State v. Christian

2014 Ohio 2672

STATE OF OHIO Plaintiff-Appellee v. EVA CHRISTIAN Defendant-Appellant

C.A. CASE NO. 25256

T.C. NO. 11CR563

COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

Rendered: June 20, 2014

(Criminal appeal from

Common Pleas Court)

OPINION

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162 and MATTHEW T. CRAWFORD, Atty. Reg. No. 0089205, Assistant Prosecuting Attorneys, 301 W. Third Street, 5^th Floor, Dayton, Ohio 45422

Attorneys for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 15 W. Fourth Street, Suite 100, Dayton, Ohio 45402

Attorney for Defendant-Appellant

FROELICH, P.J.

{¶ 1} Eva Christian was found guilty by a jury in the Montgomery County Court of Common Pleas of two counts of insurance fraud, two counts of making false alarm, and one count of engaging in a pattern of corrupt activity. She was sentenced to anaggregate term of nine years of imprisonment, was ordered to pay restitution totaling more than $80,000, and was ordered to forfeit her home. Christian appeals from her convictions.

{¶ 2} For the following reasons, the judgment will be affirmed in part, as modified, and reversed in part. The matter will be remanded for resentencing on Counts Two and Three and for entry of a judgment consistent with this opinion.

Facts

{¶ 3} The State's evidence established the following facts:

{¶ 4} In 2009, Christian set in motion a plan for committing insurance fraud. She sent a letter to Jack Presley, seeking his assistance, but Presley was in jail; it is unclear how Christian knew Presley. Presley's stepfather, Darryl Adams, opened Christian's letter to Presley and contacted Christian himself. Christian, Adams, and Adams's wife, Diane Jones, had conversations and meetings to discuss staging a burglary at Christian's house on Saint Laurent Circle in Washington Township. They also discussed Christian's hiring Adams for a painting project at her home, to provide a legitimate basis for their relationship. Christian laid out a plan by which she would box up the items she wanted Adams to take and would leave a garage door unlocked. She offered to pay Adams and Jones $1,000 for the job, with $500 paid up front and the rest to be paid when she got the insurance check.

{¶ 5} On October 9, 2009, Adams and Jones went to Christian's house, entered through the unlocked garage door, and removed numerous items that Christian had boxed or wrapped in a bed sheet. Adams also used a "tire tool" on the door to make it look as if someone had broken in. Christian had paid them to put her items in storage, but Adams and Jones spent the money on drugs and kept Christian's belongings at their house.

{¶ 6} On October 11, 2009, Christian reported a burglary at her home. She reported to Montgomery County Sheriff's deputies that televisions, computers, designer purses, video game systems, several types of currency, and other items were missing from her home. She filed an insurance claim with Cincinnati Insurance Company for approximately $93,000 shortly thereafter. Cincinnati Insurance eventually issued two checks to Christian: $15,420 to replace three "quite expensive" doors and a separate check for $36,331.96, representing the replacement cost of the stolen items.

{¶ 7} About one month after the reported burglary, Christian retrieved the "stolen" items from Adams and Jones.

{¶ 8} After the burglary, Christian began to plan another staged crime at Cena Restaurant at the Dayton Mall, with Adams's help; Christian owned Cena. In order to make it appear that someone was out to get her, Christian staged a shooting at her home. On the night of December 4, 2009, she called the sheriff's department to report that someone had shot at her in the driveway of her home. Two deputies responded, but they found no shell casings, damage to the home, or other evidence of a shooting, and Christian was uninjured. Christian contacted Adams that same night to discuss the problem of the deputies' not finding any evidence; she asked Adams to "come back." The next day, on December 5, Christian called the sheriff's department to report that she found bullet holes in her garage and spent casings nearby, where the deputies had looked the previous night. Two days later, Christian reported receiving a threatening phone call from a "restricted" number that alluded to the shooting and to making her "pay."

{¶ 9} Meanwhile, Christian had talked with Adams and Jones about "blowingup" her restaurant at the Dayton Mall. She offered to pay Adams and Jones $5,000 for the job. She informed them that she would turn off the security camera, gave them a key to the restaurant, and gave them advice on avoiding detection by the mall's surveillance. Christian also planned to fire an employee, Christopher Hale, who was about the same size as Adams, so they could frame him for the crime.

