[Cite as State v. Harris, 2017-Ohio-8263.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO 

 Appellee 

 v. 

MATTHEW J. HARRIS 

 Appellant 

C.A. No. 16CA0054-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 15 CR 0267 

DECISION AND JOURNAL ENTRY 

Dated: October 23, 2017 

 

SCHAFER, Judge. 

{¶1} Defendant-Appellant, Matthew J. Harris, appeals his convictions and sentence in 

the Medina County Court of Common Pleas. For the reasons set forth below, we affirm. 

I. 

{¶2} On May 21, 2015, the Medina County Grand Jury indicted Harris on two counts 

of aggravated arson in violation of R.C. 2909.02(A)(1), both felonies of the first degree. Harris 

initially pleaded not guilty at his arraignment, but he subsequently filed a written plea of not 

guilty by reason of insanity. The trial court thereafter referred Harris to the Akron PsychoDiagnostic Clinic for competency and sanity evaluations. Dr. Michael Biscaro of the Akron 

Psycho-Diagnostic Clinic ultimately determined that Harris was competent to stand trial and that 

Harris understood the wrongfulness of his actions at the time of the alleged offense. The State 

and Harris’ defense counsel both stipulated to the authenticity and admissibility of the 

competency evaluation. The trial court thereafter granted Harris’ motion to receive an 
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independent forensic psychiatric evaluation. Harris subsequently filed the expert sanity 

evaluation report of Dr. Galit Askenazi. The trial court then permitted Dr. Biscaro to supplement 

the sanity evaluation that he previously prepared in this matter. Dr. Biscaro again determined 

that Harris knew the wrongfulness of his actions at the time of the alleged offense. The matter 

then proceeded to a jury trial. 

{¶3} At trial, the State presented five witnesses to testify on its behalf. At the close of 

the State’s case-in-chief, Harris made a general Crim.R. 29 motion for judgment of acquittal, 

which the trial court summarily denied. Harris then called two witnesses to testify on his behalf 

prior to resting his case. The jury deliberated and ultimately found Harris guilty of both counts 

contained in the indictment. As to both counts, the jury found that Harris did have a severe 

mental disease or defect at the time of the offense, but that he did know the wrongfulness of his 

actions. The trial court subsequently sentenced Harris to five years in prison on each count of 

aggravated arson and ordered Harris to serve those sentences concurrently. The trial court also 

sentenced Harris to a mandatory five-year term of post-release control. 

{¶4} Harris filed this timely appeal and presents three assignments of error for our 

review. 

II. 

Assignment of Error I 

The State failed to present sufficient evidence to sustain a conviction against 

Appellant. 

{¶5} In his first assignment of error, Harris argues that his convictions for aggravated 

arson are unsupported by sufficient evidence. We disagree. 

{¶6} “‘We review a denial of a defendant’s Crim.R. 29 motion for acquittal by 

assessing the sufficiency of the State’s evidence.’” State v. Smith, 9th Dist. Summit No. 27389, 
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2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, 

¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we 

review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review, 

our “function * * * 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. 

“Circumstantial evidence and direct evidence inherently possess the same probative value.” Id. 

at paragraph one of the syllabus. After such an examination and taking the evidence in the light 

most favorable to the prosecution, we must decide whether “any rational trier of fact could have 

found the essential elements of the crime proven beyond a reasonable doubt.” Id. at paragraph 

two of the syllabus. Although we conduct de novo review when considering a sufficiency of the 

evidence challenge, “we neither resolve evidentiary conflicts nor assess the credibility of 

witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton 

Nos. C-120570, C-120751, 2013-Ohio-4775 , ¶ 33. 

{¶7} This matter implicates Harris’ convictions for two counts of aggravated arson in 

violation of R.C. 2909.02(A)(1), which states that “[n]o 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[.]” “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). Proof of intent is often derived from circumstantial evidence, 

as direct evidence will seldom be available. State v. Tarver, 9th Dist. Summit No. 22057, 2004-

Ohio-6748, ¶ 10, citing State v. Lott, 51 Ohio St.3d 160, 168 (1990). A “substantial risk” is 
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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.” Lastly, 

pursuant to R.C. 2901.01(A)(5), “serious physical harm to persons” means 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. 

