State v. Everhart

[Cite as State v. Everhart, 2020-Ohio-4948.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               FAYETTE COUNTY




 STATE OF OHIO,                                      :

        Appellee,                                    :      CASE NO. CA2020-03-005

                                                     :           OPINION
     - vs -                                                      10/19/2020
                                                     :

 DAVID W. EVERHART,                                  :

        Appellant.                                   :




      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                           Case No. CRI20190216


Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, 110 East Court
Street, Washington Court House, Ohio 43160, for appellee

Steven H. Eckstein, 1208 Bramble Avenue, Washington Court House, Ohio 43160, for
appellant


        RINGLAND, J.

        {¶1}     David Everhart appeals from his conviction in the Fayette County Common

Pleas Court for attempted arson. For the reasons described below, this court affirms

Everhart's conviction.

        {¶2}     A grand jury indicted Everhart for attempted arson after law enforcement

found his DNA on a makeshift incendiary device located on the ground near a barn. The
                                                                       Fayette CA2020-03-005

matter proceeded to a jury trial, where the evidence revealed that on October 26, 2018,

Ollie Sponcil was at his farm driving a tractor. As he drove by the barn, he noticed a wooden

arrow on the ground.

       {¶3}   The arrow was approximately 40 feet from the open barn door and 25 feet

from the road. A plastic bottle had been duct-taped to the point of the arrow. There was a

wick or fuse protruding from a hole cut into the bottle lid and it appeared that the bottle

contained paper towels soaked in a liquid. There was a small burn mark on the ground

near where the fuse had apparently burned before extinguishing. Other than the small burn

mark, there was no damage to Sponcil's barn or the remainder of his property.

       {¶4}   Law enforcement arrived, collected the device for evidence, and

photographed the scene. Law enforcement then transferred the device to the state fire

marshal's laboratory where a criminalist analyzed the material inside the bottle and

determined that it had been soaked in a medium petroleum distillate and heavy petroleum

oil, which would be consistent with lighter fluid and two-cycle oil.

       {¶5}   The criminalist also swabbed the device for DNA, taking samples from the

arrow, the bottle lid and fuse, and the bottle mouth. Those swabs were sent to the state

Bureau of Criminal Investigation (BCI) for further analysis and comparison to the Combined

DNA Index System (CODIS). No DNA was recovered from the arrow. However, initial

testing of the samples from the bottle mouth, lid, and fuse produced DNA results and a

CODIS hit, indicating that Everhart was a possible match.

       {¶6}   Law enforcement then obtained a search warrant for Everhart's DNA. They

took an oral swab and forwarded it to BCI. A BCI scientist found that the DNA swabs taken

from the lid and fuse returned a mixture of two DNA profiles, one of which was unknown,

and the second of which matched Everhart's DNA with an expected frequency of

occurrence of the same DNA in an unrelated individual at 1 in 900,000. The DNA swab on

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                                                                       Fayette CA2020-03-005

the bottle mouth returned a major profile that matched Everhart's DNA sample with an

expected frequency of occurrence of the same DNA in an unrelated individual at 1 in 1

trillion.

            {¶7}   Sponcil testified that at the time he observed the arrow, the barn contained

about $500,000 worth of hay and farming equipment. Sponcil also testified as to a potential

motive. He had recently purchased, from Everhart's mother, a tract of land that adjoined

his land. Everhart lived on this tract. Everhart was told he had to leave but instead held

over for six months. Sponcil had not yet initiated eviction proceedings.

            {¶8}   Sponcil further testified that he was driving a combine to harvest soy on the

strip of land next to where Everhart lived. He found steel rods had been driven into the

ground that were tied to cables. These rods apparently caused some minor damage to the

combine. Sponcil believed that if the rods had functioned as intended, they would have

entered the harvester and caused serious damage.

            {¶9}   Everhart presented no defense. The jury returned a guilty verdict. Everhart

appeals, raising two assignments of error, which he argues collectively.

            {¶10} Assignment of Error No. 1:

            {¶11} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S

CRIM.R. 29 MOTION FOR ACQUITTAL AS THE EVIDENCE PRESENTED WAS

INSUFFICIENT TO CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A

REASONABLE DOUBT IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR

TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE

OHIO CONSTITUTION.

            {¶12} Assignment of Error No. 2:



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                                                                    Fayette CA2020-03-005

       {¶13} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY

BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE,      FIFTH     AND     FOURTEENTH         AMENDMENTS,          UNITED     STATES

CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

       {¶14} In his two assignments of error, Everhart argues that his conviction was

supported by insufficient evidence and was against the manifest weight of the evidence

because the jurors were required to stack inferences to find him guilty. Everhart argues

that the DNA evidence only showed that he touched the bottle and the bottle's lid. He

argues that it would require the jurors to stack inferences in order to conclude that he also

filled the bottle with a flammable liquid, attached the bottle to an arrow, and then fired the

arrow toward the barn.

       {¶15} The concepts of sufficiency of the evidence and weight of the evidence are

legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10.

Nonetheless, a finding that a conviction is supported by the manifest weight of the evidence

is also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-

03-049, 2013-Ohio-150, ¶ 19. "Because sufficiency is required to take a case to the jury, a

finding that a conviction is supported by the weight of the evidence must necessarily include

a finding of sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-

1896, ¶ 43.

       {¶16} A manifest weight challenge examines the inclination of the greater amount

of credible evidence, offered at a trial, to support one side of the issue over another. State

v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing

whether a conviction is against the manifest weight of the evidence, a reviewing court

examines the entire record, weighs the evidence and all reasonable inferences, considers

the credibility of the witnesses, and determines whether, in resolving conflicts in the

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                                                                    Fayette CA2020-03-005

evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered. State v. Morgan, 12th

Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.

       {¶17} "Impermissible inference stacking" involves drawing an inference based

entirely upon another inference, unsupported by any additional facts or another inference

derived from facts. State v. Braden, 12th Dist. Preble No. CA2013-12-012, 2014-Ohio-

3385, ¶ 12. The rule is "extremely limited" and does not prohibit drawing parallel inferences

in combination with additional facts or drawing multiple, separate inferences from the same

facts.

Id. at ¶ 12-13.

       {¶18} The jury was not required to impermissibly stack inferences to find Everhart

guilty of attempted arson. Jurors could draw multiple, separate inferences from the same

set of facts, which facts were that Everhart's DNA was found on various parts of the

incendiary device and that Everhart had a motivation to damage Sponcil's property. From

the DNA evidence, jurors could reasonably conclude that Everhart possessed the bottle.

From the same evidence, and especially with respect to the DNA found on the fuse and lid,

jurors could reasonably infer that Everhart constructed the incendiary device. Finally, given

the evidence regarding Everhart's negative connection with Sponcil, jurors could

reasonably infer that Everhart was the person who lit the fuse and shot the incendiary device

towards Sponcil's barn, where it fortunately fell well short of its target. Accordingly, this

court finds that Everhart's conviction was supported by sufficient evidence and was also

supported by the greater weight of the evidence. This court overrules Everhart's first and

second assignments of error.

       {¶19} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.


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