State v. Garrett, 13514

• Decision Date: 27 November 1984
• Docket Number: No. 13514,13514
• Citation: 682 S.W.2d 153
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Billy Joe GARRETT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 153

682 S.W.2d 153

STATE of Missouri, Plaintiff-Respondent, v. Billy Joe GARRETT, Defendant-Appellant.

No. 13514.

Missouri Court of Appeals,

Southern District,

Division Three.

Nov. 27, 1984.

Motion for Rehearing Overruled and

Transfer to Supreme Court Denied

Dec. 13, 1984.

Application to Transfer Denied

Jan. 15, 1985.

John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Mary E. Burnett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

David E. Woods, Public Defender, Poplar Bluff, for defendant-appellant.

PER CURIAM.

Following jury trial defendant was convicted of second-degree arson and sentenced as a persistent offender to ten years' imprisonment. He appeals.

For his first point defendant contends that there was insufficient evidence to support the verdict because the state failed to show that the fire was knowingly set by him. As defendant asserts, there was no direct evidence that he started the fire.

In determining if the evidence is sufficient to support the verdict, the evidence and all reasonable inferences must be considered in the light most favorable to the state and all evidence and inferences to the contrary disregarded. State v. Buffington, 588 S.W.2d 512, 514 (Mo.App.1979).

Any fact can be established by circumstantial evidence. State v. Chase, 444 S.W.2d 398, 402 (Mo. banc 1969). To establish facts by circumstantial evidence the circumstances must be such as are inconsistent with defendant's innocence, but it is not necessary that they be absolutely conclusive of his guilt. State v. McGee, 592 S.W.2d 886, 887 (Mo.App.1980).

The circumstances here strongly indicate that the fire was set and that defendant set it. Defendant, his wife, their three children, and his two stepdaughters lived in a rental house in Charleston, Missouri. On July 21, 1981, defendant and his wife purchased a $5,000 insurance policy insuring the contents of their house against various perils, including fire. The house suffered fire damage on Sunday, August 30, 1981.

Defendant's stepdaughter, Michelle Lamb, stated that on the afternoon of August 30, 1981, pictures, baby clothes and articles were taken from the house to defendant's mother's home. Earlier other clothes and pictures had been taken there. Michelle testified that a few days before the fire defendant told his wife, "Maybe we will do it Saturday." On Saturday, August 29, he said, "We will do it tomorrow night." At that time Michelle did not know what defendant was talking about.

On the afternoon of August 30, defendant carried newspapers into the southeast bedroom and spread the papers on the floor of the closet and onto the bed. Defendant also moved some clothes in that bedroom from the back to the front of the closet. When Tammy Lamb, the other stepdaughter, asked defendant about the newspapers and the clothes, defendant said he did it and for her to leave them alone.

On August 30, at approximately 7:30 p.m., Tammy went across the street to babysit. About an hour later Michelle, her mother, and the rest of the children left to go to defendant's mother's house, leaving defendant home. At defendant and his wife's request, Michelle stopped across the street to tell Tammy not to go back to the house when she was through babysitting, but to go to defendant's mother's house.

Tammy saw defendant sitting on the porch of the house smoking a cigarette at approximately 9:30 p.m. Defendant then got up, went into the house, and walked through it. Then he came out and walked from the house, past his landlord's house, "and then he took off running around the corner." She said that "about five or ten minutes later, the house was in flames."

Later that evening Tammy saw defendant at his mother's house. Defendant was in the back bedroom with the lights off and said if the "cops" or anybody came looking for him to tell them he wasn't there.

A firefighter, who responded to an alarm of the fire, said the doors and windows of the house were locked and the windows down, highly unusual for August. He went to the rear of the building where the fire was coming out through a broken window. He busted in the rear door to get to the fire and upon entering noticed that the door to the southeast corner bedroom was closed and had rags piled against it.

There was evidence that it was a warm day, there were no other fires in the area, and that there were no electrical storms. The fire chief stated that the fire started in the southeast bedroom. There were no electrical wires near where it started. There was evidence that the house was sparsely furnished and defendant stood to gain monetarily by the fire.

The removal of items and the obvious preparation for the fire and the statements as to when appellant was going to "do it" strongly indicate he was preparing to set a fire. He was the only one present in the house, and then left it, walked for awhile, and then ran from it shortly before it started burning.

The evidence was certainly sufficient that the jury could find defendant guilty beyond a reasonable doubt. These circumstances are inconsistent with his innocence and taken together supply sufficient evidence to support the charge. This point is denied.

For his second point defendant states that the trial court erred in allowing the fire chief to testify where the fire started because he was not sufficiently qualified as an expert.

By reason of education or specialized...