[Cite as State v. Ayers, 2013-Ohio-5402.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2013CA00034
KAYLA J. AYERS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2012CR1567


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         December 9, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO                                GEORGE URBAN
Prosecuting Attorney,                          116 Cleveland Ave. NW., Suite 808
Stark County, Ohio                             Canton, Ohio 44702

By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013CA00034                                                       2

Hoffman, J.


       {¶1}   Defendant-appellant Kayla J. Ayers appeals her conviction entered by the

Stark County Court of Common Pleas on one count of aggravated arson, in violation of

R.C. 2902.02, and one count of endangering children, in violation of R.C. 2919.22.

Plaintiff-appellee is the state of Ohio.

                 STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

       {¶2}   On October 3, 2012, the Massillon Fire Department responded to a fire at

Appellant's residence. The fire was extinguished in the basement of the home.

       {¶3}   Appellant’s defense centered upon the allegation her young son started

the fire. Appellant's son did not appear to have any smoke exposure or soot on his

person. Appellant cut her hand while allegedly attempting to get her son out of the

residence. Appellant appeared to have smoke exposure and tested positive for soot

residue on her person.

       {¶4}   Inspector Reginald Winters of the Massillon Fire Department testified he

ruled out an electrical shortage as the cause of the fire. Winters determined a mattress

was the point of origination for the fire, and there were two distinct start points at

separate ends of the mattress. Winters’ report concluded the fire was not an accident.

       {¶5}   During an interview with investigators Appellant claimed her three-year old

son started the fire while playing with a cigarette lighter. She seemed lethargic and

unable to answer the questions posed. She stated she was in the basement folding

clothes when she noticed her son by the bed playing with a lighter. Shortly thereafter

she noticed a fire on the bed, grabbed a blanket and started fanning the flame. She ran
Stark County, Case No. 2013CA00034                                                        3


and retrieved a glass of water, but tripped, breaking the glass, falling and cutting her

hand. She stated she could not find the phone to call the fire department.

        {¶6}   At the time of the fire, Appellant lived with her father and his family. Her

father had previously discussed finances with her, and the fact she had not been

contributing to the household financial situation.          Their relationship eventually

deteriorated and Jeff Ayers, Appellant's father, told Appellant to leave and care for her

own family. Appellant refused to leave. Jeff Ayers testified at trial when he decided to

leave, Appellant threatened to burn the house down.

        {¶7}   Additionally, a neighbor of Appellant, Jason Pandrea, testified he heard

Appellant threaten her father with burning the house down if he ever left.

        {¶8}   Karen Ball testified at trial she knew Appellant through a church

relationship. She visited the residence on the night of the fire to pick up the children for

a church activity.   She knocked on the door, but received no answer.           She heard

someone inside the residence say, "Shhh." Ball noticed Appellant's purse on the deck

of the residence, which led her to believe Appellant was inside. At approximately 8:00

p.m. the night of the fire, Ball returned to the residence and witnessed some flickering in

the window. When Appellant exited the house, she told Ball her son had started the

fire.

        {¶9}   Investigator Winters prepared a draft report.       He concluded the fire

originated on the first floor of the residence. Winters maintains this was a typographical

error, and should have read the fire originated in the basement of the residence.

Additionally, the report contained several other errors not to be included in the final
Stark County, Case No. 2013CA00034                                                        4


copy. Winters stated in his testimony at trial the report including the alleged errors was

not the final report.

       {¶10} During pretrial proceedings, Appellant filed two motions in limine. In the

first, Appellant sought to exclude evidence of "bad parenting" introduced by the state.

       {¶11} In the second motion in limine, Appellant sought to exclude evidence of

her involvement with Child Protective Services and the Department of Job and Family

Services regarding "parenting rights, allegations of lice infestation, and having a dirty

home," as well as, evidence regarding her mental health and use of medication.

       {¶12} Following a jury trial, Appellant was convicted of one count of aggravated

arson, in violation of R.C. 2909.02(A)(2), a felony of the second degree, and one count

of endangering children, in violation of R.C. 2919.22(A), a misdemeanor of the first

degree. Appellant was sentenced to an aggregate prison term of seven years.

