[Cite as State v. Hunter , 2021-Ohio-1714.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsROSCOE HUNTER Defendant-Appellant JUDGES: : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. : : : Case No. 2020 CA 0056 : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland Coun ty Court of Common Pleas, Case No. 19CR513

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May, 18, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant GARY BISHOP WILLIAM T. CRAMER Richland County Prosecutor 470 Olde Worthington Road, Ste. 200 38 South Park Street Westerville, OH 43062 Mansfield, OH 44902[Cite as State v. Hunter , 2021-Ohio-1714.]

Gwin, J., {¶1} Defendant-appellant Roscoe D. Hunter [“Hunter”] appeals his con victions and sentences after a jury trial in the Richland County Court o f Common Pleas.

Prelude {¶2} In this case we are faced with the question of whether arson an d involuntary manslaughter are lesser-included or inferior degree offenses to the charges of aggravated arson and felony murder. We find that under the facts of this c ase, even assuming arguendo that the charges are lesser-included or inferior degree offens es, the evidence was insufficient to warrant charging the jury on a lesser-inclu ded or inferior degree offense. The operative facts are not in dispute. Facts and Procedural History {¶3} On July 29, 2019, Hunter was indicted by the Richland County Gr and Jury with Count One: Felony Murder, in violation of R.C. 2903.02(B), an unclassified felony, Count Two: Aggravated Arson,[create a substantial risk of serio us physical harm to any person] in violation of R.C. 2909.02(A)(1), a felony of the fir st degree, and Count Three: Aggravated Arson, [cause physical harm to any occupied structur e] in violation of R.C. 2909.02(A)(2), a felony of the second degree. {¶4} On June 26, 2019, Sydney Riddle lived with her family at 208 So uth Foster Street where she was babysitting Chloe Williams. Kashawn Hawkin s, two-year-old Chloe Williams' mother, was working her regular shift at Newman Techn ology on June 26, 2019. She and Josh Riddle, Ms. Riddle's husband, worked the second sh ift together. Ms. Hawkins normally dropped Chloe off around 2:00-2:30 p.m. Norma lly, when Josh got home, he would quietly go upstairs to get Chloe and bring her d own without waking upRichland County, Case No. 2020 CA 0056 3

the rest of the household and wait for Ms. Hawkins to arrive. T hat night, however, Josh and Kashawn left work later than they usually did. Josh "start( ed) work at 3:00 p.m. and [got] off at 2:00 a.m.” {¶5} In the early morning hours of on June 26, 2019, Hunter and a ju venile, B.B., left the home of a friend. As the pair were walking, they saw a gas can sitting by a van. {¶6} Hunter would later claim that he carried the gas can to an aban doned house located at 212 South Foster Street. Hunter claimed that B.B. po ured the gasoline in the house, and that Hunter gave B.B. a lighter to ignite the fuel. {¶7} B.B. testified at trial that it was Hunter who took the gas can . B.B. testified they walked down South Foster Street and Hunter said they shoul d check out the abandoned house located at 212 South Foster Street. After they arrived, they walked through the house and got separated for a moment. B.B. saw Hunt er grab a bowl from the kitchen. B.B. watched as Hunter poured gasoline into the bo wl and put it on a couch that was in the living room. Hunter then poured the gasoline st raight from the can onto the couch. Hunter poured most of the gasoline from the can onto the couch. He then made a little gasoline trail leading to the front door. Hunter threw the empty gas can into the basement. Hunter went to the door and lit the gas trail wit h a lighter. B.B. denied knowing that Hunter intended to start a fire; he thought they w ere just checking out the abandoned house. After Hunter lit the fire, the downstairs of t he house went up in flames quickly. B.B. testified that as he and Hunter ran out to the st reet Hunter said it was “too late, they had to go.” {¶8} Sydney Riddle was awakened by pounding on the door. She went

downstairs and found a woman at the door. The woman said the ho use next door isRichland County, Case No. 2020 CA 0056 4

