Dees v. State

• Citation: 126 So.3d 21
• Decision Date: 21 November 2013
• Docket Number: No. 2012–KA–01128–SCT.,2012–KA–01128–SCT.
• Parties: Elizabeth Regina DEES a/k/a Elizabeth Dees a/k/a Regina Dees v. STATE of Mississippi.
• Court: Mississippi Supreme Court

126 So.3d 21

Elizabeth Regina DEES a/k/a Elizabeth Dees a/k/a Regina Dees

v.STATE of Mississippi.

No. 2012–KA–01128–SCT.

Supreme Court of Mississippi.

Nov. 21, 2013.

Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.

CHANDLER, Justice, for the Court:

¶ 1. After a trial in the Circuit Court of Tippah County, Regina Dees was convicted of arson and insurance fraud. For arson, the court sentenced Dees to ten years in the custody of the Mississippi Department of Corrections, with two years to serve and eight years suspended, with three years on post-release supervision. For insurance fraud, the court sentenced Dees to two years to run concurrently with the arson sentence. Dees appeals, challenging the sufficiency of the evidence supporting both convictions. Because the evidence sufficiently supports the convictions, we affirm.

FACTS

¶ 2. In January 2008, Dees made a claim against her Farm Bureau homeowner's insurance policy arising out of the burglary of her residence in Ripley, Mississippi. In connection with this claim, Dees submitted a list to Farm Bureau of the stolen items and was reimbursed $7,480.24 for her losses. On October 6, 2008, a fire at Dees's residence destroyed the kitchen and caused extensive smoke and heat damage to the rest of the house. An investigation ensued, and Dees made another claim on her Farm Bureau policy. When Farm Bureau's fire investigator visited the house, he noticed the presence of items which Dees had reported stolen in the burglary. Farm Bureau hired an electrical engineer who ruled out an electrical cause of the fire. Then, the State Fire Marshal's office ruled that the cause of the fire was incendiary.

A. Arson conviction

1. Lay testimony

¶ 3. Stephen Freeman, a volunteer firefighter, testified that Ripley Fire and Rescue was notified of a fire at Dees's residence at 4:36 a.m. on October 6, 2008. When firefighters arrived, the fire was growing and coming through the roof in the rear of the house. Freeman opined that the fire would have been at the fully involved stage when it was reported four minutes earlier. Nineteen volunteer firemen put out the fire at considerable risk to everyone involved. Freeman observed that Dees showed no signs of exposure to a major fire. He noticed that Dees, who was outside when they arrived, was wearing pajamas and had a lot of jewelry on; also, her carport and vehicle were packed with household items.

¶ 4. On October 7, 2008, Dees spoke to Farm Bureau's claims adjuster, Delia Essary, about the fire, and two days later gave a voluntary statement to the fire marshal's office. Dees said that she had been fixing up the house to sell. In the last few months, she had put down new floor tile, bought new kitchen appliances, and was painting. Dees said that her son had visited the day before the fire and they had celebrated his birthday. After he left, she applied oil-based primer to the wall behind the refrigerator and painted furniture. That night she fell asleep watching television in the living room. She was awakened when a wind chime fell from the ceiling and hit her on the head. She observed that “the room was unbearably hot[-]flames were all across the kitchen and ceiling and start[ing] to get smokey.” She ran out of the house, called 911, and tried to extinguish the fire with a garden hose.

¶ 5. Dees did not testify but told witnesses of her belief that the fire had been caused by an electrical problem. Dees said that lights had been flickering in the hall and that she thought that her new refrigerator might have started the fire. She told her expert witness on fire investigation that the light switch on the east kitchen wall had a problem. And she told Essary that she kept mineral spirits in the house because she had been painting.

¶ 6. The State presented the testimony of two deputy clerks with the Tippah County Circuit Clerk's office. Crystal Graves testified that, a week before the fire, Dees visited the clerk's office to see her ex-husband, the then-circuit clerk. Dees told Graves that she no longer liked her house and was in the process of moving. According to Graves, Dees said that the wires were not good, the appliances were old, and “[i]t will end up burning down before long.” When Graves asked why it was going to burn, Dees said that “the wires have never been good and it will catch a fire one of these days from it. The fridge has been making noise and it's got problems too.” Graves was alarmed by the conversation and wrote it down. Rebekah Lewellen testified that, soon after the fire, Dees returned to the clerk's office and said that the refrigerator had caused her house to burn down.