       {¶13} Appellant now appeals, assigning as error:

       {¶14} “I.   THE   APPELLANT’S       CONVICTIONS         FOR   ONE    COUNT     OF

AGGRAVATED ARSON IN VIOLATION OF R.C. 2909.02 AND ONE COUNT OF

ENDANGERING CHILDREN IN VIOLATION OF RC. 2919.22 WERE AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       {¶15} “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL DUE TO TRIAL COUNSEL’S FAILURE TO REVIEW THE APPROPRIATE

DISCOVERY MATERIALS IN PREPARATION FOR TRIAL.”

                                               I.

       {¶16} In the first assignment of error, Appellant challenges her convictions as

against the manifest weight and sufficiency of the evidence.
Stark County, Case No. 2013CA00034                                                        5


       {¶17} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “An appellate court's function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. The 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.”

       {¶18} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶19} Appellant was convicted of aggravated arson, in violation of R.C.

2909.02(A)(2), which reads:
Stark County, Case No. 2013CA00034                                                           6


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

the following:

       {¶21} "(1) Create a substantial risk of serious physical harm to any person other

than the offender;

       {¶22} "(2) Cause physical harm to any occupied structure;

       {¶23} "(3) ***"

       {¶24} Appellant was also convicted of endangering children, in violation of R.C.

2919.22(A), which reads,

       {¶25} "(A) No person, who is the parent, guardian, custodian, person having

custody or control, or person in loco parentis of a child under eighteen years of age or a

mentally or physically handicapped child under twenty-one years of age, shall create a

substantial risk to the health or safety of the child, by violating a duty of care, protection,

or support. It is not a violation of a duty of care, protection, or support under this division

when the parent, guardian, custodian, or person having custody or control of a child

treats the physical or mental illness or defect of the child by spiritual means through

prayer alone, in accordance with the tenets of a recognized religious body."

       {¶26} The evidence introduced at trial demonstrates the fire was started with an

open flame at opposite ends of a mattress. Appellant gave inconsistent statements

regarding her actions, which contain unexplained physical impossibilities. In addition,

several witnesses testified at trial as to Appellant's prior threats to burn the residence

down in retaliation for her father’s moving out of the home. The evidence demonstrates

Appellant's son did not have smoke exposure or evidence of soot on his person,

whereas Appellant did have evidence of soot on her person.
Stark County, Case No. 2013CA00034                                                       7


       {¶27} Based on the above, we do not find the jury lost its way and viewing the

evidence in a light most favorable to the prosecution, a rational trier of fact could have

found the essential elements of the crimes proven beyond a reasonable doubt.

       {¶28} The first assignment of is overruled.

                                                II.

       {¶29} In the second assignment of error, Appellant maintains she received

ineffective assistance of trial counsel due to counsel's failure to cross-examine Inspector

Winters with regard to the errors in his draft report and due to reliance on the draft

report in preparation for trial.

       {¶30} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955).

       {¶31} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶32} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
Stark County, Case No. 2013CA00034                                                         8


prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶33} Upon review of the record, we find Appellant has not established the

second prong of Strickland in that but for the alleged error, the result of the proceeding

would have been different. Appellant's defense at trial centered upon her son starting

the fire, not where the fire started or developed. Appellant averred she was not where

person who started the fire. She did not question how the fire progressed or how it

originated. Accordingly, we find Appellant has not demonstrated prejudice as a result of

the alleged professional error of trial counsel in use of the draft report in preparation for

trial as opposed to the final report.

       {¶34} The second assignment of error is overruled.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

                                              ___________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              ___________________________________
                                              HON. W. SCOTT GWIN


                                              ___________________________________
                                              HON. PATRICIA A. DELANEY
Stark County, Case No. 2013CA00034                                                     9


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


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
KAYLA J. AYERS                             :
                                           :
       Defendant-Appellant                 :         Case No. 2013CA00034


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellant.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. W. SCOTT GWIN


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY
