[Cite as State v. Dixon, 2013-Ohio-4149.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2013 CA 00003
DANIELLE FAITH DIXON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2012 CR 01023


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 23, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                EUGENE CAZANTZES
PROSECUTING ATTORNEY                           101 Central Plaza South
RONALD MARK CALDWELL                           Suite 1000
ASSISTANT PROSECUTOR                           Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013 CA 00003                                               2

Wise, J.

      {¶1}   Appellant Danielle Faith Dixon appeals her convictions and sentence, in

the Court of Common Pleas, Stark County, on counts of aggravated arson, arson, and

domestic violence. Appellee is the State of Ohio. The relevant facts leading to this

appeal are as follows.

      {¶2}   On the morning of July 1, 2012, police officers were dispatched to a

residence on Lesh Road NE in Canton, following a 911 call reporting a domestic

disturbance. The call had been made by Jerry Lanksford, who lived at the residence

with his teenage son and Appellant Dixon. Lanksford had been out all night, and when

he arrived home, appellant began arguing with him. Both Lanksford and appellant had

been drinking during the previous night. The responding officers did not make any

arrests on this call, but they advised Lanksford to get away from the residence for

awhile.

      {¶3}   In the early afternoon of that same day, Lanksford again called 911,

reporting that appellant had thrown a phone at him, striking him in the head, and had

sprayed lighter fluid around the residence. Lanksford also reported that a fire had

started near one of the bedrooms. Lanksford and his son were able to put the fire out

by themselves before exiting the house. Lanksford noticed that the tires on his car

were flat and that there were matches near the gasoline tank opening. Appellant left

the area, but was later apprehended when she pulled into the driveway in an

automobile. She had a cut on her finger and appeared intoxicated.

      {¶4}   On July 31, 2012, appellant was indicted on two counts of aggravated

arson under R.C. 2909.02(A)(1), both first-degree felonies; one count of arson under
Stark County, Case No. 2013 CA 00003                                                3


2909.03(A)(1), a first-degree misdemeanor; and one count of domestic violence under

R.C 2919.25(A), a first-degree misdemeanor.

      {¶5}   The case proceeded to a jury trial on November 11-12, 2012. Appellant

was found guilty on all four counts as charged in the indictment.

      {¶6}   On November 21, 2012, the trial court sentenced appellant to two

concurrent seven-year prison terms for the aggravated arson convictions, a concurrent

180-day sentence for the arson conviction, and a concurrent 180-day sentence for the

domestic violence conviction. The aggregate sentence was thus seven years in prison.

      {¶7}   Appellant filed a notice of appeal on January 4, 2013. This Court granted

leave for a delayed appeal on February 8, 2013. Appellant herein raises the following

four Assignments of Error:

      {¶8}   “I.    THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS

WHEN IT IMPOSED A SENTENCE PUNISHING HIM (SIC) FOR EXERCISING HIS

(SIC) RIGHT TO A JURY TRIAL.

      {¶9}   “II.   THE TRIAL COURT ERRED BY PERMITTING A NON-EXPERT

WITNESS TO GIVE AN OPINION OUTSIDE THE SCOPE OF EVID. R. 701.

      {¶10} “III. THE APPELLANT WAS DENIED HIS (SIC) RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.

      {¶11} “IV. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”
Stark County, Case No. 2013 CA 00003                                                       4


                                                I.

      {¶12} In her First Assignment of Error, appellant contends the trial court

deprived her of her due process rights by imposing a higher sentence than the State

had offered during pretrial plea negotiations. We disagree.

      {¶13} A criminal defendant should not be punished for exercising his or her

constitutional right to trial or for refusing to enter into a plea agreement. See State v.

O'Dell (1989), 45 Ohio St.3d 140, 543 N.E.2d 1220, paragraph two of the syllabus.

