State v. Maxson, 52932

• Decision Date: 31 May 1988
• Docket Number: No. 52932,52932
• Citation: 755 S.W.2d 277
• Parties: STATE of Missouri, Respondent, v. Daniel MAXSON, Appellant.
• Court: Missouri Court of Appeals

Page 277

755 S.W.2d 277

STATE of Missouri, Respondent, v. Daniel MAXSON, Appellant.

No. 52932.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 31, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 29, 1988.

Application to Transfer Denied Sept. 13 1988.

James J. Knappenberger, Shaw, Howlett & Schwartz, Clayton, for appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for respondent.

GRIMM, Judge.

In this jury tried case, defendant was convicted of arson in the second degree in violation of § 569.050 RSMo 1986.

There are five allegations of error on appeal. First, that the trial court erred in denying his motion for judgment of acquittal at the close of the state's case. We disagree, because defendant waived any error with respect to the denial of the motion by introducing evidence in his own behalf. State v. Parker, 543 S.W.2d 236, 240 (Mo.App.E.D.1976). Second, that "the trial court plainly erred to the point of manifest injustice by failing to instruct the jury on alibi." Defendant did not request an alibi instruction; the trial court is under no duty to instruct on alibi unless requested; and there is no manifest injustice by the trial court in failing to give the instruction. Third, that the trial court committed plain error in failing to include a paragraph relating to a security interest in the property in the verdict directing instruction on arson. We disagree, because there was no evidence to support the inclusion of that paragraph in the instruction. Fourth, that the trial court erred in its treatment of several of defendant's motions. We disagree, because defendant's point did not comply with Rule 84.04(d), thereby justifying denial on that basis alone. In addition, all motions presented to the trial court were ruled upon. Fifth, that defendant was erroneously restricted by the trial court in his cross examination of a state's witness. We disagree, because in regard to one alleged error, there was no objection sustained by the trial court; and in regard to the other alleged error, there was no abuse of discretion by the trial court in its ruling on the relevancy of evidence. We affirm.

In December, 1982, defendant purchased a house from Roy May for $20,000.00. Defendant paid down $1000, and May financed the balance, secured by a deed of trust. The note required a balloon payment of $3,000 in March, 1983, and monthly payments of $229.08 on the 17th of each month.

On March 31, 1983, defendant called May and told him that he could not make the balloon payment, but that he would be able to by August; May agreed to this. In June, 1983, May discussed the possibility of foreclosure with Jackie Schletter, who was collecting the monthly payments for him. Schletter told defendant and his wife several times that if payments were not made on the $3,000 note, May would foreclose.

Between June, 1983, and May, 1984, defendant paid $405 on the $3000 balloon payment. Due to the lack of payment on the note, May called defendant's wife on June 4, 1984, and talked to her about refinancing with someone else. Also, on June 13, May sent a certified letter to defendant advising him that he was going to foreclose. This letter was returned unaccepted. At the time of the fire, $2595 of the $3000 balloon was still owed. As to his required monthly payments of $229.08, the last payment made by defendant was on June 25.

On July 22, 1984, at approximately 5:25 a.m., the Wright City Fire Department responded to a fire at defendant's house. The fire chief, Larry Zuhone, found both doors of the house were locked. The firemen made the only entry to the house through a back window on the second floor. Around 8:00 that morning, Zuhone and a fire marshal, Russ Mason, investigated. Mason found the heaviest fire damage to be at the rear of the building. On the back porch area, he noticed that the door had a burn pattern on the outside. After entering the house, Mason found that the kitchen had heat and smoke damage, but that the heaviest burning had occurred near the ceiling. The living room, however, had severe fire damage which extended from the baseboards up to the ceiling, and there was also alligator charring which, according to Mason, indicates a rapid-moving, intense fire. At the door at the base of the steps going upstairs, Mason found a flammable liquid burn pattern on the floor. This was unusual because normally there would be no reason to find such a pattern. This pattern ran back across the porch and under the porch door outside to the concrete steps. A bedroom directly above the living room was severely damaged, with most of the floor burned away, but the other two bedrooms primarily had heat and smoke damage. Mason only saw a few items of clothing in one upstairs closet.

At the scene of the fire, a chlordane bottle containing fuel oil, diesel fuel, or something similar, was found on the kitchen table. A five gallon fuel can was found on the back porch.

