State v. Houck
| Decision Date | 31 October 1986 |
| Docket Number | No. 58691,58691 |
| Citation | 240 Kan. 130,727 P.2d 460 |
| Parties | STATE of Kansas, Appellee, v. Terrance HOUCK, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A bank which holds a mortgage on real estate is a mere lienholder. It does not hold an "interest" in the property, as that term is used in the arson statute, K.S.A. 21-3718(1)(a).
2. An insurance company, which writes a policy of insurance upon a building, does not hold an "interest" in the building, as that term is used in the arson statute, K.S.A. 21-3718(1)(a).
3. Under the facts of this case, the statute of limitations governing criminal prosecutions was tolled while the accused was absent from this state, even though he was on parole from a Kansas sentence and, at his request, was allowed to leave the state.
4. In charging the jury in a criminal case, it is the duty of the trial court to define the offense charged, stating the essential elements of the crime either in the language of the statute or in appropriate language of the court.
5. When an instruction has not been objected to at trial, this court's scope of review is limited to a determination of whether the instruction is clearly erroneous.
6. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict.
Jessica R. Kunen, Deputy Appellate Defender, Topeka, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for appellant.
Ann L. Smith, Asst. Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief, for appellee.
This is an appeal by Terrance Houck, following his conviction by jury trial in Montgomery District Court, of two counts of aggravated arson, K.S.A. 21-3718(1)(a), K.S.A. 21-3719; two counts of conspiracy to commit aggravated arson, K.S.A. 21-3302, -3718(1)(a) and -3719; one count of felony murder, K.S.A. 21-3401; and one count of felony theft, K.S.A. 21-3701(b). The controlling issue is whether the evidence was sufficient to establish the crime of aggravated arson under K.S.A. 21-3718(1)(a) and -3719.
Briefly, these are the facts. Terrance Houck owned two houses in Independence, Kansas, one located at 1328 West Chestnut, the other at 729 South 16th Street. On June 25, 1980, the house on Chestnut was damaged by fire. Albert Hughes was the tenant; he was inside the house when the fire was discovered. The Marysville Mutual Insurance Company had a policy of insurance covering the Chestnut Street property. Houck, as owner, was the named insured. He collected $4,900 from Marysville Mutual for his loss.
On January 29, 1981, fire destroyed the 16th Street property. Carl Clay was in the house when it burned, and he was killed. The house was uninsured, but the First National Bank of Elk City held a mortgage on it.
Arson was not suspected. The fire chief concluded that both fires were caused by careless smoking. Houck, meanwhile, was charged on August 28, 1980, and was convicted on March 5, 1981, of aiding and abetting arson and theft by deception. These charges arose out of yet a third fire. On December 21, 1981, he was placed on parole, and on June 3, 1982, his parole officer granted Houck's request and authorized him to move to Arkansas. There he reported to an Arkansas parole officer upon his arrival in that state, and he remained under the supervision of that officer.
An arson investigation was initiated in April or May, 1983, when Independence authorities received anonymous letters from someone in Arkansas. Two statements were taken from the defendant. The first, taken in Arkansas on May 22, 1983, covered the Chestnut Street fire. The second, taken in Independence on May 24, 1983, covered the 16th Street fire. In regard to the Chestnut Street fire, defendant told police officers that he was buying several houses from John Briggs, and the Chestnut Street house was insured through John's son, Robert Briggs, an insurance agent. Robert Briggs called him several times and finally defendant went in to see him. Robert Briggs suggested that the Chestnut Street house was insured and a fire at that address might get the defendant out of debt. Houck said that he then talked with Michael Harris, and told Harris that if the house would accidentally burn the burning would be worth about $500. The house later burned and Houck collected on the insurance policy. Robert Briggs held out of the proceeds the money that Houck owed John Briggs (about $4,780), and Houck received a check from Robert Briggs for the balance, $120. In the May 22 statement, Houck denied ever talking to Harris about setting fire to the 16th Street house.
On the following day, May 23, Houck was returned to Kansas and on May 24, he gave a statement concerning the 16th Street fire. He stated that Suretta Beach, Carl Clay's lady friend, came to him and asked him to burn the 16th Street house so that Clay would die and she could collect on an insurance policy which she held on Clay's life. She insisted the fire occur on January 29, 1981. She promised Houck that she would pay him after she received the insurance money. She also told him that the windows and rear door were barred and that the fire should be started on the front porch so that Clay could not escape. Houck talked to Michael Harris and paid him $500 to set the fire and promised to pay him more when the job was finished. When Harris said he had no way to carry gasoline, Houck told him that there was a five-gallon gasoline can in the back of his truck. On the morning of January 29, Houck went to a coffee shop about 6:00 o'clock and then went down to 16th Street to get Clay out of the house. When Houck arrived, the house was already on fire. Houck went on to work. After the fire, Suretta Beach stopped him on his way home and told him she would pay him as soon as she got the insurance money. She never paid him anything. Both of these statements were received in evidence.
At trial, Suretta Beach was called as a witness for the State. She testified that the windows and back door of the 16th Street house were sealed for weatherization. She denied hiring anyone to burn the house, and testified that she had no life insurance on Clay. She denied collecting any insurance money after he died. Michael Harris was killed in 1982, and John Briggs died in August 1983, before this trial, and thus neither was available as a witness. Robert Briggs, called as a witness for the State, testified as to the insurance coverage, the proof of loss, and the disbursement of the policy proceeds. He was not asked if he suggested to Houck that he burn the house.
Two other witnesses, Gary and Michael VanGilder, testified that Houck approached them about burning a house. The witnesses, however, were unsure of the location of the target properties.
The first issue is whether the evidence was sufficient to sustain the convictions of aggravated arson, as charged in the second amended information. Both charges allege the damaging of a building in which another person has an interest, without the consent of such other person. Count No. 2 charges defendant with the aggravated arson of the 16th Street property "in which another person has an interest, to-wit: The First National Bank of Elk City, Kansas, without the consent of such other person...."
Count No. 5 charges defendant with the aggravated arson of the Chestnut Street property "in which another person has an interest, to-wit: Marysville Mutual, Marysville, Kansas, and Albert Hughes without the consent of such other persons...." Arson is defined by K.S.A. 21-3718 as follows:
Aggravated arson is defined by K.S.A. 21-3719 as follows:
Houck argues that neither the bank nor the insurance company had any interest in the property that burned. Our former statute, G.S. 1949, 21-581, prohibited the burning of the property of another person. In State v. Crosby, 182 Kan. 677, 324 P.2d 197 (1958), we were called upon to interpret that statute. Crosby was charged with burning a dwelling house which was the property of a savings and loan association by virtue of a certain mortgage held by it on that property. Defendant Crosby was the owner of and in possession of the property. Prior to the fire, he and his wife had executed a note and mortgage to the savings and loan association. On appeal, defendant contended that the interest, if any, of the savings and loan association in the property, being merely that of a mortgagee, did not make the house "the property of another person" within the meaning of the arson statute. In reversing the conviction, our court said:
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