[Cite as State v. Johnson, 2018-Ohio-3670.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 106450




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  RANAU D. JOHNSON
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART; VACATED IN PART;
                      REVERSED IN PART; REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-17-613109-A

        BEFORE: S. Gallagher, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED: September 13, 2018
[Cite as State v. Johnson, 2018-Ohio-3670.]
ATTORNEY FOR APPELLANT

Donald Butler
Donald Butler & Associates
75 Public Square, Suite 600
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Kelly Needham
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Johnson, 2018-Ohio-3670.]
SEAN C. GALLAGHER, P.J.:

        {¶1} Appellant Ranau D. Johnson appeals his convictions and sentence. Upon

review, we affirm all the convictions for aggravated arson and the sentence imposed on

Counts 3 and 4, vacate as void the conviction and sentence on Count 1 for attempted

felony murder, reverse the award of restitution, and remand the case to the trial court for a

resentencing hearing on Count 2 only and for an evidentiary hearing to determine the

appropriate amount of restitution.

        {¶2} Appellant was charged under a four-count indictment. Count 1 charged

appellant with attempted murder, a felony of the first degree, in violation of R.C. 2923.02

and 2903.02(B). Counts 2 and 3 charged appellant with aggravated arson, felonies of the

first degree, in violation of R.C. 2909.02(A)(1), with each count pertaining to a separate

victim. Count 4 charged appellant with aggravated arson, a felony of the second degree,

in violation of R.C. 2909.02(A)(2). Appellant entered a plea of not guilty, and the case

proceeded to a bench trial.

        {¶3} The trial court found appellant guilty on all four counts as charged.

Following merger of Counts 1 and 2, the court sentenced appellant to a prison term of 10

years for Count 1, 10 years for Count 3, and 7 years for Count 4, with all terms ordered to

run consecutive for a total aggregate prison term of 27 years. The court also ordered

appellant to pay restitution to S.A. in the amount of $5,000.

        {¶4} As an initial matter, although not raised by appellant, we must vacate

appellant’s conviction and sentence on Count 1 for attempted felony murder on the
authority of State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016. See

State v. Brooks, 2016-Ohio-489, 56 N.E.3d 357, ¶ 27 (8th Dist.) (sua sponte vacating

conviction for attempted felony murder on the authority of Nolan).

      {¶5} On Count 1, appellant was convicted of attempted felony murder in violation

of R.C. 2923.02 and 2903.02(B).       In Nolan, the Supreme Court of Ohio held that

attempted felony murder in violation of R.C. 2923.02 and 2903.02(B) is not a cognizable

crime under Ohio law because it is impossible to commit. Id. at ¶ 5-10. The court

recognized that an attempt crime must be committed purposely or knowingly, but that

intent to kill need not be proven for a felony-murder conviction under R.C. 2903.02(B)

because it is essentially a strict-liability crime so that a person can be convicted even

though the death was unintended. Id. at ¶ 8-10.

      {¶6} Because attempted felony murder charged under R.C. 2903.02(B) is not a

cognizable crime in Ohio, appellant’s conviction on Count 1 is void and his conviction

and sentence on that count must be vacated. See State v. Bozek, 11th Dist. Portage No.

2015-P-0018, 2016-Ohio-1305, ¶ 21; Brooks at ¶ 27. However, because appellant’s

conviction for aggravated arson under Count 2 was merged with the attempted murder

conviction for sentencing, we must remand for resentencing on Count 2. See State v.

Baker, 2d Dist. Greene No. 2017-CA-55, 2018-Ohio-1865, ¶ 22 (recognizing court has

the authority to resentence on a merged count). As stated in Baker, “Where offenses are

merged for sentencing and the conviction for the offense upon which the defendant was

sentenced is vacated, the trial court must resentence the defendant on the offense that was
merged with the vacated offense, again merging any offenses as appropriate.” Id.; see

also State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966, ¶ 35

(remanding for resentencing on counts that merged with attempted felony murder).

       {¶7} We shall proceed to address the challenges raised herein as they pertain to the

aggravated arson counts. The underlying facts are as follows.