Mason ruled out an accidental cause for the fire. This was because there was no electricity servicing the first floor at the time of the fire, so the fire could not have been caused by faulty wiring. He concluded that the fire was of an incendiary origin, i.e., intentionally set. The fact that there were two separate fires--kitchen and living room--was significant, as well as the lack of a basis for an accidental fire.

Gary Maxson, defendant's brother, testified that right before the weekend prior to July 4, 1984, the defendant, while drunk, told him that he would pay him or anyone he knew $1000 to burn his house down while he was away for the weekend. Deborah Maxson, wife of Dwayne Maxson and defendant's sister-in-law, testified that on July 12, ten days before the fire, defendant told her he was going to get $50,000 to $60,000 because he was going to burn his house down. Also, she said she had seen defendant remove blankets and boxes from his house eight days prior to the fire.

Defendant and his wife filed fire insurance claims. For personal property, they claimed $24,370.46. This claim was not paid, but May as mortgage holder was paid for the house.

Defendant's wife testified that defendant and her brother-in-law, Poncho Harraman, sprayed the house for roaches the night before the fire. As a result, the Maxson's spent the night at the Harraman's, who lived across the street. She moved a baby crib and playpen, as well as some clothes, over to the Harraman's. At her sister's request, the television was also moved there. According to her, they all went to bed around midnight; she and her husband did not wake up until 5:30 a.m., when her sister pounded on the door and yelled that their house was on fire. She stated that there was no way that her husband could have left during the night without her knowing it. Poncho and Peggy Harraman both confirmed defendant's wife's story.

Defendant first alleges that the trial court erred in denying his motion for judgment of acquittal at the close of state's case.

Defendant did not stand on his motion for judgment of acquittal. After his motion was denied, defendant introduced evidence in his own behalf, which thereby waives any error with respect to the denial of the motion. State v. Parker, 543 S.W.2d 236, 240 (Mo.App.E.D.1976); State v. Turnbough, 388 S.W.2d 781, 783 (Mo.Div. 2 1965).

Even if we were to reach the issue of the submissibility of defendant's case, we would find that the state made a submissible case of arson in the second degree. A person commits that crime if he (1) knowingly damages a building (2) by starting a fire. Here, defendant's house burned. There was sufficient evidence for a jury to find that defendant caused the fire, considering (1) the testimony of his brother and sister-in-law indicating that defendant wanted someone to burn the house; (2) Mason's testimony that the fire was intentionally set; (3) the defendant's delinquency on his note and the pending foreclosure; and (4) the removal of items from the house the night the fire occurred, as well as eight days earlier. Point denied.

Defendant's next point is that "the trial court plainly erred to the point of manifest injustice by failing to instruct the jury on alibi." Defendant contends that he "gave proper notice of an 'alibi' defense and produced four witnesses establishing the location of defendant at and before the fire."

Defendant did not raise this claim of error in his motion for new trial so the issue has not been preserved for review. State v. Porter, 458 S.W.2d 256, 259 (Mo.Div. 1 1970). In order to obtain review, defendant must demonstrate that there was plain error. State v. Fetty, 654 S.W.2d 150, 155 (Mo.App.W.D.1983). This court will not consider any matter dealing with instructions as plain error, unless it can be shown that the trial court has so misdirected or failed to instruct the jury on the law of the case so as to cause manifest injustice. Porter at 259.

An alibi instruction must be given by the trial court if it is requested. State v. Webb, 527 S.W.2d 728, 730 (Mo.App.E.D.1975); MAI-CR 2d 3.20 and 3.22, Notes on Use. Here the defendant did not request such an instruction. A "trial court is under no duty to instruct on alibi unless requested to do so by the defendant." State v. Paige, 446 S.W.2d 798, 807 (Mo.Div. 1 1969). We find no manifest injustice by the trial court in failing to give an alibi instruction. Point denied.

Defendant next alleges that the trial court committed plain error in failing to include a paragraph in the verdict directing instruction on arson. Specifically, he refers to the failure to include a paragraph patterned after paragraph Third of MAI-CR 2d 23.08, which says:

(Third, that [insert one of the following, omitting the number and brackets ]

some (person) (persons) (person or persons) other than defendant had a possessory, proprietary or security interest in the damaged building, (and defendant did...