Powell v. State

• Decision Date: 10 July 1984
• Docket Number: No. 68165,68165
• Citation: Powell v. State, 321 S.E.2d 745, 171 Ga.App. 876 (Ga. App. 1984)
• Parties: POWELL et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 745

321 S.E.2d 745

171 Ga.App. 876

POWELL et al. v. The STATE.

No. 68165.

Court of Appeals of Georgia.

July 10, 1984.

Rehearing Denied July 31, 1984.

Certiorari Denied Sept. 14, 1984.

Rickie L. Brown, Dalton, Richard L. Roble, Atlanta, Bobby Lee Cook, Summerville, for appellants.

Stephen A. Williams, Dist. Atty., Steven M. Harrison, Asst. Dist. Atty., for appellee.

POPE, Judge.

Appellants Cord Powell and his wife, Sherry Marcella Powell, appeal their jury convictions for the offense of arson in the first degree in the December 25, 1982 fire which destroyed their mobile home.

1. Appellants first challenge the verdict based upon an asserted insufficiency of evidence to prove that they committed the crime charged. "Three things are necessary to sustain a conviction for arson:

that the real property alleged in the indictment was in fact burned, that its cause was a criminal agency, and that the defendant was that criminal agency. Hurst v. State, 88 Ga.App. 798, 78 S.E.2d 80 (1953). The latter may be proved by circumstantial evidence. Reese v. State, 94 Ga.App. 387, 94 S.E.2d 741 (1956)." Murden v. State, 146 Ga.App. 51(1), 245 S.E.2d 363 (1978).

"Every fire is presumed to be accidental or providential. The burden is on the State, in a case of the sort before us, to prove that the fire was of an incendiary origin and that the [persons accused] did the burning. [Those accused], having been convicted by a jury and [those convictions] having been approved by the trial court in overruling the motion for a new trial, it is incumbent upon a court of review to construe the evidence in a light most unfavorable to [those accused]. This is true, for every presumption is in favor of such a verdict." Lockhart v. State, 76 Ga.App. 289, 293-4, 45 S.E.2d 698 (1947). The evidence viewed in such a light shows the following: In August 1982 appellants bought the subject mobile home, with a three-room addition attached, located at 4105 Cleveland Highway in Whitfield County, Georgia. The purchase price was $6,000 of which appellants had paid $5,000 at the time of the fire; the remaining $1,000 was past due. The residence was first insured by appellants in the amounts of $20,000 on the structure and $10,000 on the contents. This policy was cancelled by appellants on December 17, 1982 because their residence did not comply with the terms of the mobile home policy which required that appellants own the land on which the home was located. Appellants took out a policy with Allstate Insurance Company on the same day, December 17, 1982. This policy was a replacement type which essentially provided that, in the event of its destruction, the insurer would replace the structure as opposed to paying its cash value to the insured. Under the Allstate policy, the structure was insured for $14,900 with additions of $10,000 and contents of $12,500. ¹

The fire was first reported at 8:54 p.m. by a neighbor who heard an explosion and ran into her yard to see the mobile home on fire. The fire department responded to the neighbor's call in approximately five minutes to find the whole structure ablaze and the doors locked. Due to the strong fuel odors within the structure, the degree of fire involvement, the intensity of the fire and difficulty in extinguishing it, the firefighters testified that they did not believe the fire to have been accidential. Laboratory analysis of the debris sampled from various areas of the structure clearly showed the presence of incendiary accelerants. Although appellants had left and locked the trailer approximately twelve hours prior to the fire, the State offered testimony to show that the stove was used as a time-delay device to ignite the accelerants present throughout. According to this evidence, a skillet containing the remains of a corrugated cardboard box soaked in diesel fuel was found within the oven, the door of which was found open. Evidence as to whether the oven or a burner had been left on was inconclusive. "Pour patterns" from the liquid accelerants were determined. Appellants admitted that flammable liquids determined to have been present were normally stored in their mobile home; i.e. kerosene, gasoline, and Coleman fuel. Evidence showed that the stove and oven within it served as the ignition point and its electrical malfunction was eliminated as a possible cause of the fire.