       {¶8} At trial, S.A. testified that she had been in a relationship with appellant from

March 2016 until December 31, 2016. The two did not live together. At the time of the

fire, S.A. had been residing at her uncle’s home for approximately three weeks. Her

bedroom was located in the basement. Appellant had helped S.A. move into her uncle’s

home; he came over almost daily, and he knew where her bedroom was located.

       {¶9} According to S.A., she and appellant had a falling-out on New Year’s Eve.

Two days later, appellant came to S.A.’s home and tried to explain that he was not

cheating on S.A. with an ex-girlfriend.

       {¶10} S.A. testified that on January 3, 2016, she sent appellant a text message

indicating she wanted to end their relationship. Appellant responded to S.A. with a text

threatening to set her car on fire. After the conversation, appellant began parking her car

inside the garage.

       {¶11} S.A. testified that on January 4, 2016, before midnight, she was in the

basement lying in her bed, using her tablet and her phone. S.A. confirmed that she took

medication and was normally sleeping by 10:00 p.m. at night. However, she had not

taken her sleep aid on the night of the fire because she was on a fast.
       {¶12} S.A. testified that she heard a window break, and a piece of the glass fell

onto her bed. She then saw liquid that smelled like gasoline being poured in through the

window. She was able to see the opening and the handle along the top of a Hawaiian

Punch container pouring the liquid. She testified that she recognized the bottle as the

same bottle in which appellant kept gasoline. S.A. also stated she could see appellant’s

hand “through the slit” and that she recognized a bump on his finger.

       {¶13} S.A. testified that she noticed the gasoline coming down the wall and saw

the bottle being shaken. The gasoline splashed onto a blanket, which was covering S.A.

in the bed. S.A. jumped out of bed and ran to the doorway. When she turned around,

she saw flames coming down the wall, traveling onto the floor, and over to her bed.

       {¶14} S.A. testified that she ran upstairs and out the front door. She yelled for her

uncle to call the police. When she got outside, she saw appellant’s car parked in the

driveway next to the house.      She described his car and identified the vehicle in a

photograph introduced at trial. She testified that she saw appellant walking to the car

and that he was wearing a brown hoodie and some blue jeans. She indicated that when

she called appellant’s name, he turned around and gave her “a crooked grin.” According

to S.A., appellant had the Hawaiian Punch container in his hand and put it in the backseat

of his car. He then drove away. S.A. and her uncle attempted to put the fire out with

pails of water, but were unsuccessful.

       {¶15} S.A.’s uncle, K.P., testified that he also heard the window break. After

checking a few windows in his home, he looked outside and saw appellant walking to his
car. He provided a description of what appellant was wearing. K.P. testified he called

to S.A., who answered “there’s a fire.” She and K.P. were unable to put the fire out.

K.P. testified that he spoke to the police and a fire detective and provided a statement.

He indicated that he was unable to write the statement himself because of a physical

impairment. The record reflects that S.A. scripted the statement for her uncle in the

presence of Detective Richard Mizikar. K.P. testified that he signed the statement and

the statement was true. Neither S.A. nor K.P. were injured by the fire.

      {¶16} The Cleveland police department, the Cleveland fire department, and EMS

responded to the scene. Officer Geoffrey Walter arrived at the scene and learned the

name of the suspect, a description of his vehicle, and the address where appellant was

residing, which was appellant’s grandmother’s home. Officer Walter and his partner

went to the address. They found appellant sitting in his vehicle, which was located

parked in the driveway, and arrested appellant. Officer Walter observed that appellant

appeared intoxicated. No gasoline containers or other incriminating evidence was found

in the vehicle. No odor of gasoline was detected. Appellant repeatedly denied any

involvement with the fire.

      {¶17} Battalion Chief William Gorey III testified that when he arrived at the scene

of the fire, he observed smoke coming from a basement window. He stated that when he

opened a side door, “the smoke was already billowing out from the basement out the side

door at me.” He testified to observing “black smoke” and the dangers it poses to people.

