State v. Kindred

• Decision Date: 16 August 1976
• Docket Number: No. 3915--I,3915--I
• Citation: 16 Wn.App. 138,553 P.2d 121
• Parties: STATE of Washington, Respondent, v. Lewis Gene KINDRED, Appellant.
• Court: Washington Court of Appeals

Page 138

16 Wn.App. 138

553 P.2d 121

STATE of Washington, Respondent, v. Lewis Gene KINDRED, Appellant.

No. 3915--I.

Court of Appeals of Washington, Division 1.

Aug. 16, 1976.

Mullen & Angevine, Gilbert E. Mullen, Mount Vernon, for appellant.

Patrick R. McMullen, Skagit County Pros. Atty., Mount Vernon, for respondent.

JEROME M. JOHNSON, Judge.*

Lewis Gene Kindred appeals from a judgment entered on a jury verdict finding him guilty of arson in the second degree. We affirm.

He contends that (1) the State did not establish the corpus delicti of arson, (2) the trial court erred in failing to instruct the jury concerning the presumption that fires are caused by accidental or natural causes rather than the deliberate act of the defendant, (3) the trial court erred in giving an aiding and abetting instruction, (4) it was error to admit evidence of unrelated crimes to show motive, and (5) he was denied a fair trial.

On March 9, 1975, a wooden motorboat owned by an Indian fisherman was damaged by fire after he had beached and chained it to a tree near the Skagit River. The boat contained two tightly capped gas cans, one full and the other partially filled with gasoline but connected to the motor.

Later that evening Kindred met his friend Duvall in Sedro Woolley and they discussed the fact that they had not been catching many fish because of the Indian fishermen. They subsequently met another friend and headed for the river in Duvall's truck to see if the Indians had put out their nets. They discussed pulling the nets, turning the Indians' boats loose or chopping a hole in one. To gain access to the river, they cut a barbed wire gate. Two nearby residents heard the approaching truck but only observed Duvall. He was told to leave and one of the neighbors called the sheriff and reported the damaged gate. The other neighbor remained and he subsequently heard three voices, the word 'boat' mentioned at least twice, one person yelling at the driver to 'get out of there,' and then the voices disappearing toward the boat. Duvall was again observed driving the truck. He stopped and turned his lights 'on and off a couple of times.' The neighbors heard voices and the footsteps of two persons running toward Duvall's truck.

Moments later a sheriff arrived, found Duvall alone in his truck, and noticed a fire. Duvall was arrested and it was learned that the boat was on fire. One of the gas cans in the boat had been tipped over with its lid off and the hoses disconnected from the motor. Duvall subsequently pleaded guilty to a related charge and testified at Kindred's trial.

Kindred first contends that the State did not sustain its burden of proving the corpus delicti of arson. In State v. Zuercher, 11 Wash.App. 91, 93, 521 P.2d 1184, 1186 (1974), we stated:

The corpus delicti of the crime of arson consists of two elements: (1) that the building in question burned; and (2) that it burned as the result of the willful and criminal act of some person.

See State v. Turner, 58 Wash.2d 159, 361 P.2d 581 (1961). Kindred concedes that the proof of the burning satisified the first element of the corpus delicti but contends that the State failed to prove the second element, the criminal origin of the fire. He contends that the evidence merely placed him in the vicinity of the fire and that in the absence of both an eyewitness to the starting of the fire or an expert as to its origin, insufficient evidence was presented to sustain the conviction. We disagree.

The State presented substantial evidence from which the jury could infer that three individuals were heard near the burned boat. One of the gas cans in the boat had been turned upside down with its lid off and disconnected from the motor. Because of the hostility with the Indian fishermen, there was a motive for the fire. Motive is relevant to establish the corpus delicti of arson. State v. Zuercher, supra. The record here satisfies us that there was sufficient proof of the corpus delicti to submit the question to the jury.

Error is next assigned to the trial court's refusal to instruct the jury on the presumption that the fire resulted from natural or accidental causes:

You are instructed that there is a presumption in law that the fire in this case was caused by accident or natural causes rather than by a deliberate act of the Defendant. Proof of the single fact that a motorboat has been burned is not enough to prove the crime of Arson since it must also be proven that it was burned by the wilful act of some person criminally responsible and not as a result of natural or accidental causes.

This instruction should be given if the defendant contests the issue of the cause of the fire And there is substantial evidence that the fire was of accidental or natural causes. State v. Smith, 142 Wash. 57, 252 P. 530 (1927); State v. Williams, 9 Wash.App. 663, 513 P.2d 1045 (1973), Rev'd on other grounds, 84 Wash.2d 853, 529 P.2d 1088 (1975). See also State v. Zamora, 6 Wash.App. 130, 491 P.2d 1342 (1971). Although the record indicates that Kindred contested the issue of the cause of the fire, there is no evidence that the fire was accidentally or naturally caused. Accordingly, the trial court properly refused the proposed instruction.

Moreover, the test of the sufficiency of the instructions is whether when considered as a whole counsel may satisfactorily argue his theory of the case to the jury. State v. Dana, 73 Wash.2d 533, 439 P.2d 403 (1968); State v. Alexander, 7 Wash.App. 329, 499 P.2d 263 (1972); State v. Nettles, 6 Wash.App. 257, 492 P.2d 567, Aff'd 81 Wash.2d 205, 500 P.2d 752 (1972). Here, the jury was instructed (1) on the elements of the crime of arson, (2) that the State had the burden of proving these elements beyond a reasonable doubt, and (3) on the presumption of innocence. These instructions sufficiently allowed Kindred to argue his theory of the case to the jury and, accordingly, the trial court did not abuse its discretion in refusing the proposed instruction. See Borza v. State, 25 Md.App. 391, 335 A.2d 142 (1975); State v. Collins, 13 Or.App. 614, 511 P.2d 440 (1973).

Kindred further contends that the trial court improperly instructed the jury that he could be found guilty if he aided or abetted others in committing the crime. RCW 9.01.030. We disagree. The aiding and abetting instruction did not allow the jurors to speculate as to the existence of codefendants. Kindred was given sufficient notice that three...