The Akron Legal News

Arsonist who set his own home ablaze loses appeal

JESSICA SHAMBAUGH
Special to the Legal News
Published: January 16, 2014

A Tuscarawas County man was properly convicted of aggravated arson and insurance fraud after he set a fire that destroyed his home, according to a recent opinion from the 5th District Court of Appeals.

The three-judge appellate panel ruled this week that testimony from Aaron Fender’s friend and former co-worker was enough to find him guilty of burning down his home and affirmed the judgment of the Tuscarawas County Court of Common Pleas.

“The linchpin of the state’s case was the testimony of Josh Liggett,” Judge Sheila Farmer wrote for the court.

At a jury trial, Liggett testified that he was staying with Fender while he worked on his relationship with his ex-wife.

During his stay, he stated that Fender used his truck to go camping in the area.

Liggett recalled going with Fender to pickup firewood and said while they loaded it into the truck Fender told him “I think I’m going to burn down the house tonight.”

Fender then reportedly asked Liggett for cash to purchase gas, noting that he wanted to avoid using his debit card because “they can trace that.”

Liggett said he expressed concern about his belongings in the house and Fender agreed to give him $10,000 from the insurance proceeds.

He told the court Fender placed a gas can under the firewood in the garage and told Liggett that the can was “hid pretty good.”

The state presented evidence that the fire started around 10:30 that night and that Fender was not at his campsite at that time.

Fender left the campsite for a “beer run” and told his wife that he was delayed because he couldn’t find the kind of drinks she wanted and his debit card wasn’t working.

His brothers-in-law confirmed that they did not see Fender at the campsite until “much later” that night and a neighbor testified that she saw Liggett’s truck at the house on the night of the fire.

Fender’s text messages to Liggett were also introduced as evidence, including one sent the day after the fire telling him that the “house burnt last night.”

Liggett said Fender told him a few days later that he started the fire with the gas in the basement home theater and stairway.

A Tuscarawas County Sheriff Deputy contacted Liggett a couple weeks later and he told them everything he knew in exchange for immunity.

Liggett testified that he eventually found $8,000 of the money promised to him stuffed in a box in his truck and turned it over to the police.

He and his ex-wife also testified that there was a bag under the driver’s seat of the truck containing photographs of Fender’s children, kids’ journals, a car title, social security cards and jewelry.

A State Farm Insurance employee also told the court that Fender submitted a proof of loss form indicating that he did not cause the loss of his home.

The jury found Fender guilty of aggravated arson and insurance fraud and he was sentenced to three years in prison.

On appeal to the 5th District, Fender argued that the trial court improperly conducted a second voir dire.

The appellate judges reviewed the record and found that the trial court swore in the jury and the following day, before opening statements, a juror informed the court that she could not continue because of a grave illness in her family.

Two more jurors had to be dismissed because of vacation plans and work schedules.

The trial court then held a second voir dire to replace to jurors and gave extra peremptory challenges for each juror.

The appellate panel maintained that the trial court followed the governing statute for replacing the jurors.

“The trial court called in additional jurymen, afforded each side additional peremptory challenges, all of which were not used, and started the trial anew,” Judge Farmer stated, dismissing Fender’s first assignment of error.

Fender next contended that his convictions were against the manifest weight and sufficiency of the evidence.

“Appellant claims his convictions were against the sufficiency and manifest weight of the evidence as the evidence suggested two different theories for the fire: one, an accidental fire or two, he purposely started the fire. We disagree,” Judge Farmer wrote.

The judges found that Liggett’s testimony was given credibility because it was corroborated by testimony from his ex-wife and Fender’s brothers-in-law.

They also found the state presented evidence that Fender was unhappy with his home and had been unable to sell it, showing a motive, and was missing from the campsite, showing an opportunity.

“Upon review, we conclude there was sufficient, credible evidence, if believed by the jury, to sustain the convictions,” Judge Farmer concluded.

Presiding Judge Scott Gwin and Judge John Wise concurred.

The case is cited State v. Fender, 2014-Ohio-19.

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