[Cite as State v. Kirby,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2019-05-078

: OPINION - vs - 8/10/2020 :

BRYAN KIRBY, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-07-1131

Michael T. Gmoser, Butler County Prosecuting Attorney, Stephen M. Wagner, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Rodriguez & Porter, Ltd., Paul W. Shonk, 5103 Pleasant Avenue, Fairfield, Ohio 45014, for appellant

PIPER, J.

{¶1} Appellant, Bryan Kirby, appeals from his convictions in the Butler County Court

of Common Pleas for aggravated burglary, arson, and two counts of aggravated arson. For

the reasons discussed below, we affirm his convictions.

{¶2} One morning in early September 2017, in Middletown, Ohio, appellant's Butler CA2019-05-078

estranged wife awoke to knocking on her house's front door.1 When she answered the

door, she saw a man running away but warning that her house was on fire. She went

outside and observed that her vehicle, a Ford Explorer, parked in the driveway was fully

engulfed in flames and that the fire had spread to her house, the detached garage in front

of the vehicle, and her neighbor's wooden fence next to the driveway. The heat from the

fire was intense enough to damage the siding of the neighbor's house. She quickly went

back inside to rescue her young son and then retreated across the street. The fire

department arrived and successfully extinguished the fire.

{¶3} Fire and police departments opened investigations to determine the cause of

the fire. As part of the investigation, a police detective interviewed appellant. In the initial

interview appellant told the detective that he was not in Middletown on the day of the fire.

In a subsequent interview, however, appellant acknowledged that he was in Middletown on

the day of the fire but had gone there to meet a woman at a pharmacy downtown. Appellant

refused to provide the police with the name or contact information for this mystery woman.

The detective attempted to corroborate appellant's story by retrieving surveillance video

from businesses near the pharmacy, but the videos failed to show appellant in the area that

morning. Meanwhile, the fire department investigator determined that the fire originated in

the vehicle and the cause was man-made. A second fire investigator for the wife's

insurance company came to the same conclusion as to the fire's origin and cause.

{¶4} Later, in April 2018, appellant visited one of his cousins in Middletown. The

cousin noticed that appellant was acting odd that day as he seemed anxious and stressed.

At some point, appellant told the cousin that everybody was against him and taking his

children away from him. He then admitted that he had "only meant to get the explorer" and

1. The wife was living separate from appellant. The wife was granted a divorce from appellant during the course of the criminal case.

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did not intend for the fire to spread to the house because he did not want to hurt his son.

When the cousin suggested that he talk to the police, appellant threatened to beat her up if

she contacted law enforcement. Later that day, the cousin went to take the trash out of her

apartment when she noticed appellant standing on her patio. Appellant began yelling at

her and advancing toward the apartment. The cousin retreated inside as appellant followed

her. Upon entering, appellant picked up a coffee mug and struck the cousin in the head,

causing her to fall to the ground. Appellant then began turning over plants and throwing

papers on the floor before fleeing the apartment. In her distress, the cousin attempted to

call several different friends and relatives to help her, but no one responded. She eventually

called the police to come to her aid.

{¶5} Based on these events, a Butler County Grand Jury indicted appellant on six

offenses. For the April 2018 event, the grand jury indicted appellant on aggravated burglary

and assault. For the September 2017 event, the grand jury indicted appellant on two counts

of aggravated arson and two counts of arson. The matter proceeded to a jury trial in which

the state called eleven witnesses in its case-in-chief, including, appellant's estranged wife,

her next-door-neighbor, appellant's cousin, the lead police detective, a fire department

investigator, the insurance company's fire investigator, and a special agent with the Federal

Bureau of Investigation who assisted in analyzing cellular telephone records.2 In his

defense, appellant called five witnesses: three witnesses to establish his alibi for the April

2018 event and two expert witnesses, one in the field of fire investigation and the other in

cellular telephone record analysis. The state then called one rebuttal witness, the deputy

chief of the fire department. At the conclusion of the trial, the jury found appellant guilty as

charged.

2. The other witnesses included a coworker of appellant, a friend of the cousin who visited her on the day of the burglary, the police officer who responded to the burglary, and an insurance claims representative.

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{¶6} The matter proceeded to sentencing. The trial court merged the assault

offense into the aggravated burglary offense. Additionally, the trial court merged one of the

arson offenses into one of the aggravated arson offenses. The trial court sentenced

appellant to six years in prison on the aggravated burglary offense; seven years in prison

on each of the aggravated arson offenses; and 12 months in prison on the remaining arson

offense. The trial court ordered one of the aggravated arson offenses to be served

consecutively to the aggravated burglary offense, resulting in an aggregate sentence of 13

years in prison. The trial court ordered appellant to pay restitution to the victims and

informed him of a mandatory five-year term of postrelease control.

