State v. Fetty, WD

• Decision Date: 10 May 1983
• Docket Number: No. WD,WD
• Citation: 654 S.W.2d 150
• Parties: STATE of Missouri, Respondent, v. Ricky Lee FETTY, Appellant. 33292.
• Court: Missouri Court of Appeals

Page 150

654 S.W.2d 150

STATE of Missouri, Respondent, v. Ricky Lee FETTY, Appellant.

No. WD 33292.

Missouri Court of Appeals Western District.

May 10, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

June 28, 1983.

Lee M. Nation, Michael E. Curley, Nation & Curley, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before WASSERSTROM, P.J., and TURNAGE and CLARK, JJ.

TURNAGE, Judge.

Ricky Lee Fetty ¹ was found guilty by a jury of conspiracy to commit arson in the first degree in violation of § 564.016 RSMo 1978. ² Pursuant to the jury's recommendation, the trial judge sentenced Fetty to seven years imprisonment.

On this appeal, Fetty argues that the trial court erred in charging, trying, and convicting him for conspiracy to commit first degree arson rather than for conspiracy to commit second degree arson, in failing to submit an instruction on conspiracy to commit arson in the second degree, in submitting a verdict directing instruction on conspiracy to commit arson in the first degree, in finding the information sufficient to charge him with first degree arson, in naming an overt act in the instructions different from the overt act named in the information, and in refusing to acquit him on the ground that there was insufficient evidence of an overt act or an agreement necessary to make a submissible case of conspiracy. Affirmed.

Patrick Fetty, the brother of Ricky Lee Fetty, testified that shortly before midnight on the night of September 29, 1980, he returned from work to his mobile home, where his roommate was awaiting him. He went to sleep a short time thereafter, and was awakened by the barking of his dog. Patrick looked out of the window and, seeing nothing, went back to sleep. When the dog's barking woke him again a short time later, Patrick took a flashlight and a pistol and went outside to investigate.

Upon stepping outside, Patrick saw what appeared to be a garbage can filled with diesel fuel and a pail filled with gasoline, both of which were standing at the corner of his trailer. He also saw a silhouette of the head and shoulders of a man who appeared to be looking at Patrick's door from around the corner of the trailer. The man ran up the trailer's driveway, and when he refused to heed Patrick's yelled commands that he stop, Patrick fired two shots over the man's head. Patrick saw the man enter a small compact car and drive off in it. Patrick stated that this man was Dennis Kerns.

Michele Pritchett, who had been employed by Ricky Lee Fetty and had also lived in his house, testified that she was hospitalized on September 29, 1980. Pritchett testified that on that date, Ricky Lee Fetty called her hospital room and asked her if he could borrow the keys to her red Toyota. He sent David Wolfenbarger to Pritchett's room that afternoon to get the keys.

Pritchett further testified that on the evening of September 27, 1980, she, Ralene Samuels, Dennis Kerns, and Darrel Wolfenbarger had all been talking at Ricky Lee Fetty's home. At that time she heard Ricky Lee Fetty ask Dennis Kerns if he would like to make $200 by burning down Patrick Fetty's trailer. Pritchett never heard an acceptance of that offer.

Ralene Samuels testified that she had been at Ricky Lee Fetty's house on the afternoon of September 29, 1980. She left there with David Wolfenbarger and Dennis Kerns in Ricky Lee Fetty's jeep, and they proceeded to a nearby gas station. Samuels testified that at the station, Kerns purchased gas with money given to him by Ricky Lee Fetty. The gas was put into a silver pail, and it was taken to the living room of a trailer occupied by David Wolfenbarger and his brothers, Darrel and Robert. Samuels heard Ricky Lee Fetty ask Dennis Kerns to do something to Patrick Fetty's trailer and heard them say they were going to torch it with gasoline.

Samuels testified that later that evening she, Darrel Wolfenbarger, and Dennis Kerns had gone riding around in Michele Pritchett's red Toyota. During the course of that ride, Samuels remembered one of the men's mentioning something about going by Patrick Fetty's trailer. The three then stopped off at Ricky Lee Fetty's trailer, and returned Samuels to the Wolfenbargers' trailer at about 1:00 or 1:30 a.m.

Samuels testified that the three of them had been drinking quite heavily that night, and that she had gone to bed immediately upon returning to the Wolfenbargers' trailer. She was later awakened by the hollering of Darrel Wolfenbarger from outside the trailer. Wolfenbarger entered the trailer carrying Dennis Kerns, whom he placed on the trailer's living room couch. Shortly thereafter, Kerns' parents and the police arrived at the trailer. Kerns died sometime after this. The clear inference is that Kerns died from gunshot wounds.

Ricky Lee Fetty did not testify, nor did he put on any witnesses in his defense.

Fetty's primary contention on appeal is that the trial court erred in allowing him to be charged, tried, and convicted for conspiracy to commit first degree arson rather than for conspiracy to commit second degree arson. Fetty contends that in order to show conspiracy to commit arson in the first degree, the state was required to prove that he specifically intended and agreed to burn Patrick Fetty's trailer while there was someone in or in near proximity to it. Fetty reasons that the state presented no evidence that he had conspired and intended to burn Patrick Fetty's trailer while it was occupied, and that he should not have been convicted of conspiracy to commit first degree arson merely because someone happened to be present. This contention is not supported by the law.

Upon examination of the statutory elements of first degree arson and second degree arson, as set forth in §§ 569.040 and 569.050 respectively, it is clear that the fundamental distinction between the two is that only first degree arson requires that the structure be occupied. The language of § 569.040 also reveals that there need be no intent or knowledge that the structure be occupied when the arson is committed:

A person commits the crime of arson in the first degree when he knowingly damages a building or inhabitable structure and when any person is then present or in near proximity thereto, by starting a fire or causing an explosion and thereby recklessly places such person in danger of death or serious physical injury. (emphasis added)

Fetty admits that to constitute arson in the first degree, it is not necessary for the accused to have prior knowledge or intent that the building burned was actually occupied at the time. This principle was discussed in State v. Aguila, 14 Mo. 130, 132 (1851), which involved a first degree arson statute substantially similar to the one in this case:

The [first degree arson] offense was complete without even the seeing the human being, or even the knowing that one was in the house by the defendant. His knowledge of such human being is no ways essential. If there be a human being in the house at the time the same was set fire to, that is sufficient.

See also 6A C.J.S. Arson § 16 (1975). ³ In light of this rule, it is impossible to know whether an arson was first degree or second degree until after the fact, and this distinction is made solely by determining at that time whether or not there was someone in or in near proximity to the building when the arson occurred.

The essence of the crime of conspiracy is an agreement to commit a crime. Section 564.016. See also U.S. v. Civella, 648 F.2d 1167, 1174 (8th Cir.1981), cert. denied 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981). The evidence shows that Fetty agreed and intended to burn a building or inhabited structure. This is the sole intent required for both first degree and second degree arson, and, as the above discussion reveals, first and second degree arson are distinguishable not on the basis of their intent requirements, but only on the basis of an after the fact assessment. Applying this standard...