[Cite as State v. Hunter, 2021-Ohio-1714.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2020 CA 0056 ROSCOE HUNTER : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County 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 convictions
and sentences after a jury trial in the Richland County Court of Common Pleas.
Prelude
{¶2} In this case we are faced with the question of whether arson and 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 case, even assuming
arguendo that the charges are lesser-included or inferior degree offenses, the evidence
was insufficient to warrant charging the jury on a lesser-included 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 Grand 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 serious physical harm to any
person] in violation of R.C. 2909.02(A)(1), a felony of the first degree, and Count Three:
Aggravated Arson, [cause physical harm to any occupied structure] 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 South Foster
Street where she was babysitting Chloe Williams. Kashawn Hawkins, two-year-old Chloe
Williams' mother, was working her regular shift at Newman Technology on June 26, 2019.
She and Josh Riddle, Ms. Riddle's husband, worked the second shift together. Ms.
Hawkins normally dropped Chloe off around 2:00-2:30 p.m. Normally, when Josh got
home, he would quietly go upstairs to get Chloe and bring her down without waking up Richland County, Case No. 2020 CA 0056 3
the rest of the household and wait for Ms. Hawkins to arrive. That 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 juvenile, 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 abandoned house
located at 212 South Foster Street. Hunter claimed that B.B. poured 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 should 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 Hunter grab a bowl from
the kitchen. B.B. watched as Hunter poured gasoline into the bowl and put it on a couch
that was in the living room. Hunter then poured the gasoline straight 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 with a lighter. B.B. denied
knowing that Hunter intended to start a fire; he thought they were just checking out the
abandoned house. After Hunter lit the fire, the downstairs of the house went up in flames
quickly. B.B. testified that as he and Hunter ran out to the street 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 house next door is Richland 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 get out. Sydney had to
carry her children out. There were already flames coming through 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 were 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 were 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 house 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 proximity of the homes. 3T. at 182;
183; 201; 212-213; 245-246; 271; 314 4T. at 482; 487-488. Tragically the fire claimed
the life of Chloe Williams, the two-year old infant who was sleeping in that home. The fire
did extensive damage to 208 South Foster where the Riddle family lived and the child
had died. "The living room wall that faced 212 [South Foster] was 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 was completely gone. Like,
everything was charred, black smoke, water-filled.... Every single room in that house was
destroyed." 3T. at 248. After the fire, the landlord of 208 South 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 11:30 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 Hunter had been at his house
the night before with friends, and that Hunter told him that he was going to burn down the
"bando1." Cody later testified that Hunter had been talking about it for over a week.
{¶11} B.B. admitted that he was not truthful when he first spoke to law
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 to fifth-degree felony
vandalism and breaking and entering in exchange for his testimony 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 Hunter 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 apply to him. Hunter said,
"They do....They apply, Mom....Murder — we burnt down a house and killed somebody."
5T. at 700; State’s Exhibit 115.
{¶13} On July 27, 2020, the jury came back with a verdict of guilty on 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 occupied 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 FAILURE
TO ARGUE THAT ARSON WAS AN INFERIOR DEGREE OFFENSE TO AGGRAVATED
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 trial, the court discussed
the requested jury instructions and concluded that arson was not 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. Therefore, 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 instruction 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 involuntary manslaughter based on
arson. Again, the trial court denied the request, concluding that there was no basis for
instructions on arson and involuntary 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 probably spread to the
neighboring house, such evidence would support acquittals on the two aggravated arson
charges and a finding of guilty on the lesser or inferior degree 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 was appropriate; however,
if the jury found him guilty of only arson, then a jury could convict him of involuntary
manslaughter as a lesser or inferior offense to the felony murder count in the indictment.
Standard of Review – Jury Instructions
{¶19} An appellate court reviews a trial court's refusal to give a requested 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 evidence. 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 properly Richland County, Case No. 2020 CA 0056 8
instruct the jury is not in most instances structural error, the 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 Aggravated Arson
pursuant to R.C. 2909.02,
(A) No person, by means of fire or explosion, shall knowingly do any
of the following:
(1) Create a substantial risk of serious physical harm to any person
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 do any
(1) Cause, or create a substantial risk of, physical harm to any
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 lesser 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 indicted 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. 31(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 acquittal 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 making this determination,
the court must view the evidence in a light most favorable to defendant. 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 defendant in a
murder prosecution may have acted in such a way as to satisfy the
requirements of the voluntary manslaughter statute, an instruction on the
inferior-degree offense of voluntary manslaughter must always be 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 this Richland 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 sufficient 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 “some
evidence,” however minute, is presented going to a lesser included (or
inferior-degree) offense would mean that no trial judge could ever refuse to
give an instruction on a lesser included (or inferior-degree) offense. Trial
judges are frequently required to decide what lesser-included (or inferior-
degree) offenses must go to the jury and which must not. The jury 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 return such a
verdict.
State v. Shane, 63 Ohio St.3d at 632-633, 590 N.E.2d 272 (emphasis in original).
{¶26} In the case at bar, the evidence proved that Hunter set a gasoline 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. (Appellant’s brief at 22). The question
then becomes whether Hunter, by means of a fire or explosion that 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 Foster Street [(R.C.
2909.02(A)(1)] and/or knowingly caused physical harm to the occupied structure located Richland 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 aggravated arson and a
conviction upon the purported inferior degree or lesser included offense of arson.
2. Knowingly
{¶27} R.C. 2901.22, Culpable mental states provides,
(B) 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. When
knowledge of the existence of a particular fact is an element of 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 or 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 result is
probable, the person acts “knowingly”; if it is not probable, but 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. Whether a person acts
knowingly can only be determined, absent a defendant's admission, 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 (1st Dist. 2001) (Footnote omitted.) Thus,
“[t]he test for whether a defendant acted knowingly is a subjective one, but it is decided
on objective criteria.” State v. McDaniel, 2nd Dist. Montgomery No. 16221, 1998 WL
214606 (May 1, 1998), citing State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d 412 (10th
Dist. 1995).
{¶29} In the case at bar, Hunter used gasoline as an accelerant. Gasoline 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 fire 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 throughout 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 prove that the fire
caused a substantial risk of serious physical harm to any person. 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 had Richland County, Case No. 2020 CA 0056 13
to prove physical harm to any occupied structure. It was also undisputed 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 buildings, there was a high
probability the fire would spread from the unoccupied structure to the occupied structure
and that Hunter failed to ascertain those facts or that he acted with a conscious purpose
to avoid learning those facts. Deliberate ignorance or indifference 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 instruction was appropriate,
there is no merit to the argument that Hunter was entitled to an 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 failing to argue
that arson is an inferior degree of aggravated arson trial counsel’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-prong analysis.
The first inquiry is whether counsel's performance fell below an 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 defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the 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 result 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 not 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 the 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 involuntary manslaughter.
Therefore, trial counsel’s failing to argue that arson is an inferior 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 County Court of Common Pleas is affirmed.
By Gwin, J.,
Baldwin, P.J., and
Delaney, J., concur