Montee v. State

• Decision Date: 17 June 2013
• Docket Number: No. S–12–0166.,S–12–0166.
• Citation: 303 P.3d 362
• Parties: Nicholas M. MONTEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

303 P.3d 362

Nicholas M. MONTEE, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0166.

Supreme Court of Wyoming.

June 17, 2013.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Director, Emily N. Thomas, Student Director, and Shaina A. Case, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

BURKE, Justice.

[¶ 1] Nicholas M. Montee was convicted of second degree arson. His claim on appeal is that there was insufficient evidence to support his conviction. We conclude that the evidence was sufficient, and we will affirm.

ISSUE

[¶ 2] Mr. Montee presents a single issue: Was there sufficient evidence to support a conviction of second degree arson? The State presents the same issue with more elaboration:

Under Wyo. Stat. Ann. § 6–3–102(a), a person is guilty of second degree arson if he starts a fire with intent to destroy or damage property to collect insurance. At trial, the State presented evidence that Mr. Montee admitted he started a fire in his late mother's house, which he stood to inherit. Moreover, the State offered circumstantial evidence showing he intentionally started the fire to collect insurance proceeds. Did the State provide sufficient evidence for a reasonable jury to find Mr. Montee guilty?

FACTS

[¶ 3] Mr. Montee's mother died in 2010. He and his brother were her only heirs, and he was appointed personal representative of her estate. The estate's most valuable asset was a home located on several acres in rural Laramie County. Mr. Montee had lived there with his family all of his life, and continued to consider it his place of residence after his mother died, although he was living with his fiancée in Cheyenne at least part of the time.

[¶ 4] When Mr. Montee testified at his trial, he explained that, after his father's death in 2001, his mother began to “hoard everything.” As he described it, “She just would buy and buy and gather stuff and stick it everywhere.” As a result of the home's poor condition, an appraiser for the estate determined that it had essentially no monetary value. The real estate was worth up to $49,000. There was a mortgage on the property for approximately $13,000. Because the estate had limited liquidity, Mr. Montee advanced more than $8,000 from his own assets to pay the estate's expenses, including mortgage payments.

[¶ 5] On the afternoon of February 13, 2011, a neighbor saw smoke coming from the Montee home, and called to report it. One of the responders contacted Mr. Montee to inform him of the fire. When Mr. Montee arrived, he told the responder that he had been at the home about an hour before the fire was reported. He also told the responder that the insurance policy on the home had lapsed, but that he had just recently renewed it. After the fire was controlled, because the firefighters suspected arson, they assigned “somebody to baby-sit the scene overnight to make sure it wasn't tampered with.”

[¶ 6] Detective Thomas of the Laramie County Sheriff's Department, a certified fire “origin-and-cause technician,” was assigned to investigate the cause and origin of the fire. He detailed the results of his investigation at trial. His initial impression was of “a home severely damaged by a fire,” and he was “also struck by the amount of household goods and clothing and things that were accumulated in the home.”

[¶ 7] Detective Thomas's investigation eliminated several possible causes of the fire. He ruled out natural causes such as lightning because the weather on the day of the fire had been dry and windy with no precipitation. The propane supply to the Montee home had been shut off for several months, so he ruled out an accidental gas fire. He found no evidence that it was an electrical fire. He ruled out the electrical space heaters as sources of the fire because there was no burn pattern on the floor underneath them. Having ruled out these accidental causes, Detective Thomas began to suspect that the fire was set intentionally.

[¶ 8] Detective Thomas explained to the jury the evidence suggesting arson. Evidence of petroleum distillates was found in one of four samples taken from the home, although the exact nature of the material was not determined. Examining the property around the Montee home, Detective Thomas noted a detached storage shed with a “cluster of fishing poles laying beside it.” He explained that it was significant to find “fishing poles in February outside of a shed rather than inside” because “one of the flags of an intentionally started fire is that a person gets valuable items out of the structure before they burn it.” Inside this shed, he found firearms “laid on the floor, kind of on top of each other. Generally,” he explained, “firearms are stored respectfully in some way where they're not laying on top of each other. Again, this appeared to be a hurried gathering ... similar to the fishing poles.” Other factors suggesting arson to Detective Thomas included the isolated, rural location, and the fact that a new insurance policy on the home had been purchased shortly before the fire. As Detective Thomas explained, none of these factors by itself proved arson, “but if you accumulate several factors in the course of your investigation that could become significant.”

