Sizemore v. State, 1-478A90

• Decision Date: 18 July 1979
• Docket Number: No. 1-478A90,1-478A90
• Citation: 391 N.E.2d 1179,181 Ind.App. 409
• Parties: George SIZEMORE, Appellant (Defendant-Below), v. STATE of Indiana, Appellee (Plaintiff-Below).
• Court: Indiana Appellate Court

Page 1179

391 N.E.2d 1179

181 Ind.App. 409

George SIZEMORE, Appellant (Defendant-Below), v. STATE of Indiana, Appellee (Plaintiff-Below).

No. 1-478A90.

Court of Appeals of Indiana, First District.

July 18, 1979.

William C. Erbecker, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

The defendant-appellant is appealing his conviction by a jury of first degree arson. The three issues presented for review are sufficiency of the evidence, error in not granting his motion for a mistrial and error in not allowing defense counsel to read an appellate decision to the jury during closing argument. We find no reversible error.

Before addressing the merits of the appeal, we deem it appropriate to comment on the quality of the appellant's brief herein by observing that it gives every appearance of being dictated, typed, coalesced, and filed without the benefit of proofreading or correction. ¹ As a result, the work product is sloppy, without syntax in places, difficult to read and understand, and generally detracts from the presentation of the case. The brief generally complies with the letter of Appellate Rules 8.2 and 8.3: however, manifestation of the spirit of those rules eludes detection. Since this problem appears to be of increasing frequency, we issue a caveat to practitioners prone to short cuts that this practice may require rebriefing and thus result in a loss of time and effort.

Prior to a summary of the evidence favorable to the State, it is proper to reiterate our standard of review:

"As we have often stated before, in reviewing the allegation of insufficient evidence this Court will not weigh the evidence nor resolve questions of credibility of witness, but will look to that evidence and the reasonable inferences therefrom which support the verdict of the jury. The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier of fact could reasonably infer the existence of each element of the offense beyond a reasonable doubt."

Where the evidence of guilt is essentially circumstantial, the question for the reviewing court is whether reasonable minds could reach the inferences drawn by the jury; if so, there is sufficient evidence.

Bruce v. State, (1978) Ind., 375 N.E.2d 1042, 1080 (citations omitted); See also Guyton v. State, (1973) 157 Ind.App. 59, 299 N.E.2d 233 (standard of review in circumstantial evidence cases).

The facts as presented by the evidence most favorable to the State are as follows:

On February 14, 1977, at approximately 4:00 p. m., in response to a call, the voluntary fire department of Fruitdale went to the home of George and Dorothy Sizemore in Brown County. Upon reaching the house, the firemen noticed grayish-black smoke coming out from under the eaves. According to evidence presented at trial, black smoke occurs when petroleum products are burned. Also, a person driving by the house several hours before the firemen arrived noticed a little smoke and the odor of fuel oil.

Since no one was at the premises and since the premises were locked, the firemen and a neighbor broke down the front door to get into the house. The fire was brought under control and extinguished, although some damage had been done to the interior. The firemen noticed several peculiar aspects of the fire that suggested arson. First, there was a burn pattern on the living room rug which suggested, (and later analysis showed) that it was a flammable liquid. Another peculiar aspect was that there were several separate fires in the house; that is to say, the fire was not started from a single source. The firemen also noticed that the house seemed sparsely furnished, few clothes were found, and few dishes and silverware were in the kitchen. One other unusual fact was that the furnace had been rigged with a piece of wood to stay on and that the temperature control had been turned up all the way. Suspecting arson, the firemen investigated the outbuildings on the property to see if fires had been set in them also. In the outbuildings, the firemen found good quality furniture, bedding, clothes, family photographs, a console color television set and various canned foods. These items had been placed there so recently they were not even dusty. Records were found in a shed, although the record covers were found in the house. Also, a melted plastic bottle was found in the house which smelled of gasoline. Several jars were also found around the house, although no flammable liquid was detected in them. Sizemore claimed an alibi of being in court in Indianapolis that afternoon; however, one of his sons who also claimed to be in Indianapolis was seen in a local grocery store at noon the day of the fire.

Further investigation revealed that George and Dorothy Sizemore had procured home owners insurance for the first time the previous October on the house and its contents protecting them from loss such as fire and theft. A proof of loss was sent to the company claiming a loss in the amount of $34,000. The itemized list of missing or destroyed items included many of the items found by the firemen in the outbuildings. On the basis of this evidence, George Sizemore was arrested, and found guilty in a trial by jury of first degree arson.

As summarized, the elements of the offense of first degree...