Fox v. State

• Decision Date: 30 January 1979
• Docket Number: No. 2-376A109,2-376A109
• Parties: Tom FOX, Darl (Hunk) Havens, Tom York, Barry R. Perry, Gary P. Kapp, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 1159

384 N.E.2d 1159

179 Ind.App. 267

Tom FOX, Darl (Hunk) Havens, Tom York, Barry R. Perry, Gary P. Kapp, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-376A109.

Court of Appeals of Indiana, Second District.

Jan. 30, 1979.

Patrick N. Ryan, Jack B. Welchons, Ryan & Welchons, Marion, for [179 Ind.App. 269] appellant Tom Fox

Harriette Bailey Conn, Public Defender, David P. Freund, Bobby J. Small, Deputy Public Defenders, Indianapolis, for appellants Havens, York and Perry.

Thomas A. Swihart, Bowman, Crowell & Swihart, Fort Wayne, for appellant Gary P. Kapp.

Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Appellants were tried by a jury and convicted of first degree arson. I.C.1971, 35-16-1-1 (Burns Code Ed.). Because we find the evidence insufficient to support the convictions of Fox, Havens, York, and Perry, and that reversible error was committed as to Kapp, we will discuss only those issues necessary to the disposition of this appeal or likely to appear upon Kapp's retrial.

I

We consider first appellants' argument that the burned building was not "part or parcel of a dwelling house."

The statute under which appellants were charged and convicted is I.C. 35-16-1-1, which provides, in pertinent part:

Any person who wilfully and maliciously sets fire to or burns or causes the setting of fire to or burning of . . . any kitchen, shop, barn, stable, garage or other outhouse, or other building that is part or parcel of any dwelling house . . . . ¹

Although no Indiana case has defined the phrase "part or parcel of any dwelling house," ² many other jurisdictions have done " Curtilage" has been defined as:

so. ³ At common law, an outhouse which was a "parcel of" a dwelling house was one "used in connection therewith and situated within the curtilage." Jones v. Commonwealth (1931), 239 Ky. 110, 38 S.W.2d 971, 973. In Jones, the court, [179 Ind.App. 270] in construing the Kentucky arson statute (one substantially identical to our own), ⁴ reversed a conviction of first degree arson in that the building burned, a former dwelling house converted into a crib for fodder and located 250-300 yards from the dwelling house, was held not to be "parcel" of the dwelling house as it was clearly without the "curtilage" of the dwelling house.

". . . the space of ground adjoining the dwelling house used in connection therewith in the conduct of family affairs and for carrying on domestic purposes, usually including the buildings occupied in connection with the dwelling house. It is the propinquity to a dwelling and the use in connection with it for family purposes which is to be regarded." (emphasis added) State v. Lee (1927), 120 Or. 643, 253 P. 533 at 534-535. ⁵

As the authorities indicate, it is the proximity to the dwelling and the Use in connection therewith For family purposes and the carrying on of domestic employment that are of major importance in determining whether an area or building is to be considered within the "curtilage" (i. e., part or parcel) of the dwelling house. This comports with the view that first degree arson is an offense against the security of habitation, rather than property. Jones v. State (1904), 70 Ohio St. 36, 70 N.E. 952. ⁶

In the case at bar, the evidence viewed most favorably to the State shows that the burned building was a barn that had been converted into a combination garage-work area-recreation room. The building, located 80 to 100 feet from the dwelling house, was insulated and panelled and housed a furnace, telephone, and stereo. The Mowerys (owners of the property) often kept vehicles in the building, and Mr. Mowery also had a work area in the building. The building had been used on several occasions for parties and the Mowerys' daughter and her friends often used the building to play music and dance.

The usage of the building as an addition to their dwelling house, i. e., "for family purposes and the carrying on of domestic employment," and its proximity to the dwelling house, persuade us that it was within the "curtilage," i. e., that the building burned was "part or parcel" of the Mowery dwelling house.

