People v. Burger
| Decision Date | 25 February 2020 |
| Docket Number | No. 343332,343332 |
| Citation | 331 Mich.App. 504,953 N.W.2d 424 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joshua Mark BURGER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Tara Mathena Hindelang, Assistant Prosecuting Attorney, for the people.
Gentry Nalley, PLLC, Howell, (by Kevin S. Gentry ) for defendant.
Before: Shapiro, P.J., and Jansen and M. J. Kelly, JJ.
Jansen, J. Defendant, Joshua M. Burger, appeals as of right his conviction of arson of insured real property, MCL 750.76(1)(b). Defendant was sentenced to 15 months to 20 years' imprisonment. We reverse, vacate defendant's conviction and sentence, and remand for a new trial.
This case arises out of a fire that occurred on April 12, 2017, at defendant's pawn shop, for which defendant made an insurance claim. Defendant, together with his father, Christian Whitt, co-owned the pawn shop called Pawn Max, or Southgate Exchange Incorporated. The pawn shop was purchased in 2012 for $125,000 on a five-year land contract and was paid off within six months.
At trial, Whitt testified that the rent, utilities, payroll, and taxes were current. In 2016, the pawn shop had turned a profit of $427,000. As of April 12, 2017, the pawn shop had turned $126,000 in profit and was on track to make more than $500,000. Whitt further testified that defendant had no financial problems, had a credit score above 790, and believed financial stability was important.
On the day of the fire, defendant had been staining a guitar with linseed oil on a rag. Defendant was storing the project on a plywood shelf in the pawn shop's storage room. At 7:23 p.m., security cameras showed defendant leaving the storage room for 10 seconds, then returning. Defendant stayed in the storage room until 7:27:39 p.m. before walking out of the room alone and locking the door. At 7:27:55 p.m., a fire could be seen in the storage room. Defendant turned off the lights in the pawn shop office, set the alarm, and left the building at 7:28:13 p.m. Justin Graves, a Southgate firefighter, testified that he was one of the first firefighters to respond to the fire at the pawn shop on the evening of April 12, 2017. After being alerted by the alarm company that there was a fire, defendant returned to the pawn shop and unlocked the building for first responders. Graves and another firefighter came to a locked door inside the building and forced entry into that room, which was a storage area fully on fire "from floor to ceiling." Graves stated that it "took a few more seconds of water" than usual to dampen the fire; although the fire still extinguished relatively quickly, the extra time struck him as odd because fires typically dampen immediately once sprayed with water. Graves testified that another room separated from the main sales area by a wall was also on fire. Another firefighter extinguished that fire, and Graves confirmed that the fire had not spread elsewhere.
The fire was investigated by Southgate Fire Chief Michael Sypula, Wyandotte Fire Chief Jeffrey Carley, and Richard Kovarsky, a forensic engineer and owner of the forensic engineering firm Pyro-Technical Investigations who was called by the defense and qualified as an expert in the field of fire investigation.
Chief Carley testified at trial that three wooden shelves in the storage room had significant charring and that the second of the three shelves in the storage room was the point of origin of the fire. Chief Carley was able to identify this shelf as the point of origin because the charring of the higher shelves and the ceiling was consistent with the fire moving "up and out," as fires typically do, while some equipment stored below the shelf that was the point of origin was "relatively undamaged." Chief Sypula also identified the shelf in the storage area as the point of origin because of the "burn pattern," or the amount of charring.
Chief Sypula stated that he ultimately determined that the cause of the fire was not electrical, mechanical, or natural. Chief Carley also stated that he did not discover a mechanical or electrical source of fire and that he ruled out natural causes, such as lightning. Chief Carley testified that he concluded that the "fire was incendiary," meaning that it had been set intentionally and was not caused accidentally, because there were no mechanical or electrical explanations for why the fire began. Chief Sypula testified that in addition to ruling out electrical, mechanical, and natural causes of the fire, he relied on the firefighters' statements that there were two separate fires and the security camera footage showing defendant in the storage area 60 to 90 seconds before the fire started to conclude that the fire was incendiary. Chief Sypula also relied on video footage showing defendant "repositioning a camera" inside the storage room earlier that day and defendant putting rubber gloves on at 7:20 p.m. Chief Sypula did not determine what actually started the fire.
