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State v. Crytzer

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 10, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
KYLE ROBERT CRYTZER, Defendant-Appellant.

          Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR 00373.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, (For Plaintiff-Appellee).

          Christopher J. Boeman, P.O. (For Defendant-Appellant).

          OPINION

          MARY JANE TRAPP, J.

         {¶1} Appellant, Kyle Robert Crytzer ("Mr. Crytzer"), appeals from the judgment of the Ashtabula County Court of Common Pleas, which sentenced him to an eleven-year prison sentence after a jury found him guilty of two counts of aggravated arson and one count of domestic violence.

         {¶2} Mr. Crytzer contends the trial court abused its discretion and he received ineffective assistance of counsel because a recorded statement made by the victim shortly after the house fire was not played for the jury and because the trial court encouraged the jury to deliberate quickly so the trial would be finished in one day.

         {¶3} A thorough review of the record reveals Mr. Crytzer's assignments of error are without merit. First, the victim's statements to the investigator were not inconsistent with her trial testimony. Second, while the trial court did inquire if the jury was available and willing to deliberate into the evening so they would not have to return the following day, we find the trial court did not pressure the jury to rush into a decision, and there is no evidence the jury did not seriously consider the charges against Mr. Crytzer.

         Substantive and Procedural History

         {¶4} On a summer evening in 2017, the victim, Danyelle Mullins ("Ms. Mullins"), planned a "girl's night out" with her friend, Chelsea Tuttle ("Ms. Tuttle"). They were in a downtown Ashtabula tavern when Mr. Crytzer texted Ms. Mullins, his ex-girlfriend and mother of his three-year old child, asking if he could join them. Ms. Mullins agreed, and he met them at the first tavern. The three then went into several more bars, and on to the way to the third, Mr. Crytzer left the two ladies and went in the other direction to meet a friend.

         {¶5} Ms. Mullins and Ms. Tuttle decided to order a pizza to be delivered to Ms. Mullins' home and stopped at one more bar. The two shared a drink and noticed Mr. Crytzer sitting alone in a booth watching them. Mr. Crytzer walked back with them to Ms. Mullins' home. Ms. Mullins and Mr. Crytzer argued on her porch. He pushed his way inside and grabbed a piece of pizza. The two ladies then pushed him out of the house. Mr. Crytzer was outside on the porch, knocking on the windows and the door. He screamed that "he was gonna light the house on fire."

         {¶6} Scared, the two ladies ran upstairs. Ms. Mullins called her brother, and Ms. Tuttle called the police. The porch was on fire, melting the siding. Ms. Mullins was able to extinguish the fire with a couple of Gatorade bottles. Investigators found orange-brown deck stain splashed all over the deck and a neighbor's ladder propped up against the side of the house going to a second story window.

         {¶7} Mr. Crytzer was seen standing shirtless with his dog approximately two houses down, watching the fire, and was apprehended a short while later. His jeans and hands had orange-brown deck stain splattered on them, and he had a lighter in his pocket. At trial, Captain Stephen Chase of the City of Ashtabula Fire Department ("Captain Chase") opined that the fire was caused by "the deck stain that was splattered on the deck," which was ignited by an "open flame device."

         {¶8} Captain Chase was the fire investigator who interviewed Ms. Mullins regarding the night of the fire, and that interview is the subject of assigned error in this appeal.

         The Court Proceedings

         {¶9} Mr. Crytzer was indicted on two counts of aggravated arson in violation of R.C. 2909.02(A)(1) and R.C. 2909.02(A)(2), felonies of the first and second degree, respectively; breaking and entering in violation of R.C. 2911.13(B), a felony of the fifth degree; attempted burglary in violation of R.C. 2923.03(A)/2919.19(A)(1), a felony of the third degree; and domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree.

         {¶10} There were two jury trials in this case. The first jury found Mr. Cyrtzer not guilty of breaking and entering and attempted burglary, but deadlocked on the remaining counts of aggravated arson and domestic violence. The case was reset for a new jury trial on the remaining counts.

         {¶11} At the second two-day trial, the state presented evidence and the testimony of Ms. Mullins; Nikki Harson, Ms. Mullins' neighbor who observed the fire; Mr. Crytzer standing watching the fire with his dog a few houses down; Dustin Pal, Ms. Mullins' brother whom Ms. Mullins called during the incident; Ms. Tuttle; Patrolman Eric Massie, who was at the scene; and Captain Chase. Mr. Crytzer presented the testimony of Michael Alan Keyes and Danielle Colicchio, his alibi witnesses.

         {¶12} After Ms. Mullins testified, the defense asked to play the recorded interview between Captain Chase and Ms. Mullins for the jury. The defense argued Ms. Mullins portrayed herself as a virtuous woman on the stand, but in the interview she admitted to Captain Chase she was quite intoxicated the evening of the fire. Mr. Crytzer argued the statements made by Ms. Mullins in her interview with Captain Chase were inconsistent with her trial testimony. The trial court reviewed the statements and found no inconsistencies.

         {¶13} Explaining the ruling, the trial court remarked, "I didn't get the impression that someone that claims they have two kids with two different guys and is not married and had five drinks in four different bars in the course of an evening portrayed herself incredibly virtuous. That isn't the impression I got from her; and she didn't deny that she made the statements you claim she did, she just said she doesn't recall." The trial court also noted, "[a]n omission is not an inconsistent statement."

         {¶14} After the trial court denied the request to play the recording for the jury, defense ...


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