State v. Parker

[Cite as State v. Parker, 2019-Ohio-830.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2017-12-176

: OPINION
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:

LESTER PARKER, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2016-12-1807

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Gieske Law Office, LLC, Krista Gieske, 810 Sycamore Street, 3rd Floor, Cincinnati, Ohio
45202, for appellant

HENDRICKSON, J.

{¶ 1} Lester Parker appeals his convictions in the Butler County Court of Common

Pleas for aggravated arson and murder. For the reasons described below, this court affirms

Lester's convictions.

{¶ 2} This case stems from the death of firefighter Patrick Wolterman, who died in

the line of duty while attempting to extinguish a fire at Lester's home on December 28, 2015.
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The state alleged that the fire was the result of arson, that Lester arranged for his nephew –

codefendant William Tucker – to set the fire, and that Lester's motive was to collect

insurance proceeds.

{¶ 3} A Butler County grand jury indicted Lester on two counts of aggravated arson,

violations of R.C. 2909.02(A)(1) and (A)(2), and one count of felony murder, a violation of

R.C. 2903.02(B). In the same indictment, the grand jury charged William with identical

counts.

{¶ 4} The matter proceeded to a joint, 9-day, jury trial. The state's evidence indicated

that Lester was deeply in debt and that he arranged for William to break into the basement of

his home located at 1310 Pater Avenue in Hamilton, Ohio, and ignite a fire while Lester and

his wife were vacationing in Las Vegas. For his part in the crime, William would be paid in

Lester's prescription oxycodone pills, which he would retrieve from the home before setting

the fire.

{¶ 5} The state introduced evidence that the fire was ignited by gas and ethanol in

the basement of the home, and that the arsonist had broken into the home through the cellar

doors. The state presented substantial circumstantial evidence that Lester planned the

arson. That evidence included deleted photographs recovered from Lester's secure digital

("SD") card depicting the interior of the home just prior to the fire, which Lester presumably

intended to use in support of an insurance claim. Coincidentally, these photographs helped

establish that Lester had moved certain items and mementos out of the home prior to the

fire. Before and after the fire, Lester exchanged numerous calls with telephone numbers

used by William.

{¶ 6} William testified and denied setting the fire or being involved in any conspiracy.

However, he admitted to being in the same area as the home precisely when the fire

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occurred in the early morning hours of December 28, 2015. But William claimed he was

meeting Lester's daughter to buy oxycodone. Lester testified and denied the allegations.

{¶ 7} The jury found both men guilty of all charges. The court sentenced each to 15

years to life in prison. Lester appeals, raising six assignments of error.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED IN FAILING TO ORDER SEVERANCE OF THE

TRIALS TO THE PREJUDICE OF PARKER.

{¶ 10} Lester argues that the court erred in failing to order separate trials. Lester

concedes that he did not object on this basis, either before trial or during trial, and is

therefore limited to a review for plain error. Pursuant to Crim.R. 52(B), "[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court." Plain error exists where there is an obvious deviation from a legal rule

that affected the defendant's substantial rights by influencing the outcome of the

proceedings. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). "Plain error does not exist

unless it can be said that but for the error, the outcome of the trial would clearly have been

otherwise." State v. Biros, 78 Ohio St.3d 426, 436 (1997). This court should notice plain

error with the utmost caution, under exceptional circumstances and only to prevent a

miscarriage of justice. State v. Widmer, 12th Dist. Warren No. CA2011-03-027, 2012-Ohio-

4342, ¶ 84.

{¶ 11} Joinder of defendants and the avoidance of multiple trials is favored in the law.

State v. Thomas, 61 Ohio St.2d 223, 225 (1980). Joinder conserves judicial and

prosecutorial time, lessens the considerable expense of multiple trials, diminishes

inconvenience to witnesses, and minimizes the possibility of incongruous results in

successive trials before different juries. Id. "[J]oinder of defendants is proper so long as all

defendants participated in the same series of transactions leading to the charges even
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though not all defendants participated in every act. * * * Not all defendants need be charged

in each count * * * nor would differing levels of culpability among defendants necessarily

justify severance." State v. Schiebel, 55 Ohio St.3d 71, 88-89 (1990).

