State v. Wolf , 176 Ohio App. 3d 165 ( 2008 )

{¶ 43} I concur with the majority regarding the third assignment of error and the finding that the trial court erred in ordering Wolf to pay restitution to the fire departments. However, since I would find that there was sufficient evidence for a jury to find Wolf guilty of aggravated arson pursuant to R.C. 2909.02(A)(1), I must respectfully dissent in part from the majority opinion. Moreover, since I would find that there was sufficient evidence to convict Wolf of aggravated arson, I would find that the first, fourth, and fifth assignments of error are not moot and would address them.

{¶ 44} When reviewing the sufficiency of the evidence, "[t]he 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." State v.Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

{¶ 45} Wolf was convicted of aggravated arson under R.C. 2909.02, which 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." (Emphasis added.)

Pursuant to R.C. 2901.22(B), "[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." The Revised Code also defines a "substantial risk" as "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist." R.C. 2901.01(A)(8).

{¶ 46} This court has previously examined R.C. 2909.02, the aggravated-arson statute, and has stated:

"In order to prove an aggravated arson case, the State must prove beyond a reasonable doubt that the defendant, by means of fire or explosion, knowingly created a substantial risk of serious physical harm. R.C. 2909.02(A)(1). The `knowingly' element in an aggravated arson case refers to a defendant's state of mind when he set a fire — i.e. the defendant is aware that the fire or explosion he set will probably create a substantial risk of serious physical harm. The requisite proof is not dependent upon the actual result of the fire but is based upon the risk of harm created by the defendant's actions." State v. Eggeman, 3d Dist. No. 15-04-07, 2004-Ohio-6495, 2004 WL 2785951, ¶ 14 (Rogers, J. dissented in part and concurred in part arguing that the State failed to prove beyond a reasonable doubt all of the elements of aggravated arson).

{¶ 47} During the trial, the prosecution presented the testimony of Nathan Weirich, Lieutenant Keith Watson, and Steve Southard. Weirich testified that two fire engines and a total of seven firefighters responded to the fire; that there was a gas can located in the residence that still had fuel within it; and that there were pour patterns located in the residence, which indicated that an accelerant was used. Further, Weirich testified:

"Q. And can you tell the jury please, when you go to a typical house fire, would you expect to find a large quantity of gasoline inside that structure?

"A. No, sir.

"Q. Sir, in your experience and based upon your training, does the presence of that gasoline poured throughout the structure create a hazard to you and your firefighters?

"A. Most definitely.

"Q. Can you tell the jury please what the hazard is?

"A. The vapors off of — if it's — all depending on what the ignitable liquid is. Whether it's gasoline, kerosene, whatnot, the vapors itself can actually get into your clothing. And therefore, whenever the induction of oxygen or a heat source, fire, it can actually ignite that and your clothes can actually catch on fire also.

"Q. Sir, would that presence be an unusual risk as far as responding to a fire such as this?

"A. Yes.

"Q. Create a risk — if that flame were to get into your clothing and ignite, would that create a risk of harm to you? Would that cause you harm?

"A. Most definitely.

"Q. Sir, could it go so far as to cause, based again, based on your training and experience, cause you or another firefighter to suffer the peril of death?

"A. Yes."

{¶ 48} Lieutenant Watson testified that he arrived at Wolf's residence and that "the first thing that you notice[d] when you went inside the residence was the overwhelming smell of what appeared to be gasoline." According to Lieutenant Watson, gasoline presents a hazard to firefighters "because it makes the fire very unpredictable." In regards to gasoline vapors, Lieutenant Watson testified:

"Q. What happens, sir, when there's too much gasoline where the concentration is too high?

"A. The gasoline vapors become too rich. They dispose the oxygen. It will not support combustion.

"Q. What do we need for combustion then? We need?

"A. Approximately 1.5 to 7.6 percent.

"Q. Of?

"A. Of gasoline vapors in the air is the flammable range.

"Q. Sir, is it a fair analogy when your — like when your car is flooded, there's too much goes [sic], not enough oxygen?

