State v. Bollinger
| Decision Date | 26 June 2015 |
| Docket Number | 110,945. |
| Citation | 352 P.3d 1003,302 Kan. 309 |
| Parties | STATE of Kansas, Appellee, v. Brent BOLLINGER, Appellant. |
| Court | Kansas Supreme Court |
Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, argued the cause, and Melanie S. Morgan, Morgan Pilate LLC, of Kansas City, Missouri, was with him on the brief for appellant.
Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
Brent Allan Bollinger appeals from his convictions by a jury of felony murder, aggravated arson, and aggravated child endangerment. We find no error in the proceedings below and affirm the convictions.
The defendant Brent Bollinger (Bollinger) married the victim, Brenna Stewart Bollinger (Brenna), in March 2009. They lived together at 2166 Grand Road, Fort Scott, in a house that Bollinger bought in August 2008. Brenna had a son from a previous relationship who was 3 years old at the time and whom Bollinger adopted. The couple subsequently had a son together, Bryson, who was born in September 2009.
During the short duration of the marriage, the couple experienced considerable trouble in their relationship. Brenna filed for divorce in June 2010, but she subsequently reconciled with Bollinger. Despite the reconciliation, however, Bollinger and Brenna continued to drift apart.
In mid-October 2011, the marital relationship grew significantly more contentious. On Saturday, October 8, in anticipation of seeking a divorce, Brenna went to a bank to withdraw money to pay for a lawyer. Bollinger encountered her at the bank, and the two quarreled about the money. That same day, while Brenna was away from the house, Bollinger broke furniture that Brenna's grandmother had given her, smashed a television set with his fist, and took some of Brenna's clothing out of the house and burned it in the backyard. A friend later overheard a telephone conversation in which Brenna shouted at Bollinger, “I don't care, Brent, just burn the damn house, burn the race car, I don't care, I don't care anymore.”
On Tuesday, October 11, Brenna informed Bollinger that she intended to obtain a divorce. The next day, she filed for divorce and obtained temporary ex parte orders, which included a provision for her continued residency at the house while she sought alternate living quarters. She did not have process served on Bollinger; instead, she told him that he should pick the papers up because she wanted to avoid an ordeal for the children.
The following evening, Thursday, October 13, 2011, a fire occurred at the house. The couple's older son was away from the house, spending the night with Brenna's mother. The other son, Bryson, was in the home, as was Brenna. Bollinger arrived at the house at around 10 p.m., shortly before the fire began. Brenna was in an upstairs bedroom on her cell phone, but Bollinger interrupted the conversation when he entered the room and said, “What the fuck are you doing, bitch?” Brenna screamed and the phone went dead.
Gasoline was used as an accelerant in the fire. Bollinger would later testify that Brenna and he were alone in Bryson's bedroom when the fire began and he could not remember how the fire started.
Bollinger called 911 on a cell phone and, in a short and difficult-to-understand conversation, reported that his house was burning and his son was inside. He gave the dispatcher what sounded like a different address—2166 Maple Road—from that of the home, and he did not mention that Brenna was in the house. He subsequently drove to his grandmother's house with Bryson and, about 7 minutes later, called 911 from her land line. In that call, he correctly identified the address of the house and informed the dispatcher that his wife was in the house and she had no way of getting out.
Emergency personnel arrived at the burning house and found Bollinger standing in the yard, severely burned, especially on his upper torso. He screamed that Brenna was still in the house. He explained to emergency workers that the fire started after he lit a cigarette, igniting gasoline that had spilled on his shirt while he was cutting firewood. He told emergency workers that he was responsible for the fire. Bollinger's pockets contained the couple's two wedding rings, Brenna's driver's license, and some loose change.
Fire personnel entering the house were unable to reach Brenna before she died. An autopsy revealed that she was still breathing after the fire began. Injuries on her neck were consistent with strangulation. Bollinger was hospitalized for approximately 7 weeks following the fire and received a half-dozen skin graft surgeries
. Bryson also suffered severe burns in the fire.
On January 25, 2012, the State filed a complaint information charging Bollinger with one count of first-degree premeditated murder or, in the alternative, felony murder; one count of aggravated arson, in which a mortgagee's interest in the house was alleged; and one count of aggravated child endangerment. The State filed amended complaints, in which it alleged that Brenna was a party purported to have an interest in the house.
