Miller v. State, 2001-KA-01223-COA.

• Decision Date: 01 April 2003
• Docket Number: No. 2001-KA-01223-COA.,2001-KA-01223-COA.
• Citation: 856 So.2d 420
• Parties: Donald Wade MILLER, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

856 So.2d 420

Donald Wade MILLER, Appellant, v. STATE of Mississippi, Appellee.

No. 2001-KA-01223-COA.

Court of Appeals of Mississippi.

April 1, 2003.

Rehearing Denied June 10, 2003.

Certiorari Granted September 25, 2003.

James W. Amos, Hernando, attorney for appellant.

Office of the Attorney General by: W. Glenn Watts, attorney for appellee.

Before KING, P.J., LEE and IRVING, JJ.

KING, P.J., for the court.

¶ 1. Donald Wade Miller was convicted of arson in the DeSoto County Circuit Court. He was sentenced to a term of one year in the custody of the Mississippi Department of Corrections followed by supervised probation of ten years. Aggrieved by his conviction, Miller has perfected this appeal. He presents for this Court's consideration the following issues, which we quote verbatim:

I. The court erred in failing to sustain the motion for directed verdict made by Defendant at the close of the State's case-in-chief, and at the conclusion of the trial, and the court erred in failing to give Defendant's peremptory instruction at the conclusion of the trial.

II. The verdict of the jury is contrary to law and the weight of the evidence.

FACTS

¶ 2. At approximately 2:49 p.m. on February 29, 2000, the Love Volunteer Fire Department received a report of a fire at 3789 Jaybird Road, Hernando, Mississippi, the residence of Donald Wade Miller. Upon arrival, Sam Witt of the Hernando Fire Department observed smoke coming from the roof on the right front side of the trailer home.

¶ 3. DeSoto County Deputy Fire Marshall Mike Hancock was called to investigate the matter and arrived at approximately 4:00 p.m. with a canine trained to sign for accelerants or flammable liquids. Shortly thereafter, Miller returned home, and at the request of Officer Hancock consented to a search of the property. Officer Hancock allowed his trained canine to search the property for accelerants. The canine signaled the presence of an accelerant in the center of the couch. Photographs were entered into evidence of the couch and the canine's search.

¶ 4. At trial, Mike Lynchard, a custodian of records at BellSouth Telecommunications, testified that a two minute call from Miller's unlisted number at the trailer home was made at 2:38 p.m. on the day of the incident to a Memphis phone number. Lynchard stated that he did not know to whom the Memphis number was listed nor who made the call to that number.

¶ 5. John Anderson, an acquaintance of Miller, testified that when he drove by Miller's trailer, he "noticed smoke coming from the trailer." He slowed down and noticed fire "through the window of the trailer." Anderson stopped, called 911 to report the fire at approximately 2:49 p.m., and moved Miller's dog from the yard.

¶ 6. Geniene Bowdre, who lived across the street from Miller, testified that on the day of the incident, she saw a vehicle coming out of one of the driveways, either Miller's or the one next to him, but she was not sure. Then, she saw smoke coming from the trailer.

¶ 7. Sam Lauderdale, a State Farm Insurance agent, testified that Miller's mother is an employee of his and that he "got a telephone call that Donnie's home was on fire. And a few minutes later, he (Miller) pulled into the parking lot and came into the office or came up the office steps, and I walked out and said, `[w]e've gotten a call that your home is on fire.' And he turned around and left."

¶ 8. Bradley Schinker, the State's fire investigator expert, testified that when he came to the east side of the living room, he noticed that the couch was almost burned out in the center and that "the fire started in this area." Schinker also indicated that he found no faulty wiring after inspecting the trailer. He testified that smoking was ruled out and that he determined this was some type of intentional act.

¶ 9. Lee James, a claims representative for State Farm Insurance, testified that she interviewed Miller, who admitted that he was a smoker but denied being on his couch smoking the day of the fire.

¶ 10. At the conclusion of the State's case, Miller moved for a directed verdict claiming that the State had failed to prove beyond a reasonable doubt that he had committed arson. This motion was denied.

¶ 11. Miller testified that he did not intentionally start the fire. He stated that he might have accidentally started the fire, but did not state how it may have accidentally occurred.

¶ 12. Miller's sister, Darlene Ellis, testified that she owned the couch prior to giving it to her brother. She stated that her boys spilled gun cleaning solvent on the couch approximately three months prior to it being given to Miller.

