[Cite as State v. Huler,
2019-Ohio-5121.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108224
v. :
GINA M. HULER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 12, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627962-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Andrew T. Gatti, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
MARY EILEEN KILBANE, A.J.:
Defendant-appellant, Gina M. Huler (“Huler”), appeals her
conviction for aggravated arson. For the reasons set forth below, we affirm.
In May 2018, Huler was charged with one count of aggravated arson,
in connection with a fire that occurred at the Parma, Ohio residence she shared with
her boyfriend and two of their three children, as well as with their two dogs. In
December 2018, the matter proceeded to a bench trial.
At trial, through the testimony of 11 state witnesses and Huler, who
testified in her own defense, it was established that Huler and her boyfriend, Grant
Delewski (“Delewski”), rented the house where the fire occurred for approximately
four years. Huler and Delewski had an unwritten month-to-month tenancy
requiring them to pay $400 per month, plus the cost of the utilities.
On April 13, 2018, the day of the fire, Delewski was at work, and the
two sons were at work and school, respectively. Their landlord, Bernadette
Kulikowski (“Kulikowski”), hired masons to tuck-point the chimney of the house, as
well as the house next door, which had also been owned by Kulikowski. At
approximately 1:00 p.m., after leaving the house twice and returning for the second
time around 12:30 p.m., Huler came out of the house yelling and screaming that
there was a fire inside and her dogs were trapped inside the house. Two neighbors
assisted Huler by calling 911, and one of the masons rescued one of the dogs. The
second dog was rescued after the fire department, police, and dog warden arrived
on the scene.
The fire department extinguished three distinct fires in the home; one
on the landing between the first floor and the basement; one on a hanging mail and
key holder; and one at the entrance to the kitchen. There was evidence to suggest
there would have been a fourth fire, but it failed to erupt. The fire caused
approximately $4,200 worth of damage.
Huler’s neighbor Delores Whitescarver (“Whitescarver”) testified at
the trial. Whitescarver testified that on the day of the fire, she happened to be
looking periodically out her window, which faces Huler’s house. Whitescarver
stated she could see the masons at work on the roof next door and later working on
Huler’s house. Whitescarver testified that when Huler returned home around 12:30
p.m., she appeared to speak briefly with the older of the two masons, and then went
inside. Whitescarver stated that about 30 minutes later, she observed Huler
running down the driveway and across the street screaming “fire.”
Neighbors Dale Mitchell (“Mitchell”) and Lauren Anselmo
(“Anselmo”) live across the street from Huler. Mitchell testified that he helped
rescue one of the dogs when Huler ran across the street screaming “fire” and
indicated that her dogs were still inside the house. Mitchell testified he had to enter
the house twice before the dog would come out of the house. Anselmo testified that
she had observed Huler walking her dogs the morning of the fire. Anselmo stated
that sometime between 9:30 a.m. and 10:00 a.m., Huler got in her car and left.
Anselmo testified that sometime between 12:30 p.m. and 1:00 p.m., she heard
pounding on the side door and then heard Huler screaming and asking for help to
save her dogs. On cross-examination, Anselmo testified that she had noticed that
morning that Huler’s dining room window, which was normally open, was closed.
Anselmo testified it was a beautiful day and the only window Huler had open was
the kitchen window.
Delewski, who works as a contractor, testified he was in downtown
Cleveland, when a neighbor notified him of the fire. Delewski headed home, but
the fire was extinguished by the time he arrived. Later that evening, in an interview
with fire inspectors, Delewski expressed the belief that sparks were flying while the
masons worked on the chimney, which traveled down the chimney through the attic
floor and started the fires.
One of the masons, Michael Doracak (“Doracak”), testified that he
retired from the Strongsville Fire Department after 33 years and has been involved
in general contracting for 40 years. Doracak testified that Kulikowski hired him to
tuck-point around the chimneys of the two houses, one of which was Huler’s.
Doracak explained that tuck-pointing involves cleaning out mortar joints with a
grinder and then remortaring the joints. Doracak further explained that the process
produces a lot of dust and does not produce any sparks. Doracak testified that in his
33 years as a firefighter, he had never responded to a fire caused by the grinding of
mortar joints.
