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State v. Jackson

Court of Appeals of Ohio, Fourth District

June 14, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES E. JACKSON Defendant-Appellant.

George J. Cosenza, Parkersburg, West Virginia, for Appellant.

James Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland Presiding Judge.

{¶1} James E. Jackson, II, appeals the judgment of the Washington County Court of Common Pleas. Jackson, (hereinafter "Appellant") was convicted of involuntary manslaughter, a violation of R.C. 2903.04(B) and a felony of the third degree, child endangering, a violation of R.C. 2919.22(A) and (E)(2)(c) and a felony of the third degree, and misdemeanor child endangering, a violation of R.C. 2919.22(A) and (E)(2)(A). Appellant contends the trial court erred by: (1) denying his motion in limine to exclude evidence that the children involved were left unattended prior to the date of the incident; and (2) overruling his motion to prohibit the State of Ohio from calling a rebuttal witness that had not been previously disclosed. Upon review, we find the trial court did not err and abuse its discretion with regard to either ruling. As such, we overrule both assignments of error and affirm the judgment of the trial court.

FACTS

{¶2} On February 25, 2011, Appellant was indicted by the Washington County Grand Jury on one count of involuntary manslaughter and two counts of child endangering. These indictments followed a devastating October 18, 2010 fire, which occurred at vacant property located on 6th Street in Belpre, Ohio, and was owned by Appellant. At the time of the fire, Appellant and his significant other, Chrystal Dillon (hereinafter "Dillon"), resided in a Florence Street property adjoining the fire location and also owned by Appellant. The properties were connected by a wooden deck. Appellant stored legal Ohio fireworks in the unoccupied 6th Street building. He had stripped the drywall off the 6th Street building's interior during the process of renovation. Two children, Josh McCollors (hereinafter "Josh"), age 4, and Bianca Jackson (hereinafter "Bianca"), age 2, resided with Appellant and Dillon.

{¶3} Josh and Bianca were playing inside the vacant building when the fire erupted. Appellant and Dillon were in an upstairs room of the residence, searching for paperwork. [1] Appellant and Dillon were unable to see or hear the children as they were separated by approximately 75 feet of hallways and wall.

{¶4} Josh was able to escape when the fire started. The lack of drywall caused the fire to become very hot and spread quickly. The building was soon engulfed in flames. Various local agencies responded to the scene to attempt to control the fire and extinguish it. Neighbors arrived and canvassed the area in search of Bianca. There became a strong suspicion that Bianca had been trapped in the building. Eventually, Bianca's charred body was found in the basement, surrounded by debris.

{¶5} The State of Ohio argued Appellant and Dillon failed to properly supervise the children. The State presented testimony from several witnesses: Belpre Fire Chief Robert Frank; Officer Eric Augenstein; Leonard Wilfong; Cory McCullors; Mike Stellfox, an investigator for the Ohio State Fire Marshal's Office; Dr. Russell Uptegrove, a forensic pathologist; and Belpre Police Chief Ernest Clevenger. Appellant filed a motion in limine to prevent the State from introducing any evidence demonstrating that the children were left unattended on dates prior to the fire. The trial court denied Appellant's motion.

{¶6} Chief Frank testified he responded to the fire at approximately 2:27 p.m., along with units from Belpre, Parkersburg, and Little Hocking fire departments. Because Appellant had removed the drywall in the building which, ordinarily, would serve as a barrier to keep the fire from spreading, the fire was also very hot. In fact, the heat caused vehicles across the street and a house to begin melting. Chief Frank testified it took approximately two hours to get the fire under control. Officer Eric Augenstein testified he arrived at 2:30 p.m. and found the building engulfed in flames and the roof falling.

{¶7} Mike Stellfox performed an investigation on behalf of the Ohio State Fire Marshal's Office. While investigating the burned area, he noted the presence of fireworks in the building, along with cans that appeared to contain flammable liquids. He spoke to Appellant at the scene. Stellfox testified Appellant told him Josh had started a fire on the deck, a day or two before October 18th. Stellfox testified the fire was classified as an incendiary event because there was no known source of ignition, such as utilities or electric malfunction. It could not be ruled out that human act occurred to cause the fire.

{¶8} Stellfox also identified a photograph of the back yard of the buildings. The photo revealed a yellow extension cord which ran from Appellant's residence through his yard, to his father's residence. Stellfox opined neither the residence nor the vacant building had electrical service at the time of the fire. Stellfox also testified the distance from the parents' bedroom to where the fire began was 75 feet or so, with doors and walls in between.

{¶9} Mike Stellfox also testified when Bianca's body was discovered, it could not be determined where she was when she died. The upper floor had collapsed and she was discovered in the basement. She was mixed in with debris. Dr. Uptegrove testified the autopsy he performed revealed Bianca died as a result of the inhalation of products of combustion.

{¶10} Leonard Wilfong, Appellant's neighbor testified there were times, at least once a week, when he saw the Josh and Bianca playing near the street without parental supervision. He testified that just one day before the fire, he overheard Appellant yelling that Josh had "caught the place on fire again."

{¶11} Cory McCullors, Josh's biological father, testified he lived nearby and often walked to Appellant's residence to visit Josh. He testified there were times when he observed the children unsupervised, playing outside alone. On the evening of the fire, McCullors took custody of Josh. He testified Josh was very upset about the fire. McCullors handed Josh a lighter and he responded by saying "That's what started the fire. Sissy got scared and ran for the bedroom." McCullors testified that both Appellant and Dillon smoked. He also testified Josh knew how to push the fluid button on a lighter.

{¶12} Karen Seagraves, a case worker for Children's Services, testified she had spoken with Appellant and Dillon numerous times about issues which included Bianca's being left unattended in the middle of the street, provision of a safety barrier on the family's upper level wooden decking, and fireworks' safety. Specifically, she had advised the children should not have access to fireworks. She had visited the home, unannounced, at least 20 times. The ...


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