II

Appellants challenge the sufficiency of the evidence to establish their identity as the perpetrators of the arson at Mowerys' building. When reviewing the sufficiency of the evidence, this Court considers the evidence most favorable to the verdict together with all reasonable inferences which may be drawn from that evidence. If there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Moore v. State In the case at bar, the evidence most favorable to the state reveals that the five appellants were seen together from approximately 2:30 to 3:00 A.M. visiting several bars in Marion, Grant County, Indiana and driving a dirty, goldish-green 1968 Oldsmobile, registered to Fox, which reportedly had "extremely loud mufflers." The appellants were imbibing in spirits at the Swing Bar when, somewhere around 3:00 A.M., Marion police officers were called to the bar twice to quell disturbances ⁷ and, on the later occasion, also to close the bar. On the former occasion the bar was surrounded by police and York was heard to say, "Isn't there some kind of charge against police harassment?" During this first visit Captain Mowery (Mowery), the owner of the property that was burned, "broke up" what appeared to be a verbal confrontation between Fox and another patron. As Fox was walking back to his table he stated, "That's cool, Mowery. That's cool." During the second police visit to the bar, after Mowery announced that the bar was closed, Fox leaned over as he passed Mowery on the way out and said, "I'll see you later, Mowery," following which a verbal exchange of words occurred between Fox and Mowery. About the same time this confrontation occurred, Havens said, "F------ the pigs. We don't have to listen to this s------. Let's get out of here."

(1978), Ind., 376 N.E.2d 1129. Furthermore, this Court does not judge the credibility of witnesses nor weigh the evidence. Bryant v. State (1978), Ind., 376 N.E.2d 1123.

While the Swing Bar was being closed, Officer Ellis, enroute back to his squad car, noticed suspicious-looking tools ⁸ on the rear floor board of Fox's Oldsmobile. Mowery, upon being informed of these tools, ordered the vehicle to be kept under surveillance. Appellants left the Swing Bar and proceeded to the Kewpie Bar. While at the Kewpie Bar, Perry left the table where all five appellants had been sitting, came back a few minutes later and stated, "Everything's okay. They're scattered." Fox then said, "Well, let's go then," telling an inquirer who was asking to go with them, ". . . we are just going to take care of a little business." After departing from the Kewpie Bar, appellants stopped at Stoller's Tavern and purchased a fifth of whiskey and six 6 oz. (sic) bottles of Coca Cola. Appellants were last seen, prior to the fire at Mowery's, parking the Oldsmobile behind a house in Marion at about 3:25 A.M., at which time surveillance of the vehicle was withdrawn. The vehicle was gone when Officer Stevens checked back at 3:50 A.M.

Carol Mowery (wife of Captain Mowery) was awakened by the dog's barking sometime between 3:30 and 4:00 A.M. After hearing a car idling for some time, she went downstairs and looked out the window and saw two people in a car parked by the barn and three others milling about by the barn. Immediately thereafter she saw flames shoot out of the cab of the stake-bed truck parked outside, next to the barn. She then saw the subjects get into the car and drive off. Some minutes later she called the police (testimony revealed that the call was received at 4:12 A.M.) and her brother-in-law, Clifford Mowery, who was a fireman. In a matter of minutes Clifford arrived and went out to the barn with Mrs. Mowery where they discovered that, in addition to the truck being on fire, the floor mat of the Corvette parked inside the barn and a wall and part of the ceiling of the barn were also aflame. Mrs. Mowery could not identify or describe any of the persons she saw except to say that she assumed they were males by the way they were dressed, and that one of them was very tall and large. She described the car she saw parked beside the barn as a dirty, greenish-gold Oldsmobile which had a noisy exhaust.

After the fire, the greenish-gold Oldsmobile was observed driving through Van Buren, Grant County, Indiana, which is located approximately seven miles east of Mowery's Deputy Sheriff Cook pursued a gold, 1967 Buick through Marion sometime between 4:00 and 4:45 A.M. The Buick was subsequently found to have been stolen from Van Buren sometime earlier that night. Cook identified Fox and York as the individuals who abandoned the vehicle and fled on foot.

house. Marshal Marley and Officer Campbell pursued the vehicle and stopped it approximately three-fourths of a mile east of Van Buren at about 5:27 A.M. They arrested the occupants of the car, Perry, Kapp, and Havens, on a preliminary charge of arson. The automobile was impounded. Mrs. Mowery later identified it as the car she saw by the barn the morning of the fire when an officer took her to a garage where it was parked with "several cars . . . and some trucks and stuff."

Sheriff Ash, while looking around the burned area, found a 7 oz. (sic) coke bottle which smelled as if it had contained whiskey or alcohol. He further observed a bootprint in the snow beside the barn. Kapp's boots were subsequently brought to the scene and an impression of one of them was made in the snow beside this print. Photographs of the bootprint, as well as Kapp's boots, were admitted into evidence and the similarities were pointed out by the Sheriff. There was no evidence as to the presence of any inflammables on the scene. Fireman Mowery testified that in his opinion the...