He discussed the steps taken to put out the fire. He stated that it took ten minutes to put
out the fire, that there then remained a “significant amount of smoke” in the home, and

that they had to look for “hot spots.” He testified to the risks involved and to the fire

damage to the home. He indicated that the origin of the fire was “at the window, down

the wall and in the window” and further stated “by the fact that the black smoke was was

[sic] majority coming out that window and white smoke coming out the door on the side,

the obvious ignition * * * the seat was at that window area of the bedroom downstairs.”

He testified he was aware an accelerant was used and assumed it to be gasoline. Chief

Gorey also testified that when he arrived at the scene, S.A. almost immediately stated, “I

can’t believe that my ex-boyfriend lit this house on fire. Through the window he poured

gasoline on me.”

       {¶18} Detective Richard Mizikar testified to the fire investigation. He testified to

his training and experience as a firefighter in the fire investigation unit. Upon arriving at

the scene of the fire, he was informed by Chief Gorey that there was a possible suspect

and that the fire was reported to have been started by dispensing gasoline through the

basement window. Det. Mizikar walked around the structure and took photographs. He

testified to two specific burn patterns in the basement, one directly below the window and

the other off to the right-hand side where the bed was situated. He indicated there was a

“V pattern” associated with both of them, which helps determine where the point of

origin or source of the fire may have started. He stated that “[b]ecause the V pattern

under the window doesn’t descend all the way to the floor, the fire had started a little
higher,” that the V pattern started where there was an accelerant, and that the fire

communicated to the bed and started to grow up the other wall.

       {¶19} Detective Mizikar testified that in the fire investigation, he used a

“photoionizer detector” (“PID”), which is an instrument used “to detect the presence of

hydrocarbons, which are flammable vapors.”            He obtained readings indicative of

flammable vapors located in the area of the window frame outside the home, on the

windowsill inside the basement, and at the believed point of origin at the bottom of the V

pattern under the window, which gave a reading consistent with a lot of flammable vapor

indicative of an accelerant having been used.      Upon his investigation, Det. Mizikar

determined that the fire was intentionally started with an open flame and that the point of

origin was “in the vent window in the glass block.”

       {¶20} Det. Mizikar testified that after conducting the fire investigation at the

home, he went to the address where appellant was being detained. He used the PID

around appellant’s hands and feet but received no significant reading. He also stated that

it is not difficult to wash accelerant off your hands with soap and water. Det. Mizikar

further testified that the description given of appellant had him wearing a brown

sweatshirt, but that appellant was wearing a gray sweatshirt at the time Mizikar saw him.

He estimated 40 to 45 minutes had passed between the time he arrived at the scene of the

fire and the time of appellant’s arrest.

       {¶21} The PID monitor was not used inside of appellant’s vehicle. Det. Mizikar

was unaware of the Hawaiian Punch container and did not know to look for the same
because S.A. had not informed him of this detail or of the container having been thrown

into the backseat of appellant’s vehicle. On cross-examination, Det. Mizikar testified

that the PID is accurate and that with his training and experience he had calibrated the

instrument correctly. Defense counsel’s questioning reflected that counsel was aware

that the PID is a highly accurate instrument. Counsel acknowledged the detective’s

testimony that he had cleaned the instrument with fresh air before deploying the

instrument again.

       {¶22} Defense counsel made a Crim.R. 29 motion for acquittal that was denied by

the trial court. The defense called four witnesses, including appellant’s cousin, who

testified as an alibi witness. Appellant’s cousin testified that when he arrived at his

grandmother’s home at 10:20 p.m., appellant was outside, sitting in his car, and that they

went to get something to eat and then returned. The cousin conceded he never informed

the police of this.

       {¶23} The 911 call reporting the fire was placed at 10:36 p.m. Cell phone records

placed appellant’s phone near the victims’ residence at the time of the incident.

       {¶24} The trial court convicted appellant of all counts as charged and sentenced

appellant. Appellant timely filed this appeal. He raises four assignments of error for

our review.

       {¶25} Under his first assignment of error, appellant claims his convictions were

against the manifest weight of the evidence. Relevant hereto, appellant was convicted of

aggravated arson under R.C. 2909.02(A)(1) and (2), which provide as follows:
       (A) No person, by means of fire or explosion, shall knowingly do any of the
       following:

       (1) Create a substantial risk of serious physical harm to any person other
       than the offender;

       (2) Cause physical harm to any occupied structure[.]

