State v. Carter
| Decision Date | 21 January 2022 |
| Docket Number | 20190708-CA |
| Citation | 504 P.3d 179 |
| Parties | STATE of Utah, Appellee, v. Douglas Jack CARTER, Jr., Appellant. |
| Court | Utah Court of Appeals |
Emily Adams, Freyja Johnson, Salt Lake City, and Cherise Bacalski, Attorneys for Appellant
Sean D. Reyes and Thomas Brunker, Salt Lake City, Attorneys for Appellee
¶1 Douglas Jack Carter, Jr., appeals his conviction for aggravated arson. He asserts that his trial counsel provided ineffective assistance by not objecting to certain testimony of the State's expert witness and by not moving for a directed verdict. We affirm.
¶2 On a Monday in October 2018, a vacant house in a residential neighborhood caught fire. The fire department successfully extinguished the blaze, and the damage was confined to the area around the utility meter. The fire melted some siding but otherwise did little damage. While responding to the fire, firefighters found it necessary to pull drywall and insulation from the interior walls nearest the meter to check for flames or hot embers. The firefighters then left the house with the drywall and insulation on the floor, and they disconnected all the utilities for safety reasons.
¶3 Just three days later, early on Thursday morning, the house again caught fire. This time, the fire was much more destructive, resulting in the house being declared a total loss and later being demolished. The fire marshal, with the assistance of "an accelerant detection canine," investigated the scene and soon determined that the second fire originated in the same location as the previous fire and that it was intentionally set by igniting gasoline.
¶4 While firefighters worked at the scene, Carter appeared and spoke with responding police officers. His presence seemed odd to the officers because it was very early in the morning, it was cold, and Carter was only wearing "pajamas and a light jacket." The officers began to suspect that Carter, who lived just "two houses to the north of where the fire was located" and who was suspected of burning utility poles in an unrelated case, was involved with the fire. Furthermore, the vacant house was a "family home" that once belonged to Carter's deceased grandmother and was then passed to Carter's mother, who sold it to Carter's cousin due to her inability to pay the taxes and utility bills on the property. Based on these facts, the officers obtained a warrant to search Carter's property. The search revealed an empty box of matches on an armchair in his home and a gas can containing a small amount of gas in a shed. Carter was then arrested. The arresting officers observed a visible burn on his wrist
. Carter initially denied starting the second fire but later admitted that he used the gasoline and matches found during the search to start the fire.
¶5 The State charged Carter with aggravated arson under Utah Code section 76-6-103 for the second fire.2 In relevant part, under that section "[a] person is guilty of aggravated arson if by means of fire or explosives he intentionally and unlawfully damages ... a habitable structure." Utah Code Ann. § 76-6-103(1) (LexisNexis 2017). A habitable structure is defined as "any building, vehicle, trailer, railway car, aircraft, or watercraft used for lodging or assembling persons or conducting business whether a person is actually present or not." Id. § 76-6-101(1)(b).
¶6 At trial, it was undisputed that Carter set the second fire. Thus, the trial turned solely on whether the vacant house qualified as a "habitable structure" under the statute. If it did, then Carter was guilty of aggravated arson, a first-degree felony. See id. § 76-6-103(2). If it did not, then Carter was guilty of the lesser included offense of arson, a second-degree felony under the facts of this case. See id. § 76-6-102(3).
¶7 Prior to the start of trial, the parties debated how to instruct the jury on the definition of "habitable structure." Carter's trial counsel proposed a jury instruction that stated, "The focus of the definition of ‘Habitable Structure’ is on the actual use of the particular structure, not on the usual use of similar types of structures." Trial counsel's argument, therefore, was that for a house to be deemed a habitable structure under the statutory definition, it must actively be lived in and cannot be vacant at the time the fire is set. The district court apparently disagreed, stating that "[y]ou don't have to show it's being actually lived in," and the court refused to provide the jury with the proposed instruction.
¶8 On the other hand, the State, relying on an Arizona case, proposed an instruction that "habitable structure includes any dwelling house, whether occupied, unoccupied, or vacant." The district court also rejected this proposed instruction. It reasoned that the Arizona case the State cited was inapplicable because it dealt with an Arizona statutory definition that differed from the Utah statutory definition.
¶9 The court then determined that it would simply instruct the jury with the exact wording of the statutory definition of "habitable structure." See id. § 76-6-101(1)(b). The court informed the parties that they could argue to the jury whether that definition meant that the house had to actually be in use at the time the arson took place. The court also indicated that it would instruct the jury that if it found that the house was not a habitable structure, then it could convict Carter of the lesser included offense of arson.
¶10 At trial, the State called, as an expert witness, the fire marshal who investigated the fire.3 The last question the State asked the fire marshal in its direct examination was whether, "in [his] expert opinion," the house was "a habitable structure." The fire marshal responded, "Yes." Carter's trial counsel did not object.
¶11 On cross-examination, the fire marshal explained that while drywall and insulation "had fallen into the structure ... it was pretty obvious that ... the home was livable" before the second fire destroyed the house. But trial counsel did elicit testimony from the fire marshal that there was no food or furniture in the house that would indicate that someone had been living there at the time the second fire was started. Trial counsel then asked how the fire marshal was qualified to determine whether the house was a habitable structure. The fire marshal explained that in determining the house was a habitable structure, he relied on "general common sense," his experience in investigating fires over the years and seeing "what people are willing to live in," and the fact that the house had been "built to be a habitable structure." The fire marshal also explained that he had "seen structures that were considerably more damaged than [the house was after the first fire] that people have moved back into."
¶12 Later, during a discussion with the court on another issue, trial counsel explained why he did not object to the fire marshal's testimony that the house was a habitable structure. He explained that he did not object because "all [the fire marshal] says is that somebody could live in it." And as part of the defense strategy, that answer was irrelevant because, in accordance with trial counsel's interpretation of the statute, he was focused on "what was it being used for at that time."
¶13 During its closing argument, the State walked the jury through the elements of aggravated arson. When discussing whether the house was a "habitable structure," the State argued that "[i]t was classified as a habitable structure by Fire Marshal ..., an expert witness." The State also argued that "[t]he primary purpose of this type of structure is lodging" as seen by the fact that Carter's grandmother had resided in the house before she died, it had the typical layout of a house, it contained appliances, and the utilities were hooked up and usable before the first fire. The State explained that the aggravated arson statute purposefully "uses the word habitable versus inhabited," meaning that "[t]he law does not require that somebody be living there full time and they just happen to not be home." The State then concluded that "if a business, if a trailer, if a railway car, a watercraft, or an aircraft can constitute a habitable structure under the law, then this home surely constituted a habitable structure."
Trial counsel concluded by stating that all that was relevant was "the actual use of this property, this structure, at this time," and that it was undisputed that no one had used the house for lodging for many years.4
¶15 After closing argument, the case was submitted to the jury, which found Carter guilty of aggravated arson. Carter appeals.
¶16 Carter raises two issues for our consideration. First, he asserts that trial counsel was ineffective for failing to object to the fire marshal's testimony regarding the house's habitability. Second, he asserts that trial counsel was ineffective for failing to move for a directed verdict when the State rested its case. "When a claim of ineffective assistance of couns...
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