State v. Hage

• Decision Date: 31 May 1995
• Docket Number: No. 18487,18487
• Citation: 532 N.W.2d 406
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Donald HAGE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 406

532 N.W.2d 406

STATE of South Dakota, Plaintiff and Appellee, v. Donald HAGE, Defendant and Appellant.

No. 18487.

Supreme Court of South Dakota.

Argued Sept. 14, 1994.

Decided May 31, 1995.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Michael Stonefield of Office of Public Defender for Pennington County, Rapid City, for defendant and appellant.

KONENKAMP, Justice.

A jury convicted Donald Hage of Second Degree Arson and four counts of Third Degree Arson and he pleaded guilty to a Part II Information charging him as an Habitual Offender. On appeal, he raises the following issues:

I. Was the evidence sufficient to sustain a conviction for Third Degree Arson (Count IX)?

II. Was the evidence sufficient to sustain the convictions generally?

III. Did the trial court abuse its discretion by not allowing evidence of prior burglaries at one of the arson sites?

IV. Did the missing element in the Third Degree Arson instruction constitute plain error?

We affirm all convictions.

FACTS

In the Fall of 1992 a two-month long succession of pre-dawn arsons occurred in southeast Rapid City, beginning with the Livermore home and ending one block away at the Riss home. Suspicion focused on Hage when witnesses informed authorities that Hage, a neighbor of the Risses and Livermores, was peculiarly conspicuous at the scene of the Riss fire. The day after the fire, November 25, 1992, Hage voluntarily met with investigators at the Rapid City Police Department. He acknowledged being at the scene of the Riss fire, but denied seeing any other fires. Upon further questioning Hage then conceded he had seen the Livermore fire, but gave varying accounts of how he came upon the scene. Still further in the interview he admitted witnessing two other fires, again giving inconsistent versions of events. When confronted with these contradictions, Hage responded, "I know I haven't done them. I know I haven't, I ain't that, I don't light fires that much where I'd ever do that to hurt anybody or." He was soon charged with nine counts of arson, all having a similar mode of ignition.

At the close of all the evidence in Hage's jury trial the court entered judgment of acquittal on three counts finding insufficient evidence linking Hage to those respective fires. The jury found him guilty on five of the six remaining counts. For his Second Degree Arson and Habitual Offender convictions the court sentenced Hage to eighty-five years in the penitentiary. He received fifteen years in the penitentiary on each of his four convictions for Third Degree Arson, all sentences to run concurrently. Because Hage challenges the sufficiency of the evidence we summarize the facts most favorable to the verdicts. State v. Sondreal, 459 N.W.2d 435 (S.D.1990).

Livermore Fire.

On October 3, 1992, the Livermore family home was destroyed by fire. Though the house was secured before the Livermores had left town for the weekend, it was common knowledge in the neighborhood that the back door would not always close properly. Firefighters reported that the front door was unlocked when they arrived. At first, fire investigators believed that either a television or a pile of debris under a desk in one of the bedrooms served as the ignition point. On further examination, investigators concluded that the television was a "victim of the fire rather than the source of the fire." Based on all the circumstances the authorities confirmed the fire had an incendiary origin.

A few days after his home had burned, Mr. Livermore was sifting through the remains when Hage, who lived with his parents next-door, began walking around the scene. Livermore did not have a close relationship with Hage, but the two occasionally chatted. Hage mentioned that he awoke to the smell of smoke on the morning of the fire and also remarked cryptically about the Livermores' dog, Bristy, who had perished in the fire, saying, "Boy, you just never know whether he's going to bite and when he isn't." Bristy was hostile to strangers, but according to Livermore, the dog knew Hage and would not respond aggressively to him.

After first telling authorities during the Riss fire investigation that he had not seen any other fires, Hage conceded that he saw the Livermore fire as he walked home from his job at K-Mart around 6:00 a.m. Upon checking, the authorities discovered that he was not employed at K-Mart during this time. At another point during his interview, Hage said he did not become aware of the fire until after he came home from K-Mart and went to bed, but was awakened by the smell of smoke blowing in his open window. The wind that morning was blowing away from his window however.

Midtown Plaza Fire.