Doracak worked on Huler’s house earlier that day and was on the roof
of the second house, when he observed Huler running across the street yelling that
the house was on fire. Doracak came down off of the roof to provide assistance.
Doracak testified that smoke was billowing out the front door, so he used a crowbar
to open the side door, and he was able to rescue one of the dogs. Doracak testified
that by the time the fire department arrived, the fire was out and the house just
needed ventilation.
Raymond Alessandro (“Alessandro”), a concrete contractor, testified
that he worked with Doracak the day of the fire at Huler’s house. Alessandro
testified that he witnessed the fire, came down off of the roof, and provided
assistance opening the side door so they could rescue the dogs. Alessandro also
explained that grinding mortar joints does not produce sparks. Alessandro testified
that there were no sparks when they tuck-pointed the chimney of Huler’s house.
Mollie Jordan (“Jordan”), of the State Fire Marshal’s Forensic Lab,
testified that she analyzes evidence for possible ignitable liquids, possible latent
fingerprints, and also swabs for DNA. Jordan testified that she tested the debris
from the fire. Specifically, Item Number 1, debris from the kitchen and hallway
floor, tested negative for ignitable liquids; Item Number 2, debris from the kitchen
table, tested negative for ignitable liquids; Item Number 3, debris from the trash can
on the stairs, tested positive for acetone; Item Number 4, debris from the attic,
tested positive for gasoline; and Item Number 5, plastic bottle from the attic, tested
positive for gasoline.
Jordan testified that Item Number 5, the plastic bottle, was processed
for latent prints, but no prints of value were found. In addition, the lid of the bottle
was swabbed for DNA and the swab was sent to BCI for testing. Jordan testified the
report from BCI indicated there was no DNA suitable for testing. Jordan explained
that if someone touched an item for only a second or with freshly washed hands,
they would leave no sweat residue and, as a result, the item would not be suitable
for DNA testing.
Jeff Koehn (“Koehn”), a fire investigator for the Ohio Division of State
Fire Marshal, whom the defense stipulated was an expert witness, testified that the
Parma Fire Department asked him to investigate the fire. Koehn explained the four
classification causes for fires as (1) accidental, such as a fire caused by an electrical
short, failure of equipment, appliance, or tool; (2) natural, such as wind causing a
fire, lightening, flood, or any natural occurring act; (3) incendiary, which is an
intentional human act; and (4) undetermined, where the heat source, ignition
source, or fuel is unknown or unavailable to form a hypothesis to classify it as one of
the other three causes of fires.
Koehn testified that when he arrived on the scene, he documented the
exterior and the interior of the house with his camera, examining the least damaged
areas and then most damaged areas. Koehn found fire debris on the floor of the
kitchen, but found no damage to the refrigerator, stove, or appliances on the
countertop. Koehn testified he inspected those appliances for failure and
determined that none had caused the fire.
Koehn further testified that he examined the debris on the kitchen
table, which included a wicker basket and its contents, along with a mail and key
holder. Based on the fire pattern on the wall, Koehn determined that the fire on the
kitchen floor was separate from the fire on the kitchen table. Koehn also examined
a cell phone charger and found there was no arcing to the wiring, which indicated
that the wire was not involved in the ignition of the fire.
Koehn testified that when he interviewed Huler, she initially
indicated that there was $745 in cash for the rent and utilities in or under the wicker
basket. Koehn testified that they found paper products from the wicker basket that
were recognizable, but found no evidence of any currency in the kitchen. Koehn
explained that the cloth contained in paper currency, whether stacked $100’s, $20’s,
or $10’s would not be completely consumed in the type of fire that occurred.
Koehn testified that he examined the debris on the landing between
the first floor and the basement. The debris included the remnants of a plastic trash
can. The results of the analysis on the trash can indicated a positive test for acetone.
Koehn testified that upon examining the area at the top of the stairs and the attic,
they found a piece of charred cardboard tube from a paper towel roll, carpet
remnant, and a water bottle located four feet from the opening of the attic. Koehn
testified that the charred cardboard tube, the carpet remnant, and the water bottle
tested positive for gasoline. Koehn explained that the gasoline from these items was
fresh, not aged or weathered gasoline.