{¶8} Here, Harris does not contest that the State met its burden of production with 

respect to any of the elements contained in R.C. 2909.02(A)(1). Rather, Harris argues that the 

State’s evidence at trial was insufficient in light of his not guilty by reason of insanity defense. 

Nonetheless, in the interest of context, we elect to examine the evidence that the State presented 

at trial. 

{¶9} Robert Locher testified that he was working as a Lafayette Township police 

officer on February 21, 2015, when he responded to a report of a house fire on Bank Street in 

Lodi, Ohio. Officer Locher testified that he was the first person to arrive at the scene, where he 

noticed smoke emanating from a third story window. He stated that he observed that the front 

door to the house was open and that an elderly woman in a wheelchair was located inside about 

five or six feet from the front door. This elderly woman was ultimately identified as Barbara 

Harris. Officer Locher testified that he noticed “thick, black” smoke between the woman and the 

door. Officer Locher testified that he quickly removed the woman from the house by wheeling 
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her out onto the front porch. He also testified that when the fire department arrived on the scene, 

two or three firefighters entered the house and subsequently removed Mrs. Harris’ son, Matthew 

Harris, from the structure. 

{¶10} Dr. Ricardo Machado, the emergency treating physician at Lodi Community 

Hospital who treated Matthew Harris on the day in question, testified that Harris admitted to 

starting the fire. Moreover, Lieutenant Matthew Buca of the Village of Lodi Fire Department 

testified that upon arriving on the scene and learning that Matthew Harris was probably still in 

the house, he and another firefighter “went into search and rescue mode.” Specifically, 

Lieutenant Buca testified that the front door to the house had somehow shut and locked since 

Barbara Harris was safely evacuated from the burning house. Thus, Lieutenant Buca testified 

that the front door had to be kicked in and a fire in the living room had to be “quickly knocked 

down” before he proceeded upstairs. Lieutenant Buca then testified that, through dark smoke, he 

was able to locate Harris lying on a bed in one of the rooms. He testified that Harris was alert 

when he located him, but that he did not speak during their encounter. Lieutenant Buca stated 

that he picked Harris up and carried him downstairs and out of the house, where Harris then 

received medical attention. Lieutenant Buca testified that the firefighters would not have entered 

the house if Harris was not still inside upon their arrival. He also testified that Mrs. Harris may 

have died if she was not removed from the house during the fire. Lastly, Lieutenant Buca 

testified that the fire caused a substantial risk of physical harm to him and the other firefighters 

who entered the house to combat the fire. 

{¶11} Brian Peterman, a fire investigator with the Ohio Fire Marshal’s Office, testified 

that he investigated the house fire on Bank Street in Lodi, Ohio on the same day that the fire 

occurred. Mr. Peterman testified that upon inspecting the house, he determined that the fire 
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originated at three separate and distinct locations within the house. Mr. Peterman testified that 

this led him to conclude that the fire was not caused by accident, but was started intentionally. 

Mr. Peterman testified that one fire was started in the living room using a robe or towel as the 

combustible material, another fire was started on the kitchen table using mail and papers as the 

combustible material, and the third fire was started in the attic using papers and cardboard boxes 

as the combustible material. Mr. Peterman then testified that he interviewed Harris in the 

hospital on February 25, 2015, at which time Harris admitted to starting the fires in the living 

room and the kitchen. Mr. Peterman stated that Harris denied starting the fire in the attic, but 

admitted to starting a fire in his bedroom. Mr. Peterman stated that Harris admitted to drinking 

alcoholic beverages and smoking marijuana prior to starting the fires. Mr. Peterman also stated 

that Harris admitted to starting the fires because he “couldn’t deal with everything in his life” 

and he wanted to die. Mr. Peterman testified that Harris’ interview did not conflict with the 

physical evidence. Lastly, Mr. Peterman testified that the house fire started by Harris caused a 

substantial risk of serious physical harm both to Mrs. Harris and to the firefighters who arrived 

on scene to extinguish the blaze. 