“Therefore, although sentencing is generally left to the sound discretion of the trial

judge, appellate courts have found that the trial court abuses its discretion when the

record affirmatively demonstrates that defendant received an enhanced sentence in

retaliation for rejecting a plea offer.” State v. Warren (1998), 125 Ohio App.3d 298,

307. “If courts could punish defendants for exercising their constitutional right to a jury

trial, the right would be impaired by the chilling effect.” State v. Morris, 159 Ohio

App.3d 775, 825 N.E.2d 637, 2005-Ohio-962, ¶ 12 (additional citations omitted).

      {¶14} In the case sub judice, the State concedes that before and during trial, the

trial court offered appellant opportunities to accept a plea offer that would have resulted

in a prison term of four years, with judicial release being considered after one year;

however, appellant turned down the offer. It also appears undisputed that the trial court

did not specifically state that retaliation was not a reason for the sentence ordered. At

sentencing, the trial court did state, inter alia, that it was relying upon appellant's prior

record, specifically a vandalism conviction from Tennessee. See Sentencing Tr. at 12-

13. In support of her claim that the higher sentence stemmed from retaliation for her

choice to go to trial, appellant maintains this conviction was not a factor that came to
Stark County, Case No. 2013 CA 00003                                                       5


light during the course of the trial; rather, it had been known to the trial court from early

in the case because it had been the subject of a motion in limine by appellant, which

the court had granted. We note that at a break in the trial, after Lanksford had finished

most of his testimony, a plea settlement was briefly discussed, with the trial court

stating as follows to appellant:

      {¶15} “THE COURT: The other thing I want to point out to you. I mean the

possible sentence, the maximum when you combine everything can be close to what?

You got two felonies of the first degree; I mean close to 18 years. Now, I’m not saying

that I would give you 18 years. I’ll be honest enough to tell you from what I heard I

wouldn’t give you 18 years, but you could get a lot of years, okay. So you’re playing

with a lot of things here, okay.” Tr. at 154-155.

      {¶16} The burden of proving that a sentence was vindictive because of a

defendant's exercise of his or her right to a jury trial falls on the defendant. See State v.

Elkins, 6th Dist. Sandusky No. S-08-014, 2009-Ohio-2602, ¶ 18 (additional citations

omitted). Appellant herein does not seek to argue that her sentence was in violation of

Ohio’s sentencing statutes or was otherwise contrary to law. The above quote from the

trial court judge provides every indication to us that if the jury trial would indeed

proceed from that point, he intended to base his sentencing decision on the relevant

factors as they developed. Upon review, we find appellant has not met her burden on

appeal to demonstrate that the higher sentence she ultimately received was based on

vindictiveness or retaliation on the part of the trial court.

      {¶17} Appellant's First Assignment of Error is therefore overruled.
Stark County, Case No. 2013 CA 00003                                                         6


                                                II.

      {¶18} In her Second Assignment of Error, appellant argues the trial court erred

in allowing the State’s fire investigator to give opinion testimony at trial. We disagree.

      {¶19} Along with Lanksford and Canton Police Officer Kevin Sedares, the State

called Joseph Carafelli, a fire investigator for the City of Canton. Carafelli was at the

scene on July 1, 2012 and also spoke with appellant at the hospital later that day. He

testified that after first talking to police officers at the residence, he went over to

appellant’s vehicle, where he observed “at least three partially burnt matches inside the

fill cap of the gas tank.” Tr. at 181. He was subsequently asked by the prosecutor to

give his opinion as to why it is dangerous to put lit matches into a gas tank opening, to

which he responded:

      {¶20} “Well, here’s what a lot of people don’t recognize. It’s not the liquid that

actually burns in gasoline, it’s the fumes. And what we’d have a danger of occurring

here would be if fumes were present there at the cap, at the refill cap, that they would

ignite.

      {¶21} “I wouldn’t put a lit match at a gas tank on a bet; put it that way, I mean [a]

dangerous thing to do.” Tr. at 188.

      {¶22} Carafelli proceeded to testify as to his investigation inside the house,

including the numerous areas where he detected the presence of lighter fluid. When

asked to describe why it would be dangerous to have lighter fluid near the bedroom

door, Carafelli stated:

      {¶23} “”Well, if Mr. Lanksford, in fact, had the lighter fluid all over him and he’s

inside the room and you’re spraying lighter fluid across the door, you run the risk of him
Stark County, Case No. 2013 CA 00003                                                  7


being ignited, especially if he comes out and tries to stamp it out, could have been

ignited.

