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State v. Huler

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
GINA M. HULER, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-627962-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Andrew T. Gatti, Assistant Prosecuting Attorney, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant



         { ¶1} Defendant-appellant, Gina M. Huler ("Huler"), appeals her conviction for aggravated arson. For the reasons set forth below, we affirm.

         {¶ 2} In May 2018, Huler was charged with one count of aggravated arson, in connection with a fire that occurred at the Parma, Ohio residence she shared with her boyfriend and two of their three children, as well as with their two dogs. In December 2018, the matter proceeded to a bench trial.

         {¶ 3} At trial, through the testimony of 11 state witnesses and Huler, who testified in her own defense, it was established that Huler and her boyfriend, Grant Delewski ("Delewski"), rented the house where the fire occurred for approximately four years. Huler and Delewski had an unwritten month-to-month tenancy requiring them to pay $400 per month, plus the cost of the utilities.

         {¶ 4} On April 13, 2018, the day of the fire, Delewski was at work, and the two sons were at work and school, respectively. Their landlord, Bernadette Kulikowski ("Kulikowski"), hired masons to tuck-point the chimney of the house, as well as the house next door, which had also been owned by Kulikowski. At approximately 1:00 p.m., after leaving the house twice and returning for the second time around 12:30 p.m., Huler came out of the house yelling and screaming that there was a fire inside and her dogs were trapped inside the house. Two neighbors assisted Huler by calling 911, and one of the masons rescued one of the dogs. The second dog was rescued after the fire department, police, and dog warden arrived on the scene.

         {¶ 5} The fire department extinguished three distinct fires in the home; one on the landing between the first floor and the basement; one on a hanging mail and key holder; and one at the entrance to the kitchen. There was evidence to suggest there would have been a fourth fire, but it failed to erupt. The fire caused approximately $4, 200 worth of damage.

         {¶ 6} Huler's neighbor Delores Whitescarver ("Whitescarver") testified at the trial. Whitescarver testified that on the day of the fire, she happened to be looking periodically out her window, which faces Huler's house. Whitescarver stated she could see the masons at work on the roof next door and later working on Huler's house. Whitescarver testified that when Huler returned home around 12:30 p.m., she appeared to speak briefly with the older of the two masons, and then went inside. Whitescarver stated that about 30 minutes later, she observed Huler running down the driveway and across the street screaming "fire."

         {¶ 7} Neighbors Dale Mitchell ("Mitchell") and Lauren Anselmo ("Anselmo") live across the street from Huler. Mitchell testified that he helped rescue one of the dogs when Huler ran across the street screaming "fire" and indicated that her dogs were still inside the house. Mitchell testified he had to enter the house twice before the dog would come out of the house. Anselmo testified that she had observed Huler walking her dogs the morning of the fire. Anselmo stated that sometime between 9:30 a.m. and 10:00 a.m., Huler got in her car and left. Anselmo testified that sometime between 12:30 p.m. and 1:00 p.m., she heard pounding on the side door and then heard Huler screaming and asking for help to save her dogs. On cross-examination, Anselmo testified that she had noticed that morning that Huler's dining room window, which was normally open, was closed. Anselmo testified it was a beautiful day and the only window Huler had open was the kitchen window.

         {¶ 8} Delewski, who works as a contractor, testified he was in downtown Cleveland, when a neighbor notified him of the fire. Delewski headed home, but the fire was extinguished by the time he arrived. Later that evening, in an interview with fire inspectors, Delewski expressed the belief that sparks were flying while the masons worked on the chimney, which traveled down the chimney through the attic floor and started the fires.

         {¶ 9} One of the masons, Michael Doracak ("Doracak"), testified that he retired from the Strongsville Fire Department after 33 years and has been involved in general contracting for 40 years. Doracak testified that Kulikowski hired him to tuck-point around the chimneys of the two houses, one of which was Huler's. Doracak explained that tuck-pointing involves cleaning out mortar joints with a grinder and then remortaring the joints. Doracak further explained that the process produces a lot of dust and does not produce any sparks. Doracak testified that in his 33 years as a firefighter, he had never responded to a fire caused by the grinding of mortar joints.

         {¶ 10} Doracak worked on Huler's house earlier that day and was on the roof of the second house, when he observed Huler running across the street yelling that the house was on fire. Doracak came down off of the roof to provide assistance. Doracak testified that smoke was billowing out the front door, so he used a crowbar to open the side door, and he was able to rescue one of the dogs. Doracak testified that by the time the fire department arrived, the fire was out and the house just needed ventilation.

         {¶ 11} Raymond Alessandro ("Alessandro"), a concrete contractor, testified that he worked with Doracak the day of the fire at Huler's house. Alessandro testified that he witnessed the fire, came down off of the roof, and provided assistance opening the side door so they could rescue the dogs. Alessandro also explained that grinding mortar joints does not produce sparks. Alessandro testified that there were no sparks when they tuck-pointed the chimney of Huler's house.

         {¶ 12} Mollie Jordan ("Jordan"), of the State Fire Marshal's Forensic Lab, testified that she analyzes evidence for possible ignitable liquids, possible latent fingerprints, and also swabs for DNA. Jordan testified that she tested the debris from the fire. Specifically, Item Number 1, debris from the kitchen and hallway floor, tested negative for ignitable liquids; Item Number 2, debris from the kitchen table, tested negative for ignitable liquids; Item Number 3, debris from the trash can on the stairs, tested positive for acetone; Item Number 4, debris from the attic, tested positive for gasoline; and Item Number 5, plastic bottle from the attic, tested positive for gasoline.

         {¶ 13} Jordan testified that Item Number 5, the plastic bottle, was processed for latent prints, but no prints of value were found. In addition, the lid of the bottle was swabbed for DNA and the swab was sent to BCI for testing. Jordan testified the report from BCI indicated there was no DNA suitable for testing. Jordan explained that if someone touched an item for only a second or with freshly ...

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