{¶12} As noted above, Harris does not contend that this evidence was insufficient with 

respect to any of the elements contained in R.C. 2909.02(A)(1). Instead, Harris argues that the 

State’s evidence was insufficient in light of his not guilty by reason of insanity defense. 

However, because “‘[t]he defendant’s sanity is not an element’ of a criminal offense,” “the State 

need not prove ‘that the defendant was sane. To the contrary, insanity is an affirmative defense.’ 

The due process-based ‘sufficient evidence’ standard does not implicate affirmative defenses.” 

State v. Cochran, 2d Dist. Montgomery No. 27023, 2017-Ohio-216, ¶ 51, quoting State v. 

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 35, 37. The evidentiary support for Harris’ not 
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guilty by reason of insanity defense is more properly analyzed under the manifest weight of the 

evidence standard. See id.; see also Hancock at ¶ 37-38 (adopting the United States Court of 

Appeals for the Sixth Circuit’s analysis in Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir.1999), 

abrogated on other grounds by statute, which held that the sufficiency of the evidence standard 

articulated in Jackson v. Virginia, 443 U.S. 307 (1979), does not apply to affirmative defenses). 

Thus, on this basis alone, we overrule Harris’ first assignment of error. 

{¶13} Therefore, Harris’ first assignment of error is overruled. 

Assignment of Error II 

Appellant’s convictions are against the manifest weight of the evidence. 

{¶14} In his second assignment of error, Harris argues that his convictions for 

aggravated arson are against the manifest weight of the evidence because he was insane at the 

time of the crime. We disagree. 

{¶15} A manifest weight challenge is legally distinct from a sufficiency of the evidence 

challenge. Thompkins, 78 Ohio St.3d at 387. When considering whether a conviction is against 

the manifest weight of the evidence, this Court must: 

review 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 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for 

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing 

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A criminal defendant who pleads not 

guilty by reason of insanity must prove by a preponderance of the evidence “that at the time of 

the commission of the offense, the person did not know, as a result of a severe mental disease or 
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defect, the wrongfulness of the person’s acts.” R.C. 2901.01(A)(14); R.C. 2901.05(A). “‘The 

weight to be given the evidence and the credibility of the witnesses concerning the establishment 

of the defense of insanity in a criminal proceeding are primarily for the trier of the facts.’” State 

v. Armstrong, 152 Ohio App.3d 579, 2003-Ohio-2154, ¶ 17 (9th Dist.), quoting State v. Thomas, 

70 Ohio St.2d 79, syllabus (1982). 

{¶16} At trial, two experts testified with respect to Harris’ sanity at the time of the 

offense. Harris, with whom the burden of proof rested on the issue, called Dr. Galit Askenazi, 

Ph.D., a board certified clinical neuropsychologist and forensic psychologist who formerly 

performed consulting work with the Akron Psycho-Diagnostic Clinic. The State called Dr. 

Michael Biscaro, Ph.D., a board certified forensic psychologist at the Louis Stokes Cleveland 

Veterans Affairs Medical Center who has performed consulting work with the Akron PsychoDiagnostic Clinic since 2006. 

{¶17} Dr. Biscaro testified that the Akron Psycho-Diagnostic Clinic asked him to 

conduct a competency and sanity evaluation on Harris on August 19, 2015. He testified that he 

interviewed Harris for one hour and thirty minutes at the Medina County Jail. Dr. Biscaro 

explained his methodology for determining an individual’s sanity, which is to collect information 

about the individual and conduct a comprehensive evaluation. This process includes doing a 

clinical interview with the individual, conducting any tests that may be necessary, and reviewing 

collateral records, such as prior evaluations. Dr. Biscaro noted that he “had the advantage, in this 

particular case, of having seen Mr. Harris before, so [he] was looking at [his] own report and 

things of that nature.” Dr. Biscaro stated that when he met with Harris in August of 2015, he 

“completed an interview with him, asked him for an update of his history, asked him about what 
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was going on at the time of the events with him.” He stated that he then reviewed Harris’ 

records “and went on from there.” 

