[Cite as State v. Ayers, 2013-Ohio-5402.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2013CA00034
KAYLA J. AYERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2012CR1567
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 9, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GEORGE URBAN
Prosecuting Attorney, 116 Cleveland Ave. NW., Suite 808
Stark County, Ohio Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013CA00034 2
Hoffman, J.
{¶1} Defendant-appellant Kayla J. Ayers appeals her conviction entered by the
Stark County Court of Common Pleas on one count of aggravated arson, in violation of
R.C. 2902.02, and one count of endangering children, in violation of R.C. 2919.22.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
{¶2} On October 3, 2012, the Massillon Fire Department responded to a fire at
Appellant's residence. The fire was extinguished in the basement of the home.
{¶3} Appellant’s defense centered upon the allegation her young son started
the fire. Appellant's son did not appear to have any smoke exposure or soot on his
person. Appellant cut her hand while allegedly attempting to get her son out of the
residence. Appellant appeared to have smoke exposure and tested positive for soot
residue on her person.
{¶4} Inspector Reginald Winters of the Massillon Fire Department testified he
ruled out an electrical shortage as the cause of the fire. Winters determined a mattress
was the point of origination for the fire, and there were two distinct start points at
separate ends of the mattress. Winters’ report concluded the fire was not an accident.
{¶5} During an interview with investigators Appellant claimed her three-year old
son started the fire while playing with a cigarette lighter. She seemed lethargic and
unable to answer the questions posed. She stated she was in the basement folding
clothes when she noticed her son by the bed playing with a lighter. Shortly thereafter
she noticed a fire on the bed, grabbed a blanket and started fanning the flame. She ran
Stark County, Case No. 2013CA00034 3
and retrieved a glass of water, but tripped, breaking the glass, falling and cutting her
hand. She stated she could not find the phone to call the fire department.
{¶6} At the time of the fire, Appellant lived with her father and his family. Her
father had previously discussed finances with her, and the fact she had not been
contributing to the household financial situation. Their relationship eventually
deteriorated and Jeff Ayers, Appellant's father, told Appellant to leave and care for her
own family. Appellant refused to leave. Jeff Ayers testified at trial when he decided to
leave, Appellant threatened to burn the house down.
{¶7} Additionally, a neighbor of Appellant, Jason Pandrea, testified he heard
Appellant threaten her father with burning the house down if he ever left.
{¶8} Karen Ball testified at trial she knew Appellant through a church
relationship. She visited the residence on the night of the fire to pick up the children for
a church activity. She knocked on the door, but received no answer. She heard
someone inside the residence say, "Shhh." Ball noticed Appellant's purse on the deck
of the residence, which led her to believe Appellant was inside. At approximately 8:00
p.m. the night of the fire, Ball returned to the residence and witnessed some flickering in
the window. When Appellant exited the house, she told Ball her son had started the
fire.
{¶9} Investigator Winters prepared a draft report. He concluded the fire
originated on the first floor of the residence. Winters maintains this was a typographical
error, and should have read the fire originated in the basement of the residence.
Additionally, the report contained several other errors not to be included in the final
Stark County, Case No. 2013CA00034 4
copy. Winters stated in his testimony at trial the report including the alleged errors was
not the final report.
{¶10} During pretrial proceedings, Appellant filed two motions in limine. In the
first, Appellant sought to exclude evidence of "bad parenting" introduced by the state.
{¶11} In the second motion in limine, Appellant sought to exclude evidence of
her involvement with Child Protective Services and the Department of Job and Family
Services regarding "parenting rights, allegations of lice infestation, and having a dirty
home," as well as, evidence regarding her mental health and use of medication.
{¶12} Following a jury trial, Appellant was convicted of one count of aggravated
arson, in violation of R.C. 2909.02(A)(2), a felony of the second degree, and one count
of endangering children, in violation of R.C. 2919.22(A), a misdemeanor of the first
degree. Appellant was sentenced to an aggregate prison term of seven years.
{¶13} Appellant now appeals, assigning as error:
{¶14} “I. THE APPELLANT’S CONVICTIONS FOR ONE COUNT OF
AGGRAVATED ARSON IN VIOLATION OF R.C. 2909.02 AND ONE COUNT OF
ENDANGERING CHILDREN IN VIOLATION OF RC. 2919.22 WERE AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶15} “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL DUE TO TRIAL COUNSEL’S FAILURE TO REVIEW THE APPROPRIATE
DISCOVERY MATERIALS IN PREPARATION FOR TRIAL.”
I.
{¶16} In the first assignment of error, Appellant challenges her convictions as
against the manifest weight and sufficiency of the evidence.
Stark County, Case No. 2013CA00034 5
{¶17} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine 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. 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.”
{¶18} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶19} Appellant was convicted of aggravated arson, in violation of R.C.
2909.02(A)(2), which reads:
Stark County, Case No. 2013CA00034 6
{¶20} "(A) No person, by means of fire or explosion, shall knowingly do any of
the following:
{¶21} "(1) Create a substantial risk of serious physical harm to any person other
than the offender;
{¶22} "(2) Cause physical harm to any occupied structure;
{¶23} "(3) ***"
{¶24} Appellant was also convicted of endangering children, in violation of R.C.
2919.22(A), which reads,
{¶25} "(A) No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen years of age or a
mentally or physically handicapped child under twenty-one years of age, shall create a
substantial risk to the health or safety of the child, by violating a duty of care, protection,
or support. It is not a violation of a duty of care, protection, or support under this division
when the parent, guardian, custodian, or person having custody or control of a child
treats the physical or mental illness or defect of the child by spiritual means through
prayer alone, in accordance with the tenets of a recognized religious body."
{¶26} The evidence introduced at trial demonstrates the fire was started with an
open flame at opposite ends of a mattress. Appellant gave inconsistent statements
regarding her actions, which contain unexplained physical impossibilities. In addition,
several witnesses testified at trial as to Appellant's prior threats to burn the residence
down in retaliation for her father’s moving out of the home. The evidence demonstrates
Appellant's son did not have smoke exposure or evidence of soot on his person,
whereas Appellant did have evidence of soot on her person.
Stark County, Case No. 2013CA00034 7
{¶27} Based on the above, we do not find the jury lost its way and viewing the
evidence in a light most favorable to the prosecution, a rational trier of fact could have
found the essential elements of the crimes proven beyond a reasonable doubt.
{¶28} The first assignment of is overruled.
II.
{¶29} In the second assignment of error, Appellant maintains she received
ineffective assistance of trial counsel due to counsel's failure to cross-examine Inspector
Winters with regard to the errors in his draft report and due to reliance on the draft
report in preparation for trial.
{¶30} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such
claims, “a court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,
101, 76 S.Ct. 158 (1955).
{¶31} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted
“outside the wide range of professionally competent assistance.” Id. at 690.
{¶32} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
Stark County, Case No. 2013CA00034 8
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶33} Upon review of the record, we find Appellant has not established the
second prong of Strickland in that but for the alleged error, the result of the proceeding
would have been different. Appellant's defense at trial centered upon her son starting
the fire, not where the fire started or developed. Appellant averred she was not where
person who started the fire. She did not question how the fire progressed or how it
originated. Accordingly, we find Appellant has not demonstrated prejudice as a result of
the alleged professional error of trial counsel in use of the draft report in preparation for
trial as opposed to the final report.
{¶34} The second assignment of error is overruled.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2013CA00034 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KAYLA J. AYERS :
:
Defendant-Appellant : Case No. 2013CA00034
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed. Costs to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
State v. Ayers
Combined Opinion