¶ 7. Dees's son, Chris Dees, was a student at Northeast Community College in Booneville. Chris testified that, the day before the fire, he had visited Dees and she had asked him to take a number of items of sentimental value back with him to college. He testified that Dees's house had been rearranged and photographs had been removed from the walls. The day after the fire, Dees told him that she thought the refrigerator had caused the fire.

¶ 8. Dees's daughter, Alisha Basham, testified that her mother continually painted and remodeled the house. Basham testified that Dees had complained of a popping sound in the house.

¶ 9. The State presented evidence that Dees was undergoing financial hardship. She was unemployed, and her primary income was from disability benefits. She recently had taken out a second mortgage on her home. And three months before the fire, she had stopped receiving child support for Chris. In response, Dees put on evidence that, in October 2007, she had received her share of a settlement in the amount of $43,000.

2. Fire investigation testimony

¶ 10. Several fire investigators testified. Jonathan C. Owens, a deputy with the State Fire Marshal's office, testified his initial investigation showed the cause of the fire was either electrical or incendiary. Owens determined that the point of origin of the fire was in the area of the kitchen table, which had been covered with clothes. There were seven breakers in the tripped position, including those to the kitchen and refrigerator. This indicated that an electrical problem in the kitchen had tripped the breakers. Owens testified that, because he is not an electrical engineer, he was unable to rule out an electrical cause. Because he was unable to determine the fire's cause or rule out an electrical cause, Owens's initial report stated that the fire's cause was undetermined. But after he received the electrical evaluation of Farm Bureau's electrical engineer, Dr. John K. Owens,¹ that ruled out an electrical cause, Owens issued an amended report that ruled the fire incendiary in nature.

¶ 11. Dr. Owens testified that he had inspected the electrical system and appliances and had determined that the fire was not ignited electrically. Dr. Owens explained that, while an electrical fire can occur when a short heats a wire's insulation from the inside out, there was no evidence that a short occurred. He found that the circuit-breaker panel showed no signs of internal heating, and that the fire itself had caused the breakers to trip. Dr. Owens found that the refrigerator cord and wires in the attic displayed arching and beading, which, in some circumstances, can indicate internal heating caused by an electrical problem. But he determined that the arching and beading on the refrigerator cord and attic wires had been caused by fire damage, not from internal heating. He explained that oxidization on the wires would have shown they had overheated internally, and no oxidization was present. He opined that the fire had attacked the insulated wire and burned it, causing arching and beading that produced enough current to trip the breakers. He testified that no light switches had been involved in igniting the fire.

¶ 12. Dennis Welch, a fire investigator for Farm Bureau, visited the scene on October 8, 2008. He found significant fire patterns under the kitchen table and determined that was the point of origin. He testified that no patterns showed that the fire had originated in the east wall of the kitchen. Welch testified that he smelled ignitable liquid in the kitchen. He collected samples of floor tile from the kitchen, including the table area, and sent them for testing. He also collected pieces of the kitchen light fixture, pieces of a cardboard box from the kitchen, and liquid from a melted bottle found in the kitchen in front of the washer and dryer. Dennis Akin, a fire debris analyst, tested these submissions for the presence of ignitable liquid. Akin determined that all the samples contained ignitable liquid. Some of the kitchen floor tiles contained a mineral-spirits-type distillate, probably paint thinner. Other floor tiles and the light fixture parts contained a heavy mineral-spirits-type product. Other floor tiles and the cardboard box pieces contained a deodorized-kerosene-type product, possibly lamp oil.

¶ 13. A.K. Rosenhan, the Fire Services Coordinator for Oktibbeha County, testified for Dees as an expert on fire origin and cause. Rosenhan testified that he is a mechanical engineer, not an electrical engineer. Approximately eleven months after the fire, he visited the scene and spoke with Dees. He saw nothing at the scene to indicate the cause of the fire was incendiary. Rosenhan testified that the mastic underlying floor tile can yield a false positive for the presence of flammable liquid. In response to Dr. Owens's conclusion that the arching and beading on the wires showed that the fire had not been caused electrically, Rosenhan rejected this conclusion because the determination of whether arching and beading caused a fire or was caused by a fire is subjective.

¶ 14. Rosenhan testified that the fire pattern and...