exploding with fire and they needed to get out because Sydney's house was also on fire. Sydney panicked and began yelling for everyone to wake up and g et out. Sydney had to carry her children out. There were already flames coming throug h their window. Sydney's brother and mother-in-law were also living with them and helped get the children out of the burning house. As they were coming out, the fire trucks wer e pulling up. It was not until they got everyone across the street that Sydney realized Chloe was still inside. Sydney tried to run back in, but fell down. Sydney's knees and elbows were scraped up from her fall. Firemen tried to go into the home, but they wer e unable to make it to the second floor where the infant was sleeping due to the intensity of the fire. {¶9} The flames from the fire spread quickly from the abandoned hous e at 212 South Foster Street to the Riddle’s home next door at 208 South Foster Street, fanned in part by the windy conditions at the time and the close proximit y of the homes. 3T. at 182; 183; 201; 212-213; 245-246; 271; 314 4T. at 482; 487-488. Tra gically the fire claimed the life of Chloe Williams, the two-year old infant who was sle eping in that home. The fire did extensive damage to 208 South Foster where the Riddle famil y lived and the child had died. "The living room wall that faced 212 [South Foster] w as gone. It was just studs. All the carpet and everything on that side of the house melted. The toy box was over there, and all the toys were melted to the floor. The kitchen w as completely gone. Like, everything was charred, black smoke, water-filled.... Every sin gle room in that house was destroyed." 3T. at 248. After the fire, the landlord of 208 Sou th Foster decided to tear it

down. Id. at 247. {¶10} Cody Brownfield was a few houses down on South Foster Street on the morning after the fire. As soon as he could, at approximately 1 1:30 A.M. to 12:00 noon,Richland County, Case No. 2020 CA 0056 5

he flagged down an officer. He eventually spoke with Lieutenant Robert Skropits, who is in charge of the Major Crimes Division at the Mansfield Police Department. He gave Lieutenant Skropits Hunter’s name. He told the officer that Hu nter had been at his house the night before with friends, and that Hunter told him that he was going to burn down the

"bando 1 ." Cody later testified that Hunter had been talking about it f or over a week. {¶11} B.B. admitted that he was not truthful when he first spoke to l aw enforcement. B.B. said he was under pressure. B.B. claimed that he eventually told the truth. B.B. was charged with two counts of aggravated arson as a second-degree felony and a fourth-degree felony. However, his charges were reduced t o fifth-degree felony vandalism and breaking and entering in exchange for his testimo ny against Hunter. B.B. was sentenced to probation and spent six months in detention. {¶12} Hunter was surprised at how big the fire was and insisted that he did not mean to burn down the occupied house next door. Later, as Hunte r was talking to his mother on the phone from jail while awaiting trial. His mother said she and the attorney looked at the indictment and she believed the charges didn't ap ply to him. Hunter said, "They do....They apply, Mom....Murder — we burnt down a house a nd killed somebody." 5T. at 700; State’s Exhibit 115. {¶13} On July 27, 2020, the jury came back with a verdict of guilty o n all counts as charged in the indictment. The trial court merged Count Two with Count One and Hunter was sentenced to fifteen years to life on Count One. As to Count Three, Aggravated Arson, referring to causing physical harm to an occu pied structure, the court

1 “Bando” is slang for an abandoned house. 3T. at 311.Richland County, Case No. 2020 CA 0056 6

sentenced Hunter to eight to twelve years in prison. The court ordered the sentences to run consecutively. Assignments of Error {¶14} Hunter raises two Assignments of Error, {¶15} “I. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE LESSER OFFENSES OF ARSON AND INVOLUNTARY MANSLAUGHTER. {¶16} “II. APPELLANT WAS DEPRIVED OF HIS FEDERAL AND STATE RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILU RE TO ARGUE THAT ARSON WAS AN INFERIOR DEGREE OFFENSE TO AGGRAVATE D ARSON.”

