State v. Whitley

2024 Ohio 2637

• Court: Ohio Court of Appeals
• Decided: July 11, 2024
• Docket: 113350
• Status: Published

Opinion

[Cite as State v. Whitley, 2024-Ohio-2637.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113350 v. :

CHAKEBA WHITLEY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 11, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-661276-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Liam Blake, Assistant Prosecuting Attorney, for appellee.

P. Andrew Baker, for appellant.

KATHLEEN ANN KEOUGH, A.J.:

Defendant-appellant, Chakeba Whitley, appeals from the trial

court’s judgment entry denying her motion to dismiss and granting the State’s

motion to retain jurisdiction over this matter pursuant to R.C. 2945.39(A)(2). For

the reasons that follow, we affirm the trial court’s judgment. On July 7, 2021, the State named Whitley in a five-count indictment,

charging her with attempted aggravated arson, a second-degree felony, in violation

of R.C. 2923.02/2909.02(A)(1) (Count 1); attempted aggravated arson, a third-

degree felony, in violation of R.C. 2923.02/2909.02(A)(2) (Count 2); attempted

arson, a felony of the fifth degree, in violation of R.C. 2923.02/2909.03(A)(1)

(Count 3); disrupting public services, a fourth-degree felony, in violation of R.C.

2909.04(A)(1) (Count 4); and aggravated menacing, a first-degree misdemeanor,

in violation of R.C. 2903.21(A). The charges stemmed from Whitley spraying

lighter fluid throughout the lobby of a Cuyahoga Metropolitan Housing Authority

(“CMHA”) residential building, threatening to burn down the building, and

threatening a CMHA employee.

On June 10, 2022, the trial court found Whitley incompetent to

stand trial, but restorable within the statutorily permitted timeframe with a course

of treatment as an inpatient at Northcoast Behavioral Healthcare (“Northcoast”),

the least-restrictive setting consistent with Whitley’s needs and the community’s

safety. Both the State and Whitley’s defense counsel stipulated to Dr. Michael

Aronoff’s evaluation and report.

On February 7 2023, the trial court reviewed a six-month status

report from Dr. Susan Hatters-Friedman. The State and defense counsel

stipulated to Dr. Hatters-Friedman’s findings and conclusions. The trial court

adopted the doctor’s opinion and recommendations and ordered that Whitley

remain at Northcoast for competency restoration. On May 11, 2023, the State filed a motion for the trial court to retain

jurisdiction over the case pursuant to R.C. 2945.38 and 2945.39.

In August 2023, the trial court granted Whitley’s request for an

independent psychiatric evaluation for the purpose of determining competency to

stand trial.

On October 26, 2023, the trial court conducted a hearing to consider

(1) Whitley’s competence to stand trial; (2) Whitley’s motion to dismiss (filed the

same day) for failure to hold a timely hearing pursuant to R.C. 2945.39; and (3)

the State’s motion to retain jurisdiction. At the hearing, the parties stipulated to

Dr. Hatters-Friedman’s May 2, 2023 report in which the doctor opined that

Whitley was not competent nor restorable and that the least restrictive treatment

setting consistent with Whitley’s treatment needs and the safety of the community

would be hospitalization at Northcoast.

Following an evidentiary hearing, the trial court denied Whitley’s

motion to dismiss, but granted the State’s motion to retain jurisdiction, finding by

clear and convincing evidence that Whitley (1) committed the offense of attempted

aggravated arson; and (2) is a mentally ill person subject to hospitalization by court

order. The court ordered that the case would remain under its jurisdiction for eight

years, the maximum penalty for attempted aggravated arson, unless Whitley was

subsequently found competent to stand trial, or no longer mentally ill subject to

hospitalization. Whitley now appeals, contending in her sole assignment of error

that the trial court erred in finding by clearing and convincing evidence that she

committed attempted aggravated arson, which was necessary in order for it to

retain jurisdiction pursuant to R.C. 2945.39. Specifically, she contends that the

State failed to prove by clear and convincing evidence that she engaged in a

“substantial step” to commit the offense of aggravated arson, which was necessary

to prove guilt for attempted aggravated arson.

