Arson Conviction Upheld in Ohio; Texas Lets One Go Free
Barry Zalma | April 1, 2011
Two 2011 arson cases illustrate important points: first, the importance of documenting the chain of custody of physical evidence acquired in the fraud investigation and keeping all necessary documents to be presented at trial, and second, while fraud evidence may not be enough for a criminal case, it may be for a civil one.
In State of Ohio v. John Plotts, Opinion, 2011 Ohio 900 (Ohio App. Dist. 3 Feb. 28, 2011), defendant-appellant John Plotts appealed the judgment of the Court of Common Pleas of Van Wert County, which convicted him of arson, aggravated arson, and insurance fraud.
In September 2009, the Van Wert County Grand Jury indicted John Plotts as a result of two separate fires at Plotts's residence on April 8, 2009, and April 10, 2009, for which he attempted to collect insurance proceeds from Erie Insurance Company.
In December 2009, Plotts testified as follows.
- On April 8, 2009, he resided at his residence, located at 630 Monroe, Van Wert, OH.
- He left his residence for class in Lima, Ohio, driving a green car.
- He returned home to retrieve a book and, upon arrival, discovered his residence on fire and called 9-1-1 on his cell phone.
- After the fire was under control, he met with Assistant State Fire Marshal Frank Ritemeyer and signed a consent form allowing Ritemeyer to enter the residence, inspect it, and collect evidence. Upon exiting the residence, Ritemeyer locked the front door.
- As a result of the fire, Plotts made a claim with his home insurance provider, Erie, representing to them that he had no active role in starting the fire.
- On April 9, 2009, Plotts met with Rick Spencer, a licensed investigator specializing in fires, and Doug Kristof, a forensic engineer specializing in electrical engineering, and they toured the damaged home.
- On April 10, 2009, he met with Nate Swartz, an estimator with Swartz Contracting, and Brad Case, a manager with Service Master, at his residence, and they visually inspected the damage throughout the residence. Upon completion of the inspection, they left the residence, locking the front door.
The jury returned a verdict convicting Plotts on all eight counts. The trial court proceeded to find that counts one, two, and three were allied offenses and merged them into count one for sentencing purposes. The trial court also found counts five, six, and seven were allied offenses and merged them into count five for sentencing purposes. The trial court then sentenced Plotts to a 3-year prison term for count one, an 18-month prison term for count four, a 3-year prison term for count five, and a 6-month prison term for count eight.
Regardless of Plotts's claim that the evidence was not presented with strict compliance with a chain of custody requirement, the court found that "[a] strict chain of custody is not always required in order for physical evidence to be admissible." (Citation omitted). Further, any breaks in the chain of custody after establishment of such a reasonable certainty go to the weight afforded the evidence rather than its admissibility, and the court concluded that the testimony at trial set forth a sufficient chain of custody.
After both fires, Plotts's residence was secured by the fire department. Individuals entering the residence immediately following the fires did so to investigate the cause of the fires and survey the damage. As to those initial investigations, Ritemeyer, Kristof, and Spencer testified that they removed nothing from the residence, while Swartz and Case testified that they only conducted a visual inspection of the residence, taking pictures of the damage. In addition, several witnesses testified that the residence was locked upon their departure.
After retrieving the physical evidence from Plotts's residence, Spencer placed the evidence in his personal storage facility, which he locked. From that point on, Spencer maintained custody of all the physical evidence retrieved from Plotts's residence until he delivered it to the Van Wert County Courthouse for trial. In light of the following, the court found that the state, with reasonable certainty, established that no substitution, alteration, or tampering occurred with regard to the physical evidence presented at trial. And, although the chain of custody is not pristine in the present case, and it rarely is, Plotts has failed to identify evidence within the record that demonstrates substitution, alteration, or tampering of the physical evidence.
Plotts, having lost his first claim of error, then contended that he was denied effective assistance of counsel. Specifically, he claimed that trial counsel failed to call expert witnesses, inappropriately alluded to a conspiracy between the insurance companies and independent contractors, failed to effectively cross-examine eyewitnesses, and failed to challenge the absence of proof of loss forms in evidence.
The court noted that an ineffective assistance of counsel claim requires proof that trial counsel's performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. (Citation omitted.) To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, but for counsel's errors, the outcome at trial would have been different.
Plotts contended that trial counsel was ineffective because he did not call an expert to the stand and thus relied solely on cross-examination. The decision to call an expert is a matter of trial strategy. Plotts also contended that trial counsel was ineffective because he did not challenge the state's failure to submit proof of loss forms from either fire. The state, however, was not required to submit a written proof of loss form to prove Plotts committed insurance fraud, because the crime can be committed via an oral statement. Having found no error prejudicial to Plotts, the court affirmed the judgment of the trial court.
This case, even though it affirmed the conviction, teaches those involved in fraud investigation and the trial of insurance fraud cases to document the chain of custody of physical evidence acquired in the fraud investigation and keep all necessary documents to be presented at trial. It also teaches the criminal defendant to object to the presentation of evidence at trial if there is any reason to do so to avoid waiver.
Texas Arson Conviction Reversed
Consider, however, the reversal of a conviction for insurance fraud and auto arson from Texas where the Texas Court of Appeal concluded:
Viewing the evidence in a light most favorable to the prosecution, the evidence shows that appellant had a motive to commit arson, appellant was in possession of both sets of the keys to the SUV at the time that he stated it was taken, and appellant, at one point in time, may have taken various receipts, papers, and other items out of his SUV. We recognize that each fact need not point directly and independently to the guilt of appellant. However, the logical force of the probative evidence, coupled with reasonable inferences, must be sufficient to support the conviction. Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006). Here, there is simply no evidence that appellant was the person responsible for setting his SUV on fire. Motive alone is not sufficient to prove arson, and motive, coupled with appellant's possession of the keys to the SUV, does not show, beyond a reasonable doubt, that appellant was the person responsible for burning his SUV. Unlike the cases in which motive was a factor to be considered in reaching the conclusion that a suspect had committed arson, here, appellant was not seen in the area shortly before or after the fire, he was not present at the scene during the fire, and he was not found in possession of any items linking him to the fire. Our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Although the evidence shows that someone intentionally set fire to appellant's SUV, the evidence does not support a finding that appellant was the person who set the fire. Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could not have found beyond a reasonable doubt that appellant committed or was complicit in committing the offense of arson. Accordingly, we hold that the evidence is legally insufficient to support appellant's conviction.
Source: Ryan Rashad Merritt v. the State of Texas, No. 01-08-00939-CR (Tex. App. Dist. 1 March 10, 2011) (Emphasis added.)
The evidence against Merritt was not sufficient to prove a criminal case but is probably sufficient to prove a civil case that Allstate need not pay Merritt if it has more than a preponderance of evidence. However, the reversal should cause Allstate to review the facts of the case and its denial of the claim.
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