{¶ 12} Crim.R. 14 permits a trial court to grant separate trials if joinder has a

prejudicial effect on the accused. However, the accused bears the burden of proving that

prejudice. State v. Coley, 93 Ohio St.3d 253, 259 (2001). "The test is 'whether a joint trial is

so manifestly prejudicial that the trial judge is required to exercise his or her discretion in only

one way – by severing the trial. * * * A defendant must show clear, manifest and undue

prejudice and violation of a substantive right resulting from failure to sever.'" Schiebel at 89,

quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.1989).

{¶ 13} Lester argues that his joint trial deprived him of a fair trial because jurors could

have been confused or misled by prejudicial evidence that was only relevant to William's

convictions. Lester also argues that his defense was prejudiced because William was

permitted to "leap frog" Lester's defense case with one of William's witnesses. Finally, Lester

argues that jurors may have found him guilty merely by his familial association with William.

{¶ 14} This case involved a conspiracy to commit arson that resulted in a homicide.

The state necessarily had to submit evidence of Lester's and William's individual actions in

furtherance of the conspiracy to establish its case. Accordingly, much of the evidence that

would have been relevant and admissible in a stand-alone trial against William would also

have been relevant and admissible in a stand-alone trial against Lester.

{¶ 15} To the extent there was some evidence solely related to William's charges,

there is no evidence in the record to support Lester's argument that the jurors were unable to

differentiate that evidence from evidence solely attributable to Lester. In this regard, the

court specifically instructed the jury on the concept of separate evidence and that it should

only consider evidence as it relates to each defendant. This court presumes that jurors
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follow the instructions provided by the trial court. State v. Vunda, 12th Dist. Butler Nos.

CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 73.

{¶ 16} There is no merit to the assertion that jurors may have found Lester guilty

simply because of a familial association. As will be addressed in the next assignment of

error, the jury convicted Lester on substantial circumstantial evidence.

{¶ 17} Finally, there is no support in the record for the argument that jurors could have

been confused by the presentation of William's witness, Kim Brooks, before Lester's defense

case. Kim was one of William's girlfriends and was with him on the day of the fire. The

record indicates that Kim was a reluctant witness and William's counsel had to expend

considerable effort to obtain her appearance.

{¶ 18} Kim did appear on the sixth day of the trial and after the state had closed its

case. Although Lester was entitled to present his defense case before William, the parties

and court agreed that William could call Kim before Lester's defense case to ensure that she

testified. After Kim testified, Lester requested that William continue his defense case. The

state objected to that request and the court denied it.

{¶ 19} Lester does not articulate how Kim's out-of-turn appearance prejudiced him

other than to argue that it "compounded the conflation of issues." It is unclear how Kim's out-

of-turn testimony could have prejudiced Lester's defense case or deprived him of a fair trial.

Kim had no direct knowledge of Lester's involvement in the conspiracy. On this record,

Lester has not demonstrated that his joint trial was manifestly prejudicial, nor has he

established plain error. This court overrules Lester's first assignment of error.

{¶ 20} Assignment of Error No. 2:

{¶ 21} PARKER'S CONVICTION FOR AGGRAVATED ARSON-FELONY MURDER

WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.

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{¶ 22} Lester argues that the state submitted legally insufficient evidence to establish

his complicity in the offenses underlying his felony murder conviction, i.e., the two counts of

aggravated arson. Specifically, Lester argues that there was insufficient evidence that he

conspired with and solicited William to commit arson.

{¶ 23} The concept of legal sufficiency of the evidence refers to whether the conviction

can be supported as a matter of law. State v. Everitt, 12th Dist. Warren No. CA2002-07-070,

2003-Ohio-2554, ¶ 10. In reviewing the sufficiency of the evidence, an appellate court must

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. Id.

The relevant inquiry is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact would have found all the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus.

{¶ 24} As it was undisputed that Lester was in Las Vegas at the time of the fire, the

state was required to prove Lester's complicity in the offense, i.e., that Lester knowingly

solicited or conspired with William to commit aggravated arson at his home. See R.C.

2923.03.

