[Cite as State v. Carter,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99925

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

VERONICA L. CARTER DEFENDANT-APPELLANT

JUDGMENT: CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-565319

BEFORE: Celebrezze, P.J., Rocco, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: March 13, 2014 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: Jeffrey Gamso Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Nathaniel Tosi Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Veronica L. Carter, appeals her seven aggravated arson

convictions. She claims the verdicts are against the manifest weight of the evidence and

the trial court erred in awarding restitution to one of the victims. After a thorough review

of the record and law, we affirm appellant’s convictions, but remand the case for

resentencing.

I. Factual and Procedural History

{¶2} Appellant was arraigned in the Cleveland Municipal Court on July 30, 2012,

and bound over to the Cuyahoga County Common Pleas Court on August 13, 2012. She

was charged with one count of aggravated arson in violation of R.C. 2909.02(A)(2), a

felony of the second degree, and seven counts of aggravated arson in violation of R.C.

2909.02(A)(1), felonies of the first degree — one count for each victim present in the

house. 1 During pretrials, appellant was referred to the court psychiatric clinic for

evaluation. The resulting report was stipulated to by both sides and the court adopted its

findings. The examining clinician found that appellant was competent to stand trial and

competent at the time of her alleged crimes.

{¶3} On March 19, 2013, a bench trial began after a jury waiver was executed by

appellant. At trial, the state presented the testimony of victims Cornella Smith, Montae

The indictments indicate those individuals were Michelle Smith, Montae 1

Smith, Montell Smith, Marcellus Smith, Eugene Smith, Kenneth Montgomery, and Barron Horton. Smith, and Barron Horton. Two fire investigators, Joseph Stevens and Nurrudin Jinna,

also testified.

{¶4} At the close of the state’s case, it dismissed one of the counts of

first-degree-felony aggravated arson related to Marcellus Smith after Cornella testified

that Marcellus was not present at the house that night. The state also moved to amend

the indictment to reflect the actual names of the victims as identified by testimony. The

trial court granted the motion to amend Michelle Smith’s name to Cornella Smith and

Eugene Smith to Eugene Anthony. Appellant then testified about the events of that

night.

{¶5} The trial court found appellant guilty of one count of second-degree

aggravated arson and six counts of first-degree aggravated arson. However, the journal

entry that resulted from the trial indicates appellant was found not guilty of one count of

aggravated arson. The trial court noticed the error at the July 27, 2013 sentencing

hearing and indicated it would correct the error in a separate journal entry. The trial

court then sentenced appellant to two years of community control — a departure from the

presumption of prison. The court also imposed a suspended aggregate prison sentence of

five years after merging allied offenses. The court imposed sentence on three counts of

aggravated arson, including Count 2, on which the journal entry mistakenly indicated

appellant was found not guilty. Specifically, the trial court stated, “I’m going to impose

five years on Count 1, five years on Count 2, the aggravated arson, and Count 3, the

aggravated arson. All the other counts, Counts 2, 4, 6, 7, and 8, all will merge into Count 3 for sentencing purposes.” The trial court entered a nunc pro tunc entry indicating

Count 5, relating to Marcellus Smith, had been dismissed by the state, but it did not

correct the error relating to Count 2. Instead the entry deleted the sentence imposed on

Count 2. Appellant filed the instant appeal assigning three errors for review:

I. The guilty verdicts are against the manifest weight of the evidence.

II. The trial court committed error and acted without authority when it ordered restitution to a person who was an alleged victim only of a count as to which appellant, Veronica Carter, was found not guilty.

III. Insofar as appellant may have waived her right to complain about the trial court’s order in imposing restitution to a person who was not a victim of any offense of which she was convicted, she received constitutionally ineffective assistance of counsel.

II. Law and Analysis

A. Manifest Weight

{¶6} Appellant argues that her convictions for aggravated arson are against the

manifest weight of the evidence. She cites to the conflicting testimony of the victims as

demonstrating that proof beyond a reasonable doubt does not exist in this record and the

evidence weighs in favor of acquittal.

{¶7} When reviewing manifest weight claims, this court must review the record

and engage in a “limited weighing of evidence to determine whether sufficient competent,

credible evidence permits reasonable minds to find guilt beyond a reasonable doubt.”

State v. Jewett, 10th Dist. Franklin No. 11AP-1028,

, ¶ 33. We sit as the

thirteenth juror in judgment of appellant, except that we lack the benefit of seeing the

witnesses testify and miss out on important cues and inflections that inform such a decision. Therefore, the trier of fact is in a better position to judge the credibility of

witnesses, but this court must still engage in a limited examination of credibility. State v.

