[Cite as State v. Richardson, 2018-Ohio-947.]


                                          richarCOURT OF
                                          APPEALS STARK
                                           COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :     JUDGES:
                                                :     Hon. John W . W ise, P.J.
         Plaintiff - Appellee                   :     Hon. Craig R. Baldwin, J.
                                                :     Hon. Earle E. W ise, J.
 -vs-                                           :
                                                :
 ROJE RICHARDSON                                :     Case No. 2017CA00063
                                                :
         Defendant - Appellant                  :     OPINION



 CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                      of Common Pleas, Case No. 2016
                                                      CR 2314




 JUDGMENT:                                            Affirmed




 DATE OF JUDGMENT:                                    March 13, 2018




 APPEARANCES:

 For Plaintiff-Appellee                               For Defendant-Appellant

 JOHN D. FERRERO                                      GEORGE URBAN
 Prosecuting Attorney                                 116 Cleveland Avenue NW , Suite 808
                                                      Canton, Ohio 44702
 By: KRISTINE W . BEARD
 Assistant Prosecuting Attorney
 Appellate Section
 110 Central Plaza South, Suite 510
 Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00063                                                2

Baldwin, J.

       {¶1}    Defendant-appellant Roje Richardson appeals his conviction and sentence

from the Stark County Court of Common Pleas on attempt to commit aggravated arson.

Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}    On January 6, 2017, the Stark County Grand Jury indicted appellant on one

count of attempt to commit aggravated arson in violation of R.C. 2909.02(A)(1) and

2923.02(A)(1), a felony of the second degree, and one count of attempt to commit

aggravated arson in violation of R.C. 2909.02(A)(2) and 2923.02(A), a felony of the third

degree. At his arraignment on January 13, 2017, appellant entered a plea of not guilty to

the charges.

       {¶3}    Subsequently, a jury trial commenced on March 20, 2017. The following

testimony was adduced at trial.

       {¶4}    In December of 2016, Jennifer Cox was living on Harrison Avenue in

Canton, Ohio with her four children. At trial, she testified that appellant lived with them

from late April of 2016 until the beginning of November of 2016. Cox testified that she

met appellant through an online dating site and that, in April of 2016, he told her that he

needed a place to stay. At the time, the two were in a relationship that continued until

they broke up in early November of 2016. Cox testified that she had reason to be afraid

of appellant and, over objection, testified that he had made threats to her and was

physically abusive to her. According to Cox, after appellant moved out of her residence,

he “kept on texting me, wouldn’t leave me alone.” Trial Transcript at 161. Appellant also

showed up uninvited at her residence.
[Cite as State v. Richardson, 2018-Ohio-947.]


         {¶5}      On December 2, 2016, Cox, who was home with her four children, had

 received some texts from appellant at approximately 9:00 p.m. stating that he would be

 there in a few minutes. Cox testified that she texted appellant back and told him to stay

 away and that she did not want anything to do with him. Appellant, however, kept texting.

 Cox testified that at around 9:00 p.m., appellant came to her house, knocked on her

 bedroom window and told her to open the door. She refused to do so. At approximately

 10:45 or 11:00 p.m. on the same evening, a rock was thrown through Cox’s bedroom

 window and landed on the kitchen floor. The rock was followed by a plastic juice bottle

 filled with gasoline and stuffed with a rag for a wick. The bottle landed beside Cox and her

 son on the bed. According to her, while the rag had been lit, it had burnt out. Cox, who

 indicated that she smelled gasoline, called the police at approximately 11:08 p.m and

 they responded to the scene.

         {¶6}     Cox further testified that after the incident, one of the keys to her shed,

 which contained her lawn mower and gasoline, was missing. She testified that appellant

 usually had the other key and that there was no damage to the shed.

         {¶7}     On cross-examination, Cox testified that appellant had told her that his

 name was Trey Roberts and that he had lied to her. She testified that she told appellant

 that he had to get out of her house in November of 2016 because he was harassing her

 with text messages and was physically abusive. W hen asked if appellant was the only

 person around that time who was threatening her, Cox responded “No.” Trial Transcript

 at 189. She testified that after appellant moved out of her house, Tyrone Card moved in

 with her. She testified that due to a dispute between the two, charges were filed against

 Card who was not at Cox’s house that night. Cox admitted that she did not see appellant
[Cite as State v. Richardson, 2018-Ohio-947.]


 knocking on her door, but testified that she heard him and knew his voice. Cox testified

 that she did not answer appellant’s later texts on December 2, 2017 because she was

 “scared for her life.” Trial Transcript at 191. She testified that Tyrone Card could not have

 taken the key to her shed because the key was missing before Card moved into her house

 in November of 2016. She also testified that appellant must have had the key because,

 whenever she would kick him out of the house, he would sleep in the shed. Cox admitted

 the she did not tell this to investigators. Cox also admitted that she did not see anyone

 that night because her blinds were drawn, but that she thought the man outside was

 appellant.

         {¶8}     On redirect, Cox testified that at some point in mid-November of 2016, there

 was a physical altercation between herself and Tyrone Card and that she told the

 investigators about Card. Card was charged with domestic violence.

         {¶9}     The next witness to testify was Kenneth W right, a fire investigator with the

 Canton Fire Department. He testified that the Canton Police Department called him out

 to the scene at approximately 11:43 p.m. because of the incendiary device found in the

 house. He testified that Cox’s bed was damp and that there was a strong odor of gasoline

 in her room and throughout the house. He described the device as “a plastic bottle the

 size of a juice bottle …; and it had a, a clothe (sic) towel inside of it. It was filled about

 halfway with gasoline whenever I got there.” Trial Transcript at 213. W right collected the

 bottle and emptied out most of the gasoline into a gas can in Cox’s shed while saving the

 rest for a sample. He testified that the rag had a burn mark on it. W right sent the incendiary

 device to the State Fire Marshal’s lab for analysis and DNA testing. He also collected the

 rock and had it sent to Bureau of Criminal Investigation for DNA analysis. No DNA was
[Cite as State v. Richardson, 2018-Ohio-947.]


 recovered off of the rock. W right also collected a lighter found outside of Cox’s bedroom

 window and Cox’s bedding. No fingerprints were located on the lighter. W right testified

 that if the incendiary device had not gone out and had caught the bedding on fire, it would

 have created a substantial risk of physical harm to the house’s residents and the structure.

 He testified that the residents would have been have been very badly hurt, if not killed.

         {¶10} W right further testified that, during his investigation, he learned that Tyrone

 Card was in jail on December 2, 2016. He never spoke with Card.           He further located

 video showing that appellant and Robyn Williams were walking into a Taco Bell on

 Tuscarawas Avenue at 11:39 p.m. W right testified that the Taco Bell was five to eight

 minutes away from Cox’s house and a minute or two away from the Crown Motel.

         {¶11} On cross-examination, W right testified that when he spoke with appellant,

 appellant denied involvement. W right admitted that he did not ask for DNA analysis on

 the lighter and did not test the padlock outside on Cox’s shed. When asked, W right

 testified that he asked Robyn W illiams several times if she drove appellant, who does not

 have a driver’s license or car, to Cox’s house and she denied that she did. W illiams had

 told W right that she was with appellant on the night of December 2, 2017 at the Crown

 Motel. He agreed that it was not possible to walk from Cox’s house to the Taco Bell and

 back in half an hour and that is why he was questioning W illiams about driving appellant.

 He testified that he believed appellant was driven.

         {¶12} Jayden Cox, Cox’s 15 year old son, testified that he was home on

 December 2, 2016 along with his mother, siblings and a friend when he heard a “big

 crash.” Trial Transcript at 251. He testified that he went to his window and saw someone

 opening up the shed with a key, putting something away, and then relocking the shed. He
[Cite as State v. Richardson, 2018-Ohio-947.]


 agreed that because he saw the person opening and closing the shed door, he inferred

 that the person was using a key. W hen asked if he recognized the person, Jayden testified

 that the person had the same clothes and bag as appellant. He testified that person

 had been wearing a gray hoodie and had a black and red drawstring bag and that appellant

 usually wore the drawstring bag when he left the house. Jayden further testified that he

 recognized appellant’s build. Jayden testified that the person “looked sort of like” appellant

 and that he believed the person to be appellant. Trial Transcript at 254. On cross-

 examination, he denied telling the police when they first came that night that the person

 was appellant.       On redirect, he testified that he was sure that it was appellant based on

 what he saw and that he had indicated to his mother that he thought the person was

 appellant.

         {¶13} Molly Jordan, who is a forensic scientist with the State Fire Marshal’s Lab,

 testified that she was asked to analyze the evidence. Jordan swabbed the mouth and

 outside of the bottle and sent the swabs to the Bureau of Criminal Investigation for DNA

 analysis. She testified that the liquid in the plastic bottle tested positive for gasoline and

 that she also found gasoline on the bedding. On cross-examination, Jordan testified that

 she was not asked to look for fingerprints on the bottle and was not sent the lighter, the

 rock or the lock to the shed for testing.

         {¶14} Hallie Dreyer, a forensic scientist with the Bureau of Criminal Investigation,

 testified that she received a swab from the outside of the bottle and one from the mouth

 of the bottle for testing. She testified that there was DNA from more than one individual on

 the mouth of the bottle and that an unknown male was detected. Dreyer received DNA

 collected from appellant and compared his DNA with that recovered from the mouth of
[Cite as State v. Richardson, 2018-Ohio-947.]


 the bottle. She testified that she was not able to exclude appellant as a major source of

 the DNA and that         appellant’s donor match was one in a trillion unrelated individuals. On

 cross-examination, she admitted that she could not say when the DNA was deposited on

 the mouth of the bottle. The outside of the bottle had too many mixtures of DNA and was

 not suitable for comparisons.

         {¶15} After the State rested and appellant’s motion for a judgment of acquittal was

 overruled, appellant called Robyn W illiams as a defense witness. She testified that she

 and appellant had been dating in December of 2016 and that, on December 2, 2016, she

 got off of work at 3:30 p.m., took a shower, and then went to see appellant at the Crown

 Motel. According to her, they left the motel at around 5:30 p.m. and went to the Game

 Stop and then she drove appellant to the Speedway in Kent, Ohio to purchase something

 off of Craig’s List.        The two then went to the Walmart and Dollar Tree in Brimfield,

 approximately 40 to 45 minutes away from Canton, Ohio. W illiams testified that she and

 appellant went back to the Crown Motel at around 10:00 p.m. and that appellant was in

 and out of the room.

         {¶16} W illiams further testified that at around 11:30 p.m., they left to go to Taco

 Bell on Tuscarawas Avenue. When asked where appellant was at 9:00 that night, she

 testified that he was at the Walmart with her and that appellant could not have been

 knocking on a door in a house in downtown Canton on that night. She denied driving

 appellant to Cox’s house and stated that, to her knowledge, appellant did not take her car

 and drive over there. Williams further testified that she had a device installed on her car

 that is called a Snapshot and was provided by to her by Progressive Insurance. The

 device records when car is idle and when it is moving. W illiams testified that she looked
[Cite as State v. Richardson, 2018-Ohio-947.]


 at the Snapshot report online and that it showed that her car was idle between 10:00 p.m.

 and 11:30 p.m. on December 2, 2016. The report was never printed off by W illiams or

 provided to investigators.

         {¶17} On cross-examination, W illiams testified that on the way back from

 Walmart, appellant was looking at his phone and became agitated and really angry.

 Appellant told her to “Shut up, bitch.” Trial Transcript at 321. W illiams did not know why

 appellant was aggravated. When they got back to the Crown Motel, appellant was pacing

 and going in and out of the bathroom. Williams testified that she heard appellant mutter

 “If you fuck with me I’ll kill you and your whole family.” Trial Transcript at 323. Appellant

 then threw his phone on the bed and left at around 10:30 p.m. According to her, he was

 gone for about 30 minutes. W illiam testified that when appellant returned, they went to

 Taco Bell and went inside rather than using the drive-thru, which was unusual. Later that

 evening at around midnight, appellant asked W illiams to wash the clothes that he had

 been wearing. Appellant had told W illiams that his name was Jay and did not tell her his

 real name until the day of his arrest.

         {¶18} Appellant testified at trial in his own defense. He testified that he never took

 the key to the shed and that he never slept in the shed because he had OCD and was

 obsessed with cleanliness. Appellant testified that on the night on December 2, 2016,

 Williams picked him up at the Crown Motel at around 5:00 p.m. and drove him to Game

 Stop and then to Kent. He testified that they arrived back at the motel around 10:00 or

 10:30 p.m. that night and that it was not possible for him to have been outside Cox’s door

 at 9:00 p.m. because they were still in Kent. When asked about the text messages, he

 testified that he was a “bit of a prankster” and liked to push Cox’s buttons and piss her off
[Cite as State v. Richardson, 2018-Ohio-947.]


 a little. Trial Transcript at 354. According to appellant, he was texting Cox to see if she

 needed money to fix her car. Appellant admitted to having had a disagreement with

 Williams in the car.         Appellant denied being anywhere near Cox’s house and denied

 throwing a Molotov cocktail through her window.

         {¶19} At the conclusion of the evidence and the end of deliberations, the jury, on

 March 21, 2017, found appellant guilty of both counts. The trial court, pursuant to a

 Judgment Entry filed on April 3, 2017, ordered that the two counts merge for sentencing

 purposes and sentenced appellant to a prison term of seven years for attempt to commit

 aggravated arson, a felony of the second degree. The trial court also found that appellant

 was an arson offender and ordered him to register in person, upon his release from prison,

 with the Sheriff in the county in which he resides pursuant to R.C. 2909.14.

         {¶20} Appellant now raises the following assignments of error on appeal;

         {¶21} I. APPELLANT’S CONVICTIONS WERE AGAINST THE SUFFICIENCY

 AND MANIFEST W EIGHT OF THE EVIDENCE.

          {¶22} II. THE TRIAL COURT ERRED               IN OVERRULING APPELLANT’S

 OBJECTIONS TO TESTIMONY REGARDING PRIOR ACTS EVIDENCE.

         {¶23} III. THE STATE OF OHIO’S ARSON REGISTRY SCHEME VIOLATES THE

 SEPARATION OF POWERS DOCTRINE, RENDERING IT UNCONSTITUTIONAL.

                                                   I

         {¶24} Appellant, in his first assignment of error, argues that his convictions for

 attempt to commit aggravated arson were against the sufficiency and manifest weight of

 the evidence. W e disagree.
[Cite as State v. Richardson, 2018-Ohio-947.]


         {¶25} On review for sufficiency, a reviewing court is to examine the evidence at

 trial to determine whether such evidence, if believed, would support a conviction. State v.

 Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “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.”

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

 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to

 examine the entire record, weigh the evidence and all reasonable inferences, consider the

 credibility of witnesses and determine “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.” State v. Martin, 20 Ohio App.3d

 172, 175, 485 N.E.2d 717 (1st Dist. 1983). See also, State v. Thompkins, 78 Ohio St.3d

 380, 1997-Ohio-52, 678 N.E.2d 541. The granting of a new trial “should be exercised only

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

 Martin at 175.

         {¶26} W e note the weight to be given to the evidence and the credibility of the

 witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

 212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

 credibility of each witness, something that does not translate well on the written page.”

 Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

         {¶27} Appellant was convicted of attempt to commit aggravated arson in violation

 of R.C. 2909.02(A)(1) and 2923.02(A) and attempt to commit aggravated arson in violation

 of R.C. 2909.02(A)(2) and 2923.02. R.C. 2909.09 states, in relevant part, as
[Cite as State v. Richardson, 2018-Ohio-947.]


 follows: A) No person, by means of fire or explosion, shall knowingly do any of the

 following:

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

 than the offender;

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

         {¶30} R.C. 2923.02 states, in relevant part, as follows: “(A) No person, purposely

 or knowingly, and when purpose or knowledge is sufficient culpability for the commission

 of an offense, shall engage in conduct that, if successful, would constitute or result in the

 offense.”

         {¶31} Appellant contends that his convictions were against the sufficiency and

 manifest weight of the evidence because there was a lack of scientific evidence that he

 was the one who committed the offenses and the testimony of the witnesses as to identity

 was not credible.

         {¶32} At trial, Jennifer Cox testified that on December 2, 2016, she received text

 messages from appellant at around 9:00 p.m. indicating that he would be at her house in

 a few minutes. She testified that she told him to stay away. She testified that appellant

 responded by texting her to “tell your dude u got to get to the door ok.” Trial Transcript at

 171. Cox further testified that after she texted appellant that she would not answer the

 door, at 9:08 p.m., appellant responded “Y, is he scared lol.” Trial Transcript at 172.

 Approximately two hours later, a jug containing gasoline was thrown through appellant’s

 window. There was testimony at trial that appellant’s DNA was on the lip of the bottle.

         {¶33} In addition, Jayden Cox, Cox’s son,      testified that when he looked out his

 window after hearing a loud crash, he saw a man who physically resembled appellant
[Cite as State v. Richardson, 2018-Ohio-947.]


 opening up the shed, putting something inside the shed, and then relocking the shed. He

 inferred based on what he saw that the person had a key to the shed. According to Jayden,

 the neighbor’s light was on in the back. He testified that that the person he saw had the

 same clothes and the same black and red drawstring bag usually carried by appellant.

 Jayden testified that he indicated to his mother that the person outside was appellant.

 Moreover, there was testimony at trial that the key to the shed was missing from where

 it was kept in Cox’s house.

         {¶34} As is stated above, Robyn W illiams testified that on their way back from

 Walmart, appellant was looking at his phone and became aggravated and told her to shut

 up. When they got back to the motel, appellant was pacing and muttered “If you fuck with

 me I’ll kill you and your whole family.” Trial Transcript at 323. Williams testified that

 appellant then threw his phone on the bed and left at around 10:30 p.m. According to her,

 he was gone for about 30 minutes. There was testimony that it was possible to get from

 the motel to Cox’s house and back and the Taco Bell within the time frame in which the

 offense is alleged to have occurred. Later the same evening, appellant asked W illiams

 to wash the clothes that he had been wearing.

         {¶35} Based on the foregoing, we find that viewing the evidence in a light most

 favorable to the prosecution, any rational trier of fact could have found that appellant

 committed the offenses of attempt to commit aggravated arson beyond a reasonable

 doubt. We further find that the jury did not clearly lose its way in convicting appellant.

         {¶36} Appellant’s first assignment of error is, therefore, overruled.
[Cite as State v. Richardson, 2018-Ohio-947.]


                                                 II

         {¶37} Appellant, in his second assignment of error, contends that the trial court

 erred in overruling his objections to testimony regarding prior acts evidence.

         {¶38} The trial court has broad discretion in the admission and exclusion of

 evidence, including evidence of other acts under Evid.R. 404(B). State v. Morris, 132 Ohio

 St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. Unless the trial court has “clearly

 abused its discretion and the defendant has been materially prejudiced thereby, this court

 should be slow to interfere” with the exercise of such discretion. State v. Hymore, 9 Ohio

 St.2d 122, 128, 224 N.E.2d 126 (1967). We have defined “abuse of discretion” as an

 “unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action that

 no conscientious judge could honestly have taken.” State v. Brady, 119 Ohio St.3d 375,

 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.