{¶ 25} Evidence submitted at trial demonstrated that on the day of the fire, Lester had

debts totaling $143,168. Of that amount, nearly $60,000 was past due. Lester had $500 in

two checking accounts, was 65 years old, and had been unemployed since 1986. His

household income was $1,440 in social security income and $50 in food assistance.

However, Lester regularly filled a prescription for 180 tablets of 30 milligrams of Roxicet,

which is oxycodone. The evidence was that the street value of Roxicet could be as much as

$30 per tablet.

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{¶ 26} The evidence indicated that William, then living in Richmond, Kentucky, was a

roofer. He also sold pain pills. He was known to Lester's daughter, Melissa Jones, as

someone who you would look to to accomplish "dirty deeds."

{¶ 27} William did not regularly possess a cellular phone. He would instead use the

phones of his friends and family, including his brother Stacy's cellular phone. On December

20, 2015 – eight days before the fire – Lester's cellular phone records indicated that he called

Stacy's cellular phone. The call lasted 35 minutes. Stacy testified that he rarely spoke with

Lester.

{¶ 28} Two days later, William sent Facebook messages to one of his girlfriends, Kim

Brooks, a Hamilton resident, stating that he would have "plenty of pain pills" the following

Monday, or December 28, 2015. In other Facebook messages, William alluded to coming to

Hamilton to take care of "something" "very important." William arranged through Kim to

obtain a ride to Hamilton.

{¶ 29} Immediately before Christmas Eve 2015, Lester began moving various items

out of his home and into the detached garage structure next to his home. These items

included a handmade miniature log cabin, Lester's and his wife Bertha's framed carrying

concealed weapon permits, and a decorative butler statue.

{¶ 30} Linda Rose testified that she dated William. She did not know Lester or Bertha.

However, on December 27, 2015, at 1:38 p.m., a cellular phone associated with Linda Rose

contacted Lester's cellular phone. The call lasted 27 seconds.

{¶ 31} Cheryl Sullivan, Lester's daughter, testified that she and her husband were at

Lester's home, 1310 Pater Avenue, on December 27, 2015, helping Lester and his wife,

Bertha, get ready for a planned trip to Las Vegas beginning December 27 and returning

December 31, 2015.

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{¶ 32} Oddly, Lester handed Cheryl bills to hold while he was away, including bills for

ADT home security, the home mortgage, insurance, and taxes. While they were walking

around the home, both Cheryl and her husband noted that various items were missing from

their usual locations in the home, including framed photographs of Cheryl and her sister and

a cabinet containing various items that was "mostly empty." They had also noticed missing

items when they were at the home a few days earlier on Christmas Eve.

{¶ 33} Cheryl recalled that Lester had packed a Nascar-branded duffel bag and took it

with him to the airport. Cheryl also observed that the cellar doors were closed and padlocked

with a small "goldish" lock. Later that day, Lester called Cheryl and told her that "in case

anything happened" his "important stuff" was located in the detached garage next door to the

home.

{¶ 34} Courtney Basinger testified that on December 27, 2015, Kim Brooks asked her

to drive to from Hamilton to Richmond, Kentucky to retrieve William. For her services,

Courtney would be compensated with gas money and oxycodone tablets. She understood

that William was traveling to Hamilton to obtain the tablets. That evening, Courtney and Kim

drove for two hours to Richmond and retrieved William. William had a gym bag with him

when he entered the car. They then drove back to Hamilton.

{¶ 35} Once in Hamilton, William directed Courtney where to park. At approximately

12:41 a.m. on December 28, 2015, the vehicle was parked on Grand Boulevard near

Allstatter Avenue and Pater Avenue. A detective estimated a distance of 541 feet between

where Courtney stated she parked and the cellar doors to 1310 Pater Avenue. Courtney

testified that William left the vehicle and walked by himself towards Pater Avenue. He turned

onto the street and disappeared from her view. Courtney estimated that William was gone

for approximately 20 minutes, however Courtney's cellular phone records indicated that she

was stationary for approximately 11 minutes. When William returned he was breathing
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heavily and was holding a metal gas can, something metal that looked like a padlock, and the

gym bag. He gave Courtney the agreed upon number of Roxicet pills and they drove off.

{¶ 36} At 12:56 a.m. an ADT motion detector alarm was triggered at 1310 Pater

Avenue. At 1:02 a.m., ADT dispatch contacted Hamilton police to notify them of the alarm.