{¶7} Appellant now appeals, raising four assignments of error for review.

{¶8} Assignment of Error No. 1:

{¶9} KIRBY'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS

PREJUDICIALLY VIOLATED WHEN HIS ATTORNEY FAILED TO SEEK REDRESS

FROM THE COURT FOR THE PROSECUTION'S SPOLIATION OF EVIDENCE HIGHLY

MATERIAL TO KIRBY'S DEFENSE.

{¶10} In his first assignment of error, appellant argues that he received ineffective

assistance of counsel because his trial counsel failed to move to either dismiss or suppress

after counsel learned that neither the victim's incinerated vehicle nor relevant engine

compartment components had been preserved by the investigating government agencies.

{¶11} To prevail on an ineffective assistance of counsel claim, appellant must

establish two factors: (1) that his trial counsel's performance was deficient, that is, the

performance fell below an objective standard of reasonable representation, and (2) he

suffered prejudice from the deficiency. State v. McLaughlin, 12th Dist. Clinton No. CA2019-

02-002,

. To show prejudice, appellant must demonstrate there is a

reasonable probability the result of his trial would have been different but for the alleged

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errors of his counsel. State v. Wood, 12th Dist. Madison No. CA2018-07-022, 2020-Ohio-

422, ¶ 27. The failure to prove either deficiency or prejudice is fatal to the ineffective

assistance of counsel claim. State v. Adkins, 12th Dist. Fayette No. CA2019-03-004, 2020-

Ohio-535, ¶ 12.

{¶12} Appellant argues his due process rights were violated by the state's failure to

preserve evidence. When considering whether the failure to preserve evidence implicates

due process, the threshold question is: what is the nature of the evidence in question? Was

the evidence "materially exculpatory" or merely "potentially useful?" State v. Powell,

,

. To be materially exculpatory, the evidence must

possess an apparent "exculpatory value" before it was lost, and the defendant must be

unable to obtain comparable evidence by other reasonably available means. Id. at ¶ 74,

citing California v. Trombetta,

,

(1984). If the evidence is

materially exculpatory, it is immaterial whether the government acted in good or bad faith

by failing to preserve the evidence, the loss of the evidence amounts to a violation of the

defendant's right to the due process of law. State v. Hamilton, 12th Dist. Clinton No.

CA2014-07-010,

, ¶ 10. The defendant, generally, bears the burden of

showing that the evidence was materially exculpatory. State v. C.J., 12th Dist. Warren No.

CA2017-06-082,

.

{¶13} On the other hand, "potentially useful" evidence is evidence of such a quality

that "'no more can be said than that it could have been subjected to tests, the results of

which might have exonerated the defendant.'" State v. Geeslin,

, 2007-

Ohio-5239, ¶ 9, quoting Arizona v. Youngblood,

,

(1988).

Where the evidence is only "potentially useful" the defendant must show that the

government acted in bad faith for the loss of the evidence to constitute a due process

violation.

Bad faith implies more than bad judgment or negligence; rather, it imports a

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dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through

an ulterior motive, or ill will partaking of the nature of fraud. Powell,

,

. If a defendant cannot demonstrate the government acted in bad

faith when it failed to preserve "potentially useful" evidence, then the loss of the evidence

does not amount to a violation of his due process rights. State v. Lazier, 12th Dist. Warren

No. CA2013-03-030,

.

{¶14} Here, appellant contends that the vehicle was material exculpatory evidence

because it would have allowed him to prove that the cause of the fire was a known defect

in the vehicle. In support, appellant argues that the vehicle was subject to a recall from the

manufacturer, as demonstrated by a notice from the National Highway Transportation

Safety Administration. The subject of the recall was a component in the vehicle's cruise

control system. The recall notice specifically warned that a defect in the cruise control

system could be a fire hazard regardless of whether the vehicle's engine was on or off.

{¶15} After review of the record, we find that appellant has failed to establish that the

vehicle constituted materially exculpatory evidence. While the vehicle was subject to a

recall, the vehicle or its components did not possess any apparent exculpatory value. The

crux of appellant's alternative fire causation theory was whether the vehicle had the

defective component—listed in the recall—installed at the time of the fire. Service records

for the vehicle could have provided appellant comparable evidence on whether the

defective component had been replaced before the fire. Appellant did not present any

evidence of the vehicle's service records and his fire investigation expert admitted that he

did not investigate whether the defective component had been replaced.

