Esquibel v. State
| Decision Date | 14 July 2022 |
| Docket Number | S-21-0285 |
| Citation | 2022 WY 89 |
| Parties | SEBASTIAN MICHAEL ESQUIBEL, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Appeal from the District Court of Converse County The Honorable F Scott Peasley, Judge
Representing Appellant: Dion Custis, Cheyenne, Wyoming.
Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C Eames, Senior Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] Sebastian Michael Esquibel was convicted by a jury of attempted first-degree arson. He argues the State presented insufficient evidence at trial to support his conviction and the district court plainly erred by allowing a police officer to give an opinion that gasoline is an accelerant. We affirm.
[¶2] Mr. Esquibel raises two issues, which we restate as:
1. Was the evidence presented at trial sufficient to support his attempted first-degree arson conviction?
2. Did the district court commit plain error by allowing a police officer to testify that gasoline is an accelerant?
[¶3] On the evening of February 12, 2020, Seth Velasquez was in the basement of his home in Douglas when he heard a "thud." He went upstairs to investigate and discovered someone had used a brick to break one of his front house windows. He did not call the police because he believed "it was someone having a bad night." He returned to the basement and went to sleep.
[¶4] Early the next morning, on February 13, 2020, Mr. Velasquez was awakened by the "smell of something sweet." After not finding the source of the smell, he got dressed and left to go to a friend's house. When he went to get into his car, he noticed the driver's side window was shattered. He observed a brick in the passenger seat and a plastic bottle in the driver's seat. This time, he called the police.
[¶5] Officer Luca Dowd with the Douglas Police Department and Dave Harley, a certified fire investigator with the Wyoming Fire Marshal's Office, responded to the residence. Officer Dowd observed scorched siding below the broken house window and smelled a "strong odor . . . of something similar to nail polish remover" inside the house and in Mr. Velasquez's vehicle. Mr. Harley noted the plastic bottle found in Mr. Velasquez's vehicle, as well as the area near the broken house window, had an odor similar to "an acetone-based fingernail polish remover" which, he testified, is flammable. Based on his observations, Mr. Harley determined someone had poured an ignitable liquid onto the windowsill of the broken window and lit it; the resulting fire had traveled from the windowsill, down the siding, to the ground. He concluded the fire was intentionally set.
[¶6] After the police and fire investigator completed their investigations, Mr. Velasquez went to his friend's house. When he returned home later that evening, he noticed a diesellike smell. He discovered the odor was coming from an area near a newly broken side window. He again called the police.
[¶7] Douglas Police Officer Ben Zwiebel responded to the home. He testified "there was what smelled to be an accelerant like gasoline" by the broken side window. He described the smell as "dirty gasoline." Officer Zwiebel found "the accelerant itself in a liquid form . . . just inside the broken window." The accelerant had been poured down the wall underneath the window and had landed on items on the floor. He also observed accelerant splatter on the snow just outside the window. Officer Zwiebel noticed blood on the broken window glass and blinds; the blood was still wet. He collected the blood and accelerant as evidence. The accelerant was not tested because the Wyoming State Crime Lab does not test accelerants. Once Mr. Esquibel became a suspect, Officer Zwiebel obtained his DNA via a buccal swab. Testing of the blood from the broken glass and blinds revealed a DNA profile consistent with Mr. Esquibel's. The lab technician testified it was "19.6 quintillion times more likely if [the DNA profile] is from [Mr.] Esquibel than if it is from an unrelated, unknown individual ...."
[¶8] Upon learning of these test results, Officer Dowd interviewed Mr. Esquibel, who claimed he had never been to Mr. Velasquez's house, let alone on February 12 or 13, 2020, and had "no idea" how his blood ended up on the broken glass and blinds. However, Mr. Velasquez testified he and Mr. Esquibel had a relationship from October 2014 to December 2019 and several of their encounters had occurred in Mr. Velasquez's house. Mr. Esquibel had asked Mr. Velasquez not to tell anyone about their relationship, but several people learned of it and Mr. Esquibel lost friends as a result. Mr. Esquibel was unhappy because he believed Mr. Velasquez told others about their relationship.
[¶9] The State charged Mr. Esquibel with first-degree arson in violation of Wyo. Stat. Ann. § 6-3-101(a) (LexisNexis 2021) for the February 12, 2020, front window incident (Count 1) and attempted first-degree arson in violation of Wyo. Stat. Ann. §§ 6-3-101(a) and 6-1-301(a) (LexisNexis 2021) for the February 13, 2020, side window incident (Count 2). Following a trial, the jury found him not guilty of Count 1 but guilty of Count 2. The district court sentenced Mr. Esquibel to 8-12 years in prison suspended in favor of a split sentence of 10 months in jail and three years of supervised probation. Mr. Esquibel timely appealed.
Sufficiency of the Evidence [¶10] Mr. Esquibel argues the trial evidence was insufficient to convict him of attempted first-degree arson. In determining whether there is sufficient evidence to support a conviction, we apply the following standard of review:
Montee v. State, 2013 WY 74, ¶ 18, 303 P.3d 362, 365 (Wyo. 2013) ().
[¶11] Mr. Esquibel was found guilty of attempted first-degree arson under §§ 6-1-301 and 6-3-101(a). Section 6-3-101(a) states: "A person is guilty of first-degree arson if he maliciously starts a fire or causes an explosion with intent to destroy or damage an occupied structure." Section 6-1-301(a)(i) provides in pertinent part: "A person is guilty of an attempt to commit a crime if . . . [w]ith the intent to commit the crime, he does any act which is a substantial step towards commission of the crime." The statute defines "substantial step" as "conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime[.]" Section 6-1-301(a)(i). The conduct must amount to more than mere preparation. See Adams v. State, 2005 WY 94, ¶ 13, 117 P.3d 1210, 1215 (Wyo. 2005) ("The elements of the crime of attempt are: 1) an intent to do an act or bring about certain consequences which would in law amount to a crime; and 2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation." (citing Compton v. State, 931 P.2d 936, 940 (Wyo. 1997)).
[¶12] The State argued Mr. Esquibel took a substantial step towards committing first-degree arson by breaking the side window and pouring gasoline down the wall. Mr. Esquibel does not contest the sufficiency of the evidence showing he broke the side window, as his blood was found on the broken glass and blinds. Nor does he dispute the evidence showing a liquid was poured down the wall under the broken window. Rather, Mr. Esquibel argues the State did not prove he took a "substantial step" toward committing first-degree arson because it failed to present sufficient evidence showing the liquid found inside Mr. Velasquez's home could start a fire, i.e., the liquid was an accelerant. He states the liquid was not tested, there was no evidence of any igniting or burning with respect to the side window, and Officer Zwiebel, the officer who testified regarding the incident on February 13, 2020, stated only that "there was what smelled to be an accelerant like gasoline," which, Mr. Esquibel claims, was pure speculation.
[¶13] Both Mr. Velasquez and Officer Zwiebel testified they smelled diesel/gasoline near the side window. When asked if he was "speculating that [the liquid he found] was an accelerant," Officer Zwiebel responded, "I know the odor of gasoline." The jury could reasonably find from this testimony that the liquid found near the side window was, in fact, gasoline, even though it was not tested. See Robinson v. State, 270 So.3d 980, 983 (Miss. Ct App. 2018) (). Cf. Regan v. State, 2015 WY 62, ¶ 34, 350 P.3d 702, 709 (Wyo. 2015) (...
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