At 1:05 a.m., a Hamilton police officer was dispatched to the home. When the officer arrived

he observed smoke coming from the home. He walked around the perimeter of the home

and noted that the cellar doors were open. Investigators would later inspect the doors and

find that it appeared that the fastening hardware had been pried off.

{¶ 37} Truck 25 of the Hamilton Fire Department subsequently arrived on scene.

Patrick Wolterman was part of the Truck 25 crew. The crew, including Wolterman, made

their initial entry into the home through the front door. Wolterman perished after the first floor

of the home collapsed from fire damage and Wolterman fell through to the basement.

{¶ 38} At 3:15 a.m., William sent Linda Rose a Facebook message stating, "Babydoll,

done with the job. Got to get some rest and call you tomorrow. Love you."

{¶ 39} Lester's daughter, Melissa Jones, saw a report of the fire on television and

eventually arrived on the fire scene. She called Lester to alert him to the fire and he

indicated he was aware of the fire and knew that a firefighter had been hurt. Melissa said he

was angry with her for being there and told her to get away from the scene.

{¶ 40} From Las Vegas, Lester contacted his insurance agency to initiate a claim

before the office had opened for the day.1 Lester also contacted fire and police officials and

indicated he would attempt to return home early from Las Vegas. He called his travel agent

to inquire about booking a return trip. When the agent informed Lester he could book an

1. Lester's insurer paid him approximately $72,000 on expenses related to his loss claim before they ceased
payments and sued him, asking a court to declare him in breach of his insurance contract for failure to cooperate
with their loss investigation.
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early flight for him and his wife for $375, Lester responded that the tickets were too

expensive, and he did not book the flight. Lester later told his daughter Cheryl it would have

cost him $2,700 to fly home early. Lester and Bertha continued their Las Vegas vacation and

continued gambling, losing approximately $1,700 playing slot machines.

{¶ 41} Following the fire, and while still in Las Vegas, Lester made and received

numerous telephone calls to various numbers associated with William's use including Stacy's

cellular phone, William's mother's phone, and a pay phone that was located within walking

distance of the Cove Motel in Hamilton on December 30, 2015. Since the fire, William and

Kim had spent several days at various motels in the area and had stayed at the Cove Motel

on December 29 and checked out December 30, 2015. Lester made some of these calls

with an unregistered, pre-paid, cellular phone that he purchased at a pawn shop in Las

Vegas on December 28, 2015.

{¶ 42} Lester and Bertha returned as planned on December 31, 2015. They

temporarily moved into another residence. Cheryl visited them at this residence and noted

the Nascar duffel bag that Lester had taken to the airport still had the airport baggage band

attached and securing the handles. She opened the bag and found that it contained the

framed photographs which she remembered had previously been on display prominently at

1310 Pater Avenue but had disappeared prior to the fire. During his testimony, Lester

accused Cheryl of lying about the Nascar bag.

{¶ 43} Melissa testified that she was in jail several months after the fire and Lester

visited her on at least one occasion. While discussing the death of Patrick Wolterman during

his visit, Lester told her "I did not mean for that to happen." During his testimony, Lester

claimed that Melissa lied concerning this confession.

{¶ 44} An ex-boyfriend of Melissa testified that in June 2015 he was helping Lester

attach siding to the garage next to 1310 Pater Avenue and asked Lester about some
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renovations that had occurred at 1310 Pater Avenue. Lester then told him that the

renovations had occurred because there had been a fire and that he and his nephew had set

the fire for insurance reasons.

{¶ 45} The lead investigator, Detective Fishwick, testified concerning his investigation.

He was informed that Lester may have taken interior photographs of the home shortly before

the fire. He asked Lester whether this was true; coincidentally, Lester said that he found

some photographs of the interior of the home on his SD card and that he had taken the card

to CVS to have the photographs developed. When the detective asked for the card, Lester

provided it but said that the photographs had been deleted while at CVS. However, the

detective confirmed that you could not delete images from an SD card using the CVS

photograph-developing kiosk.