DeHass,

,

(1967), paragraph one of the syllabus; State

v. Kurtz, 8th Dist. Cuyahoga No. 99103,

. This court,

reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury 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. Martin,

,

(1st Dist. 1983).

{¶8} Appellant was convicted of six counts of aggravated arson under R.C.

2909.02(A)(1) and one count of aggravated arson under R.C. 2909.02(A)(2). These

provide, “[n]o person, by means of fire or explosion, shall knowingly * * * (1) [c]reate a

substantial risk of serious physical harm to any person other than the offender; [or] (2)

Cause physical harm to any occupied structure[.]” “‘Based upon the very nature of the

crime, proof of arson must, of necessity, often rely heavily on circumstantial evidence.’”

Jewett at ¶ 27, quoting State v. Weber,

,

(10th

Dist. 1997), citing State v. Pruiett, 9th Dist. Summit No. 12858,

(Apr. 15, 1987). Appellant does not take issue with any of the discrete elements

that must be proved, but only that she was not the person who started the fire. With that

in mind, we turn to the testimony adduced at trial.

{¶9} Fire investigators Joseph Stevens and Nurrudin Jinna testified about the

extent of the fire, the damage to the structure, the area of ignition, and the likely cause. The photographs introduced through their testimony demonstrated significant damage to

the home, which consisted of two dwelling units. They also testified about the heat and

smoke such a fire would have produced and the effects this would have on occupants who

remained inside during the course of the fire. Investigator Stevens testified that he

concluded the fire was intentionally set based on the nature of the fire and the lack of

other likely causes.

{¶10} Cornella Smith testified that she lived in the upstairs unit at 3110 East 99th

Street in Cleveland, Ohio. On July 26, 2012, she had been drinking with appellant on the

front porch because the area was experiencing a power outage. The two concluded their

evening at about nine o’clock. Cornella, also known as Michelle, went inside to her

apartment and went to bed with her boyfriend, Barron Horton. She testified that at some

point late at night, appellant woke her up asking to borrow a lighter. Cornella gave

appellant her lighter and went back to sleep. Cornella testified she awoke to pleas from

her younger son Montell to get out of the house because it was on fire. She and Horton

left the bedroom and went downstairs. Cornella went to the common hall area and

followed appellant’s boyfriend, Kenneth Montgomery, into appellant’s apartment,

followed by Horton and her older son, Montae Smith. Cornella testified that she saw

appellant naked, seated in a chair in a mostly empty dining room area, looking at a

blanket or sheet on fire in the middle of the room. She testified that appellant got up and

went into the bedroom. Cornella’s son Montae went back up to their apartment to get a

fire extinguisher while Montgomery and Horton attempted to stomp out the fire in the dining room. Cornella looked into the bedroom and saw the mattress ablaze. She saw the

springs of the mattress glowing red with heat and knew that the fire was too big for them

to extinguish.

{¶11} Cornella testified she confronted appellant and screamed at her about the

fire. She stated that appellant said she just wanted to die and that she thought she had put

the fire out. According to Cornella, everyone except appellant left the apartment and

went outside to wait for the fire department. Appellant emerged several minutes later and

Cornella again began screaming at her about why she would endanger her children’s

lives. Cornella testified appellant only responded that she thought she had put out the

fire.

{¶12} Montae’s testimony about that night differed in several important respects

from that of his mother. He testified that he was asleep on the third floor of the

apartment with his friend Eugene Anthony. His little brother Montell came upstairs and

told them to get out of the house. After a moment of disbelief, Montae smelled smoke

and the three rushed downstairs and out of the house. He met up with Cornella and

Horton on the way out, and the five congregated in the street in front of the house for a

brief moment. There, he noticed Montgomery, who he identified only as appellant’s guy

friend. Montgomery told them that appellant was still inside, and so Cornella and Montae

went back into the house to look for her. Montae entered appellant’s apartment after his

mother. Montae testified that he saw a blanket or some clothes on fire in the dining

room. He ran upstairs to get a fire extinguisher and used it on this small fire to put it out. He then noticed the fire in the bedroom and entered the room. He realized that they

could not put out such a large fire, and he and his mother left the house to rejoin the

others waiting outside. He did not see appellant in the apartment nor did he hear her say

she started the fire. When he left the house, he saw a naked appellant come out of the

house right behind him and his mother. Montae testified appellant appeared unhurt and

very nonchalant.