{¶16} Additionally, appellant's fire investigation expert admitted that fire investigation

guidelines promulgated by the National Fire Protection Association allow a fire investigator

to review investigations by looking at relevant fire scene photographs. Therefore,

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appellant's expert was able to adequately review and assess the fire scene. At best, the

vehicle or its components would constitute "potentially useful" evidence because additional

testing would be needed to determine whether the vehicle contained the defective

component and that defect was the cause of the fire.

{¶17} In finding that the lost evidence was only "potentially useful," the next issue is

whether the state acted in bad faith when it failed to preserve the evidence. Appellant

argues that the state's "cavalier attitude" in failing to secure and preserve the vehicle, in

light of the investigator's knowledge of the recall, demonstrated bad faith. In support,

appellant relies on State v. Durnwald,

,

(6th Dist.).

We find Durnwald to be distinguishable. The Durnwald court found that the state acted in

bad faith, in part, because the law enforcement officer did not follow the evidence retention

policy of his agency. Unlike Durnwald, here the investigator did not violate his agency's

evidence retention policy. Not only was there no policy mandating storage, the investigator

testified that the agency had no capability to store the vehicle. Finally, contrary to Durnwald,

the investigators did not completely fail to preserve the evidence because they took copious

photographs of the vehicle. Again, appellant's fire investigation expert conceded that

photographs were a sufficient basis on which to review the fire investigation. Consequently,

we find that there was no bad faith in the investigator's failure to preserve the vehicle.

Therefore, the state's failure to preserve the vehicle or its components did not constitute a

violation of appellant's due process rights.

{¶18} Turning now to appellant's ineffective assistance claim, appellant has failed to

establish either deficiency from his trial counsel or prejudice. The failure to preserve the

evidence did not violate appellant's due process rights because the evidence was not

materially exculpatory and the state's failure to preserve was not animated by bad faith.

Therefore, it was not deficient for counsel not to raise a meritless issue. State v. Kremer,

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12th Dist. Warren Nos. CA2017-07-115 and CA2017-07-116,

.

Moreover, appellant cannot show that he suffered prejudice. There is no reasonable

probability the outcome of the trial would have been different because there was substantial

evidence of appellant's guilt. The jury had evidence that appellant confessed to his cousin

that he started the vehicle fire and then assaulted her in an attempt to discourage her from

telling law enforcement. Moreover, the state presented an analysis of appellant's cellular

telephone records that placed appellant in Middletown on the morning of the fire and

appellant admitted to police that he was in town that morning. Accordingly, appellant's first

assignment of error is overruled.

{¶19} Assignment of Error No. 2:

{¶20} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

WHEN IT FAILED TO INSTRUCT THE JURY NOT TO CONSIDER THE HEARSAY

STATEMENTS OF FIRE INVESTIGATOR HUNTER REGARDING GASOLINE IN THE

SOIL FOR THEIR TRUTH.

{¶21} In his second assignment of error, appellant argues that the trial court erred

when it did not provide a limiting instruction to the jury despite an earlier suggestion that it

would provide such an instruction. Appellant contends that the fire department investigator

improperly testified to the laboratory testing of soil samples requested by the insurance

company's fire investigator because this testimony constituted inadmissible hearsay. Thus,

he claims the failure to give a limiting instruction was "clear error" affecting the outcome of

the trial because it allowed the state to improperly present the laboratory testing.

{¶22} Appellant did not request the trial court provide a limiting instruction to the jury.

By failing to call attention to the error at trial, pursuant to Crim.R. 52(B), this court will only

conduct a plain error review. To constitute plain error, there must be an obvious deviation

from a legal rule that affected appellant's substantial rights, that is, the error must have

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affected the outcome of the trial. State v. Barnes,

(2002). Notice of

plain error is to be taken with the utmost caution, under exceptional circumstances, and

only to prevent a manifest miscarriage of justice. State v. Rogers,

,

, ¶ 23.

{¶23} Pursuant to Evid.R. 801(C), hearsay is a "statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted." Hearsay is generally inadmissible as evidence but may be admissible

if it falls within one of the exceptions provided in the Ohio Rules of Evidence or is otherwise

allowed by law. Evid.R. 802.

{¶24} After review of the record, we find that the trial court did not commit plain error.