{¶ 46} The detective provided the SD card to a specialist who was able to recover the

deleted photographs. These photographs depicted the interior living spaces of 1310 Pater

Avenue and some were dated December 2015. By reviewing the photographs and

comparing the items depicted to those items found after the fire and outside of the home, the

detective was able to identify multiple unique items that had been removed from 1310 Pater

Avenue prior to the fire.

{¶ 47} Another investigating detective testified that he interviewed William after the

fire. William denied any involvement in setting the fire and specifically denied that he was in

Hamilton at the time of the fire.

{¶ 48} Eventually, Lester and his wife moved into 1304 Pater Avenue, which was

previously Lester's rental property. When police executed a search warrant at the property,

they found multiple items and mementos that had been in 1310 Pater Avenue prior to the fire

and were now on display at 1304 Pater Avenue.

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{¶ 49} Based upon the foregoing, and when viewing the evidence in a light most

favorable to the prosecution, the state provided sufficient evidence to allow reasonable

factfinders to determine beyond a reasonable doubt that Lester planned the arson and

conspired with William to accomplish the arson, with the purpose of collecting insurance

proceeds. This court overrules Lester's second assignment of error.

{¶ 50} Assignment of Error No. 3:

{¶ 51} THE TRIAL COURT PLAINLY ERRED IN FAILING TO INSTRUCT THE JURY

ON THE LESSER INCLUDED OFFENSES OF SIMPLE ARSON AND INVOLUNTARY

MANSLAUGHTER IN VIOLATION OF PARKER'S RIGHTS TO DUE PROCESS AND A FAIR

TRIAL.

{¶ 52} Lester argues that the court plainly erred in failing to, sua sponte, instruct the

jurors on the lesser included offenses of arson as set forth in R.C. 2909.03(A)(2) and (A)(4).

Lester further argues that because arson under R.C. 2909.03 is at most a third-degree felony

and could not support a count of felony murder, the court should have instructed the jury on

the lesser offense of involuntary manslaughter.2

{¶ 53} In considering whether to instruct a jury on lesser offenses, a trial court must

first determine whether an offense is a lesser included offense of the crime charged. State v.

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 13. If that inquiry is answered affirmatively,

then the court must proceed to determine whether the evidence in the case supports an

instruction on the lesser included offense. Id.

{¶ 54} The test for determining if an offense is a lesser included offense of another

crime is "whether one offense carries a greater penalty than the other, whether some

element of the greater offense is not required to prove commission of the lesser offense, and

2. Felony murder pursuant to R.C. 2903.02(B) requires an underlying offence of violence that is a felony of the
first or second degree.
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whether the greater offense as statutorily defined cannot be committed without the lesser

offense as statutorily defined also being committed." Id. at ¶ 26. The state concedes that

the first two prongs of the test are met in this case. This court will therefore review whether

aggravated arson, pursuant to R.C. 2909.02(A)(1) and (A)(2) cannot be committed without

also committing arson as defined by R.C. 2909.03(A)(2) and (A)(4).

{¶ 55} Aggravated arson as defined by R.C. 2909.02 provides:

(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;

Arson as defined by R.C. 2909.03 provides:

(A) No person, by means of fire or explosion, shall knowingly do
any of the following:

(2) Cause, or create a substantial risk of, physical harm
to any property of the offender or another, with purpose to
defraud;

***

(4) Cause, or create a substantial risk of, physical harm,
through the offer or the acceptance of an agreement for
hire or other consideration, to any property of another
without the other person’s consent or to any property of
the offender or another with purpose to defraud;

{¶ 56} To prove subsection (A)(1) of the aggravated arson statute, the state must

demonstrate that the offender caused a substantial risk of serious physical harm to another

person. However, the state does not also need to prove that the offender caused or created

a substantial risk of physical harm to any property with purpose to defraud, which is required

of an arson conviction under the (A)(2) or (A)(4) subsections. Accordingly, aggravated arson

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under R.C. 2909.02(A)(1) can be committed without also committing arson under either R.C.

2909.03(A)(2) or (A)(4).

{¶ 57} To prove subsection (A)(2) of the aggravated arson statute, the state must

prove that the offender caused physical harm to any occupied structure. However, the state

is not also required to prove a purpose to defraud, as required to obtain a conviction for

arson under R.C. 2909.03(A)(2) or (A)(4). Thus, an offender could commit a violation of

aggravated arson under R.C. 2909.02(A)(2) but do so without a purpose to defraud and

therefore not violate R.C. 2909.03(A)(2) or (A)(4). Therefore, aggravated arson under R.C.