I. {¶17} Prior to trial, the defense requested a jury instruction on the lesser included offense of arson under R.C. 2909.03(B)(1). On a break during tr ial, the court discussed the requested jury instructions and concluded that arson was no t a lesser included offense of aggravated arson because they had different elements : aggravated arson requires causing a risk of harm to a person or causing harm to an occupied structure, while arson requires the burning of an unoccupied structure. Th erefore, because the court

did not believe a lesser included offense instruction on arson was appropriate, it concluded that it could not provide a lesser included offense i nstruction on involuntary manslaughter. 5T at 579-583. At the close of the state's case, the defense renewed its request for a lesser included offense instruction on involuntar y manslaughter based on arson. Again, the trial court denied the request, concluding th at there was no basis for

instructions on arson and invol untary manslaughter. 6T. at 738 -740.Richland County, Case No. 2020 CA 0056 7

{¶18} In his First Assignment of Error, Hunter contends that because the evidence at trial suggested that he was not aware that the fire would pr obably spread to the neighboring house, such evidence would support acquittals on th e two aggravated arson charges and a finding of guilty on the lesser or inferior degre e offense of arson. As a result, the trial court should have given a jury instruction on arson as an inferior degree or lesser offense to the aggravated arson charges. Hunter then argues that the jury should have been instructed on the offense of involuntary manslaughter contending that if the jury found him guilty of aggravated arson, then felony-murder w as appropriate; however, if the jury found him guilty of only arson, then a jury could c onvict him of involuntary manslaughter as a lesser or inferior offense to the felony murd er count in the indictment. Standard of Review – Jury Instructions {¶19} An appellate court reviews a trial court's refusal to give a re quested jury instruction for abuse of discretion. State v. Wolons , 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶240. An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evide nce. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H ., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54. Jury instructions must be reviewed as a whole. State v. Coleman , 37 Ohio St.3d 286, 525 N.E.2d 792(1988). {¶20} In Neder v. United States , 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35(1999) the United States Supreme Court held that because the failure to properlyRichland County, Case No. 2020 CA 0056 8

instruct the jury is not in most instances structural error, th e harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies to a failure to properly instruct the jury, for it does not necessarily render a trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Issue for Appellate Review: Whether the trial court abused its discretion by failing to instruct the jury on the offenses of arson and involuntary manslaughter.

1. Lesser -included offenses. {¶21} Hunter was indicted and found guilty of two counts of Aggravate d Arson pursuant to R.C. 2909.02, (A) No person, by means of fire or explosion, shall knowingly d o any of the following: (1) Create a substantial risk of serious physical harm to any p erson other than the offender; (2) Cause physical harm to any occupied structure... {¶22} Hunter argues that the trial court abused its discretion by not charging the jury on the lesser or inferior offense of arson pursuant to R.C .2909.03, 2

* * * (B) No person, by means of fire or explosion, shall knowingly d o any of the following: (1) Cause, or create a substantial risk of, physical harm to a ny structure of another that is not an occupied structure....

2 Appellant’s brief at 15.Richland County, Case No. 2020 CA 0056 9

{¶23} “Ohio law permits a trier of fact to consider three types of le sser offenses when determining a defendant's guilt: ‘(1) attempts to commit the crime charged, if such an attempt is an offense at law; (2) inferior degrees of the in dicted offense; or (3) lesser

included offenses.’ State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph one of the syllabus, construing R.C. 2945.74 and Ohio Crim.R. 3 1(C)”. Shaker Heights v. Mosely , 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶10. {¶24} “Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an ac quittal on the crime charged and a conviction upon the lesser included offense.” State v. Thomas , 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. In ma king this determination, the court must view the evidence in a light most favorable to d efendant. State v. Smith , 89 Ohio St.3d 323, 331, 731 N.E.2d 645(2000); State v. Wilkins , 64 Ohio St.2d 382, 388, 415 N.E.2d 303(1980). {¶25} The Ohio Supreme Court has cautioned, Past decisions of this court have sometimes given the erroneous impression that, whenever there is “some evidence” that a defen dant in a murder prosecution may have acted in such a way as to satisfy t he requirements of the voluntary manslaughter statute, an instruct ion on the inferior-degree offense of voluntary manslaughter must always b e given. See, e.g., State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378 N.E.2d 738, paragraph four of the syllabus. See, also, Tyler, supra, 50 Ohio St.3d at 37, 553 N.E.2d at 592. That clearly never has been the law in thisRichland County, Case No. 2020 CA 0056 10