During the direct examination of the fire department investigator, appellant objected to the

investigator's testimony regarding the laboratory tests done by the insurance company’s fire

investigator. The trial court conducted a sidebar conference on the objection. During this

conference, the trial court offered to provide a limiting instruction on hearsay if further

questioning necessitated such an instruction. The trial court then sustained appellant's

objection on the grounds that the fire department investigator's testimony was

nonresponsive to the question and the laboratory analysis had previously been excluded.

After the sidebar conference, the trial court struck the fire department investigator's

testimony and instructed the jury to disregard it.

{¶25} On continued direct examination, the state made no further inquiries about the

insurance investigator's report or laboratory analysis. No hearsay testimony was elicited

by the state and the trial court did not need to provide a limiting instruction as proposed

during the sidebar conference. Therefore, it was not an error, much less plain error, for the

trial court not to provide a limiting instruction. Accordingly, appellant's second assignment

of error is overruled.

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{¶26} Assignment of Error No. 3:

{¶27} THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION OF

AGGRAVATED BURGLARY OR BURGLARY AGAINST KIRBY; THEREFORE, THE

TRIAL COURT SHOULD HAVE GRANTED A MOTION OF ACQUITTAL AS TO THAT

CHARGE.

{¶28} In his third assignment of error, appellant argues that the trial court erred when

it denied his Crim.R. 29 motion for acquittal on the aggravated burglary offense because

the state did not prove an essential element of the offense, that is, the element of trespass

by force, stealth, or deception.

{¶29} An appellate court reviews the denial of a Crim.R. 29 motion under the same

standard as a sufficiency of the evidence challenge. State v. Robinson, 12th Dist. Butler

No. CA2015-01-013,

. The sufficiency of the evidence challenge

requires the reviewing court to determine whether the state has met its burden of production

at trial. State v. Boles, 12th Dist. Brown No. CA2012-06-012,

. The

"relevant inquiry" is whether any rational trier of fact, viewing the evidence in a light most

favorable to the state, could have found all the essential elements of the crime proven

beyond a reasonable doubt. State v. Erdmann, 12th Dist. Clermont Nos. CA2018-06-043

and CA2018-06-044,

, citing State v. Jenks,

(1991),

paragraph two of the syllabus. On a sufficiency of the evidence challenge, the reviewing

court will not consider the credibility of the witnesses. State v. Wilks,

,

, ¶ 161-162.

{¶30} Appellant was convicted of aggravated burglary in violation of R.C.

2911.11(A)(1). This statute provides that

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure[,] * * * when another person other than an accomplice of the offender is present, with purpose to commit in

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the structure * * * any criminal offense, if any of the following apply:

The offender inflicts, or attempts or threatens to inflict physical harm on another.

R.C. 2911.11(A)(1). A trespass occurs when an offender knowingly enters or remains on

the premises of another without the privilege to do so.3 State v. Shepherd, 12th Dist. Butler

No. CA2015-11-187,

, citing R.C. 2911.21(A)(1). The methods of

trespass in the aggravated burglary statute—force, stealth, or deception—are written in the

disjunctive, therefore the state only needed to prove one of the three methods.4 Id. at ¶ 17,

citing State v. Bell, 12th Dist. Butler No. CA93-07-143,

, *6 (Jan.

31, 1994). "Force" is defined by statute as "any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing." R.C. 2901.01(A)(1).

Similar to the aggravated burglary statute, the definition of force is also stated in the

disjunctive. Therefore, it only requires a showing of one of the three methods—violence,

compulsion, or constraint—that is physically exerted.

{¶31} The cousin testified that she noticed appellant standing on the patio outside

her apartment when she went to take out the trash that evening. When she saw appellant,

she did not invite him into the residence. Viewing the evidence in the light most favorable

to the prosecution it was reasonable for the jury to infer that appellant did not have the

privilege to enter the apartment. The cousin also testified that appellant was yelling and

"carrying on," and then "pushed" her into her apartment from the doorway. Therefore, this

testimony provided sufficient basis for any rational trier of fact to find that appellant used

force to gain unprivileged entry into the cousin's apartment.

3. "Privilege" means an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity. R.C. 2901.01(A)(12).

