State v. Siraguso

Decision Date02 December 1980
Docket NumberNo. WD,WD
Citation610 S.W.2d 338
PartiesSTATE of Missouri, Respondent, v. Frank P. SIRAGUSO, Appellant. 30893.
CourtMissouri Court of Appeals

Lewis E. Pierce, William E. Shull, Gettig, Coulson & Shull, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

The defendant Siraguso was convicted of the arson of a dwelling house and sentenced to imprisonment for two years. The appeal contends among other grounds that the evidence was not sufficient to submit the offense to the jury. We agree.

The evidence taken most favorably to the judgment of conviction shows: the residence was owned by one Lorraine Kamler who occupied the premises with two teenage daughters. The house burned on June 9, 1978. At the time of the fire, she and the girls were at the home of another daughter. They left the residence several days before, out of fear. The home was burglarized on June 2, 1978, the contents ransacked, and black marks and red numbers were smirched on the bedroom doors as well as other symbols which intimated the vandals would return to molest them. (on one bedroom door, a daughter found a note: "We missed you this time, little Dago lover, but we'll be back.") On about that date, Ms. Kamler received a telephone call: "You don't scare easy, do you?" When demanded his identity, the caller said only, "Get out." This episode was only the culmination of tragedies which attended occupancy of that house. In February of 1977 she was raped there, her husband left her thereafter, and the mother and daughters began to be harassed by threats and obscene telephone calls. A voyeur was seen around the windows and the peeper was finally apprehended by the aid of a neighbor. The burglary and smirches of the home on June 2, 1978, so terrified the daughters that they refused to remain there any longer. Thus, on June 5, 1978, mother and daughters left with intention to return later.

Ms. Kamler entrusted the key to the residence to the defendant Siraguso, a young man of twenty-one years. The defendant had known the Kamlers for some ten years in fact, they were distant relatives. There was no qualm about entrustment of the premises to Siraguso and Ms. Kamler gave him the key. (She had asked the police to look after the home as she had reported every other incident of harassment and lawlessness but was told the department could not keep a twenty-four hour watch.) Ms. Kamler informed one Thompson, a neighbor on the other side of the street (and her insurance agent), of her departure from fright and of her destination. Ms. Kamler visited the home on each day, June 6th, 7th and 8th, and found everything in order.

The defendant Siraguso entered the Kamler residence near midnight on June 8, 1978. He was accompanied by one Spino. They used the key to unlock the door for entry. Once inside, they looked around the upper floor but not the basement and found the house "a mess." The bedroom doors were smeared with red and black paint and the screened porches were slit. The two young men turned on the television set for the baseball game. In a short time, the police arrived in response to a prowler call. (They were summoned by neighbor Thompson who was distracted from his own engrossment in the baseball game by the sound of broken glass and the sight of a van backed up into the Kamler garage.) The police asked Siraguso and Spino to explain their presence. The defendant related that they were there to watch over the premises by request of the owner, and explained the harassments which prompted her departure. The defendant displayed identification and demonstrated that the key given him opened the front door. The defendant attempted to reach Ms. Kamler by telephone to corroborate the narrative, but without success. The officers spent some twenty minutes on the premises. They perused the first floor and garage, but not the basement. They obtained the license number of the van in the garage the two men used for transportation. One of the officers, McCoy, detected some odor, but was not able to identify it because an allergy then interfered with his olfactory perception. The officers were satisfied the two men were on the premises legitimately, and so departed.

The officers left at about five minutes to one o'clock on the morning of June 9th. Within minutes of the police departure, neighbor Thompson heard two "puffs" from across the street and saw flames shoot out of the basement window wells. Thompson ran across the street just as Siraguso and Spino pulled out of the driveway in the van. He heard them say: "Let's get out of here." Thompson pounded on the vehicle and said: "Where are you going?", to which there was no reply. He then said: "Say, there's a fire," to which they replied: "Yes, we know and we're getting out of here." The van accelerated away. The defendant Siraguso explained that, as they sat there, there was a sound of explosion accompanied by black smoke. They surmised that the locus was in the basement but could not enter because of the fumes. By that time smoke so enveloped the entire house that the telephone was no longer accessible nor the area bearable. They jumped into the van to drive away, and as they did, they confronted Thompson who asked what was wrong. They told him of the fire although that condition was obvious and asked him to telephone the fire and police departments. The two men were stopped by police at the lot used to park Double S Vending vehicles, some distance away. The defendant Siraguso was employed by Double S to service cigarette machines and collect the coins. The van was used in that occupation. Siraguso was allowed personal use of the vehicle freely, according to the employer. The employer was aware also that Siraguso mowed lawns for additional earnings and probably used the van to transport that machine as well.

