McGraw v. State, A05A2342.

• Decision Date: 01 December 2005
• Docket Number: No. A05A2342.,A05A2342.
• Citation: 276 Ga. App. 607,624 S.E.2d 232
• Parties: McGRAW v. The STATE.
• Court: Georgia Court of Appeals

276 Ga. App. 607

624 S.E.2d 232

McGRAW v. The STATE.

No. A05A2342.

Court of Appeals of Georgia.

December 1, 2005.

Sexton & Morris, Joseph S. Key, Stockbridge, for appellant.

Patrick H. Head, District Attorney, Timothy B. Lumpkin, Dana J. Norman, Amy H. McChesney, Assistant District Attorneys, for appellee.

JOHNSON, Presiding Judge.

A jury found Roy Butch McGraw guilty of attempted arson and five counts of aggravated assault based on evidence that McGraw poured gasoline near two ignition sources (a light bulb and a water heater) in the crawlspace of his estranged girlfriend's house and then told the estranged girlfriend's adult children to light the water heater's pilot flame. McGraw appeals, alleging the evidence was insufficient to sustain the verdict, a fatal variance existed between the indictment and the state's proof at trial, the trial court erred in its charge to the jury, and his counsel provided ineffective assistance. We find no error and affirm McGraw's convictions.

1. McGraw first contends the trial court erred in failing to direct a verdict on all counts and in failing to grant his judgment notwithstanding the verdict because the evidence was insufficient to sustain the verdict. Specifically, he argues it was scientifically impossible for him to have poured the gasoline into the crawlspace ground on August 8, 2002 because the state's expert testified that the samples obtained by the investigator on August 9, 2002 showed that the gasoline had been in the ground a minimum of three days. He further argues that the evidence shows that his ex-girlfriend had noticed a strange smell in the crawlspace before August 8, 2002. We find that McGraw's arguments misconstrue the evidence.

The standard of review for the denial of a motion for a directed verdict of acquittal or a motion for a judgment notwithstanding the verdict is the same as for determining the sufficiency of the evidence to support a conviction.¹ We view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.² Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.³ As long as there is some evidence, even though contradicted, to support each necessary element of the state's case, this Court will uphold the jury's verdict.⁴

Viewed in this light, the record shows that shortly after lunch on August 8, 2002, McGraw showed up at Melanie Griffis' house uninvited. Griffis was his ex-girlfriend. Griffis agreed to go out with him that evening because he was lingering around her house and causing a very stressful atmosphere. Before leaving, McGraw offered to go under the house and check a leak in the bathroom plumbing that he had previously repaired. Griffis' older daughter observed McGraw going back and forth from his truck to the side of the house, near the crawlspace door, carrying a bright red 5-gallon gasoline can with a black nozzle. Griffis' other daughter also saw McGraw at the entrance of the house's crawlspace.

McGraw subsequently reentered the house and "repeated to [Griffis] several times that the water heater was off and it was in the `on' position and ready to light and the children needed to light the water heater after we were gone." In fact, between lunch and 4:15 that afternoon, McGraw repeated this directive so many times that Griffis became very irritated and told McGraw the gas company could do it. McGraw insisted, however, that "it's ready to light, all they have to do is strike a match." McGraw also went directly to the adult children and told them they needed to light the water heater's pilot flame, but they both ignored him.

Because Griffis began smelling gasoline fumes soon after McGraw returned from the crawlspace, she directed her children not to light the pilot flame. The next morning Griffis still smelled a strong gasoline odor and contacted the gas company. The gas technician informed her that she should contact the police because there was no natural gas problem. An investigator with the Cobb County Fire and Emergency Services determined that there were three distinct pour patterns of ignitable fluid in the crawlspace and concluded that the patterns were "very, very recent" and were definitely an intentional act. The investigator noted that the water heater was equipped with a pilot flame and that the water heater knob was in the "off" position. He also noted that there was a light bulb with a pull chain at the crawlspace entrance, another potential ignition source for the poured gasoline. The investigator took samples of the dirt and debris from the area where the dirt was saturated with gasoline. He also collected a portion of the top of a cardboard box located close to the crawlspace light bulb that appeared to be saturated with an ignitable fluid.

An expert in testing and identifying ignitable fluids analyzed the dirt and cardboard. He opined that these items contained weathered gasoline, an ignitable fluid. According to the expert, microbial degradation of the soil normally occurs after gasoline has been in the soil three to five days. Because there was no sign of microbial degradation, the expert testified that the gasoline in Griffis' crawlspace had been in the soil for no more than three to five days. The expert later explained during cross-examination that he could only guess as to "the minimum amount of time that [this] gasoline would have had to have been in the soil."

McGraw contends the expert testified that the gasoline had been in the ground a minimum of three days because, when asked on cross-examination to give his opinion — "not knowing all the factors" — the expert stated that the gasoline looked like it had been in the soil three to five days. However, a review of the expert's entire testimony shows that the expert testified repeatedly that the gasoline had been in the...