         {¶39} Evid.R. 404(A) provides that evidence of a person's character is not

 admissible to prove the person acted in conformity with that character. Evid.R. 404(B) sets

 forth an exception to the general rule against admitting evidence of a person's other bad

 acts. The Rule states as follows: “Evidence of other crimes, wrongs, or acts is not

 admissible to prove the character of a person in order to show that he acted in conformity

 therewith. It may, however, be admissible for other purposes, such as proof of motive,

 opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

 accident.”

         {¶40} In the case sub judice, the State asked Cox if she had reason to be afraid

 of appellant, whether he threatened her and if he was ever physically abusive to her.
[Cite as State v. Richardson, 2018-Ohio-947.]


 Appellant objected to the questions and Cox responded yes to the questions. At the

 conclusion of her testimony, the trial court instructed the jury as follows:

                  I’m going to give you what is referred to as a limiting instruction relative

         to some of the testimony that you heard: And that is that there was testimony

         relative to possible threats and abuse by the defendant towards this witness;

         ah, that testimony was allowed not to show the character of this defendant

         or that he acted in conformity with that character on all times relevant in the

         case, but rather to show motive and, ah, pattern of conduct. But that’s the

         limited purpose and for no other reason was that allowed.

         {¶41} Trial Transcript at 205.

         {¶42} Cox’s trial testimony about physical and emotional abuse was extremely brief

 and did not go into specific details about the incidents of abuse. The testimony was

 relevant to show appellant’s motive in throwing the incendiary device into her home and,

 as noted by appellee, “provided the jury with context about [appellant’s] pattern of conduct

 toward Cox.”        W e additionally note the trial court gave the above limiting instruction to

 the jury. It is well-established that juries are presumed to follow and obey the limiting

 instructions given them by the trial court. State v. Dorsey, 5th Dist. Licking No. 11 CA 39,

 2012–Ohio–611, ¶ 44, citing State v. DeMastry, 155 Ohio App.3d 110, 127, 2003-Ohio-

 5588, 799 N.E.2d 229, ¶ 84.

         {¶43} Appellant’s second assignment of error is, therefore, overruled.

                                                      III

         {¶44} Appellant, in his third assignment of error, argues that Ohio’s arson offender

 registry scheme violates the separation of powers doctrine and is unconstitutional.
[Cite as State v. Richardson, 2018-Ohio-947.]


          {¶45} In the case sub judice, appellant did not argue before the trial court that

 Ohio’s arson offender registry scheme violated the separation of powers doctrine and was

 unconstitutional.1 Rather, appellant’s counsel, at the sentencing hearing, stated to the trial

 court that appellant had signed the arson registration form and that “we do object to the

 classification of that and reserve the right to appeal that issue.” Transcript from March 22,

 2017 sentencing hearing at 447. No specific reason for objecting to the classification was

 provided to the trial court which, therefore, had no opportunity to hear and consider

 arguments relating to appellant’s separation of powers argument.

          {¶46} In State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus, the

 Ohio Supreme Court held: “Failure to raise at the trial court level the issue of the

 constitutionality of a statute or its application, which issue is apparent at the time of trial,

 constitutes a waiver of such issue and a deviation from this state's orderly procedure, and

 therefore need not be heard for the first time on appeal.”

          {¶47} Accordingly, we find that the constitutional argument was not raised below

 and is deemed waived.

          {¶48} Appellant’s third assignment of error is, therefore, overruled.




 1
  In contrast, in State v. Dingus, 4th Dist. Ross No. 16CA3525, 2017-Ohio-2619, 81 N.E.3d 513, which is cited by
 appellant, the specific issue of whether the arson officer registry scheme unconstitutionally violated the separation
 of powers doctrine was raised in the trial court.
       {¶49} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

John W ise, P.J. and

Earle W ise, J. concur.