2909.02(A)(2) could be committed while not also committing arson under either R.C.

2909.03(A)(3) or (A)(4). In sum, arson offenses under R.C. 2909.03(A)(2) or (A)(4) are not

lesser included offenses of aggravated arson offenses under either R.C. 2909.02(A)(1) or

(A)(2).

{¶ 58} In addition, a defendant is only entitled to a lesser included offense instruction if

the evidence submitted at trial would support an acquittal on the offense charged and support

a conviction on the lesser included offense. Stated otherwise, a lesser included offense

instruction is only warranted "[i]f the trier of fact could reasonably find against the state and

for the accused upon one or more of the elements of the crime charged and for the state on

the remaining elements, which by themselves would sustain a conviction on a lesser-included

offense * * *." State v. Kilby, 50 Ohio St.2d 21, 24-25 (1977).

{¶ 59} 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 Patrick Wolterman 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 to prove

physical harm to any occupied structure. It was also undisputed that the fire caused

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considerable physical damage to Lester's home. Thus, the evidence submitted at trial would

not support an acquittal on the counts of aggravated arson.

{¶ 60} Because the aggravated arson instruction was appropriate, there is no merit to

the argument that Lester was entitled to an instruction on involuntary manslaughter. Lester

has demonstrated neither error nor plain error. This court overrules Lester's third assignment

of error.

{¶ 61} Assignment of Error No. 4:

{¶ 62} APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO REQUEST

JURY INSTRUCTIONS FOR THE LESSER INCLUDED OFFENSES OF SIMPLE ARSON

AND INVOLUNTARY MANSLAUGHTER.

{¶ 63} Lester argues that if this court does not find plain error in response to his third

assignment of error then, alternatively, this court should find that his trial counsel rendered

constitutionally deficient performance for not having requested lesser included instructions on

arson and involuntary manslaughter.

{¶ 64} A convicted defendant alleging ineffective assistance of counsel must

demonstrate that (1) defense counsel's performance was so deficient that he or she was not

functioning as the counsel guaranteed under the Sixth Amendment to the United States

Constitution, and (2) that defense counsel's errors prejudiced the defendant, depriving him or

her of a trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052 (1984).

{¶ 65} This assignment of error is meritless for the reasons set forth in the previous

assignment of error. Lester cannot demonstrate that his counsel was deficient for failing to

request a lesser included instruction to which he was not entitled. This court overrules

Lester's fourth assignment of error.
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{¶ 66} Assignment of Error No. 5:

{¶ 67} PARKER WAS DENIED HIS SUBSTANTIVE AND PROCEDURAL DUE

PROCESS RIGHTS TO A FAIR TRIAL WHEN THE PROSEUCTION COMMITTED ACTS

OF MISCONDUCT DURING VOIR DIRE, TRIAL, AND CLOSING ARGUMENTS.

{¶ 68} Lester argues that the state committed misconduct when, during voir dire, the

prosecutor used a puzzle analogy to explain reasonable doubt and used an analogy involving

destroying a structure with dynamite to explain circumstantial evidence. Lester further argues

that the state committed misconduct by allegedly coaching a witness' testimony, encouraging

false testimony from another witness, and commenting on Lester's wife's failure to testify in

his defense. Finally, Lester argues that the prosecutor committed misconduct during closing

argument by referring to facts that were not in evidence. Lester concedes that he did not

object to every claimed instance of prosecutorial misconduct and therefore the standard of

review in those instances would be plain error.

{¶ 69} To demonstrate that the state deprived him of a fair trial, Lester must establish

that the prosecutor's comments or actions were improper and prejudicially affected his

substantial rights. See State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶ 62. In

making such a determination, the focus is upon the fairness of the trial, not upon the

culpability of the prosecutor. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-

4769, ¶ 57. A finding of prosecutorial misconduct will not be grounds for reversal unless the

defendant can establish that he has been denied a fair trial because of the prosecutor's

actions. See State v. Smith, 12th Dist. Warren No. CA2017-02-013, 2017-Ohio-7540, ¶ 29.

