Ohio Court Of Appeals Upholds Arson Conviction Despite Allegations of Spoliation

The Ohio Court of Appeals has rejected the appeal of a convicted arsonist, that the fire department’s failure to preserve fire scene evidence warranted a reversal of his conviction. Bryan Kirby was convicted in Butler County Court of Common Pleas of aggravated burglary, arson, and two counts of aggravated arson. He was sentenced to a total of 13 years in prison.

Kirby claimed his attorney failed to properly represent him because he did not seek dismissal of the charges or the suppression of evidence due to the fire investigators’ failure to maintain exculpatory evidence. Kirby claimed the evidence, his estranged wife’s Ford Explorer where the fire began, was material to his defense warranting dismissal of the charges. The fire later spread to the dwelling where Kirby’s wife and son lived.

The Ohio Court of Appeals for the Twelfth Appellate District, Butler County, explained the facts and its reasoning as follows:

  • One morning in early September 2017, in Middletown, Ohio, [Kirby’s] estranged wife awoke to knocking on her house’s front door.
  • When she answered the door, she saw a man running away but warning that her house was on fire.
  • She went outside and observed that her vehicle, a Ford Explorer, parked in the driveway was fully engulfed in flames and that the fire had spread to her house, the detached garage in front of the vehicle, and her neighbor’s wooden fence next to the driveway.
  • The heat from the fire was intense enough to damage the siding of the neighbor’s house.
  • She quickly went back inside to rescue her young son and then retreated across the street.
  • The fire department arrived and successfully extinguished the fire.
  • [T]he fire department investigator determined that the fire originated in the vehicle and the cause was man-made.
  • A second fire investigator for the wife’s insurance company came to the same conclusion as to the fire’s origin and cause.
  • Later, in April 2018, [Kirby] visited one of his cousins in Middletown. The cousin noticed that [Kirby] was acting odd that day as he seemed anxious and stressed.
  • At some point, [Kirby] told the cousin that everybody was against him and taking his children away from him.
  • He then admitted that he had “only meant to get the explorer” and did not intend for the fire to spread to the house because he did not want to hurt his son.
  • [Kirby] argues that he received ineffective assistance of counsel because his trial counsel failed to move to either dismiss or suppress after counsel learned that neither the victim’s incinerated vehicle nor relevant engine compartment components had been preserved by the investigating government agencies.
  • To prevail on an ineffective assistance of counsel claim, [Kirby] must establish two factors: (1) that his trial counsel’s performance was deficient, that is, the performance fell below an objective standard of reasonable representation, and (2) he suffered prejudice from the deficiency.
  • The failure to prove either deficiency or prejudice is fatal to the ineffective assistance of counsel claim.
  • [Kirby] argues his due process rights were violated by the state’s failure to preserve evidence.
  • When considering whether the failure to preserve evidence implicates due process, the threshold question is: what is the nature of the evidence in question?
  • Was the evidence “materially exculpatory” or merely “potentially useful?”
  • To be materially exculpatory, the evidence must possess an apparent “exculpatory value” before it was lost, and the defendant must be unable to obtain comparable evidence by other reasonably available means.
  • If the evidence is materially exculpatory, it is immaterial whether the government acted in good or bad faith by failing to preserve the evidence, the loss of the evidence amounts to a violation of the defendant’s right to the due process of law.
  • Here, [Kirby] contends that the vehicle was material exculpatory evidence because it would have allowed him to prove that the cause of the fire was a known defect in the vehicle. In support, [Kirby] argues that the vehicle was subject to a recall from the manufacturer, as demonstrated by a notice from the National Highway Transportation Safety Administration.
  • The subject of the recall was a component in the vehicle’s cruise control system.
  • The recall notice specifically warned that a defect in the cruise control system could be a fire hazard regardless of whether the vehicle’s engine was on or off.
  • After review of the record, we find that [Kirby] has failed to establish that the vehicle constituted materially exculpatory evidence. While the vehicle was subject to a recall, the vehicle or its components did not possess any apparent exculpatory value.
  • [Kirby’s] fire investigation expert admitted that fire investigation guidelines promulgated by the National Fire Protection Association allow a fire investigator to review investigations by looking at relevant fire scene photographs.
  • Therefore, [Kirby’s] expert was able to adequately review and assess the fire scene.

Here is a copy of the ruling:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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