State v. Wedemann

• Decision Date: 24 May 1983
• Docket Number: No. 13964,13964
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Hubert Lawson WEDEMANN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 112

339 N.W.2d 112

STATE of South Dakota, Plaintiff and Appellee, v. Hubert Lawson WEDEMANN, Defendant and Appellant.

No. 13964.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1983.

Decided Oct. 12, 1983.

Mikal Hanson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

George J. Rice of Rice & Bowen, Aberdeen, for defendant and appellant.

FOSHEIM, Chief Justice (on reassignment).

Defendant Hubert Lawson Wedemann was convicted of arson in the second degree. ¹ We affirm.

Defendant claims: (1) the evidence was insufficient to support the verdict; (2) the trial court should not have admitted evidence of his association with earlier fires; and (3) the trial court erred in refusing to instruct the jury that mere presence at the scene of the crime is not enough evidence to convict.

In determining the sufficiency of evidence the test on appeals in criminal cases is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt. In our review, we accept the evidence which supports the verdict and the most favorable inferences that can fairly be drawn therefrom. State v. Jorgensen, 333 N.W.2d 725 (S.D.1983); State v. Dietz, 264 N.W.2d 509 (S.D.1978).

In this light the following facts emerge. A divorce action was initiated by defendant's wife. Although Mrs. Wedemann had been awarded temporary possession of a jointly-owned mobile home, her husband occupied it with her consent.

On the day of the fire, the Wedemanns met for marriage counseling in Aberdeen. Mrs. Wedemann told her husband that she was going through with the divorce. Mr. Wedemann returned briefly to the mobile home at 6:30 or 7:00 p.m. and then went to a local bar known as "The Club."

Mrs. Wedemann was staying at her parents' home across the street from The Club. Mr. Wedemann called her and told her she was in big trouble. A few minutes later Mrs. Wedemann called him back to inquire why she was in trouble. They argued and hung up. Upon a second call to The Club, Mrs. Wedemann told her husband to vacate the mobile home immediately. She then had her brother John Roemmich lock the mobile home doors so that her husband could not enter.

Mr. Wedemann left The Club sometime between 8:30 and 9:00 p.m. John Roemmich saw the Wedemann car parked near the mobile home at approximately 9:00 p.m. Shortly after 10:00 p.m., the Mellette firemen responded to a fire at the Wedemann residence.

The fire which caused extensive damage originated in a middle bedroom, where a box of clothing had been saturated with cigarette lighting fluid and ignited. The fire smoldered before breaking into flames and then burned for thirty to forty-five minutes before being contained. Several expert witnesses testified the fire was not started by natural causes. Even the defendant testified there was no question in his mind but that the fire was deliberately set.

The arsonist had gained entry by forcing in the north door. This door was guarded by a dog that would allow only certain persons, including the defendant, to enter.

The defendant testified he first learned of the fire two days after it occurred. There was testimony, however, that he discussed it at least twice within that time.

At trial, the court permitted the State to introduce evidence of three earlier fires to defendant's property, namely:

(1) A fire occurring on November 30, 1973, at approximately 6:00 a.m., to a residential building owned by defendant and his wife on a lot adjacent to the mobile home in Mellette;

(2) A fire occurring on July 11, 1976, at approximately 12:50 p.m., in a mobile home owned by the defendant at South Sioux City, Nebraska, which was being repossessed;

(3) A fire occurring on March 11, 1977, at approximately 5:45 a.m., to the same residence as the first fire.

The Mellette Fire Department concluded that the first and third fires had been intentionally set. The cause of the second fire was not officially determined, although it, too, had an arson motive.

The facts raise numerous fair inferences that the defendant intended to, and did, start the fire. We will not set aside a guilty verdict if the evidence and reasonable inferences flowing from it sustain a rational theory of guilt. State v. Dickson, 329 N.W.2d 630 (S.D.1983). We conclude the evidence was sufficient to support the jury verdict.

Defendant contends the trial court abused its discretion when, pursuant to SDCL 19-12-5, ² it admitted evidence of the prior fires to show identity, motive, intent, knowledge, or plan.

Before the adoption of Rule 404(b) of the Federal Rules of Evidence (SDCL 19-12-5), jurisdictions were divided as to whether under case law it could be shown that at some previous time a building belonging to the accused arsonist burned. Wigmore on Evidence Sec. 354(10) (1979); Underhill's Criminal Evidence, Fifth Edition, Sec. 713 (1957). South Dakota has never had occasion to adopt either view. We need not do so now. The relevancy of the prior fires can be decided under SDCL 19-12-5. The fact that many courts held prior fires to be relevant without the benefit of a Rule 404(b) does, however, prompt us to apply SDCL 19-12-5 with some measure of latitude as it relates to the crime of arson.

In ruling on the admissibility of evidence of other crimes, wrongs, or acts the trial court must first determine its relevancy and then decide whether its probative value is substantially outweighed by the danger of unfair prejudice. State v. Brown, 285 N.W.2d 843 (S.D.1979); See SDCL 19-12-3. ³ Balancing probative value against the risk of unfair prejudice is a delicate function of the trial judge in the exercise of discretion. State v. Johnson, 316 N.W.2d 652 (S.D.1982); State v. Brown, supra; State v. Houghton, 272 N.W.2d 788 (S.D.1978).

After conducting an extensive pretrial hearing in which nine people testified, the trial court properly entered findings of fact and conclusions of law. State v. Holiday, 335 N.W.2d 332 (S.D.1983); State v. Volk, 331 N.W.2d 67 (S.D.1983); State v. Hartley, 326 N.W.2d 226 (S.D.1982). The court concluded that evidence of the three prior fires was relevant under SDCL 19-12-5 and that the probative value of the evidence outweighed any unfair prejudicial effect.

Our standard of review is whether the trial court abused its discretion in admitting the evidence. State v. Dace, 333 N.W.2d 812 (S.D.1983); State v. Houghton, supra. In that review "[w]e are bound by the rule that the question is 'not whether the judges of this Court would have made an original like ruling, but rather whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.' " State v. Rose, 324 N.W.2d 894, 895-96 (S.D.1982) (quoting F.M. Slagle & Co. v. Bushnell, 70 S.D. 250, 16 N.W.2d 914, 916 (1944)). We find no weakness in the finding of relevancy and no abuse of discretion in the decision to admit the evidence.

Although the defendant was not prosecuted for the previous fires, they were relevant to the issues at trial. Defendant collected insurance on two fires. Repossession was avoided in the other. These mysterious, beneficial fires involving the defendant's property suggest identity, motive, knowledge, intent and plan. SDCL 19-12-5 does not require the other acts to be criminal or even wrongful. State v. Dace, supra. In State v. Johnson, supra, at 654, we said "[a]ny fact that tends to connect an accused with the commission of a crime is relevant and has probative value."

In State v. Johnson, supra, and State v. Pedde, 334 N.W.2d 41 (S.D.1983), we sanctioned the admissibility of recent similar acts. Other jurisdictions seem to be in accord that the prior acts, if too remote, lose their relevancy. See, e.g., State v. Maestas, 224 N.W.2d 248 (Iowa 1974). We have not before been required to define or measure the vintage limitations which render prior acts too remote. Whether prior acts are too remote must realistically depend upon their nature. Cf. Wharton's Criminal Evidence, Thirteenth Edition, Sec. 260 (1972). A purse snatcher or burglar can commit similar acts in rapid succession. An arsonist who directs his crime against his own property is limited as to frequency. He must wait for the embers to cool and the smoke to clear. He must then rebuild or repair the building and likely look for, and secure, another insurer. Finally he must wait for an opportune time to burn again. Considering the nature of the offense, we conclude the prior fires were not too remote from each other, or from the crime charged, to show identity, motive, intent, knowledge or plan.

Defendant disputes the trial court's refusal to give this instruction In the absence of evidence of participation, a defendant cannot be convicted on the basis of his presence at the scene of the crime.

It is the rule that mere presence at the scene of a crime does not make a person a participant. It is, however, a circumstance which tends to support a finding of participation and, with other facts and circumstances, may establish guilt. State v. Vogel, 315 N.W.2d 321 (S.D.1982); State v. Robb, 303 N.W.2d 368 (S.D.1981); State v. Schafer, 297 N.W.2d 473 (S.D.1980). If the evidence of defendant's guilt had consisted mainly of his presence at the scene, the instruction would have been appropriate. In this case, however, there was not an absence or inadequacy of participation evidence.

The trial court's duty to instruct was discussed in Jahnig v. Coisman, 283 N.W.2d 557, 560 (S.D.1979):

The trial court has a duty to instruct the jury on applicable law where the theory is supported by competent evidence.... Refusal to give a requested instruction setting forth applicable law is not only error, but prejudicial error.... It is not error, however, to refuse to amplify instructions given which substantially cover the principle embodied in the requested...