State v. Coble, 011521 KSSC, 118, 382

Docket Nº:118, 382
Opinion Judge:Biles, J.
Party Name:State of Kansas, Appellee, v. Chase L. Coble, Appellant.
Attorney:Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant. Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Judge Panel:Scott Showalter, District Judge, assigned.
Case Date:January 15, 2021
Court:Supreme Court of Kansas

State of Kansas, Appellee,

v.

Chase L. Coble, Appellant.

No. 118, 382

Supreme Court of Kansas

January 15, 2021

SYLLABUS BY THE COURT

When: (1) the State charged three identical counts of aggravated arson; (2) the jury instructions and verdict form failed to distinguish between those counts; (3) the jury expressed its confusion in aligning the instructions and verdict form with the generic counts alleged; (4) that confusion was not ameliorated by the court or in the record; (5) the jury convicted on one count while acquitting on the others; and (6) the record reflects arguable evidence insufficiency questions on some or all of the convictions, a reviewing court's inability to reliably associate particular conduct with the count of conviction frustrates appellate review and adversely implicates the defendant's rights to due process. Under the circumstances of this case, reversal of the conviction is required.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 26, 2019.

Appeal from Reno District Court; Trish Rose, judge.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

OPINION

Biles, J.

A jury convicted Chase L. Coble of one count of aggravated arson, but acquitted him of two others. All charges were alleged to have occurred at different times, but arose after firefighters responded to reports of fire and smoke coming from Coble's 12th-floor apartment, where he had conducted more than 50 self-described chemistry experiments. He said he was unaware of any risks associated with these activities.

The problem on appeal is that nothing in the record identifies which aggravated arson count to attribute to the jury's split decision-something the jury pointed out during its deliberations to no avail. Coble contends the anomalies prevent appropriate appellate review of the State's evidence proving the crime of conviction's critical elements, especially the intent element of whether he "knowingly" damaged the apartment building through his actions associated with the jury's verdict. See K.S.A. 2019 Supp. 21-5812 (itemizing elements of aggravated arson). We agree.

These unique, but avoidable, circumstances make it impossible to determine the jury's verdict as to which crime it found Coble guilty of beyond a reasonable doubt. Our confidence in the propriety of Coble's conviction for this serious criminal charge is undermined by concerns for his due process rights. We reverse the conviction and remand the case to the district court for further proceedings. We do so recognizing double jeopardy issues may arise on remand if the prosecution continues. See State v. Dale, 312 Kan. 174, 178, 474 P.3d 291 (2020). That must be left initially to the district court and the parties on remand.

Factual and Procedural Background

In the early morning on June 21, 2016, the Hutchinson Fire Department was dispatched to Coble's apartment, which is in a building with about 75 residents. When firefighters arrived, they found a small fire and light smoke. The sprinkler system had engaged, causing water to leak into the apartment below. Officer Ernie Underwood observed about an inch or two of water on the floor of Coble's apartment and scorch marks on the walls and ceiling. He saw lab equipment, such as beakers and test tubes, as well as drain cleaner, sulfur, salt peter, and household chemicals.

Multiple investigators gave similar testimony about the condition of Coble's apartment following the fire. Anthony Celeste, a state fire marshal investigator, gave a representative account accompanied by photographs he took at the scene. He pointed out wet kitty litter and glass fragments on the top of a chest freezer. He concluded the fire originated on top of the freezer. He also identified evidence of fire in the kitchen, consisting of "soot collection" and "charring" on the ceiling "close to above the sink." And he took the jury through photographs of a closet, noting charring on the door from past fires with soot and charring on the wall and ceiling. Celeste concluded the fire on the freezer top in the front room was "incendiary," which he defined as "a fire that's intentionally set in a place where fire should not be . . . ." He told the jury he could "clearly document" three incendiary fires-one on the freezer, one in the closet, and one in the kitchen.

