State v. Bowles

Decision Date19 July 1988
Docket NumberNo. 53073,53073
Citation754 S.W.2d 902
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Duane BOWLES, Defendant-Appellant.
CourtMissouri Court of Appeals

Donald Eugene Dalton, Jr., St. Charles, Charles F. James, Wentzville, for defendant-appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SIMEONE, Senior Judge.

I.

Defendant-appellant, Duane Jeffrey Bowles, was charged by information with six counts of assault in the first degree and attempted arson in the first degree. Upon trial by jury he was found guilty of five counts of assault in the third degree and attempted arson. He was sentenced to one year in confinement and $1.00 fine on each count of assault, to run consecutively, and sentenced to seven years for attempted arson, to run consecutively to the sentences for assault. Sections 565.070, 564.011, 569.040, R.S.Mo., 1986.

Defendant appeals contending that (1) there is insufficient substantial evidence to convict him for the offenses of assault and attempted arson in the first degree, (2) his rights of double jeopardy under the federal and state constitutions were violated, and (3) there was prosecutorial misconduct during the state's opening statement, so that a mistrial should have been granted. We affirm.

II.

The jury could reasonably find the following. On August 29, 1986, in Troy, Missouri, Robert P. Brodt was a patrolman for the city. He had been an officer for seven years. Officer Brodt rents and lives in a 100 year old, wooden house in Troy with his wife Deborah, and their four children, Jenny, Rachel, Michael and Joseph, who range in age from four to ten years. Brodt's partner on patrol on August 29th was Patrolman Robert Lee Kindred, Jr., a part-time police officer for the city of Troy and a captain in the fire department.

On the night of August 29th at about 10:20 p.m., Officers Brodt and Kindred were on duty together. They were flagged down by a woman, the owner of the El Charo Restaurant in Troy. She told Officer Brodt that two men were at the northeast corner of the parking lot and that she wanted them to leave. Officer Brodt told Officer Kindred to approach the two men and watch them. While Officer Brodt spoke with the owner of El Charo, Officer Kindred, approached the two men. One of these men was the appellant, Duane "Butch" Jeffrey Bowles. The other was known as Joe "Shoemaker." Bowles first walked away and Officer Kindred asked him several times to stop. Bowles then became abusive and belligerent, using profane and foul language. Officer Brodt heard them arguing as he approached and began questioning Bowles. Bowles became angry and again used profane language towards Officer Brodt. Bowles appeared to be intoxicated or under the influence of drugs. Bowles had been drinking "quite a bit." Officer Brodt indicated to Officer Kindred that he knew this was "Butch" Bowles and "that's just the way he is." Officer Brodt told Bowles to leave the parking lot, that he was trespassing, and told him to go back to a bar adjacent to the lot where he had been before the confrontation. Bowles returned to the bar, the Wagon Wheel, adjacent to the El Charo parking lot. At the time no arrests were made.

It was now about 10:45 p.m. and Officer Kindred drove Officer Brodt home because his shift was ending. At his home, the children were in bed asleep. His wife Deborah greeted him. He changed into plain clothes. He was leaving shortly to do some undercover work. Officer Brodt left his house at about 11:00 p.m. and began to walk down the sidewalk.

While Officer Brodt was at his home, Bowles was having a drink at the Wagon Wheel with Edward Ray, known locally as "Cool Papa John." Bowles was angry about the confrontation in the parking lot with the officers. He told Ray, "I think I should just go over there and burn his damned house down while he's on duty." Ray said he had some gasoline at his home and left the Wagon Wheel to get it. When Ray returned to the bar, he drove Bowles down an alley behind the Brodt's home. Bowles had a green plastic jug in one hand filled with gasoline and a butane cigarette lighter in the other. He took the cap off the jug. He spilled gasoline on his pant legs and shoes. He ran up to the back of the house. He poured gasoline onto the house. Bowles testified, "When I got to the house after I put the gas on there I was going to light the--I was going to start the fire, burn the house." When Bowles ran up to the Brodt's house, he noticed a light was on in the back of the house. He testified that this was no indication in his mind that somebody was home. After pouring gasoline on the house, appellant heard a noise and crouched down. Appellant denied he had any intent to injure anyone, and when he heard a second noise he abandoned the idea, because he didn't "want to hurt nobody."

