. Jordan found no evidence of ignitable liquids or “match sticks

or remnants of match sticks.”

       {¶19} Rabatin testified on his own behalf.          On the day in question, Rabatin

remembered driving and being stopped by the police, but at that point he “blacked out”

from the excessive consumption of alcohol. Rabatin had a vague recollection of being

in the booking area of the Kent police station. Rabatin believed that he had walked into

the cell, laid down on the bottom bunk and saw “a glow in the foam” of the top bunk.

Then, a black man jumped off the top bunk and left the cell. After viewing the video

evidence, however, Rabatin realized that these things did not happen. Rabatin claimed

he “almost died in a cell fire * * * because of the actions taken by the police officers at

the Kent City Jail that day, by being wrongly placed in a cell.”

       {¶20} The jury found Rabatin guilty of both counts of Aggravated Arson; both

counts of Operating a Vehicle While Intoxicated; Refusal to Submit to Chemical Tests;

Menacing; and an amended count of Assault on Peace Officer, a misdemeanor of the

first degree in violation of R.C. 2903.13(A) and (C)(5).

       {¶21} Following a sentencing hearing, the trial court sentenced Rabatin to serve

the following concurrent prison sentences: eight years for Aggravated Arson (Count 1);

four years for Aggravated Arson (Count 2); ninety days for Operating a Vehicle While




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Intoxicated (Count 3); ninety days for Refusal to Submit to Chemical Tests (Count 4);

ninety days for Operating a Vehicle While Intoxicated (Count 5); sixty days for Menacing

(Count 6); and ninety days for Assault on Peace Officer (Count 7).

      {¶22} On June 6, 2017, the trial court issued its Order and Journal Entry

memorializing Rabatin’s sentence.

      {¶23} On July 7, 2017, Rabatin filed a Notice of Appeal with a Motion for

Delayed Appeal, which was granted by this court.

      {¶24} On appeal, Rabatin raises the following assignments of error:

      {¶25} “[1.] The evidence was insufficient to support the jury’s verdict of guilty as

to two counts of Aggravated Arson and the Appellant’s convictions as to two counts of

Aggravated Arson were against the manifest weight of the evidence.”

      {¶26} “[2.] Appellant’s trial counsel provided ineffective assistance of counsel in

violation of the Sixth Amendment to the United States Constitution.”

      {¶27} In the first assignment of error, Rabatin challenges the sufficiency and

manifest weight of his convictions for Aggravated Arson.

      {¶28} The manifest weight of the evidence and the sufficiency of the evidence

are distinct legal concepts. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, ¶ 44. With respect to the sufficiency of the evidence, “[t]he relevant inquiry

is whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).




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       {¶29} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “In other words, a reviewing court

asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An

appellate court considering whether a verdict is against the manifest weight of the

evidence must consider all the evidence in the record, the reasonable inferences, the

credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶30} In order to convict Rabatin of Aggravated Arson, the State had to prove,

beyond a reasonable doubt, that he, “by means of fire or explosion, * * * knowingly * * *

[c]reated a substantial risk of serious physical harm to any person other than the

offender.” R.C. 2909.02(A)(1).

       {¶31} Rabatin’s position is that “[w]ithout any evidence as to how the fire started

the jury could not have determined that Appellant started the fire.” Appellant’s brief at 6.

Rabatin is incorrect.

       {¶32} “It is * * * well-settled under Ohio law that a defendant may be convicted

solely on the basis of circumstantial evidence.” State v. Nicely, 39 Ohio St.3d 147, 151,

529 N.E.2d 1236 (1988). It is equally settled that “[c]ourts in this state have consistently

found that circumstantial evidence can be sufficient to sustain an arson conviction.”




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State v. Webb, 8th Dist. Cuyahoga No. 72588, 1998 WL 338071, *3 (cases cited). “As

is often in the arson cases, there is no eyewitnesses to the arson; proof of arson, out of

necessity, must often rely on circumstantial evidence.” State v. Rodano, 2017-Ohio-

1034, 86 N.E.3d 1032, ¶ 37 (8th Dist.); State v. Worthy, 11th Dist. Lake No. 2004-L-137,

2005-Ohio-5871, ¶ 35.