At 3:48 a.m. on October 7, 1992 firefighters responded to a call at the Midtown Plaza office building where fire was burning through the roof. It took two to three hours to subdue the blaze. The fire had originated in a common area near a stairwell in a dead end hallway on the second floor. Once again investigators deduced arson; the primary ignition site was too burned to determine if any particular materials had been used as kindling, but trash had been used as tinder in attempt to start a fire in two other separate areas of the building. Midtown tenants had a habit of neglecting to lock the main entrance door when leaving the building at night. At his interview Hage admitted to being one block away and watching fire trucks from Hardees Restaurant where he said he had been for over two hours since leaving a nearby bar at closing time around 2:00 a.m. The State elicited testimony that it would take a little over seven minutes to walk from the bar to Hardees. Hage estimated it took him "not even a half hour." Investigators believed that the fire had been burning from one to two hours before 3:48 a.m.

Dental Office Fire.

Sometime between 5:30 and 6:30 a.m. on October 24, 1992 someone broke into and set fire to the offices of Dr. Kenneth Benusis, a pediatric dentist. ¹ A ceiling tile and air duct had been altered in an apparent effort to control the flow of the fire, possibly an attempt to cause it to spread to the second floor. Fire investigators found two separate ignition points. One of the two trays in the autoclave which ordinarily held sterilized dental instruments was found empty after the fire. When authorities later searched Hage's bedroom on December 10, 1992, they found three dental instruments in his desk drawer: a single ended, small size dental mirror; a single-ended # 23 "Henry Schein" shepherd's hook explorer; and a "Henry Schein" # 22 double-ended excavator. Dr. Benusis testified that although he could not positively identify the instruments found in Hage's room as definitely his dental tools or indicate that these were specifically missing after the fire, he was emphatic that these three instruments precisely matched the types of dental tools he used. Dental instruments come in different sizes, shapes and brands, but Dr. Benusis preferred to use a "Henry Schein" # 22 double-ended excavator on his child patients. He further explained that there are four available sizes of dental mirrors, but he prefers to use the shortest size: a single-ended mirror, just the same as the one found in Hage's desk. Dr. Benusis also uses a single-ended shepherd's hook "Henry Schein" # 23 explorer. Dentists often use double-ended instruments for adult patients, but as a pediatric dentist, Dr. Benusis favored using single-ended dental tools to minimize possible injury to squirming children.

Bus Fire.

When teacher Doug Mulder arrived at Rapid City Christian High School just after 6:00 a.m. on October 30, he saw a man standing near a school bus. The man informed Mulder that there was a fire in the bus and that he had seen some people running away. Mulder had seen no one, nor did he notice any evidence of a fire until he approached the bus. Unable to open the bus doors, the two men gained access through an unlocked window. They opened the windows and doors and put out the fire with water and a fire extinguisher. During their brief encounter, the man asked Mulder if he thought this fire might be connected to the other recent fires. He also mentioned that he had noticed smoke as he was walking home from work at Perdue Manufacturing. Mulder thanked the man and asked for his name and address. The man replied that his first name was Donald, spelled his last name "H-A-G-G," gave a nonexistent address, and walked away. Arson investigators later determined that the fire had been ignited using scrap as kindling. Scrap building materials from a nearby construction site were found piled under the bus as well. At trial Mulder identified Hage as the man he encountered that morning.

At his interview, Hage admitted that around 6:00 a.m. on October 30, friends had dropped him off at a convenience store near the high school. Hage claimed he was drawn to smoke coming up from behind the church which the wind was blowing toward him as he walked home. Contradictory evidence indicated the wind was blowing in the opposite direction that morning. Furthermore, when Mulder arrived, he did not see any smoke; the bus's windows and doors were shut. Arson investigators testified that the distribution of smoke on the window panes confirmed Mulder's observations: no smoke would be visible to capture Hage's attention. Hage's credibility was further eroded by his stipulation at trial that he did not work for Perdue Manufacturing.

Riss Fire.

A smoke alarm awoke Mrs. Riss at 4:30 a.m. on November 24, 1992. She and her husband sought shelter at a neighbor's home. As firefighters battled the blaze which ostensibly originated from trash set on fire along the exterior of the house, Hage, a stranger to the Risses and the neighbor, appeared inside the neighbor's home. Hage approached Mr. Riss, asked how he was doing, and mentioned that he had recently witnessed his neighbor's home burn. H...