Voir Dire

{¶ 70} Lester argues that the state committed misconduct when the prosecutor

attempted to explain the concept of proof beyond a reasonable doubt to the venire by

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analogizing it to completing a jigsaw puzzle. Lester did not object to the prosecutor's

analogy.

{¶ 71} The Ohio Supreme Court has found that a prosecutor's comments comparing

crossing a bridge to help explain proof beyond a reasonable doubt were "perhaps

inappropriate" but found that the defendant had not demonstrated prejudice and noted that

the trial court had negated any misconception by properly instructing the jury on reasonable

doubt. State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, ¶ 79.

{¶ 72} This court agrees that best practice in discussing the state's burden of proof

with the venire would be to avoid anecdotes or analogies that stray from the language used

in the standard jury instructions. Therefore, the prosecutor's remarks were perhaps

inappropriate. However, Lester cannot demonstrate a changed outcome from these brief

comments during voir dire. The trial court properly instructed the jury on the reasonable

doubt standard and Lester was convicted on substantial evidence of his guilt.

{¶ 73} Lester also argues that the state committed misconduct when the prosecutor

attempted to explain circumstantial evidence by describing a scenario involving an individual

going into a barn, exiting the barn with a pack of matches, and the barn is subsequently

destroyed by a dynamite explosion. Although William objected to the statement, Lester did

not and is again limited to a review for plain error. See State v. Crosky, 10th Dist. Franklin

No. 06AP-816, 2007-Ohio-6533, ¶ 23, fn. 3 (holding that a codefendant's objection does not

preserve an error for appeal). Lester argues that because this was an arson case, the facts

in the dynamite analogy were too similar and amounted to the state attempting to indoctrinate

the jury pool.

{¶ 74} After the prosecutor discussed the dynamite hypothetical, William's counsel

objected, and a sidebar discussion occurred. To alleviate William's counsel's concerns, the

prosecutor, upon returning to the venire, clarified that the case would not involve dynamite
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and that dynamite story was a hypothetical to test whether any venireperson would have any

concerns with considering circumstantial evidence.

{¶ 75} This court does not find that these comments deprived Lester of a fair trial. The

analogy by the prosecutor was perhaps objectionable based on a potential similarity to the

underlying facts of the case, and the state seemed to concede this point by immediately

offering a clarifying remark. The trial court properly instructed the jury on circumstantial

evidence and this court presumes that the jurors followed those instructions. Vunda, 2014-

Ohio-3449 at ¶ 73.

Presentation of Evidence

{¶ 76} Lester claims that the state committed misconduct by "coaching" a witness'

testimony. On the first day of the trial, Hamilton firefighter Ben Adams testified that he

entered the first floor of the home through a rear door, which was unlocked, and he did not

recall having to force the door open. The next witness, a fire investigator who arrived on the

fire scene later, testified that Adams told him that the door had to be forced open.

{¶ 77} On the second day of trial, the state called another firefighter, Joseph Geis, who

also made entry into the home. Geis testified that he broke the glass window of the rear door

and reached in and unlocked the door. On cross-examination, Geis admitted that he spoke

with the prosecutor about the factual discrepancy between the two witnesses.

{¶ 78} Lester argues that the prosecutor improperly "coached" Weis' testimony by

informing him of the conflicting testimony on the previous day. This argument lacks merit.

Preparing a witness for trial is not improper coaching and there is no support in the record for

the contention that Geis provided false testimony, which is the implication of Lester's

argument. Defense counsel thoroughly cross-examined Geis concerning the extent of his

contact with the prosecutor prior to his testimony. This cross-examination merely drew out

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that the prosecutor had informed Geis of the earlier conflict in testimony, which he was able

to reasonably explain.

{¶ 79} Next, Lester claims that the state committed misconduct by "encouraging false

testimony" from Kim Brooks. At trial, Kim, who was not called by the state, denied that

William had a gym bag or anything else in his hands when he returned to Courtney's vehicle.