{¶18} Dr. Biscaro proceeded to discuss his lengthy history of treating Harris. 

Specifically, Dr. Biscaro testified that he diagnosed Harris in 2010 with substance-induced 

psychotic disorder and personality disorder. He noted that Harris has a long history of being 

diagnosed with a number of different mental illnesses, including bipolar disorder, schizophrenia, 

schizoaffective disorder, dysthymia, major depressive disorder, and an unspecified disorder. He 

added that Harris has a “long history of substance addiction,” including alcohol, marijuana, and 

heroin, and “also a long history of interpersonal issues, problems getting along with folks, 

family.” Dr. Biscaro also stated that Harris is known for being manipulative and irresponsible. 

{¶19} Next, Dr. Biscaro detailed a number of inconsistencies between what Harris told 

him during the August 2015 interview versus what he had told other individuals regarding the 

house fire. For example, Dr. Biscaro stated that Harris was inconsistent about whether voices 

told him to start the house fire, about what time of day he abused marijuana and alcohol prior to 

setting the house fire, about how many fires he started in the house, about whether he 

intentionally or accidentally started the fires or if he even started the fires at all, about his motive 

for starting the house fire, or if he ever thought about starting a house fire in the past. On each of 

these points, according to Dr. Biscaro, Harris’ answers conflicted with prior statements that were 

contained in his medical records. Dr. Biscaro testified that such inconsistencies can be a 

“concerning and critical” and “an indicator of kind of an attempt to * * * avoid culpability or 

detection, that kind of stuff.” Dr. Biscaro testified that avoidance of culpability is an indication 

that an individual knows that their actions are wrong and that there may be consequences for 

those actions. 
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{¶20} Dr. Biscaro also testified that he found no clear evidence that Harris experienced 

hallucinations that either told him to start the house fire or convinced him that setting the house 

on fire was not wrong. He stated that Harris was not experiencing symptoms of hallucinations 

telling him to start a house fire. Moreover, Dr. Biscaro noted that investigators documented that 

the house fire in this case was set in a deliberate and specific manner, but that individuals who do 

something because of a mental illness often act in an erratic and disorganized manner. Lastly, 

Dr. Biscaro testified that after interviewing Harris, reviewing Harris’ numerous medical records, 

and reviewing the police and investigation reports in this case, he was of the opinion that Harris 

“was not suffering from symptoms of a severe mental disease at the time [of the crime], and that 

he did know the wrongfulness of his actions.” Dr. Biscaro added that Harris does not suffer from 

a severe mental defect, does not have a traumatic brain injury, has no history of dementia, and is 

of average intelligence. 

{¶21} Dr. Askenazi disagreed with much of Dr. Biscaro’s testimony and with many of 

his findings. Specifically, after interviewing Harris and reviewing the same information that was 

available to Dr. Biscaro, Dr. Askenazi testified that she believes that Harris “was suffering from 

a severe mental disease – namely, schizoaffective disorder – [on the day in question], with active 

symptoms at that time.” Dr. Askenazi further testified that she believes that Harris “was not able 

to thoughtfully determine what was right and what was wrong [on the day in question]. He just 

had to get rid of these voices [in his head].” We note that Dr. Biscaro testified that he reviewed 

Dr. Askenazi’s written report, which detailed her findings and also critiqued his methodology in 

this case. Dr. Biscaro testified that Dr. Askenazi’s report did not alter his opinion that Harris was 

sane on the day in question. 
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{¶22} Both Dr. Biscaro and Dr. Askenazi offered testimony with regard to their 

qualifications and experience. Accordingly, we cannot say that the evidence weighs heavily in 

favor of Dr. Askenazi’s opinion, nor can we conclude that the jury lost its way by accepting Dr. 

Biscaro’s expert opinion instead of Dr. Askenazi’s. See State v. Petrie, 9th Dist. Summit No. 