{¶13} Cornella’s boyfriend, Barron Horton, also testified about the events of that

night. He stated he got home around seven o’clock and saw appellant and Cornella

drinking on the porch. He went inside to relax and watch some television. He testified

that Cornella came upstairs and the two went to bed between 9:00 and 10:00 p.m. He

woke when Montell was yelling that the house was on fire. The three headed toward the

stairs where they were met by the boys who had been sleeping on the third floor. Horton,

Cornella, and Montae went into appellant’s apartment while the others went outside.

Horton testified that Montgomery was inside attempting to put out a small fire in the

living room or dining room. It consisted of a burning blanket or sheet. He attempted to

help Montgomery stomp it out while Montae ran upstairs to get a fire extinguisher.

Horton entered the bedroom and saw the mattress on fire. He also testified that appellant

was sitting on the mattress wrapped in nothing but a blanket as it burned. Horton stated

he saw the fire was “starting to blaze,” so he exited the bedroom as Cornella entered it.

He heard her yelling at appellant, and he heard appellant state that she started the fire. Everyone quickly left at that point to await the fire department. Horton testified that

appellant appeared unhurt.

{¶14} Appellant also testified at trial. She stated she was drinking with Cornella

on the front porch because there was a power outage. She admitted being prescribed and

taking psychological medication, which had negative interactions with alcohol. She

stated that Montgomery came over at one point and she gave him money to leave her

alone. The two had a rocky relationship with allegations of a history of domestic

violence that included filed charges and a restraining order.

{¶15} Appellant testified that when the power came back on, she went back into

her house and took a shower. She stated that she went into Cornella’s bedroom late in

the evening and woke Cornella up to ask to borrow a lighter. Appellant stated she locked

the doors and windows, watched some television, and went to sleep naked because of the

extreme heat. Appellant was woken from sleep by a clicking noise. She opened her

eyes, and as they adjusted to the light, she saw Montgomery in her bedroom. She

testified Montgomery threw a blanket on her that he had set on fire and yelled “die bitch.”

She testified that he then walked out of the bedroom, out of the apartment, and up the

stairs, where she heard him pound on the other apartment door and yell that appellant had

started a fire and that everyone should leave the house. Appellant testified that her knee

was burned as a result of the fiery blanket.

{¶16} Appellant testified that she got up and attempted to put out the fire by

pouring water on it. People began rushing into her apartment, and she was confronted by Cornella in the dining room about the fire. She denied stating that she started the fire or

that she wanted to die. She also said that when she tried to put out the fire by throwing

water on it, the fire only got worse.

{¶17} According to appellant, Montgomery started the fire and then immediately

told the others that appellant had done it. This, she argues, is why everyone testified that

she started the fire and explains why Montgomery did not testify at trial. However, both

Cornella and Horton testified that they heard appellant say she started the fire independent

of anything Montgomery stated. Further, Cornella testified that appellant indicated she

tried to kill herself by setting a fire and that she thought she had put out the fire.

{¶18} Montae’s testimony differs in several respects to that of Cornella’s and

Horton’s, but Montae was not in appellant’s apartment the entire time that Cornella was.

He went up to his apartment to get a fire extinguisher. Further, appellant’s testimony is

more consistent with that of Cornella’s and Horton’s. Appellant stated that she saw

Cornella and Horton in her apartment during the fire. Only Montae testified that he did

not see appellant in the apartment.

{¶19} The excitement and terror of being involved in a house fire may explain

some of the differences between the witnesses’ testimony, but there is still contradictory

testimony in the record about who was where at different points in time. However,

everyone testified about appellant’s unusually calm demeanor during an otherwise

terrifying event. Appellant also claims she was burned by the blanket tossed on her, but

everyone else testified that appellant appeared unhurt when she emerged from the house. {¶20} The differences in the testimony of Montae and the other witnesses does not

lead this court to the conclusion that a manifest miscarriage of justice occurred here.

Appellant’s testimony about the genesis of the fire is implausible. She claims that she was

naked when a flaming blanket was thrown on her, but she only sustained a minor burn to

her knee. Everyone else testified that appellant appeared unhurt when she exited the

house naked or partially covered by a blanket. Further, she claimed that she attempted to

put out the fire Montgomery had started by pouring water on the burning bed, but water

only made the fire bigger. She claimed something about the way oxygen, water, and fire

don’t mix explained this. She also could not explain how a blanket or sheet on fire in the

dining room got there.