state, nor is it the law today. The “some evidence” referred to in those cases is simply an abbreviated way of saying that a jury instruction must be given on a lesser included (or inferior-degree) offense when sufficie nt evidence is presented which would allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior -degree)

offense. To require an instruction to be given to the jury every time “s ome evidence,” however minute, is presented going to a lesser inclu ded (or inferior-degree) offense would mean that no trial judge could e ver refuse to give an instruction on a lesser included (or inferior-degree) o ffense. Trial judges are frequently required to decide what lesser-included ( or inferiordegree) offenses must go to the jury and which must not. The ju ry would be unduly confused if it had to consider the option of guilty on a lesser included (or inferior-degree) offense when it could not reasonably retur n such a

verdict. State v. Shane , 63 Ohio St.3d at 632-633, 590 N.E.2d 272 (emphasis in origina l). {¶26} In the case at bar, the evidence proved that Hunter set a gasol ine fire inside of the unoccupied structure located at 212 South Foster Street. Hunter concedes that this evidence is sufficient to prove the offense of arson. (Appellan t’s brief at 22). The question then becomes whether Hunter, by means of a fire or explosion th at he had set in the unoccupied structure located at 212 South Foster Street, knowingly created a substantial risk of serious physical harm to the occupants of 208 South Fos ter Street [(R.C. 2909.02(A)(1)] and/or knowingly caused physical harm to the occupied structure locatedRichland County, Case No. 2020 CA 0056 11

at 208 South Foster Street [R.C.2909/02(A)(2)]. In other words, assuming arguendo that arson is a lesser or inferior degree of aggravated arson, would the evidence presented at trial reasonably support both an acquittal on the crimes of agg ravated arson and a conviction upon the purported inferior degree or lesser include d offense of arson. 2. Knowingly {¶27} R.C. 2901.22, Culpable mental states provides, (B) A person acts knowingly, regardless of purpose, when the pe rson is aware that the person’s conduct will probably cause a certai n result or will probably be of a certain nature. A person has knowledge of circ umstances when the person is aware that such circumstances probably exist . When knowledge of the existence of a particular fact is an element o f an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry o r acts with a conscious purpose to avoid learning the fact. {¶28} In her concurring opinion in State v. Clay , Justice Lanzinger explained, Awareness, then, is key to both definitions. It is the level of awareness, however, that separates the two levels: “‘if the res ult is probable, the person acts “knowingly”; if it is not probable, b ut only possible, the person acts “recklessly” if he chooses to ignore the risk.’ ” In re Judicial Campaign Complaint Against Emrich (1996), 75 Ohio St.3d 1517, 1519, 665 N.E.2d 1133, quoting State v. Edwards (1992), 83 Ohio App.3d 357, 361,