From the foregoing evidence, the jury could properly determine that the fire was caused by a criminal agency. In support of the State's theory that appellants were such criminal agency, the State presented evidence of motive. Such evidence centered upon appellants' difficult financial condition in 1982 prior to the fire. Appellants repeatedly applied for credit using various addresses and listing various employers and amounts of income. Once extended credit, they made purchases, running up their bills, and failed to keep their accounts current. They had, prior to December 1982, rented a mini-warehouse in Calhoun, Georgia for storage of certain items and furnishings. On December 24, 1982 Mrs. Powell rented a larger storage facility there, attempting to use a different name. Mrs. Powell had instructed the telephone company to disconnect the telephone service to the mobile home effective December 7, 1982, leaving as a forwarding address a post office box in Ringgold, Georgia. In November 1982 Mr. Powell had made inquiries in Ocala, Florida about moving there to open a travel-trailer business. The foregoing evidence is consistent with the State's assertion of appellants' motive; that is, that appellants planned to destroy their home, have it replaced with another in a different location pursuant to the insurance policy, thereby escaping their creditors.

"To set aside the [convictions], it is not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by someone else. [Cit.] It must exclude every reasonable hypothesis save the guilt of [those] accused, which is primarily a question for determination for the jury. [Cit.] An appellate court has no yardstick to determine what in a given case is a reasonable hypothesis except to rely on the informed and weighed conclusions of twelve intelligent jurors. The jurors in this case heard the [witnesses], and are better qualified to judge the reasonableness of a hypothesis raised by evidence (or its lack) than is this court which is restricted to a cold record and to issues of law. [Cit.] On the basis of the evidence presented to the trier of fact, we are satisfied that such trier of fact could be satisfied beyond reasonable doubt by legal and competent evidence that [appellants'] guilt was fully established. [Cit.]" Burns v. State, 166 Ga.App. 766, 769, 305 S.E.2d 398 (1983). See also Whitten v. State, 143 Ga.App. 768(5), 240 S.E.2d 107 (1977); Powell v. State, 142 Ga.App. 641(3), 236 S.E.2d 779 (1977).

2. Appellants next urge this court to set aside their convictions based upon allegations of prosecutorial misconduct.

(a) Appellants cite as error the trial court's denial of their motion to exclude the testimony of Frank Catalanotto, whose name was not provided to the defense on the State's original list of witnesses. Instead, Mr. Catalanotto's name was furnished to appellants on an amended list served upon defense counsel on May 27, 1983, prior to the call of the case and trial beginning on May 31, 1983. The prosecutor stated to the court that he had "found out about" Mr. Catalanotto on May 26 or 27, 1983 and defense counsel admitted that he had interviewed him prior to trial. When asked by the trial court if more time was needed for interviewing the witness, defense counsel stated that it was not. Prior to denying the motion, the trial court noted that the motion was to exclude the testimony, and specifically stated that counsel had not moved for a mistrial or for a continuance either at the call of the case or at trial.

OCGA § 17-7-110 "authorizes the sanction of exclusion of the witnesses' testimony but same is not mandatory where the trial judge in his discretion determines that the defendant can be protected by some other form of relief. [Cits.] Relief for such violations of the statute may be achieved by motions for mistrial or continuance, as the trial judge suggested here, the denial of which would present for review the question of abuse of the trial court's discretion." Davis v. State, 135 Ga.App. 203, 207, 217 S.E.2d 343 (1975). We find no error in denying the motion to exclude. Further, we find no merit in appellants' allegations of prosecutorial misconduct regarding any aspect of Mr. Catalanotto's testimony.

(b) Appellants complain of prosecutorial misconduct regarding the connection between the State and Ron Kibble, a fire investigator for the Whitfield County Fire Department, who was called as the State's first witness and allowed to remain to assist the prosecutor. We note that the only instance in which Kibble's conduct was challenged before the trial court related to appellants' assertion that Kibble had communicated with a juror. The trial court conducted a thorough inquiry into this allegation outside the presence of the jury as a whole. At the conclusion of testimony on this matter, appellants withdrew the motion for mistrial. Thus, review of this issue is waived on appeal as are appellants' other contentions regarding misconduct involving Kibble. "It is well settled that this court will not consider issues raised for the first time on appeal." Coggins v. State, 168 Ga.App. 12, 13, 308 S.E.2d 36 (1983).

(c) Appellants allege prosecutorial misconduct involving support furnished the State by Allstate Insurance Company in the prosecution of this case. A review of the transcript reveals that defense counsel pointed out to the jury the extent of Allstate's involvement by developing this connection through throughout questioning. However, at the point at which counsel sought...