Kovarsky also concluded that the fire had one point of origin: the storage room. Indeed, relying on photographs from the scene, Kovarsky testified that he believed a shelf in the storage room was the point of origin. On or near the shelf were a guitar, a "metal paint container" without a label that Kovarsky was led to believe contained linseed oil, and some "fairly undamaged rags ... at the top of the container." Kovarsky learned from defendant that he had been using linseed oil to refinish a guitar and had been placing the used rags in a metal can. Kovarsky stated that something else must have been on top of the rags because the cleanliness of the rags was inconsistent with the heat damage to the outside of the paint can. Kovarsky testified that the cause of the fire in this case was uncertain, but spontaneous combustion was his primary theory.
Christina Swan, "a technical specialist" who "handle[d] first[-]party property claims" for Northfield Insurance, a subsidiary of Travelers Insurance, testified that defendant filed a claim related to the April 12, 2017 fire on April 27, 2017, in the amount of $574,954.68. Defendant's insurance policy included coverage for fire damage, but a claim would not be paid if defendant were found to be responsible for the damage. Swan stated that defendant submitted the claim on behalf of Southgate Exchange Incorporated and listed himself as the sole owner with no third-party beneficiaries. Defendant listed the cause of the fire on the insurance claim as "unknown."
Ultimately, defendant was convicted by a jury of arson of insured real property with intent to defraud. The trial court sentenced defendant to 15 months to 20 years' imprisonment. This appeal followed.
Defendant first argues on appeal that the trial court erroneously excluded the testimony of two defense witnesses. We agree.
"A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion." People v. Denson , 500 Mich. 385, 396, 902 N.W.2d 306 (2017), citing People v. Mardlin , 487 Mich. 609, 614, 790 N.W.2d 607 (2010). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes." People v. Johnson , 502 Mich. 541, 564, 918 N.W.2d 676 (2018), quoting People v. Franklin , 500 Mich. 92, 100, 894 N.W.2d 561 (2017) (quotation marks omitted). "A trial court also necessarily abuses its discretion when it makes an error of law." People v. Al-Shara , 311 Mich. App. 560, 566, 876 N.W.2d 826 (2015).
Defendant sought to admit the testimony of senior public insurance adjuster Craig Becker at trial.1 Defendant sought to have Becker qualified as an expert in "first[-]party property insurance" and expected Becker to testify about defendant's insurance coverage. The prosecution objected to the introduction of Becker's testimony under MCL 500.1232, which provides, in relevant part:
A person shall not audit or abstract policies of insurance or annuities, provide advice, counsel, or opinion with respect to benefits promised, coverage afforded, terms, value, effect, advantages, or disadvantages of a policy of insurance or annuity, nor advertise, solicit business, or hold himself or herself out to the public as an insurance counselor unless he or she is licensed as an insurance counselor.... This section does not prohibit the customary advice offered by a licensed insurance agent nor does this section apply to a person admitted to the practice of law in this state.
Defendant countered, arguing that Becker's testimony was admissible under MRE 702, which provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Defendant proffered that Becker would be qualified to testify regarding his review of defendant's insurance policy, the pawn shop's finances, and the inventory supporting defendant's insurance claim. The trial court agreed with the prosecution, and it excluded Becker's testimony on the basis of MCL 500.1232, noting that Becker was not "a licensed insurance counselor" and that he was, therefore, precluded from "giv[ing] an opinion with respect to benefits, promised coverage afforded, terms, value, effect, advantages or disadvantages."
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