[¶ 9] Detective Thomas also testified that Mr. Montee was the last person known to be at the home, and he had been there within an hour of when the fire was reported. There was evidence that Mr. Montee was experiencing financial difficulties, including the fact that he had been on leave from his job without pay since August, 2010. Mr. Montee was frustrated by the condition of the home and the amount of work he was required to do to clean up the property.

[¶ 10] In April, 2011, Detective Thomas and another detective interviewed Mr. Montee for nearly four hours. That interview was recorded, and the recording was played in its entirety for the jury during trial. Mr. Montee described various medical problems he had experienced, and related his financial difficulties, admitting that he had considered contacting a bankruptcy lawyer. He confirmed that he had been at the home on the day of the fire, and explained he went there to feed the dogs and look for a knitting machine he believed to be in his mother's bedroom. He left around 2 o'clock in the afternoon, and received the phone call about the fire approximately an hour later. Mr. Montee said that he would “accept responsibility for possibly accidentally starting it,” adding, “I'm the only one there ... I'm the one that had to have done it.”

[¶ 11] He then said that, if he had started the fire, “it started in the kitchen because I know I touched that stove.” Later, he said he thought he had turned on the stove. Then he admitted, “I'm positive I turned it on.” He also said that there were papers and other items on and near the stove when he turned it on.

[¶ 12] When asked why he had turned the stove on and left the house, Mr. Montee explained, “There would be so many reasons.... I didn't care anymore. I didn't want to deal with it anymore.” He also said he “wanted this house to go away.” He later told the detectives, “I will accept responsibility ... for the house burning down. I will accept that responsibility,” and explained, “I know I turned the stove on, and I know I said ‘screw it.’ ” Later, he reconfirmed, “I know I turned on the stove, and I walked out.” The detective asked, “And you knew it would start the house on fire?” Mr. Montee responded, “I'm positive. I knew that it would.”

[¶ 13] However, even though Mr. Montee admitted to starting the fire in the kitchen, he consistently maintained throughout the interview that he had not started a fire in his mother's bedroom closet. Detective Thomas testified that his initial hypothesis was that the fire had started on the west end of the house in the mother's bedroom closet. After interviewing Mr. Montee, however, the detective

went back and investigated the second location in the kitchen more firmly, found confirming evidence ... there were two locations where the fire started.

One of the factors in an arson is multiple starts because they want to make sure it burns down, so it is logical in an arson fire there are more than one start locations, and both appear to be start locations.

I gave the kitchen more credence, ultimately, because he confessed to starting the fire there. He did not confess to starting the fire in the bedroom....

I felt that I had concluded rightfully that he had committed the arson, and just because he wouldn't confess to both locations didn't mean that a crime wasn't committed.

As a result of his investigation, Detective Thomas concluded that the fire started “on the cooking surface of the island in the kitchen,” with a possible secondary point of origin in the mother's bedroom closet.

[¶ 14] Another witness who testified at Mr. Montee's trial was Rick Baldwin, a fire and explosives investigator for the insurance company that had recently insured the Montee home. The conclusions of his investigation were largely consistent with Detective Thomas's conclusions. For example, he said there was no lightning or other weather phenomenon that could have started the fire, though there had been high winds the day of the fire. He found no signs of the fire starting near the space heaters. He ruled out electrical wiring, switches, appliances, and other heat-producing equipment as causes of the fire. He also thought it unusual to find a number of fishing rods and reels outside in the wintertime, and further noted that he found no dust or grass or leaves on the...