At trial, Bollinger testified on his own behalf. He explained that he arrived home the night of the fire, entered the house, and started up the stairs to the bedrooms, where he passed Bryson, who was going down the stairs. Bollinger heard Brenna talking in Bryson's bedroom, so he turned at the top of the stairs and walked into that room, where he saw her talking on her telephone. He said to her, “What the fuck are you doing, bitch?” He was then somehow splashed with a liquid that smelled of gasoline. He lunged at Brenna but could not remember what happened next. After an indeterminate time, he became aware that he was lying on the floor, with his head next to Brenna's prone body. The room was in flames, and Bryson was standing at the foot of his bed, screaming.
Bollinger kicked the glass out of a window and dropped Bryson out onto the ground, before jumping out the window himself. He picked up Bryson and carried him to the garage. Bollinger next called 911 as he returned to the house to rescue Brenna, which he was unable to accomplish because of the heat from the fire. He could not remember when he himself was burned. He returned to the garage to get Bryson and drove him to Bollinger's grandmother's house, where he again called 911.
The jury convicted Bollinger of one count of felony murder, one count of aggravated arson, and one count of aggravated child endangerment. The district court sentenced him to consecutive terms of life, 61 months, and 7 months for the three crimes. Bollinger took a timely appeal to this court.
Bollinger initially argues that the State failed to present sufficient evidence to sustain a conviction under the arson statute.
K.S.A. 2014 Supp. 21–5812(a)(1)(A) defines arson as “[k]nowingly, by means of fire or explosive damaging any building or property which ... [i]s a dwelling in which another person has any interest without the consent of such other person; ....” (Emphasis added.) Subsection (b)(1) defines aggravated arson as arson “[c]ommitted upon a building or property in which there is a human being.”
Bollinger contends on appeal that the State failed to produce evidence proving that Brenna had “any interest” in the house, an essential element of the crime of arson. In determining whether the State has produced sufficient evidence to sustain a conviction, this court reviews all the evidence in the light most favorable to the prosecution and determines whether it is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Longoria, 301 Kan. 489, Syl. ¶ 30, 343 P.3d 1128 (2015).
At common law, arson was “the malicious burning of the house of another.” State v. Ross, 77 Kan. 341, 343, 94 P. 270 (1908). The common-law requirement that the property belong to another person was predicated on the assumption that one always has the legal right to destroy one's own property in any manner that one chooses. See Black's Law Dictionary 132–33 (10th ed.2014) (citing 1 Encyclopedia of Crime and Justice 80, 80 [Sanford H. Kadish ed., 1983] ).
As the Missouri Court of Appeals has explained, this element was necessary; otherwise, “a farmer could never rid his land of an old building by burning it without being guilty of arson, nor could landowners allow old houses to be burned for fire department training.” State v. Maxson, 755 S.W.2d 277, 281 (Mo.App.1988).
Kansas has codified the prohibition against committing arson for over a century. Older versions of the arson statutes distinguished between fires set during the day and those set at night and defined the crime to include setting fire to a building in which some human being was located. See, e.g., R.S. 1923, 21–501–512. Later versions of the law spoke of the willful burning of “property of another person.” See, e.g., G.S.1935, 21–581 (Corrick). The statutory phrase “property of another person” was strictly construed to mean a fee estate. State v. Parrish, 205 Kan. 33, 36, 468 P.2d 150 (1970). The Parrish court concluded that merely “some interest” by another party in the property was insufficient to establish the statutory crime of arson. 205 Kan. at 36, 468 P.2d 150.
In 1969, the legislature amended the arson statute. The amendment changed the requirement that the property be “the house of another” or “the property of another person.” The new statute allowed “any interest” by another to preclude at-will burning of one's own property in 1969. L. 1969, ch. 180, secs. 21–3718, 21–3719. By amending the arson statute the legislature intended to expand the types of property interests subject to protection by the arson statutes. State v. Boone, 277 Kan. 208, 214, 83 P.3d 195 (2004).
It is an essential element of the crime of arson that another party have an interest in the subject property. State v....
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