      {¶24} “Probably one of the more severe dangers was actually across the hall.

With the amount that was sprayed in that room, had it ignited in that room, that room

would have been quickly engulfed in flame probably preventing any escape out the

door from across the hall.” Tr. at 202.

      {¶25} Appellant’s defense counsel at trial did not object to Carafelli’s testimony

at either of the above points.

      {¶26} Generally, the admission or exclusion of relevant evidence rests in the

sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510

N.E.2d 343. However, an error not raised in the trial court must be plain error for an

appellate court to reverse. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804:

Crim.R. 52(B). In order to find plain error under Crim.R. 52(B), it must be determined,

but for the error, the outcome of the trial clearly would have been otherwise. Long,

supra, paragraph two of the syllabus. Furthermore, the defendant bears the burden of

demonstrating that a plain error affected his substantial rights. United States v. Olano

(1993), 507 U.S. at 725,734, 113 S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d

118, 120, 802 N.E.2d 643. Even if a defendant satisfies this burden, an appellate court

has discretion to disregard the error and should correct it only to “prevent a manifest

miscarriage of justice.” See State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d

1240 (additional citations omitted).

      {¶27} Evid.R. 702 reads as follows in pertinent part:

      {¶28} “A witness may testify as an expert if all of the following apply:
Stark County, Case No. 2013 CA 00003                                                   8


      {¶29} “(A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a misconception

common among lay persons;

      {¶30} “(B) The witness is qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the testimony;

      {¶31} “***.”

      {¶32} Upon review, we find Carafelli’s above opinions were not offered as expert

testimony and were well within the parameters of laypersons’ knowledge of basic fire

safety and the common use and handling of automotive gasoline and household lighter

fluid products; as such, we find appellant has not established plain error affecting her

substantial rights under the circumstances of this case.

      {¶33} Appellant's Second Assignment of Error is therefore overruled.

                                               III.

      {¶34} In her Third Assignment of Error, appellant contends she was deprived of

the effective assistance of counsel at trial. We disagree.

      {¶35} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; whether counsel's performance fell

below an objective standard of reasonable representation and was violative of any of

his essential duties to the client. If we find ineffective assistance of counsel, we must

then determine whether or not the defense was actually prejudiced by counsel's
Stark County, Case No. 2013 CA 00003                                                       9


ineffectiveness such that the reliability of the outcome of the trial is suspect. This

requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different. Id. Trial

counsel is entitled to a strong presumption that all decisions fall within the wide range

of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675,

693 N.E.2d 267. Furthermore, both prongs of the Strickland test need not be analyzed

if the claim of ineffective assistance can be resolved under one prong. State v. Doss,

4th Dist. Gallia No. 09CA20, 2012-Ohio-883, ¶ 16, citing State v. Madrigal (2000), 87

Ohio St.3d 378, 389, 721 N.E.2d 52.

      {¶36} Appellant’s focus herein again pertains to Fire Investigator Carafelli’s

testimony; specifically, appellant maintains her trial counsel was ineffective for failing to

object to Carafelli’s aforementioned “opinions” regarding the danger of matches near a

gas tank opening and lighter fluid sprayed near a door. We note that because

Lanksford was present during most of appellant’s actions in the house and because

Lanksford’s car did not burn, the case sub judice does not significantly entail the

utilization of an expert’s testimony as to whether the fire was deliberately set by the

defendant, as might be encountered in cases where the origin of the fire is more

difficult to ascertain.

      {¶37} Accordingly, having reviewed the record, and in light of our analysis under

appellant’s Second Assignment of Error, we find no showing that appellant’s counsel’s

performance prejudiced appellant’s defense such that reversal would be warranted.

      {¶38} Appellant's Third Assignment of Error is overruled.
Stark County, Case No. 2013 CA 00003                                                 10


                                              IV.