       {¶26} When reviewing a claim challenging the manifest weight of the evidence,

the court, reviewing the entire record, must weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether, in resolving

conflicts in the evidence, the trier 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Reversing a

conviction as being against the manifest weight of the evidence should be reserved for

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

Id.

       {¶27} Appellant first argues that the testimony of S.A. and K.P. was not credible.

Appellant claims that the testimony of S.A. was incredible because she told the police

right away that her ex-boyfriend started the fire and she omitted telling the police about

the Hawaiian Punch container, the bump on appellant’s finger, and whether she saw

appellant strike the match that started the fire. Our review reflects that S.A. provided a

credible account of what occurred that was consistent with other testimony and evidence

in the case.    She was aptly cross-examined concerning the stated omissions.               She

testified that she did tell the police she saw a bottle and that she did not report the specific
detail of it being a Hawaiian Punch bottle because she believed it was a small detail in a

big picture.

       {¶28} Appellant also claims that K.P.’s statement was a sham and questions the

credibility of K.P.’s testimony. Appellant further claims there were contradictions in the

testimony of Det. Mizikar and Chief Gorey.

       {¶29} Although appellant attacks the credibility of the state’s witnesses and

focuses on discrepencies in the testimony, he ignores the other evidence offered that

corroborated S.A.’s detailed account of the incident. S.A.’s testimony was corroborated

by K.P.’s testimony, and the testimony of Det. Mizikar and Chief Gorey. K.P. testified

to seeing appellant walking to his vehicle and provided a description of what he was

wearing. Also, the fire investigation determined the fire’s point of origin was at, or

around, the basement window. While appellant attempted to establish an alibi at the time

of the incident, the police were never informed of an alibi and cell phone records placed

appellant’s phone near the scene of the crime at the relevant time frame.

       {¶30} The evidence in this case established that appellant, by means of fire, (1)

knowingly created a substantial risk of serious physical harm to the victims, and (2)

caused physical harm to an occupied structure. Upon our review, we are unable to find

the trier of fact clearly lost its way. Moreover, this is not the exceptional case in which

the evidence weighs heavily against the conviction. Appellant’s first assignment of error

is overruled.
       {¶31} Under his second assignment of error, appellant argues his convictions for

aggravated arson under R.C. 2909.02(A)(1) were based upon insufficient evidence.

       {¶32} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. Thompkins, 78 Ohio St.3d at

386, 1997-Ohio-52, 678 N.E.2d 541.         In reviewing a sufficiency challenge, “[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.

       {¶33} With regard to the challenged counts, appellant was convicted of aggravated

arson in violation of R.C. 2909.02(A)(1), which states that “[n]o person, by means of fire

* * *, shall knowingly * * * [c]reate a substantial risk of serious physical harm to any

person other than the offender[.]”

       {¶34} “A person acts knowingly, regardless of purpose, when the person is aware

that the person’s conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B). In cases involving aggravated

arson, it has been found that

       [t]he “knowingly” element in an aggravated arson case refers to a

       defendant’s state of mind when he set a fire — i.e. the defendant is aware

       that the fire or explosion he set will probably create a substantial risk of
       serious physical harm. The requisite proof is not dependant [sic] upon the

       actual result of the fire but is based upon the risk of harm created by the

       defendant’s actions.

State v. Pfeiffer, 3d Dist. Seneca No. 13-15-22, 2015-Ohio-4312, ¶ 46.

       {¶35} A “substantial risk” is defined in R.C. 2901.01(A)(8) as “a strong

possibility, as contrasted with a remote or significant possibility, that a certain result may

occur or that certain circumstances may exist.” “Serious physical harm to persons” is

defined as any of the following:

       (a) Any mental illness or condition of such gravity as would
             normally require hospitalization or prolonged psychiatric
             treatment;
       (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity, whether
       partial or total, or that involves some temporary, substantial incapacity;

       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result

       in substantial suffering or that involves any degree of prolonged or

       intractable pain.