{¶21} Appellant’s admissions made during the fire weigh in favor of conviction.

Arson convictions based on nothing more than admissions are not uncommon. See, e.g.,

State v. Kyle, 3d Dist. Henry No. 7-05-05,

(aggravated arson conviction

found not to be against the manifest weight of the evidence where defendant told several

people that he started a fire at his former apartment).

{¶22} After our independent review of the record, we find that the trial court did

not lose its way and create a manifest injustice in finding appellant guilty of seven counts

of aggravated arson. The contradictions in the testimony are not sufficient to overcome

the evidence of admissions made by appellant during the chaotic scene of the fire and

immediately thereafter when coupled with appellant’s behavior and implausible testimony

at trial. B. Restitution and Ineffective Assistance of Counsel

{¶23} In the second and third assignments of error, appellant claims she was

acquitted of the count of arson relating to the victim for which the trial court imposed

restitution. Appellant also claims trial counsel was ineffective for failing to object to this

error. Appellant is wrong.

{¶24} The trial transcript indicates appellant was found guilty of Count 2,

aggravated arson with Kenneth Montgomery as the named victim. In setting forth its

verdict, the court indicated,

[a]nd I find that the evidence establishes that Ms. Carter, beyond a reasonable doubt, set the fire.

Count 2 alleges that this fire created a substantial risk of serious physical harm to Ken Montgomery. I find that he was present at the time, that it would have created a substantial risk of serious physical harm to him.

Count 3 alleges the same with regard to Michelle Smith.

Count 4 alleges the same with regard to Barron Horton.

Count 6 alleges the same with regard to Montae Smith.

Count 7 applies to Montell Smith.

And Count 8 applies to Eugene Anthony.

I find that those are all proven beyond a reasonable doubt.

{¶25} Appellant was convicted of arson related to Montgomery, and it was not

error for the trial court to award restitution to him. Appellant’s arguments on this issue

are demonstrably incorrect after a reading of the transcript. {¶26} Additionally, appellant’s claim of ineffective assistance of counsel relates

solely to counsel’s failure to object to restitution. Because restitution was imposed for a

victim of appellant’s crimes, counsel did not err in failing to lodge such an objection.

{¶27} However, the court’s journal entries contain errors, which prompted

appellant’s arguments in the present appeal. The journal entry memorializing the verdict

incorrectly states appellant was found not guilty of Count 2. Additionally, the court

imposed sentence on this count but also found that it merged with other counts related to

the named victims. The sentencing colloquy indicates, “I’m going to impose five years

on Count 1, five years on Count 2, the aggravated arson, and Count 3, the aggravated

arson. All the other counts, Counts 2, 4, 6, 7, and 8, all will merge into Count 3 for

sentencing purposes.” A nunc pro tunc entry may be used to correct the error related to

the finding of guilt as to Count 2 because it is an amendment of the entry to reflect what

actually occurred, but not to correct the second error.

{¶28} The court erred when it both imposed sentence on Count 2 and stated that it

merged with Count 3. State v. Damron,

,

,

, ¶ 17. A nunc pro tunc entry may only be used to correct a journal entry to

reflect what actually occurred. State v. Qualls,

,

,

, ¶ 13. Here, the record indicates the court intended to merge Count 2

with Count 3 for sentencing purposes, but that it also imposed a sentence on each of those

counts. A nunc pro tunc entry is an improper remedy in this situation. State v. Peck, 7th

Dist. Mahoning No. 12 MA 205,

(“It cannot be used to substantively correct or change the proceedings themselves”). Therefore, the case must

be remanded so that the trial court can hold a sentencing hearing properly merging Count

2. The court must also correct the verdict and sentencing journal entries related to

appellant’s finding of guilt on Count 2.

III. Conclusion

{¶29} Appellant’s convictions for aggravated arson are not against the manifest

weight of the evidence, and the trial court properly imposed restitution in favor of one of

her victims. However, the trial court’s journal entries contain errors that require remand

to correct. The trial court must modify the entries related to the verdict and sentence to

indicate appellant was found guilty of Count 2, and hold a resentencing hearing where

Counts 2 and 3 can be properly merged.

{¶30} Convictions affirmed; cause reversed in part and remanded to the lower

court for resentencing consistent with this opinion.

It is ordered that appellant and appellee share the 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 convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for resentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and EILEEN T. GALLAGHER, J., CONCUR