{¶ 10} Christian fired Hale by phone on December 22, 2009, allegedly for disrespecting a customer. Hale was the last one to leave and close up the restaurant that night, and he noticed that the key to the back door was missing. He called Christian to tell her about the missing key, and she told him not to worry about it because she was on her way to the restaurant. Hale waited approximately half an hour, but when Christian still had not arrived, he left.

{¶ 11} Detective Brad Daugherty, who was investigating the burglary and the shooting at Christian's home, stopped by Christian's house on December 24, 2009. Christian was not at home, but her son, Julian, let Detective Daugherty into the home. Detective Daugherty observed and "made a mental note" of "several items inside the home that were similar to those that had been reported stolen."

{¶ 12} On the night of December 24, Christian told Adams and Jones that the job had to be done that night because bills were coming due very shortly. At approximately 9:00 p.m., the surveillance equipment at the restaurant stopped recording; shortly thereafter, the mall's surveillance equipment documented Christian's departure from the parking lot.

{¶ 13} Adams went to the restaurant that night, but rather than starting a fire according to Christian's plan, he unplugged freezers, cut up furniture, and dumped bottles ofliquor. Christian later complained that Adams had not done enough damage and that she wanted the restaurant blown up.

{¶ 14} On December 26, 2009, the Miami Township police responded to a reported burglary or vandalism at Cena. Officer Tim Beatty observed that there was no sign of forced entry, that furniture had been slashed, that liquor bottles had been opened and dumped but not broken, and that the refrigerators had been unplugged. Christian mentioned Hale as a possible suspect. Officer Beatty proceeded to the mall security office to see whether there was anything of value on the mall's surveillance videos. When he had been gone from the restaurant only twenty to thirty minutes, he received a call regarding a fire at Cena.

{¶ 15} Fire investigators observed a box with burnt receipt books, a burnt phone book, and burnt curtains in the back office of the restaurant. The sprinklers had activated and done significant additional damage to the restaurant. Christian claimed that she had left the restaurant to get coffee, but reported that she had been smoking in the office earlier and could not remember what she had done with her cigarette. Fire personnel closed off the office door with evidence tape before they left the scene, believing at that point that the fire had been accidentally started by Christian's cigarette.

{¶ 16} Fire Lieutenant Thomas Fahrney returned to the restaurant on December 29, 2009. He found that the evidence tape had been ripped down and the door to the office had been opened. He also noticed that there was damage to the restaurant on the 29^th that had not been present on the 26^th. He documented additional damage in the bathrooms, serving areas, and bar area.

{¶ 17} Lieutenant Fahrney was again dispatched to Cena on January 5, 2010, to investigate a natural gas leak. When he inspected whether the grill was leaking gas, he found that knobs were broken which had not been broken at his previous visits. On January 12, while responding to another natural gas leak, Lieutenant Fahrney observed that a gas burner had been turned on with no flame.

{¶ 18} Erie Insurance insured the Cena restaurant. Its investigator, Mike Miller, as well as some contractors hired to restore the property, also noticed that the damage to the restaurant was becoming more extensive from one visit to the next. By January 5, damage was noted in almost every room, including the restrooms. The repair estimates of the contractors increased by over $80,000 during the week following the initial vandalism and fire. A fire investigator determined that the fire was caused by a "human act" with an open flame, likely a match or a lighter. After an extensive investigation, Erie Insurance denied Christian's claim with respect to the restaurant.

{¶ 19} After Detective Daugherty learned that Cena had been vandalized, he contacted Miami Township Police Department Detective Todd Comer, who was assigned to that case. Detective Comer told Detective Daugherty that a confidential informant had informed him (Comer) that Christian staged the Cena vandalism with Adams's help. Thereafter, the detectives met with Adams and Jones (who had been arrested on unrelated charges), and Adams's son, Darryl Adams, Jr. (who was in the county jail).¹

{¶ 20} Based on these conversations and Detective Daugherty's observation ofpossibly stolen property at Christian's house on December 24, Daugherty prepared an affidavit in support of a search warrant for Christian's home. The warrant was obtained on January 19 and executed on January 20, 2010. During the search, deputies seized a variety of items, including the computers at Christian's home. Forensic investigation of these computers confirmed that Christian and her son had possessed the computers prior to the burglary, i.e., that they were the same...