Koehn testified that the fires in the separate locations in the house did
not communicate with each other. Koehn explained the first fire, on the countertop,
was fuel limited, so it burned out before spreading up the wall or beyond the wall
corner of table top. The second fire, in the kitchen, Koehn explained, spread up the
wall and about three feet across the ceiling. Koehn testified that these two fires did
not communicate across the ceiling as one would expect in a house fire when
something burns. Koehn explained the third fire, on the landing, did not
communicate beyond its limited area of origin.
Koehn testified that after conducting his examination and
investigation, he determined to a reasonable degree of scientific certainty that the
cause of the fires were incendiary. Koehn further determined that Huler lit the fires.
After defense counsel’s oral motion for acquittal was denied, Huler
testified in her own defense. Huler testified that she previously worked as a dialysis
technician, but had been out of work for the past three years because of multiple
medical conditions. Huler explained that she experiences severe pain as a result of
her medical conditions.
Huler testified that on the day in question, after Delewski and their
sons had left for the day, she took her dogs out, then drove to the Shell gas station to
get a cup of coffee, and then returned home. She explained that she left the house
again shortly before noon to go to Walmart to purchase some household items and
also stopped at a BP gas station. Huler testified that as she walked through the front
door, she discovered the fire. Huler explained that she did not immediately see the
fire, but smelled smoke, and upon walking through the living room, she heard
something fall. She further testified that she called for her dogs, but neither one
came running, so she ran outside while calling 911.
Huler testified that they were current with the rent and that she was
expecting Kulikowski to collect the rent the day of the fire. Huler testified that the
money for the rent was in an envelope in the basket or in the mail holder. Huler
testified that they had no rental insurance.
The trial court found Huler guilty as charged. The trial court imposed
a two-year suspended sentence and placed her on probation for two years. The trial
court ordered restitution in the amount of $4,264.47, and notified Huler that she
will have to register her address as an arson offender for a period of ten years.
Huler now appeals, assigning the following two errors for review:
Assignment of Error One
There was insufficient evidence produced at trial to support a finding
of guilt.
Assignment of Error Two
The trial court erred by finding [Huler] guilty against the manifest
weight of the evidence.
In the first assignment of error, Huler argues the state failed to
produce sufficient evidence to support a finding of guilt.
Sufficiency is a test of adequacy. Whether the evidence is legally
sufficient to sustain a verdict is a question of law. State v. Williams, 8th Dist.
Cuyahoga No. 106563, 2018-Ohio-4612, citing State v. Thompkins,
78 Ohio St.3d
380, 386,
678 N.E.2d 541 (1997). When reviewing the sufficiency of the evidence to
support a criminal conviction, an appellate court examines 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.
Id. 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.
Id., citing State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d
492 (1991), paragraph two of the syllabus.
The trial court found Huler guilty of aggravated arson in violation of
R.C. 2909.02(A)(2), which provides:
(A) No person, by means of fire or explosion, shall knowingly do any of
the following:
…
(2) Cause physical harm to any occupied structure[.]
In the instant case, it is undisputed that the house was an occupied
structure, there is no question that the fire occurred, and it was uncontroverted that
the fire resulted in approximately $4,200 worth of damage. The remaining element
is whether Huler was responsible for the fire.
At trial, Koehn, whom the defense stipulated was an expert fire
investigator, laid out the four classifications for causes of a fire as accidental, natural,
incendiary, and undetermined. Koehn meticulously eliminated any possibility that
the fire was accidental. There was no evidence of an electrical short and no evidence
of the failure of an equipment or tool. The possibility that the fire resulted from
natural causes, such as lightning strike, flood, or high winds, was also eliminated.
Koehn eliminated the undetermined classification by presenting
evidence that Huler intentionally set the fire. First, it is uncontested that Huler was
the only person in the house when the fire started. Huler’s neighbor, Whitescarver,
who lived directly across the street, testified that Huler returned home at
approximately 12:30 p.m. It was established that at approximately 1:00 p.m., Huler
was observed running out of the house yelling “fire” and screaming for help to save
her dogs. Therefore, not only was Huler the only person in the house at the time of
the fire, but she had been in the house approximately 30 minutes before the fire
occurred.