614 N.E.2d 1123.Richland County, Case No. 2020 CA 0056 12

120 Ohio St.3d 258, 2008-Ohio-6325, 900 N.E.2d 1000, ¶32. Wheth er a person acts knowingly can only be determined, absent a defendant's admissio n, from all the surrounding facts and circumstances, including the doing of the act itself.” State v. Huff , 145 Ohio App.3d 555, 563, 763 N.E.2d 695 (1 st Dist. 2001) (Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a subjec tive one, but it is decided on objective criteria.” State v. McDaniel, 2 nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998), citing State v. Elliott , 104 Ohio App.3d 812, 663 N.E.2d 412 (10 th Dist. 1995). {¶29} In the case at bar, Hunter used gasoline as an accelerant. Ga soline is one of the most volatile, flammable and combustible liquids. 4T. at 490. Gasoline causes instantaneous ignition. 4T. at 486. The fire grows in size and consumes any fuel around it and continues to burn. 4T. at 487. The temperature of the fi re in this case exceeded 1200 degrees Fahrenheit. 4T. at 485. The unoccupied structure at 212 South Foster Street was constructed of wood and furniture was located throug hout the inside of the building. 4T. at 488. The two structures were located in close proximity, only a small narrow driveway separated the buildings that were estimated to be at most only 14 to 16 feet apart. 3T. at 183; 212-213; 245-246; 4T. at 488. Further, the evidence presented at trial established that the wind was blowing in the direction of the occupied structure on the night of the fire. 3T. at 182; 201; 271; 314; 4T. at 482. {¶30} For the violation of R.C. 2909.02(A)(1), the state had to prov e that the fire caused a substantial risk of serious physical harm to any perso n. In this regard, the evidence was undisputed that the two-year old infant died from the effects of the fire and thus suffered serious physical harm. For the violation of R.C. 2909.02(A)(2), the state hadRichland County, Case No. 2020 CA 0056 13

to prove physical harm to any occupied structure. It was also u ndisputed that the fire caused considerable physical damage to 208 South Foster Street. {¶31} The evidence presented at trial established that because of the accelerant that was used, the wind, and the close proximity of the buildin gs, there was a high probability the fire would spr ead from the unoccupied structure to the occupied structure and that Hunter failed to ascertain those facts or that he acte d with a conscious purpose to avoid learning those facts. Deliberate ignorance or indiffer ence cannot be a viable defense. Thus, the evidence submitted at trial would not support an acquittal on the counts of aggravated arson. Because the aggravated arson instru ction was appropriate, there is no merit to the argument that Hunter was entitled to a n instruction on involuntary manslaughter. State v. Parker, 12 Dist. Butler No. 2017-12-176, 2019-Ohio-830, ¶60. {¶32} Hunter’s First Assignment of Error is overruled.

II. {¶33} In his Second Assignment of Error, Hunter contends that by fail ing to argue that arson is an inferior degree of aggravated arson trial coun sel’s representation fell below an objective standard of reasonable representation. Standard of Appellate Review {¶34} A claim for ineffective assistance of counsel requires a two-pr ong analysis. The first inquiry is whether counsel's performance fell below a n objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373(1989).Richland County, Case No. 2020 CA 0056 14

{¶35} In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. “Prejudice from defect ive representation sufficient to justify reversal of a conviction exists only wher e the result of the trial was unreliable or the proceeding fundamentally unfair because of th e performance of trial

counsel. Lockhart v. Fretwell , 506 U .S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180(1993). {¶36} The United States Supreme Court and the Ohio Supreme Court have held a reviewing court “ * * * need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a r esult of the alleged

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697. {¶37} Having reviewed the record that Hunter cites in support of his claim that he was denied effective assistance of counsel, we find Hunter was not prejudiced by defense counsel’s representation of him. The result of the trial was n ot unreliable nor were the proceedings fundamentally unfair because of the performance of defense counsel. {¶38} As we found in our disposition of Hunter’s First Assignment of Error, the evidence submitted at trial would not support an acquittal on t he counts of aggravated arson. Because the aggravated arson instruction was appropriate , there is no merit to the argument that Hunter was entitled to an instruction on involunt ary manslaughter. Therefore, trial counsel’s failing to argue that arson is an in ferior degree of aggravated arson did not prejudice Hunter. {¶39} Hunter’s Second Assignment of Error is overruled.Richland County, Case No. 2020 CA 0056 15

{¶40} The judgment of the Richland Coun ty Court of Common Pleas is af firmed.

By Gwin, J., Baldwin, P.J., and Delaney, J., concur