R.C. 2901.01(A)(5).

       {¶36} Appellant claims that the state failed to demonstrate that S.A. or K.P. were

exposed to a “substantial risk” of “serious physical harm.” Appellant argues that neither

victim sustained any injury and that they both felt comfortable enough to return to the
basement to attempt to extinguish the fire. He also argues that the firefighters put the

fire out in ten minutes and none were injured.

       {¶37} Our review reflects that evidence was presented to show appellant

intentionally set fire to an occupied home with the use of an accelerant he poured in

through the basement window. There was evidence that appellant shook the bottle and

that some of the accelerant splashed onto the blanket covering S.A. S.A., who normally

would be asleep at the time, was awake and managed to escape the home with her uncle

and call 911. The fire department quickly responded to the scene and extinguished the

fire. There was testimony of “black smoke” coming out of the basement window and

that there was “heavy smoke where you couldn’t get down to the basement without a

SCBA breathing apparatus on you.” Chief Gorey testified to the dangers of black smoke,

the risks presented by the fire, and the damage to the home. There was testimony that the

firefighters had to break out some windows, that the fire had burned through the mattress

by the window and impinged on an electrical box, that there was visible soot and staining

damage, and that personal items were destroyed.

       {¶38} Our review reflects that testimony was presented to establish appellant knew

that a fire was going to result from his actions and that this fire would create a substantial

risk of serious physical harm to the persons inside the home. After viewing the evidence

in the light most favorable to the prosecution, we find that any rational trier of fact could

have found the essential elements of aggravated arson beyond a reasonable doubt.

Appellant’s second assignment of error is overruled.
       {¶39} Under his third assignment of error, appellant challenges his conviction for

attempted felony murder and claims the state failed to establish that he attempted to cause

S.A.’s death as a proximate result of aggravated arson.         Because we have already

determined appellant’s conviction for attempted felony murder is void, the third

assignment of error is moot.

       {¶40} Under his fourth assignment of error, appellant argues that the fire

investigation conducted by Det. Mizikar produced manifestly unreliable results.

Appellant argues that Det. Mizikar was not qualified as an expert arson investigator under

Evid.R. 702(B) and that his opinion as to the cause of the fire was not reliable “because it

was not based on any scientifically valid principles and methods[.]”

       {¶41} Pursuant to Evid.R. 702, a witness may testify as an expert if (1) “[t]he

witness’ testimony either relates to matters beyond the knowledge or experience

possessed by lay persons or dispels a misconception common among lay persons”; (2)

“the witness is qualified as an expert by specialized knowledge, skill, experience,

training, or education regarding the subject matter of the testimony”; and (3) “[t]he

witness’ testimony is based on reliable scientific, technical, or other specialized

information.” A trial court’s admission of expert testimony is reviewed for an abuse of

discretion. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶

161.

       {¶42} In this case, Det. Mizikar’s expert testimony was based upon his knowledge

and experience in fire investigations and his examination of the scene of the fire. Det.
Mizikar testified that he was first a police officer and then went through the fire academy

and an apprenticeship of the fire department.       Although Det. Mizikar did not have

specialized training or education in arson investigation, he testified that he had 17 and

one-half years of experience with the fire department and had been in the fire

investigation unit since 2007, during which he had “probably investigated in the area of

1,000 fires.” The record reflects that Det. Mizikar was qualified to testify as an expert in

this matter.

       {¶43} Insofar as appellant challenges the reliability of Det. Mizikar’s conclusions

and claims they were not based on scientifically valid principles and methods, the record

reflects that no objection was raised at trial. Because no objection was raised at trial with

regard to Det. Mizikar’s testimony, appellant has forfeited all but plain error. Under

Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” “Plain error exists when it

can be said that but for the error, the outcome of the trial would clearly have been

otherwise.” State v. Issa, 93 Ohio St.3d 49, 56, 2001-Ohio-1290, 752 N.E.2d 904, citing

State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990). A reviewing court

must recognize plain error “with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶44} In determining whether an expert’s opinions are reliable under Evid.R.

