State v. Van Black, 14514

• Decision Date: 05 February 1987
• Docket Number: No. 14514,14514
• Citation: 726 S.W.2d 429
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Thomas VAN BLACK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 429

726 S.W.2d 429

STATE of Missouri, Plaintiff-Respondent, v. Thomas VAN BLACK, Defendant-Appellant.

No. 14514.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 5, 1987.

Motion for Rehearing and Transfer

Denied and Overruled

Feb. 27, 1987.

Application to Transfer Denied April 14, 1987.

Cenobio Lozano, Jr., Harrisonville, for defendant-appellant.

William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The defendant was charged with having committed arson in the second degree by burning his own house. § 569.050. The principal evidence presented by the state was the testimony of the defendant's accomplices, Danny Warden and Arthur Clubine. A jury accepted their testimony and found the defendant guilty. In view of that verdict, "[i]n reviewing a contention that the evidence was insufficient to establish the crime charged, we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary." State v. Cooper, 673 S.W.2d 848, 849 (Mo.App.1984).

When so viewed, the evidence established the following basic facts. The policy of insurance upon the defendant's house provided the following coverages: real property--$60,000; personal property--$45,000; and loss of use--$30,000. The defendant wanted his house burned because it was in poor condition, he was in poor financial condition and the payments on his loan were going to increase.

Danny Warden was a longtime friend of the defendant. Warden and Clubine were friends. They were members of a Marine reserve unit. At the time, Clubine was living with Warden.

On several occasions the defendant asked Warden to burn the defendant's house. Warden finally agreed to do so. The defendant said there would be gasoline in the garage and in the attic. Also, that a heater and timer and extension cord to serve as an ignition device were in the garage. The house was to be burned when the defendant was not at home. The defendant agreed to pay Warden 5% of the profits from the insurance proceeds.

The evening of the fire, the defendant and his family left the house. About 11:00 p.m., Clubine drove Warden to the vicinity of that house. Warden then walked through backyards to the house. He got containers of gasoline from the garage. He poured gasoline throughout the house. He plugged in the ignition device and was pouring more gasoline when the fumes ignited. Warden escaped but was severely burned. After about a week he was forced to seek medical care. When interviewed in the hospital, after consulting with his attorney, Warden confessed his part in the offense.

By his first point the defendant contends the verdict directing instruction was prejudicially erroneous. That instruction was patterned upon MAI-CR 2d 23.08, modified in accordance with MAI-CR 2d 2.12. The instruction authorized a finding of guilty if the jury found the defendant or Danny Warden damaged an inhabitable structure by starting a fire and "that with the purpose of promoting or furthering the commission of arson in the second degree, the defendant acted together with or aided Danny Warden in committing that offense."

The defendant first relies upon the following proposition. The rule of disjunctive submission is that "when a crime may be committed by any of several methods, the information must charge one or more of the methods, and the method or methods submitted in the verdict directing instruction must be among those alleged in the information, and when submitted in the disjunctive each must be supported by evidence." He cites State v. Shepard, 442 S.W.2d 58, 60 (Mo. banc 1969). The proposition and case are inapposite. They deal with alternative factual elements of an offense, not with accessorial liability. "It is proper to submit MAI-CR 2d 2.12 even if the information does not charge a person as an aider or abettor. If the evidence warrants such a submission, the jury can be properly instructed to find a person guilty on either active participation or for aiding and abetting." State v. Irving, 714 S.W.2d 618, 622 (Mo.App.1986).

The defendant next argues that MAI-CR 2d 23.08 was modified contrary to the Notes on Use to MAI-CR 2d 2.12. He states the only active participant in the offense was Danny Warden. Therefore, he contends Notes on Use 6, Example (a) to MAI-CR 2d 2.12 required MAI-CR 2d 23.08 to be modified to attribute all elements of the offense to only Danny Warden. Assuming that to be true, reversible error is not necessarily established. The Notes on Use to MAI-CR 2d 2.12 contain the following self-limitation:

NOTE: Any variation in ascribing the elements of an offense to the defendant or to the other person or persons and any variation in the selection of alternatives in the paragraph following 'then you are instructed that the offense of [name of offense ] has occurred ...' shall not be deemed reversible error in the absence of prejudice.

Under the verdict directing instruction, the defendant could be found guilty if he caused the fire. Or, he could be found guilty if Danny Warden caused the fire and the defendant acted together with or aided Danny Warden. Under the circumstances of this case, the jury could not have been misled by that instruction. The defendant was not prejudiced by that instruction. Cf. State v. Patterson, 649 S.W.2d 925 (Mo.App.1983). Also see State v. Fant, 714 S.W.2d 916 (Mo.App.1986); State v. Reasonover, 714 S.W.2d 706 (Mo.App.1986); State v. Barnes, 708 S.W.2d 270 (Mo.App.1986).

The defendant's second point is that the judgment must be reversed because "[t]he trial court erred in permitting the state, over objection, to elicit negative responses from its witnesses to questions whether defendant before arrest named either of his co-defendants as suspects in the arson of his house." To support his point he cites questions eliciting such responses from insurance adjustor Duvall. It is difficult to envision how the defendant was prejudiced by evidence of his failure to name his accomplices as suspected arsonists. However, even an assumption that the admission of such evidence was improper does not establish reversible error.

The Chief of Police of Adrian, who also talked with the defendant, was a prior witness. The same negative responses were elicited from him without objection. David Owens was an investigator with the Office of the Missouri State Fire Marshall. He too had talked with the defendant about the fire. He too testified before Duvall. Owens was asked, "Did he mention any names?" The defendant's counsel then stated to the court, "The state objected to this testimony, that what he said to him would be hearsay. I won't make that objection. Go ahead." Owens then, without objection, testified the defendant did not mention Warden or Clubine. The admission of the prior similar responses, without objection, established that the error, if...