"A. That's correct.

"Q. At that point then, what happens with the fire?

"A. It will go out."

{¶ 49} Steve Southard, a fire and explosion investigator employed at the State Fire Marshall's Office, testified that in fighting and determining a fire there are three elements you look for: fuel load, ambient oxygen in the air, and a heat source or ignition source. Southard testified that he saw "ignitible liquid pour patterns on the floor along the couch, on the east wall, and in front of the entertainment system on the west wall." Further, Southard testified that there was "ignitable liquid poured throughout the structure to cause serious damage to the structure." Southard testified to the meaning of the burn patterns, that there was a prevalent smell of gasoline, and that the fire was intentionally set.

{¶ 50} Southard examined the structure and found that the "garage door had evidence of what appeared to be like a Shockwave damage from inside to outside. * * * It blew out away from the structure. The whole left side of the door was ajar, so I knew at that point that there was an explosion involved in this." Southard examined the structure and determined that there were two points of origin and that the origin of the explosion was at the garage door inside the structure.

{¶ 51} In regards to the gasoline vapors, Southard testified:

"A. The vapors of gasoline inside were very, very high. In our scientific data, gasoline will ignite with 1.4 percent vapors up to 7.6 percent vapors or percentages of vapor in a room. With the amount of gasoline and the liquid surface area, the vapors inside the structure were much greater than 7.6 percent, so the higher explosive limits of gasoline would not ignite with the small fire that was inside. There is no oxygen.

"The vapors displace the oxygen inside the room. The vapors are very, very high, very present. When that garage door was opened, it allowed a column of fresh oxygen into the room at the ignition source or origin of the fire, and the rapid development of fire, which we call a deflagration, created a big plume or Shockwave, and it traveled in the direction the oxygen was being received.

"So when the door opened, the fire blew out that garage door. The fire then — the pressure in the fire traveled out the garage door, and then the pressure inside the mobile home became so great that it slammed the door shut, and then that increased additional pressure out in the garage, which the direction of the Shockwave was right toward the garage door. That's what caused the garage door to blow out." Southard testified that "[w]hen the vapor and oxygen mix with an ignition source, there was an explosion."

{¶ 52} Southard testified:

"Q. Sir, you talked about the idea of a low pressure explosion and a high pressure explosion. Mr. Heckman asked you about the degree of force. A high pressure explosion, what's the result of that?

"A. Well, to give you an example of what maybe happened in this situation, if the door from the garage door was open fully and remained open, that large column of oxygen would have mixed within all that gasoline through the entire structure. We may have had a deflagration or explosion that would have leveled that entire structure because of the vapors inside. That didn't occur."

On cross-examination, Southard stated that the fire was "obviously easy to put out."

{¶ 53} Although Southard testified that the fire was "obviously easy to put out," whether there was a substantial risk of serious physical harm does not depend upon the actual results of the fire. Eggeman, 2004-Ohio-6495,2004 WL 2785951, at ¶ 14. Instead, the issue is whether Wolf was "aware that the fire or explosion he set will probably create a substantial risk of serious physical harm." The evidence clearly indicates that Wolf saturated his trailer with gasoline throughout the trailer and set it on fire. The trailer was located in a mobile-home park, which contained several other mobile homes. Given that the fire was set in a trailer located in a mobile home park with other mobile homes nearby, the fire in the trailer was likely to be reported and firefighters dispatched to the scene quickly. A reasonable jury could infer that when Wolf poured gasoline throughout his trailer and set it on fire, he knowingly created a strong possibility of a risk of serious physical harm to others, including firefighters responding to the fire and individuals living in the mobile-home park.

{¶ 54} Therefore, after reviewing the record, in a light most favorable to the prosecution, I would find that there was sufficient evidence for a rational jury to find Wolf guilty of aggravated arson under R.C. 2909.02. Moreover, since I would overrule Wolf's second assignment of error, I would have found that the first, fourth, and fifth assignments of error are not moot. Consequently, I must dissent in part from the majority's opinion.