According to Deborah's testimony, there were lights on in the house at the time. She and Officer Brodt also testified that the T.V. was turned on loudly and could be heard from the outside of the house.

When Officer Brodt was leaving his house, he saw the headlights of "Cool Papa" John Ray's van through the woods behind his house. He heard a car door slam, stopped where he was, and waited for someone to appear. Brodt saw someone walking or running along a chain link fence of his neighbor's house. He waited for the person to appear but no one did. He went to the corner of the house and waited. As he looked along the side of the house he saw someone "crouched over."

Brodt testified that after waiting for the person to appear he looked around the back of the house, without moving from where he stood. He "looked down alongside of the house" and saw someone "crouched over." He drew his weapon as he approached the "subject." He recognized Duane Bowles. Brodt testified that Bowles stood up and reached for his "back pocket, hip pocket." Brodt told Bowles to put his hands up. Appellant was then arrested for trespass. A butane lighter was found in his hip pocket.

While Officer Brodt spoke with Bowles, Deborah came out of the house, having heard her husband's voice. She asked her husband if she should call for help. She returned to the house, called the Lincoln County sheriff's office and came back outside. She testified that there was a strong odor of gasoline. When Brodt placed Bowles under arrest for trespassing, he handcuffed him and brought him to the front of the house. At this time appellant was loud and boisterous and appeared intoxicated.

Meanwhile, Officer Kindred arrived. He responded to the Lincoln County dispatcher's request to check out a prowler at the Brodt's residence. The officers placed Bowles in the squad car and then went to the rear of the house. They recognized a strong odor of gasoline, and a wet spot, approximately four feet by seven feet, on the house where Bowles had poured the gasoline. Laboratory analysis later showed gasoline on the lawn around the house. Brodt found the plastic jug, which still contained some gasoline, and also found the cap. There was gasoline on the side of the house and on the ground. They took Bowles to the sheriff's office where he was again belligerent and used abusive language towards the officers.

On October 24, 1986, appellant was charged with six counts of assault in the first degree for assaulting Officer Brodt, his wife and four children, and one count of attempted arson in the first degree. Appellant was tried before a jury on April 1 and 2, 1987, in the circuit court of Pike County upon a change of venue. The jury found appellant not guilty of assault against Officer Brodt, but found him guilty of third degree assault as to Mrs. Brodt and the four children. He was also found guilty of attempted arson in the first degree. On April 20, 1987, the trial court sentenced appellant to a total of twelve years imprisonment--seven years for attempted arson in the first degree and five years for the assaults in the third degree. In due time appellant appealed.

III.

In his first point, appellant contends that the trial court erred in denying his motion for judgment of acquittal at the end of the state's case and at the close of the evidence for the reason that, since he was charged with assault and attempted arson, there was insufficient evidence to show a specific intent to commit assault and attempted arson. He argues that in an "attempt" offense, the law requires proof of a specific intent to commit "that offense." He further argues that § 564.011, is "directed to the object crime" so that the state "must prove" that it was his "conscious object" to cause death or serious physical injury to the persons in the house and damage to the building. At most, he says, the state's evidence did not prove that he intended to cause serious physical injury but only to burn an inhabitable structure. In short, he contends that the state did not prove any specific intent to cause death or serious physical injury to the persons in the house or to damage the Brodt home, hence the motion for judgment of acquittal should have been granted.

In determining this issue, we must accept the state's evidence as true and give the state the benefit of all reasonable inferences therefrom, disregarding all evidence and inferences to the contrary. See State v. Williams, 652 S.W.2d 226, 227 (Mo.App.1983).

As to the issue of attempted arson, it is, of course, necessary, under § 564.011, that a substantial step 1 be taken to engage in conduct which would damage an inhabitable structure when persons are present by starting a fire which recklessly endangers the persons present. Section 569.040. There is no requirement that appellant know that a human being is in the house. In arson, first degree, there need be no intent or knowledge that the structure is occupied. If there is a human being in the house that is sufficient. State v. Aguila, 14 Mo. 130, 132 (1851); State v. Fetty, ...

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