4. We note that the trial court only instructed the jury to consider whether appellant committed a trespass by force.

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{¶32} Furthermore, the victim testified that appellant attacked her by striking her in

the head with a coffee cup after entering her home. Even, assuming arguendo, the initial

entrance was not forcible, the subsequent attack was sufficient to prove the forcible

trespass. As the Ohio Supreme Court has explained, "even assuming lawful initial entry,

the jury was justified in inferring from the evidence that [the defendant's] privilege to remain

in [the victim's] home terminated the moment he commenced his assault on [the victim]"

and the defendant's actions constituted a trespass. State v. Steffen,

(1987). "Where a defendant commits an offense against a person in the person's

private dwelling, the defendant forfeits any privilege, becomes a trespasser and can be

culpable for burglary." State v. Wisecup, 12th Dist. Clermont No. CA2004-02-014, 2004-

Ohio-5652, ¶ 10; accord State v. Trigg, 2d Dist. Montgomery No. 26757,

; State v. Schall, 4th Dist. Vinton No. 14CA695,

. Any privilege

appellant may have had to enter or remain in the apartment terminated upon his assault of

the cousin and the assault provided sufficient evidence for the element of forcible trespass.

{¶33} Consequently, the state met its burden of production on the element of forcible

trespass. There was sufficient evidence to find appellant guilty of aggravated burglary. The

third assignment of error is overruled.

{¶34} Assignment of Error No. 4:

{¶35} THE APPELLANT'S CONVICTION FOR BURGLARY AND AGGRAVATED

BURGLARY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶36} In his fourth assignment of error, appellant argues that his conviction for

aggravated burglary was against the manifest weight of the evidence because appellant

provided alibi evidence by the testimony of several witnesses that he was not at the victim's

apartment when the burglary and assault occurred.

{¶37} A manifest weight of the evidence challenge requires an appellate court to

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examine the greater amount of credible evidence, offered at trial, to support one side of the

issue over the other. State v. Peyton, 12th Dist. Butler No. CA2015-06-112, 2017-Ohio-

243, ¶ 42. To do this, an appellate court will review the entire record, weigh the evidence

and all reasonable inferences, consider the credibility of the 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 the conviction must be reversed and a new trial

ordered. State v. Spencer, 12th Dist. Warren No. CA2018-08-082,

.

A reviewing court will overturn a conviction based on a manifest weight challenge only in

the extraordinary circumstance, to correct a manifest miscarriage of justice, where the

evidence weighs heavily in favor of acquittal. State v. Wilson, 12th Dist. Warren No.

CA2006-01-007,

.

{¶38} While a manifest weight of the evidence review involves the consideration of

witness credibility, an appellate court must be mindful that credibility determinations are

primarily for the jury to decide. State v. Johnson, 12th Dist. Warren Nos. CA2019-07-076

and CA2019-08-080,

. This is because the jury, as the original trier

of fact, was in the best position to judge the credibility of the witnesses and assign weight

to the evidence. Spencer at ¶ 21. Furthermore, the reviewing court will not reverse a

conviction on a manifest weight challenge merely because there was inconsistent evidence

at trial. State v. Freeze, 12th Dist. Butler No. CA2011-11-209,

.

{¶39} After review of the record, we find that the jury did not clearly lose its way in

finding appellant guilty of aggravated burglary. Appellant's cousin testified that appellant

entered her apartment, took a coffee mug, and struck her in the head. Appellant then

knocked over objects in the room. The state called two witnesses to corroborate this story.

The responding police officer and a friend of the cousin testified that when they arrived at

the cousin's apartment, they saw the injury to her head, a broken coffee mug, and the

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objects strewn around the room. Furthermore, the cousin's timeframe for the offense

remained consistent. She testified that appellant arrived shortly after 5:00 p.m. Appellant

attempted to impeach the cousin's credibility, however, the prosecutor presented evidence

that the cousin's testimony at trial was consistent with her earlier statement to the police

about the time of the attack.

{¶40} On the other hand, appellant's alibi witnesses did not provide a consistent

timeframe for appellant's whereabouts on the day in question. In fact, the testimony of

appellant's witnesses contradicted each other. One witness testified that appellant was with

him from around 11:30 a.m. to around 5:30 p.m. In contrast, a second witness testified that

she was with appellant from around 4:00 to 4:15 p.m. to around 5:30 p.m. when appellant

left to run errands with the witness's husband. Moreover, on cross-examination, the

prosecutor discredited the second witness's trial testimony by presenting her prior

inconsistent statement that suggested her timeframe of appellant's visit was off by nearly

two hours. Appellant's final alibi witness testified that he was with appellant starting around

6:30 p.m., a time well after the offense was committed. A conviction is not against the

manifest weight of the evidence because the jury chose to believe the testimony of

witnesses for the state. State v. Burrell, 12th Dist. Fayette No. CA2016-04-005, 2016-Ohio-

8454, ¶ 22.

{¶41} Accordingly, appellant's conviction for aggravated burglary was not against the

manifest weight of the evidence. Appellant's fourth assignment of error is overruled.

{¶42} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

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