      {¶39} In her Fourth Assignment of Error, appellant contends her convictions

were not supported by sufficient evidence and were against the manifest weight of the

evidence. We disagree.

      {¶40} In reviewing a claim based on 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 (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

      {¶41} Appellant in the case sub judice was convicted of domestic violence. R.C.

2919.25(A) states as follows: “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.” Physical harm to a person means

"any injury, illness, or other physiological impairment, regardless of its gravity or

duration." See R.C. 2901.01(A)(3).

      {¶42} Appellant was also convicted of aggravated arson. R.C. 2909.02(A)(1)

states: “No person, by means of fire or explosion, shall knowingly *** [c]reate a

substantial risk of serious physical harm to any person other than the offender.”

      {¶43} Appellant was also convicted of arson. R.C. 2909.03(A)(1) states: “No

person, by means of fire or explosion, shall knowingly *** [c]ause, or create a

substantial risk of, physical harm to any property of another without the other person's

consent.” Physical harm to property means “any tangible or intangible damage to

property that, in any degree, results in loss to its value or interferes with its use or

enjoyment.” See R.C. 2901.01(A)(4).
Stark County, Case No. 2013 CA 00003                                                   11


      {¶44} In the case sub judice, Lanksford testified that appellant struck him in the

head with her cell phone, and Officer Sedares confirmed that Lanksford had a recent

cut on his forehead. The State also relied upon letters appellant wrote in which she

admitted striking Lanksford and spraying lighter fluid in the house. Lankford’s additional

testimony, along with the fire investigator's account of his on-site investigation,

provided proof that appellant’s actions in spraying lighter fluid around the house

(including spraying some on Lanksford’s person) and starting a fire inside created a

substantial risk of serious physical harm to both Lanksford and his son, just as lighting

matches by the opened gas tank created a risk of fire or explosion to the motor vehicle.

      {¶45} We therefore hold appellant's convictions for domestic violence,

aggravated arson, and arson were supported by sufficient evidence.

      {¶46} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, 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 reversed

and a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 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, 485 N.E.2d 717.

      {¶47} Appellant urges that the evidence presented could have equally supported

the inference that appellant sprayed lighter fluid in an attempt to damage certain

property of Lanksford, but that he was the culprit in lighting a fire inside the house and
Stark County, Case No. 2013 CA 00003                                                     12


in placing matches around his gasoline filler cap in a scheme to force appellant’s

removal from the home, his loss of interest in the relationship exemplified by his

decision to stay out all the previous night. The trial record reveals that appellant took

the stand in her defense and testified that while she had sprayed lighter fluid around

the house (while denying that she ever tried to put any on Lanksford’s person), she

maintained that she had never lit the fluid. She further denied any involvement in

lighting matches near the gas tank filler of Lanksford’s vehicle. Appellant stated she

had been “casually” drinking but conceded she went into a fit of rage, akin to a

blackout. See Tr. at 215, 231. It is also noteworthy that when Fire Investigator Carafelli

spoke with appellant at the hospital, “[s]he would deny setting the fire but then she

would – it was kind of odd because then she would turn around and give us the

reasons why she did it; because he stayed out all night and *** she was angry about

that ***.” Tr. at 203.

      {¶48} Upon review of both the State's witnesses and appellant’s testimony as

the sole defense witness, we are unpersuaded that the jury lost its way in assessing

the evidence in this case. The jurors, as the firsthand triers of fact, were patently in the

best position to gauge the truth. Upon review, we find the jury's decision did not create

a manifest miscarriage of justice requiring that appellant's convictions be reversed and

a new trial ordered.
Stark County, Case No. 2013 CA 00003                                          13


      {¶49} Appellant's Fourth Assignment of Error is overruled.

      {¶50} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.


                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN



JWW/ d 0827
Stark County, Case No. 2013 CA 00003                                         14


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




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
DANIELLE FAITH DIXON                      :
                                          :
       Defendant-Appellant                :         Case No. 2013 CA 00003




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
