State v. Bumbery

• Decision Date: 21 June 2016
• Docket Number: No. SD 33892,SD 33892
• Citation: 492 S.W.3d 656
• Parties: State of Missouri, Plaintiff–Respondent, v. Richard S. Bumbery, Defendant–Appellant.
• Court: Missouri Court of Appeals

492 S.W.3d 656

State of Missouri, Plaintiff–Respondent,
v.
Richard S. Bumbery, Defendant–Appellant.

No. SD 33892

Missouri Court of Appeals, Southern District, Division One .

Filed: June 21, 2016

Attorney for Appellant: Nancy R. Price of Springfield, MO.

Attorney for Respondent: Chris Koster, Atty. Gen., Rachel S. Flaster, Asst. Atty. Gen. of Jefferson City, MO.

JEFFREY W. BATES, J.

Richard Bumbery (Defendant) was charged by felony information with the class B felony of arson in the first degree in violation of § 569.040.¹ This charge involved a December 2010 fire that destroyed a building at which Defendant's employer, Bolivar Insulation Company (Bolivar Insulation), conducted its business. Following presentation of the evidence at Defendant's jury trial, the State amended its felony information to charge Defendant with the lesser-included offense of arson in the second degree, a class C felony. See § 569.050 RSMo (2000). The jury found Defendant guilty on this amended charge, and the court entered sentence accordingly.

Presenting three points on appeal, Defendant challenges the trial court's rulings on Defendant's objections concerning: (1) Defendant's motion for acquittal at the close of the State's case and at the close of the evidence; (2) the admission of Defendant's extrajudicial statements, alleged to be inadmissible pursuant to the corpus delicti rule; and (3) the admission of both a recording of Defendant's extrajudicial statements and witness testimony recounting those statements. Finding no merit in any of these contentions, we affirm.

The State's second amended information charged Defendant with the crime of second-degree arson. The information alleged that, on or about December 12, 2010, Defendant “knowingly damaged a building consisting of a business known as Bolivar Insulation” and that he did so by starting a fire. Defendant does not contest the sufficiency of the evidence to support his conviction on this charge. “We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences.” State v. Campbell, 122 S.W.3d 736, 737 (Mo.App.2004). Viewed from that perspective, we summarize the relevant facts.

On the morning of Sunday, December 12, 2010, Erica Lyons (Lyons), who was then dating and living with Defendant, woke up at 4:15 a.m. to discover that Defendant and his van were gone. Shortly after 5:00 a.m., firefighters were dispatched to a commercial structure fire at Bolivar Insulation located on Highway OO outside Kimberling City, Missouri (hereinafter referred to as the fire). The drive time from that structure to Defendant's residence was ten to fifteen minutes. Defendant returned home between 5:30 and 5:45 a.m.

Lyons confronted Defendant upon his return and asked him where he had been. Defendant responded, “Don't ask.” He then proceeded to put the coveralls he was wearing into the washing machine. Lyons continued to press the matter, and Defendant, who appeared agitated, informed Lyons that he would not have to go back to work because “Bolivar Insulation was going up in flames[.]” Upon further questioning, Defendant confessed that he had set the fire. He further stated that he would not be caught because he had researched

492 S.W.3d 660

what was traceable and had set the fire near a blue electrical box.

The following day, Lyons contacted a law enforcement officer whom she knew from having worked as a confidential informant. Lyons agreed to take a recording device home. Using that device, Lyons recorded a December 14, 2010 conversation in which she asked Defendant about the fire. During that conversation, Defendant made several incriminating admissions. These included: (1) an admission that he had started the fire by an electrical box; and (2) an admission that he used rubbing alcohol and a torch, which were untraceable.

Defendant's recorded confession was used by police to obtain a search warrant. During the ensuing search of Defendant's house and vehicles, police found a blow torch in Defendant's truck.