When police encountered Coble the morning firefighters arrived, Coble had scarring from mid-chest level to his stomach, which he said were acid burns from "a flashover" during an experiment about a week and a half before. Coble explained to investigators on the scene and during a later interview with Federal Bureau of Alcohol, Tobacco, and Firearms Agent Neil Tierney, that the trouble prompting the firefighters' response occurred while he was trying to produce a fire with a specific amount of heat.

Coble told Tierney he combined methyl ethyl ketone, which is a liquid solvent, with camp gas in a glass bowl on top of the freezer. He ignited this mixture by dropping burning wood into the bowl. He said this normally results in a small flash with a controlled flame, but this time he mistakenly let fumes from the chemicals build up before igniting the mixture. He thought he might have been distracted by his phone when this larger-than-normal flash happened. Water from the sprinkler system exacerbated the flare up and cracked the glass bowl.

Tierney also questioned Coble about the closet and kitchen damage. Coble said the closet damage was caused by toluene, which burns "dirty." Ashes found on the kitchen stove were from burning toluene in a flask on the stove. Coble said his stomach burns came from mixing muriatic or sulfuric acid with another material about a week and a half earlier. He said those events were the "worst." He also said he had performed an experiment on the "infusion rate of chlorine gas" that caused him some minor respiratory problems. Coble estimated he had performed at least 50 exothermic reactions-chemical events that generate heat-in his apartment in the last year. He guessed he had produced open fires 10 to 20 times.

Coble volunteered that much of what he did was for demonstrations to kids. Later, when asked why he was performing his experiments, Coble said he was trying to develop a metallic plastic that could be used in computer chips. He agreed he acted recklessly and said his arrogance caused him to believe he could control his experiments. He told Tierney he was "deficient in his P.P.E." When questioned about ingredients for explosives, Coble said he did not touch anything he did not believe he could control within a reasonable time.

At trial, Tierney said he believed Coble knew about chemistry and explosives. But when defense counsel asked if he believed Coble was aware of the hazards from the chemicals being used, Tierney hedged. He answered that "normally [he] would say, yes," noting Coble continued performing experiments after "get[ting] burned and creat[ing] chlorine gas that could have killed him . . . ." Tierney admitted Coble said "yeah, I shouldn't have done that." But Tierney then added, "It's almost as if he were not knowledgeable because he almost killed himself."

Coble testified at trial. He said he learned about chemicals mostly from school and college, with some knowledge self-taught. He denied trying to set a fire and did not think his experiments would cause a substantial risk of bodily harm. He thought he had control over the situations because of the kitty litter, and that if anyone would be harmed, it would have been him. He said he was unaware of any risks and did not know his apartment's sprinklers were heat-based. On cross-examination, Coble agreed he was "doing controlled flames in [his] apartment" and that he was trying to start a fire "[a]s much as anyone would light a candle." He denied trying to set fire to the building. Coble acknowledged what he was doing was "very, very reckless," but he did not believe it was dangerous. He conceded the experiments should have been done in a lab or away from people, or under someone else's supervision.

The charging documents and jury instructions

The State ultimately filed three complaints in this case: the original one, an amended complaint filed the morning of trial, and a second amended complaint filed mid-trial. In each, the State set out three indistinguishable aggravated arson counts. The first amended complaint exemplifies how the State charged the three offenses. Each read: "That on or about the 21st day of June, 2016, in Reno County, Kansas, CHASE L COBLE, then and there being present did unlawfully, feloniously, and knowingly, by means of fire or explosive, damage any building or property, to-wit: Apartment Building located at 17 East 2nd, Hutchinson, Kansas, which is a dwelling, in which another person, to-wit: Ray Siebert has any interest, without the consent of such other person, committed upon a building or property in which there is a human being, and resulting in a substantial risk of bodily harm."

In other words, each count was alleged to have occurred "on or about the 21st day of June, 2016," but with no other identifying characteristics differentiating one alleged incident from the others.

In submitting these three aggravated arson charges to the jury, the district court repeated the State's charging tactic by giving identical jury instructions for each. For example, jury instruction number 6 provided, "In Count 1, Chase Coble is charged with aggravated arson. Chase Coble pleads not guilty.

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