On cross-examination, Kim claimed that the lead detective and assistant prosecutor had

"badgered" her before trial about whether William had a bag with him when he returned to

the vehicle. This argument is also meritless. There is no impropriety in the state's

representatives questioning Kim as to her knowledge of facts in an arson and murder

investigation. Thorough police questioning of a reluctant witness does not equate with

"encouraging false testimony."

{¶ 80} Next, Lester argues that the prosecutor committed misconduct by repeatedly

asking him whether his wife would testify in his defense. Lester argues that this was the

state's improper commentary on his right to invoke the spousal privilege pursuant to R.C.

2945.42, which Lester likens to his Fifth Amendment privilege.

{¶ 81} On cross-examination, the prosecutor asked Lester whether his wife would

testify and corroborate his testimony. Lester's counsel objected, and the trial court sustained

the objection, instructing the jury to disregard the question. Later during the cross-

examination, the prosecutor again asked whether Lester's wife would testify. Lester's

counsel did not object and Lester responded negatively. Subsequently the prosecutor asked

for a third time whether Lester's wife would testify and Lester responded that he did not know

and was not asking her to testify for him. Again, Lester's counsel did not object.

{¶ 82} There is no indication in the record that Lester invoked the spousal privilege

and Lester does not cite any controlling authority holding that it is a violation of an individual's

right to a fair trial for the state to comment on a spouse's failure to testify. Nonetheless, this
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court finds that the prosecutor's questioning was improper after the trial court sustained the

objection. However, this court does not find that Lester was deprived of a fair trial or that his

defense was in any way prejudiced by the comments. Lester was convicted on substantial

evidence of his guilt and this court cannot find any likelihood of a changed outcome simply

because of these brief comments. Therefore, this court finds such improper questioning only

resulted in harmless error.

Closing Argument

{¶ 83} Finally, Lester argues that the prosecutor committed misconduct during closing

argument based on two comments that Lester contends were unsupported by evidence.

Specifically, the prosecutor stated that smoke from the arson fire must have set off the

security system motion detectors in the home and that Stacy had "distanced" himself from his

family.

{¶ 84} Either of these comments were logical inferences based upon the evidence in

the record. The evidence indicated that the fire was producing smoke and it is a reasonable

assumption that smoke or heat could set off motion detectors. As to his other argument,

Stacy testified that he hardly spoke with Lester, thus the comment about him distancing

himself from the family had some basis. Regardless, Lester fails to explain how either of

these two statements caused him any prejudice and deprived him of a fair trial. Accordingly,

this court overrules Lester's fifth assignment of error.

{¶ 85} Assignment of Error No. 6:

{¶ 86} THE CUMULATIVE EFFECT OF ERROR PERPETRATED IN THE LOWER

COURT THROUGHOUT PROCEEDINGS DEPRIVED PARKER OF HIS RIGHT TO A FAIR

TRIAL.

{¶ 87} Lester argues that the cumulative effect of combined errors that occurred

deprived him of a fair trial. In the context of this assignment of error, Lester claims two
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additional errors in the admission of evidence. The admission or exclusion of evidence is a

matter committed to the sound discretion of the trial court. State v. Meredith, 12th Dist.

Warren No. CA2004-06-062, 2005-Ohio-2664, ¶ 26. Absent an abuse of discretion, this

court will not reverse the trial court's decision to admit or exclude relevant evidence. Id.

{¶ 88} Lester claims that the trial court abused its discretion by allowing Melissa's ex-

boyfriend's testimony concerning Lester admitting that he had previously set a fire to collect

insurance money. Over objection, the trial court permitted the testimony, finding that it was

admissible pursuant to Evid.R. 404(B). This court finds that the trial court acted within its

discretion. The statement was admissible as non-hearsay pursuant to Evid.R. 801(D)(2) and

relevant to modus operandi and admissible under Evid.R. 404(B).

{¶ 89} Lester also claims that the court erred in admitting evidence of his gambling

history while in Las Vegas. Again, this court finds that the trial court acted within its

discretion in admitting the testimony. Given Lester's poor financial state, his willingness to

gamble was marginally probative of his scheme to collect insurance proceeds from the arson.

{¶ 90} Because this court finds no merit to any of Lester's assigned errors, he cannot

demonstrate cumulative error. This court overrules Lester's sixth assignment of error.

{¶ 91} Judgment affirmed.

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

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