Aden v. State, 84-219

• Decision Date: 10 April 1986
• Docket Number: No. 84-219,84-219
• Parties: Robert ADEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 326

717 P.2d 326

Robert ADEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-219.

Supreme Court of Wyoming.

April 10, 1986.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., John Renneisen, S. Asst. Atty. Gen., and Roger Fransen, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and ROSE, ^* ROONEY, ^** BROWN and CARDINE, JJ.

THOMAS, Chief Justice.

The major question to be resolved in this appeal is whether the testimony of an arson investigator who was presented as an expert witness must, as a matter of law, be held to be incompetent evidence. If that testimony is not competent, a corollary question then is raised as to the sufficiency of other evidence to sustain a conviction. We conclude that the expert testimony was competent evidence and that there is ample evidence to sustain the jury's finding of guilty. The judgment and sentence based upon that finding is affirmed.

Robert Aden was convicted of a violation of § 6-7-101, W.S.1977. ¹ The fire which the information charged Aden had started occurred in a mobile home which he occupied. During the course of the trial to a jury the testimony of an independent insurance investigator was offered as that of an expert witness, and the court permitted the witness to testify as an expert. The jury convicted Aden of the charge of arson in the first degree, and he was sentenced to not less than five nor more than seven years in the Wyoming State Penitentiary. It is from that judgment and sentence that Aden appeals.

Aden articulates the issue in his brief as follows:

"Whether the competent evidence presented to the jury was insufficient to sustain the conviction of willfully and maliciously setting fire to a dwelling house."

The State of Wyoming states the issues in this way:

"Can appellant properly assert error based upon the admission at trial of expert testimony to which no objection was made at trial?

"Was the testimony of James Ashby, an expert witness, incompetent and not properly admissible at trial?"

In support of his argument Aden relies upon the case of Belle Fourche Pipeline Co. v. Elmore Livestock Co., Wyo., 669 P.2d 505 (1983). In that case this court held that there had been a failure of proof of the loss in value of real property when an expert witness agreed on cross-examination that prior to testifying he had not known of a coal lease of the land, and because of that coal lease he could not find a willing buyer for the land for the highest and best use upon which he had premised his opinion of the value. His negative response left the landowner with no proof of the value prior to condemnation and no proof of any diminution in value. In both that case and this one no objection was made as to the qualifications of the expert witness. Although Aden submits a different contention, there is no significant similarity between his case and Belle Fourche Pipeline Co. v. Elmore Livestock Co., supra.

Aden premises his argument upon the proposition that the arson investigator did not have sufficient information available to him upon which to base his opinion. If the court were to accept Aden's reading of the record we might agree. Our examination of the record persuades us that it is significantly different from what Aden contends it to be. In Strang Telecasting, Inc. v. Ernst, Wyo., 610 P.2d 1011, 1015 (1980), this court said "[A]n imprecise factual discussion will not profit the advocate's client in this court. We see no reason to tolerate a practice which can only succeed if this court is misled." Aden also ignores the established concept that whenever the appellant in a criminal case challenges the sufficiency of the evidence, which is one of the points here, the duty of this court is to examine all the evidence in the light most favorable to the state to determine if there is sufficient evidence to uphold the verdict. Broom v. State, Wyo., 695 P.2d 640 (1985). When the evidence is viewed in that way Aden's claim of incompetent testimony from the arson investigator disappears.

The fire occurred on March 20, 1983, just outside the city limits of Casper. The Casper Fire Department was summoned to the fire, and it responded even though the officers of the department realized as they approached the mobile home which was burning that it was outside the city limits. The fire was suppressed within a short period of time. Fire department inspectors and fire investigators from the city of Casper were on the scene. As a matter of routine fire suppression, burning material was taken from the room where the fire originated while the fire was being suppressed.

The following morning the investigation was turned over to the Natrona County Fire Department, and an officer of the Natrona County Fire Department investigated the scene of the fire on March 22. Several days later, on March 26, the independent insurance investigator who testified as an expert at the trial was called upon to investigate the fire. He examined the scene of the fire and the rubbish removed from the fire, and he interviewed Robert Aden. Sometime later on April 18, the Natrona County fire inspector pursued some additional investigation at the scene. He had with him a deputy sheriff and the county electrical inspector. An electrical junction box was secured from the premises on that occasion together with some carpet samples. After this further investigation, the prosecution of Aden was commenced.

The theory of the state of Wyoming in this case was that Robert Aden had intentionally started the fire which partially burned his mobile home. Aden's theory which he presented to the jury was that the fire had started accidentally because of a short in the junction box located in a closet of the mobile home which arced and ignited flammable materials which were near the junction box. Aden called as witnesses a captain in the Casper Fire Department, two expert witnesses, and Aden's bankruptcy attorney and trustee. These witnesses established that when the fire department arrived no flames were burning on the bedroom floor in the mobile home; that no accelerants were detected in carpet samples; that an electrical source for the fire could not be eliminated from the available evidence; and that Aden had no real motive for the fire. Obviously there was a conflict in the evidence, but our rule is that the credibility of witnesses, the weight of the evidence, and conflicts in the evidence must be resolved by the finder of fact, the jury in this instance. We are only justified in setting a verdict aside if there is not sufficient evidence to support it.

Turning then to the attack upon the expert testimony founded upon the Belle Fourche Pipeline Co. v. Elmore Livestock, Co., supra, case, Aden argues that we should go through a sequential process outlined there. He contends that we should conclude that the expert testimony of the insurance investigator was not competent. He then urges the court to conclude that in the absence of the opinion of the expert the evidence is not sufficient to support this verdict. The State of Wyoming suggests that we should disavow the rule set forth in Belle Fourche Pipeline Co. v. Elmore Livestock Co., supra, and re-establish, if it has in some way been lost, the proposition that the weight to be given the testimony of an expert witness is a question for the jury. The State bolsters this argument by the fact that at trial the testimony of the expert witness was not challenged as incompetent.

Aden points out that the expert witness explained what one should do in investigating a fire. A detailed examination of the general area of origin must be pursued; each layer of debris must be checked; the ashes must be sifted through layer by layer; knowledge of the nature of the material burned is essential; and these procedures are essential for an investigator to...