Pursuant to R.C. 2945.39(A)(2), a trial court can retain jurisdiction

over a person found incompetent and not restorable within the prescribed

timeframe, and who is charged with a violent second-degree felony, if the trial

court finds by clear and convincing evidence that the defendant (a) committed the

offense charged, and (b) is a person with a mental illness subject to court order or

a person with an intellectual disability subject to institutionalization by court

order. See also State v. Williams, 2010-Ohio-2453, ¶ 1, 12-13; State v. Jackson,

2021-Ohio-1884, ¶ 13-15 (8th Dist.). Attempted aggravated arson, a second-degree

felony, is an offense of violence pursuant to R.C. 2901.01(A)(9)(a) and (d).

R.C. 2909.02(A)(2), aggravated arson, provides that “[n]o person,

by means of a fire or explosion, shall knowingly . . . [c]ause physical harm to any

occupied structure.” R.C. 2923.02(A), the attempt statute, states that “[n]o person,

purposely or knowingly, and when purpose or knowledge is sufficient culpability

for the commission of an offense, shall engage in conduct that, if successful, would

constitute or result in the offense.” The Ohio Supreme Court has further defined a criminal attempt as

“when one purposely does or omits to do anything which is an act or omission

constituting a substantial step in a course of conduct planned to culminate in his

commission of the crime.” State v. Woods, 48 Ohio St.2d 127 (1976), paragraph

one of the syllabus, vacated on other grounds, 438 U.S. 910 (1978). To constitute

a “substantial step,” the offender’s conduct need not be the last proximate act prior

to the commission of the offense, but it “must be strongly corroborative of the

actor’s criminal purpose.” Id.

Accordingly, the focus is on whether the defendant’s conduct

convincingly demonstrates “‘a firm purpose to commit a crime, while allowing

police intervention . . . in order to prevent the crime when the criminal intent

becomes apparent.’” State v. Group, 2002-Ohio-7247, ¶ 102, quoting Woods at

132. “Precisely what conduct will be held to be a substantial step must be

determined by evaluating the facts and circumstances of each particular case.”

State v. Butler, 2012-Ohio-5030, ¶ 28 (5th Dist.).

Whitley contends that the evidence and testimony did not prove that

her conduct of spreading lighter fluid in the lobby area of her residential building

constituted a “substantial step” toward committing aggravated arson. In support,

she relies on cases involving attempted rape in which courts held that a defendant

removing a victim’s clothing cannot serve as the sole basis to constitute a

“substantial step” to sustain a conviction for attempted rape. State v. Davis, 1996-

Ohio-414, 18-19; see also State v. Jones, 2004-Ohio-512 (8th Dist.) (insufficient evidence presented for attempted rape where defendant grabbed victim, held a

knife to her throat, ordered her to put down her phone and remove her clothes).

We find these cases distinguishable because of the very nature of the offense itself.

Moreover, unlike the standards in Davis and Jones, our review is whether the State

presented “clear and convincing evidence” to the trial court to support its

determination that Whitley committed attempted aggravated arson.

The standard of “clear and convincing evidence” is defined as “that

measure or degree of proof which is more than a mere ‘preponderance of the

evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable

doubt’ in criminal cases, and which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,

161 Ohio St. 469 (1954), paragraph three of the syllabus. When the evidentiary

burden is clear and convincing evidence, a reviewing court must “examine the

record to determine whether the trier of fact had sufficient evidence before it to

satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, (1990),

citing Ford v. Osborne, 45 Ohio St. 1, 3, (1887). “[I]t is also firmly established that

judgments supported by some competent, credible evidence going to all the

essential elements of the case will not be reversed by a reviewing court.” Schiebel

at 74.