702(C), the court’s focus is on whether the principles and methods the expert employed to
reach his opinions are reliable, rather than whether the conclusions are correct. State

Farm Fire & Cas. Co. v. Holland, 12th Dist. Madison No. CA2007-08-025,

2008-Ohio-4436, ¶ 21, citing Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611,

1998-Ohio-178, 687 N.E.2d 735. Evid.R. 703 provides that “[t]he facts or data in the

particular case upon which an expert bases an opinion or inference may be those

perceived by the expert or admitted in evidence at the hearing.” “[W]here an expert

bases his opinion, in whole or in major part, on facts or data perceived by him, the

requirement of Evid.R. 703 has been satisfied.” State v. Solomon, 59 Ohio St.3d 124,

126, 570 N.E.2d 1118 (1991).

       {¶45} Here, the record reflects that Det. Mizikar interviewed the witnesses and

physically examined the site of the fire and the burn patterns. He utilized his PID device,

the accuracy of which was conceded, and determined that an accelerant had been used.

He determined from the facts and data perceived by him that the fire had been

intentionally started and that the point of origin was “in the vent window in the glass

block.” We conclude that the trial court did not abuse its discretion by permitting Det.

Mizikar to testify as an expert as to the cause and origin of the fire.

       {¶46} Also, we are not persuaded by appellant’s comparison to Gilmore v. Village

Green Mgt. Co., 178 Ohio App.3d 294, 2008-Ohio-4566, 897 N.E.2d 1142 (8th Dist.),

and to Sanders v. Nationwide Mut. Ins. Co., 8th Dist. Cuyahoga No. 99954,

2014-Ohio-2386. Further, even if an error had occurred, it cannot be said that but for the
error, the outcome of the trial would clearly have been otherwise in light of the other

testimony and evidence in this case. Appellant’s fourth assignment of error is overruled.

       {¶47} Under his fifth assignment of error, appellant challenges the imposition of

consecutive sentences. Because the sentence on Count 1 is vacated, we shall review this

count only as to the consecutive sentences imposed on Counts 3 and 4.

       {¶48} We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 16. Pursuant to R.C. 2953.08(G)(2), a reviewing court may overturn the imposition of

consecutive sentences only if it clearly and convincingly finds that either (1) “the record

does not support the sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the

sentence is otherwise contrary to law.”

       {¶49} Before a trial court may impose consecutive sentences, the court must first

make specific findings mandated by R.C. 2929.14(C)(4) and incorporate those findings in

the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 37. The trial court is not required to state its reasons to support its findings, nor is

it required to give a rote recitation of the statutory language. Id. Further, “as long as the

reviewing court can discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, consecutive sentences

should be upheld.” Id. at ¶ 29.

       {¶50} The record reflects that the trial court stated the following when imposing

the consecutive sentences:
             The Court finds pursuant to Ohio Revised Code Section
      2929.14(C)(4) that the defendant is required to serve these prison sentences
      consecutively because a consecutive sentence is necessary to protect the
      public from future crime and that consecutive sentences are not
      disproportionate to the seriousness of the offender’s conduct and to the
      danger the offender poses to the public.

             Furthermore, this sentence is necessary because the defendant

      committed the offenses resulting in the near death of two people and

      destruction of a home with the use of accelerant poured into the window of

      one of the victims’ rooms, which could have resulted in her incineration due

      to the structure of the basement of the home, harm so severe that a single

      prison sentence for the offenses would not adequately reflect the

      seriousness of the crime.

      {¶51} Here, there is no dispute that the trial court made the requisite findings

under R.C. 2929.14(C)(4) for the imposition consecutive sentences and incorporated

those findings in the sentencing entry. Appellant claims that the record does not support

the trial court’s justification for imposing consecutive sentences and claims that the

statements of “near death of two people” and “destruction of a home” are not supported

by the record. Appellant also challenges the court’s speculation as to what “could have

resulted” as being unsupported by the record.