¶ 13. Miller requested a peremptory instruction which was denied by the trial court. Miller was found guilty and sentenced to one year in the custody of the Mississippi Department of Corrections followed by ten years of post-release supervision for the purpose of insuring payment of restitution in the amount of $51,255.91 to State Farm.

¶ 14. Miller filed a motion for JNOV, or in the alternative, a motion for a new trial, which was denied.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in denying Miller's motion for directed verdict and in denying Miller's request for a peremptory instruction.

¶ 15. Miller argues that the trial court erred in denying his motion for a directed verdict and erred in denying his peremptory instruction. He suggests that there was insufficient evidence to establish that he intentionally set fire to his trailer. Miller relies on Isaac v. State, 645 So.2d 903 (Miss.1994) to support his argument. In Isaac, the court reversed and rendered holding the evidence insufficient to conclude that Isaac intentionally started a fire at Shannon Jackson's apartment in McComb, Mississippi. Isaac had lived with Jackson previously, but they were not living together on the day of the fire. Isaac testified that he went to Jackson's apartment between 1:00 and 1:30 a.m., knocked on the front door, but did not get an answer. He indicated that he had a cigarette in his right hand and lifted the mailbox up with his left hand and started calling Jackson. Afterwards, Isaac lifted the towel hanging on the front door to look through the window. Because the towel on the other side of the door prevented him from seeing inside, Isaac then proceeded to the back door where Jackson told him that the front door was on fire. He went into the apartment and put the fire out with the fire extinguisher, told Jackson not to call the police, and left. Isaac stated that he did not intentionally start the fire at Jackson's apartment. The supreme court noted that "the State failed to prove beyond a reasonable doubt that Isaac `willfully and maliciously' started the fire in question." Isaac v. State, 645 So.2d 903, 910 (Miss.1994).

¶ 16. When faced with a challenge to the sufficiency of the evidence, this Court views the denial of a directed verdict and the denial of a peremptory instruction in the following manner:

In judging the sufficiency of the evidence on a motion for a directed verdict or request for peremptory instruction, the trial judge is required to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant. Clemons v. State, 460 So.2d 835 (Miss.1984); Forbes v. State, 437 So.2d 59 (Miss.1983); Bullock v. State, 391 So.2d 601 (Miss.1980). If, under this standard, sufficient evidence to support the jury's verdict of guilty exists, the motion for a directed verdict and request for peremptory instruction should be overruled.

Isaac v. State, 645 So.2d 903, 907 (Miss. 1994). ¶ 17. The evidence consistent with the verdict is as follows: (1) Miller was the sole occupant of the trailer, (2) a telephone call was made from the trailer approximately ten minutes before the fire was reported, (3) Miller was the last person known to be at the trailer, (4) a car was seen leaving the vicinity of Miller's trailer shortly before the fire, (5) the fire was started deliberately, (6) Miller was at home between 2:38 p.m. and 2:40 p.m., (7) the fire was reported at approximately 2:49 p.m., and (8) a call was made from Miller's trailer at approximately 2:38 p.m.

¶ 18. The evidence in this case is purely circumstantial. However, a verdict of guilty may properly be based upon circumstantial evidence. Walton v. State, 642 So.2d 930, 932 (Miss.1994). When the evidence is considered and the evidence favorable to the State, including all reasonable inferences, is accepted as true, it is apparent that Miller was not entitled to a directed verdict or peremptory instruction.

¶ 19. Miller seems to place great weight upon the Isaac case. However, in Isaac, the defense offered a plausible and unrebutted suggestion of accident. That is not true in this case.

II.

Whether the verdict was contrary to law and against the weight of the evidence.

¶ 20. Miller argues that the verdict was contrary to law and against the weight of the evidence. He claims that Gatlin v. State, 754 So.2d 1157 (Miss.1999) and Holloman v. State, 151 Miss. 202, 117 So. 532 (1928) are cases which are comparable to his, where the court reversed the convictions for arson for insufficient evidence for inferring that the defendants started the fires. In Gatlin, a witness testified that he took Gatlin to his girlfriend's house to retrieve his wallet and other papers. The house was destroyed by fire that same morning. The witness stated that Gatlin did not take any accelerant into the house, nor did they speed away or attempt to conceal their movements upon leaving the house. The fire marshall testified that an accelerant was used to start the fire and that it was his opinion that the fire was not accidentally started. Upon review, the Mississippi Supreme Court stated:

In this case Gatlin was at the scene of the fire at a time where he could have started the fire, but there was no

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