The State directs this court to State v. Marcum, 2001-Ohio-1554

(5th Dist.), in which the Fifth District upheld a conviction for attempted aggravated

arson when the evidence demonstrated that the defendant took substantial steps to commit aggravated arson, including spreading kerosene across the victim’s back

door, wood deck, and over the gas grill that was attached to the home via an active

natural gas pipe. Although the defendant did not make any threats or attempt to

ignite the kerosene, the court found the defendant’s conduct to be a substantial

step toward the commission of arson and corroborative of his intent to create a

substantial risk of serious physical injury to the victim by fire or explosion. Id. at

9. Marcum is instructive.

We also find persuasive the analysis in State v. Baker, 1990 Ohio

App. LEXIS 344 (3d Dist. Jan. 26, 1990), in which the appeals court upheld the

defendant’s attempted aggravated arson conviction because the evidence

demonstrated that the defendant took substantial steps to commit aggravated

arson, including pouring kerosene on the house trailer and threatening to burn it

down. The victim also testified that she heard the flicking noise of a cigarette

lighter outside her house. The court rejected the defendant’s argument that

because he did not attempt to or ignite the kerosene, the evidence was insufficient

to support his attempted aggravated arson conviction. The Baker Court stated,

“[T]he threats and actions of the defendant . . . constituted substantial evidence

upon which a jury could reasonably conclude that all the elements of the offense of

attempted aggravated arson had been proven beyond a reasonable doubt.” Id. at

*3-4.

Applying the rationales of Marcum and Baker, we find that the State

presented competent and credible evidence that on July 7, 2021, Whitley committed attempted aggravated arson. Detective Brian Kenney, a certified fire

investigator with the city of Cleveland’s Fire Investigation Unit (“FIU”), testified

that he has conducted over 600 fire investigations that involved determining the

origin and cause of the fire. Defense counsel stipulated that he was qualified to

testify as an expert. Det. Kenney stated that he responded to an emergency call at

a CMHA residential building, Lakeside Terrace, which is comprised of 213

individual housing units. He testified that as part of his investigation, he learned

that Whitley admitted that she purchased three cans of lighter fluid that she

sprayed around the front of the building and in the lobby. And when a CMHA

employee attempted to deescalate the situation, Whitley threatened to spray the

employee with lighter fluid. During her arrest, officers found two disposable

lighters in Whitley’s purse.

Det. Kenney testified that Whitley told him that she wanted to burn

down the building because people in the building, the fire department, and the

police department were “f***ing with her,” and that she was angry because she had

made multiple trips to the BMV to get an identification card and they turned her

away. (Tr. 24.)

Det. Kenney testified FIU investigators conducted a photoionization

detection test that determined the ambient air in the lobby of the CMHA building

had over sixty parts per million of suspected ignitable fluid vapors, which created

an extreme undue risk of harm to the building and the occupants present. He

testified: There’s many factors that can cause an explosion or ignition; I mean, static electricity, open flame, etc. But the presence of that — those vapors in the air represent one of the factors that can contribute to ignition. That’s why you don’t store gasoline in your house. It creates an undue risk of harm.

(Tr. 26-27.) According to Det. Kenney, the presence of 60 PPM creates a potential

for ignition of the fumes. He explained:

People misunderstand mostly that, you know, if you have — if I had a can of gasoline here and everybody sees on TV somebody flicks a cigarette and it lands and, you know, a big explosion occurs and the hero walks away. That’s not what happens. What happens is the vapors ignite. . . . It’s the fumes that represent the danger and in this case the whole lobby was filled with fumes.

(Tr. 27.)

Det. Kenney further testified that Whitley removed or dislodged the

fire pull station, i.e., the fire alarm, from the wall. (Tr. 32.) Over objection, Det.

Kenney opined that Whitley’s conduct “was an attempt to burn.” (Tr. 36.) He

admitted, however, that no ignition or fire actually occurred, and, thus Whitley did

not take “the next step” to actually cause a fire. (Tr. 38 and 43.)

The State admitted into evidence the FIU Investigative Report

compiled by Det. Kenney and his team, photographs taken by FIU investigators

showing the lighter fluid-soaked lobby, charcoal lighter fluid bottles, the lighters

found in Whitley’s purse, the damaged fire alarm, and the results of the

photoionization detection test conducted by FIU investigators.

Whitley’s conduct of spraying a flammable accelerant in or around

her residence building where she knew individuals lived, threatening to burn down

the building, possessing two disposable lighters, and dislodging the fire alarm from the wall constitutes clear and convincing evidence that Whitley took substantial

steps to commit the act of aggravated arson.

Accordingly, we find that the trial court did not err in finding that

Whitley committed attempted aggravated arson, which satisfied R.C. 2945.39 to

retain jurisdiction over her case. The 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and LISA B. FORBES, J., CONCUR