      {¶52} Our review is not limited to the remarks made by the trial court at the time

of imposing consecutive sentences. Rather, support for the trial court’s findings may

appear anywhere in the record. State v. Gatewood, 8th Dist. Cuyahoga No. 101271,
2015-Ohio-1288, ¶ 13, citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 11 (8th

Dist.). As previously recognized, “R.C. 2929.14(E)(4) is satisfied when we can glean

from the tenor of the trial court’s comments, its findings, and the evidence that imposition

of consecutive sentences is justified.” State v. Kessler, 8th Dist. Cuyahoga No. 82956,

2003-Ohio-6052, ¶ 14.

       {¶53} Upon our review of the entire record, we conclude that the tenor of the trial

court’s comments, its findings, and the evidence were sufficient to impose consecutive

sentences. While neither victim died and the home was not completely destroyed, there

was testimony showing that appellant intentionally set fire to a home in which the two

victims resided, one of whom was located in the basement of the home. There also was

testimony showing the fire and smoke damage caused to the property and the loss of

personal belongings.     After careful review of the record, we cannot clearly and

convincingly find that the record does not support the trial court’s findings. Appellant’s

fifth assignment of error is overruled.

       {¶54} Under his sixth assignment of error, appellant claims the trial court erred by

ordering him to pay $5,000 in restitution. He argues that there was a lack of any

competent, credible evidence of economic loss to S.A.

       {¶55} R.C. 2929.18(A)(1) limits the amount of restitution to the amount of the

economic loss suffered by the victim as a direct and proximate result of the commission

of the offense. The statute allows the court to base the amount of restitution it orders to

“an amount recommended by the victim, the offender, a presentence investigation report,
estimates or receipts indicating the cost of repairing or replacing property, and other

information.” (Emphasis added.) Id. “The amount of the restitution must be supported

by competent, credible evidence from which the court can discern the amount of the

restitution to a reasonable degree of certainty.” State v. Gears, 135 Ohio App.3d 297,

300, 733 N.E.2d 683 (6th Dist.1999). “Although the decision to impose restitution is

discretionary with the court, its determination of the amount of loss is a factual question

that we review under the competent, credible evidence standard.” State v. Walls, 8th

Dist. Cuyahoga No. 100801, 2014-Ohio-3502, ¶ 2, citing State v. Warner, 55 Ohio St.3d

31, 69, 564 N.E.2d 18 (1990); State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494,

877 N.E.2d 725, ¶ 20 (3d Dist.).

       {¶56} S.A. testified that all of her personal items were in the basement of the

home. Her personal items included clothes, shoes, hygiene products, medical equipment,

her phone, and two tablets. Although she did not have any receipts, she represented that

she had lost her file cabinet in the fire. S.A. testified that she was able to replace some of

the items after the fire through the Red Cross, which gave her a voucher for clothing that

she had to split with her uncle. She also was able to replace her phone, but was not able

to get a new tablet. She testified that the situation was a big loss for her. Her victim

impact statement included a claim of $5,000 of damaged personal property. However,

there was a lack of evidence presented to support this figure.

       {¶57} Although the record indicates that S.A. suffered an economic loss, we do

not find that the state presented sufficient evidence from which the trial court was able to
discern the appropriate amount of restitution to a reasonable degree of certainty. Upon

review, we find the restitution imposed by the trial court was arbitrary and that the

amount of $5,000 was not supported by competent, credible evidence in the record. The

judgment on restitution is reversed, and the matter is remanded to the trial court for the

purpose of holding an evidentiary hearing to determine the appropriate amount of

restitution owed to S.A. Appellant’s sixth assignment of error is sustained.

      {¶58} In conclusion, we affirm all the convictions for aggravated arson and the

sentences imposed on Counts 3 and 4, vacate the conviction and sentence on Count 1 for

attempted felony murder, reverse the award of restitution, and remand the case to the trial

court for a resentencing hearing on Count 2 only and for an evidentiary hearing to

determine the appropriate amount of restitution.

      {¶59} Judgment affirmed in part; vacated in part; reversed in part; and case

remanded.

      It is ordered that appellant and appellee share costs herein taxed.      The   court

finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court.
[Cite as State v. Johnson, 2018-Ohio-3670.]
        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