Koehn also determined that three separate fires were set in three
separate locations in the house and a fourth was attempted, but failed to erupt. In
support of his determination, Koehn discussed in detail three distinct fire patterns,
which had no connection to each other and did not spread across the ceiling as a
normal house fire would spread. A determination that there were three separate
and distinct fires, with no connecting patterns, serves to eliminate the notion that
sparks from the masonry work completed earlier that day could have gone down the
chimney, into the house, and started the fire. Doracak, the general contractor with
40 years of experience, who also retired from the fire department after 33 years,
testified that grinding mortar does not produce sparks.
In addition, the forensic lab report indicated that three of the five
samples tested positive for ignitable liquids. The debris from the trash can on the
stairs tested positive for acetone; debris from the attic tested positive for gasoline,
and the plastic water bottle tested positive for gasoline. The forensic lab report also
indicated the gasoline was fresh, not weathered or aged gasoline.
Further, although the fire investigation determined that the cause of
the fire was classified as incendiary and was intentionally set by Huler, we could
arrive at the same conclusion using only circumstantial evidence. “Circumstantial
evidence and direct evidence inherently possess the same probative value.” Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492, at paragraph one of the syllabus. ‘‘‘A conviction
[of arson] can be sustained based on circumstantial evidence alone.’’’ State v.
Rodano,
2017-Ohio-1034,
86 N.E.3d 1032, ¶ 37 (8th Dist.), quoting State v.
Franklin,
62 Ohio St.3d 118, 124,
580 N.E.2d 1 (1991), citing State v. Nicely,
39 Ohio
St.3d 147, 154-155,
529 N.E.2d 1236 (1988). “As is often in [] arson cases, there is
no eyewitnesses to the arson; proof of arson, out of necessity, must often rely on
circumstantial evidence.”
Id., citing State v. Hall, 5th Dist. Richland No. 2004-CA-
0093,
2005-Ohio-4403, ¶ 31.
Thus, ‘“Ohio’s courts have consistently found that circumstantial
evidence can be sufficient to sustain an arson conviction.”’ Id. at ¶ 37, quoting State
v. Simpson, 7th Dist. Columbiana No. 01-CO-29, 2002-Ohio-5374, ¶ 47, citing State
v. Webb, 8th Dist. Cuyahoga No. 72588,
1998 Ohio App. LEXIS 2851 (June 25,
1998). See also, e.g., State v. McDowall, 10th Dist. Franklin Nos. 09AP-443 and
09AP-444,
2009-Ohio-6902, ¶ 12 (while the arson case turns on circumstantial
evidence, the defendant’s conviction can be sustained based on circumstantial
evidence alone); Simpson.
Based on the foregoing, the state presented sufficient evidence to
support Huler’s conviction for aggravated arson.
Accordingly, the first assignment of error is overruled.
In the second assignment of error, Huler argues her conviction is
against the manifest weight of the evidence because the state established every
element except that she caused the fire. This court disagrees.
Analyzing a claim under the manifest weight standard requires us to
‘“review[] the entire record, weigh[] [all of] the evidence and all [of the] reasonable
inferences, consider[] the credibility of the witnesses, and determine[] whether in
resolving conflicts in the evidence, the [factfinder] clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed[.]”’
Thompkins, 78 Ohio St.3d at 387,
678 N.E.2d 541, quoting State v. Martin,
20 Ohio
App.3d 172,
485 N.E.2d 717 (1st Dist.1983).
As we discussed at length in the first assignment of error, the state
presented evidence that eliminated three of the four classifications for causes of
fires. The fire was not accidental, was not naturally occurring, and was not
undetermined. The state methodically presented evidence of the nature of the three
separate fires and the undisputed evidence that Huler was the only person in the
house at the time of the fire.
Consequently, after reviewing the record, weighing the evidence and
all the reasonable inferences, and considering the credibility of the witnesses, we
cannot conclude Huler’s aggravated arson conviction against the manifest weight of
the evidence.
Accordingly, the second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER J., and
MICHELLE J. SHEEHAN, J., CONCUR