27490, 2016-Ohio-4941, ¶ 17 (stating that due to the conflicting testimony from expert 

psychologists, “the evidence in this case is balanced, and in these circumstances, we cannot say 

that this is the exceptional case in which we must reverse the conviction as against the manifest 

weight of the evidence.”); Armstrong, 2003-Ohio-2154 at ¶ 17. Therefore, we disagree with 

Harris’ contention that his convictions for aggravated arson are against the manifest weight of 

the evidence. 

{¶23} Accordingly, Harris’ second assignment of error is overruled. 

Assignment of Error III 

The trial court committed plain error by ordering convictions for separate 

counts because the trial court failed to make a proper determination as to 

whether those offenses are allied offenses pursuant to R.C. 2941.25 as they 

are part of the same transaction under R.C. 2929.14. 

{¶24} In his third assignment of error, Harris contends that the trial court erred by 

failing to merge his aggravated arson convictions at sentencing since they are allied offenses. 

We disagree. 

{¶25} This Court generally applies a de novo standard of review when reviewing a trial 

court’s decision regarding the merger of convictions for the purposes of sentencing. State v. 

Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. However, because Harris failed to object to 

the trial court’s decision not to merge his aggravated arson convictions at the sentencing hearing, 

he has forfeited all but plain error on appeal. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio2459, ¶ 3. The Supreme Court of Ohio has held that: 
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[A] forfeited error is not reversible error unless it affected the outcome of the 

proceeding and reversal is necessary to correct a manifest miscarriage of justice. 

Accordingly, an accused has the burden to demonstrate a reasonable probability 

that the convictions are for allied offenses of similar import committed with the 

same conduct and without a separate animus; and absent that showing, the 

accused cannot demonstrate that the trial court’s failure to inquire whether the 

convictions merge for purposes of sentencing was plain error. 

Id. 

{¶26} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth 

Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, 

which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio 

St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 states as follows: 

(A) Where the same conduct by the defendant can be construed to constitute two 

or more allied offenses of similar import, the indictment or information may 

contain counts for all such offenses, but the defendant may be convicted of only 

one. 

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar 

import, or where his conduct results in two or more offenses of the same or 

similar kind committed separately or with a separate animus as to each, the 

indictment or information may contain counts for all such offenses, and the 

defendant may be convicted of all of them. 

{¶27} The Supreme Court of Ohio has held that two or more offenses may result in 

multiple convictions if: “(1) the offenses are dissimilar in import or significance – in other 

words, each offense caused separate, identifiable harm, (2) the offenses were committed 

separately, and (3) the offenses were committed with separate animus or motivation.” State v. 

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25. The Ruff court stressed that this inquiry “is 

dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.” 

Id. at ¶ 26. It is the defendant’s burden to establish that the trial court failed to merge the 

sentences for allied offenses and that the defendant is entitled to the protection of R.C. 2941.25. 

State v. Dembie, 9th Dist. Lorain No. 14CA010527, 2015-Ohio-2888, ¶ 8. 
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{¶28} Upon review of the record, we cannot say that Harris has met his burden of 

demonstrating that there is a reasonable probability that his aggravated arson convictions are 

allied offenses. In refusing to merge Harris’ convictions at the sentencing hearing, the trial court 

explicitly recognized that Harris’ actions on the day in question caused a serious and separate 

danger to both Harris’ mother and to the firemen who responded to the scene. Because offenses 

committed against different individuals are of dissimilar import under R.C. 2941.25(B), see Ruff

at paragraph two of the syllabus, we conclude that the trial court did not plainly err when it 

declined to merge Harris’ convictions for aggravated arson. See Rogers at ¶ 3-4. 

{¶29} Harris’ third assignment of error is overruled. 

III. 

{¶30} With all three of Harris’ assignments of error having been overruled, the 

judgment of the Medina County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 JULIE A. SCHAFER 

 FOR THE COURT 

HENSAL, P. J. 

TEODOSIO, J. 

CONCUR 

APPEARANCES: 

THOMAS REIN, Attorney at Law, for Appellant. 

DEAN HOLMAN, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting 

Attorney, for Appellee.