      {¶33} In the present case, the following evidence is uncontroverted: Rabatin was

the only occupant of the cell for approximately forty minutes prior to the outbreak of the

fire. The fire began with Rabatin’s T-shirt, although the means by which it was started

remains unknown.     Prior to the fire, Rabatin spoke of “burn[ing] this place to the

ground.” Such evidence is easily sufficient to sustain his convictions and his convictions

are well-supported by the weight of the evidence. Rodano at ¶ 38 (“while the state’s

expert was unable to determine the cause of the fire * * *, the state presented * * *

witnesses who testified that * * * Rodano talked about arson * * * on multiple

occasions”); State v. Fisher, 8th Dist. Cuyahoga No. 105802, 2018-Ohio-2189, ¶ 18

(where other evidence established that only Fisher had access to the courtyard where

the fire started, “[t]he fact that no one directly witnessed [him] starting the fire is

irrelevant”); State v. Gonzales, 3d Dist. Wyandot No. 16-08-17, 2009-Ohio-1656, ¶ 11

and 23 (conviction for Arson upheld despite a lack of direct evidence and no evidence

regarding the cause where the fire occurred in Gonzales’ house, she had the only set of

keys to the house, and she was the last person seen leaving the house).

      {¶34} The first assignment of error is without merit.




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       {¶35} Under the second assignment of error, Rabatin claims constitutionally

ineffective assistance of counsel as a result of counsel’s failure to retain an arson

investigator.

       {¶36} To reverse a conviction for ineffective assistance of counsel, the

defendant must prove “(1) that counsel’s performance fell below an objective standard

of reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”

State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland

v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus

(“[c]ounsel’s performance will not be deemed ineffective unless and until counsel’s

performance is proved to have fallen below an objective standard of reasonableness

and, in addition, prejudice arises from counsel’s performance”).

       {¶37} Rabatin asserts that “[c]learly the opinion of an arson investigator

testifying on behalf of the Appellant could have swayed the jury to render a verdict of

not guilty,” given that “the State’s witnesses could not identify any incendiary device or

an ignition source” and “could not completely rule out spontaneous combustion as the

cause of the fire.” Appellant’s brief at 8.

       {¶38} Rabatin has failed to demonstrate any deficiency in trial counsel’s

performance or prejudice resulting therefrom. There is nothing in the trial record to

suggest that another investigator could have identified the source of ignition when two

fire captains and a forensic criminalist were unable to do so.       There is nothing to

suggest that, if the source of ignition were identified, it would exonerate Rabatin. The




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testimony of Captain Moore did not demonstrate a reasonable likelihood that

spontaneous combustion was the source of ignition, particularly in light of the

uncontroverted testimony that the fire began with Rabatin’s T-shirt.                        If there are

arguments in favor of spontaneous combustion being the source of the fire, they are not

evident from the record before this court.2 State v. Cutlip, 11th Dist. Lake No. 99-L-149,

2001 WL 687493, *8 (“appellant has not proven prejudice as a result of counsel’s action

in not calling a fire expert”).

        {¶39} The second assignment of error is without merit.

        {¶40} For the foregoing reasons, Rabatin’s convictions for Aggravated Arson are

affirmed. Costs to be taxed against the appellant.



TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




2. In Madrigal, the Ohio Supreme Court rejected a claim of ineffective assistance based on the failure to
retain an eyewitness identification expert with the observation that “[n]othing in the record indicates what
kind of testimony an eyewitness identification expert could have provided,” and, therefore, “resolving this
issue in Madrigal’s favor would be purely speculative.” Madrigal at 390-391. The court further noted that
“[e]stablishing that would require proof outside the record, such as affidavits demonstrating the probable
testimony” and “[s]uch a claim is not appropriately considered on direct appeal.” Id. at 391.


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