A state fire marshal and an insurance company investigator each conducted a physical investigation into the fire. The fire marshal's investigation revealed: (1) the absence of “spalling,” which are marks left on the floor by flammable liquids or accelerants; and (2) the origin of the fire was “in the area of the stairs[.]” These findings were consistent with Defendant's confession because rubbing alcohol does not leave spalling, and an electrical box was located in the vicinity of the stairs. Both the fire marshal and insurance investigator could not determine the cause of the fire as a result of their physical investigations alone. Based upon information provided by the police—including Defendant's confession—the fire marshal and insurance investigator concluded the fire was incendiary in origin.

Additional facts necessary to the disposition of the case are included below as we address Defendant's three points on appeal.

Point 1

In Point 1, Defendant contends the trial court erred in “refusing to rule upon” Defendant's motions for acquittal at the close of the State's evidence and at the close of all of the evidence at the time those motions were made. Defendant argues that “the State failed to produce any evidence that at the time [Defendant] was alleged to have started the fire, other persons were then in near proximity thereto[,]” which is required for a first-degree arson conviction. See § 569.040. This point arises out of the following events at trial.

The State's first amended felony information charged Defendant with first-degree arson. This information alleged that on or about December 12, 2010, Defendant “knowingly damaged a building consisting of a business known as Bolivar Insulation,” and “did so by starting a fire at a time when persons were then in near proximity thereto and thereby recklessly placed such persons in danger of death or serious physical injury.” After the State presented its case-in-chief at trial, Defendant moved for a judgment of acquittal. Defense counsel argued that “there ha[d] been absolutely no evidence before this Court that at the time the fire was started there was anyone in near proximity thereto[.]” The court took the motion under advisement “until all the evidence [was] in.”

Thereafter, the State rested, and Defendant proceeded to put on evidence that included his own testimony. After Defendant rested, he again moved for a judgment of acquittal. After some discussion during which the State indicated its willingness to file an amended felony information, the court made the following ruling:

I agree that there is insufficient evidence to submit an arson first to the jury based on the evidence presented at

492 S.W.3d 661

trial. However, I am going to overrule Defendant's motion for acquittal at both the close of State's evidence, which I had previously taken under advisement, and also the one just filed and argued. I will allow the State to file an amended information for arson second; that is, what is supported by the evidence for submission to the jury and that's what I will instruct on. The defense in this case has been basically, “I didn't do it. I didn't do it at all,” and that issue Defense has well tried, so there's no prejudice by starting this case at an arson one and ending up at an arson two.

The State, over Defendant's objection, then filed its second amended felony information charging Defendant with second-degree arson. The case was submitted to the jury solely on this charge.

We ordinarily review a trial court's ruling on a motion for judgment of acquittal in a jury-tried case to determine whether the State made a submissible case. State v. Bush, 250 S.W.3d 776, 778 (Mo.App.2008) ; State v. Young, 172 S.W.3d 494, 496–97 (Mo.App.2005). Under that standard of review, the issue is whether the State presented sufficient evidence from which a reasonable juror could have found Defendant guilty beyond a reasonable doubt. State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008).

Here, however, Defendant posits his claim of error on the trial court's failure to grant his motions and acquit him of first-degree arson—a charge never submitted to the jury. It is undisputed that the evidence was insufficient to sustain this charge. The trial court made an explicit finding on the record that there was “insufficient evidence to submit an arson first to the jury based on the evidence presented at trial.” Thus, the trial court for all intents and purposes granted Defendant's motions to the extent of the first-degree arson charge.

The gist of Defendant's argument is that, once the motions for judgment of acquittal were filed, the trial court's only option on these facts was to grant the motions because the State failed to prove its first-degree arson case. We find no merit in this argument.

First, the trial court's alleged error in deferring its ruling on the motion for judgment of acquittal made at the close of the State's case presents nothing for us to review. Because Defendant chose not to stand on that motion and instead presented evidence on his own behalf, he waived any claim of error relating to the court's ruling on the first motion for judgment of acquittal. See State v....