The officers who intercepted the van immediately after the fire detected an odor of gasoline from the van. Officer Whorton testified to "a puddle of gasoline" on the floor mat between the two front seats. 1 A segment of the mat was preserved and laboratory analysis determined that the material was impregnated with gasoline. The employer Walton explained that a gasoline container was often carried in the front area of the van as a precaution against an empty tank. That was because the driver often had in custody sums of money from the machines and the practice to carry additional gasoline was to avoid the need to leave the vehicle unattended during a search for fuel. The officers also took into custody the clothes and shoes of defendant Siraguso for examination. The laboratory analysis reported there was no trace of gasoline or gasoline fumes on the apparel.

The cause of the fire was from the ignition by a hot water heater of clothes soaked with gasoline. The garments, according to Fire Investigator McKiddy, were saturated with the fluid and then placed between the furnace and heater. In due time, as the vapors rose from the basement floor, they were ignited by the pilot light of the hot water heater, and the fire thence spread onto the first floor through the heat duct. The heat caused cans of flammable insecticide to explode, so that the firemen confronted not only the flames and smoke, but also toxic vapors. Inspection of the premises disclosed a five gallon gasoline can in the garage which emitted the fluid odors. Laboratory examination disclosed that the fluid was gasoline. There was no attempt to test the container for fingerprints, however. The witness Distasio testified that he mowed the lawn for Ms. Kamler, the last time about a week before the fire, and recalled a five gallon gas container in the garage. He used his own fuel, however, since the can contained a gas and oil mixture unsuitable to the mower.

The arson of a dwelling house within (then) §§ 560.010 and 560.015, RSMo 1969, requires proof of two elements beyond a reasonable doubt: (1) that the accused set fire to the structure, and (2) that the accused did so intentionally. MAI-CR 7.02. The conviction, therefore, must rest on evidence that the accused was an agent of the crime. A conviction must rest on something more than guess, or suspicion, or even probability of guilt. There must be evidence that the accused affirmatively participated in the criminal venture, or consciously shared or associated in the act. State v. Miller, 536 S.W.2d 524, 527(3-5) (Mo.App.1976). When the facts of the crime are proved by circumstantial evidence, the concatenation of circumstances the prosecution asserts for guilt must be consistent with the hypothesis of guilt, and must be inconsistent with innocence, and exclude every reasonable hypothesis that the accused was innocent. State v. Franco, 544 S.W.2d 533, 534(2) (Mo. banc 1976). It is for the prosecution to forge every connection in the chain of proof, and not the duty of the accused to break the sequence of the circumstantial evidence to be entitled to acquittal. State v. Irby, 423 S.W.2d 800, 802(1) (Mo.1968). In this assessment of the proof, evidence that the accused was present at the scene and had opportunity to commit the crime does not suffice as circumstantial evidence of guilt. State v. Morse, 515 S.W.2d 608, 610(2-6) (Mo.App.1974). Nor does flight alone suffice as a circumstance for conviction where the accused has a reasonable explanation consistent with a hypothesis other than that of consciousness of guilt. State v. Castaldi, 386 S.W.2d 392, 395(4, 5) (Mo.1965).

The evidence placed the defendant Siraguso and companion Spino at the scene of the fire (although not in the basement where the arson was committed), showed his quick flight and disclosed that the van he and the companion occupied gave off...

To continue reading

Request your trial
9 cases
  • State v. Nickens
    • United States
    • Missouri Court of Appeals
    • October 8, 1985
    ...with innocence and must exclude every reasonable hypothesis that would establish the accused's innocence, citing State v. Siraguso, 610 S.W.2d 338, 341 (Mo.App.1980). He misconstrues both the rule and the evidence in this case. The "circumstantial evidence rule" governs only those cases fou......
  • State v. Hubbard, WD
    • United States
    • Missouri Court of Appeals
    • September 10, 1985
    ...further asserts that the evidence created no more than a mere suspicion of guilt and thus under the rule announced in State v. Siraguso, 610 S.W.2d 338 (Mo.App.1980), the cause never should have been submitted to the jury. It is noted that while Siraguso is often cited for the rule regardin......
  • State v. Bailey, WD
    • United States
    • Missouri Court of Appeals
    • January 4, 1983
    ...argues that direct proof of his guilt was minimal, the case resting almost entirely on circumstantial evidence. He cites State v. Siraguso, 610 S.W.2d 338 (Mo.App.1980) for the proposition that a conviction must rest on something more than guess, suspicion or even probability of guilt. The ......
  • State v. Smith, s. 13674
    • United States
    • Missouri Court of Appeals
    • December 28, 1984
    ...to the contrary disregarded. State v. Buffington, 588 S.W.2d 512, 514 (Mo.App.1979). Even if, as defendants contend, State v. Siraguso, 610 S.W.2d 338 (Mo.App.1980), correctly interprets Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as calling for a more stringent......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT