Survance v. State

• Decision Date: 27 September 1983
• Docket Number: No. 2-882A225,2-882A225
• Parties: Glen D. SURVANCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 430

454 N.E.2d 430

Glen D. SURVANCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-882A225.

Court of Appeals of Indiana,

Second District.

Sept. 27, 1983.

Wilson L. Tow, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., of Indiana, Lee Cloyd, Deputy Atty . Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Glenn D. Survance (Survance) appeals his conviction of conspiracy to commit arson under I.C. 35-41-5-2 (Burns Code Ed., Repl.1979) and I.C. 35-43-1-1(a)(1) and (c) (Burns Code Ed., Repl.1979). Because of our disposition of this case, we limit our review to the issue of the sufficiency of the evidence to support the conviction.

We reverse.

Survance's challenge to the sufficiency of the evidence to support his conviction is multipronged. However, our agreement with one of his arguments obviates our need to reach the others. Survance claims the State failed to prove he possessed the requisite intent to commit arson, the underlying felony, and failed to prove an agreement to commit arson. Survance argues the evidence at most shows an agreement between Survance and another person to "destroy" a mobile home, not an agreement to damage or destroy it specifically "by means of fire or explosive" as required by the arson statute, I.C. 35-43-1-1. We agree and therefore reverse Survance's conviction for conspiracy to commit arson.

Viewing the evidence most favorably to the State, as we must on a sufficiency review, the record shows that in October or November, 1978, Survance, the owner of a mobile home sales and service business telephoned his employee, Earl W. Nave (Nave), asking to see him. ¹ As to the subsequent in-person conversation between Survance and himself, Nave testified, "I don't recall the total conversation. Basically he had a home in Shelbyville, Indiana he wanted destroyed. I agreed to do it." Record at 419. Nave did not remember the precise date of the conversation. Nave believed Survance said to go during the day because no one would be home but Survance did not say why he wanted the home destroyed.

Survance gave Nave a hand-drawn map and a key to the trailer door . Nave agreed to do the job for $500. Within a week or two of the conversation, Nave drove to Shelbyville and started the home on fire using an accelerant and fuses made from a match book and cigarette. He threw away the map and key and called Survance, telling him he was "finished with what [he] had started." Record at 427. Nave was never paid the $500 but assumed Survance deducted it from money he owed Survance.

The record is replete with evidence of Survance's motive for desiring destruction of the mobile home for insurance purposes. The home had been plagued with defects and difficulties, some electrical in nature, and the homeowner had withheld all payments pending correction of the problems. Advance Mortgage Company, the company to whom Survance assigned the installment contract for the purchase of the home, was threatening the homeowner with repossession; the homeowner was threatening rescission of the contract.

Survance's assignment of the installment contract to Advance was with recourse. Upon repossession of the home, Survance would be liable to Advance for the buyer's unmade payments. The insurance, which was required by Advance, was issued by Foremost Insurance Company, Glen Survance, agent. Survance received a commission for the sale of the policy. The policy, among its other coverages, provided coverage for the actual cash value of the mobile home and coverage for the personal effects of the homeowner. When the home burned, Foremost Insurance Company paid the homeowner approximately $5,200 for loss of his personal belongings and paid Advance approximately $14,000, the actual cash value of the home. One of Survance's corporations subsequently purchased the burned home as salvage from Advance.

The elements of conspiracy are 1) an agreement with another person to commit the underlying felony, 2) the intent to commit the felony, and 3) an overt act in furtherance of the agreement. I.C. 35-41-5-2. A conspiracy may be proven by either direct or circumstantial evidence. Woods v. State, (1980) Ind., 413 N.E.2d 572, 573; Williams v. State, (1980) Ind., 409 N.E.2d 571, 573. Pursuant to the statutory requirement that the State allege and prove one of the persons performed an overt act in furtherance of the agreement, the information alleges Survance performed an overt act by giving Nave a description of the mobile home, a key, and directions to the site while instructing him to damage the dwelling "by fire".

As distinguished from other offenses against property, arson is an offense committed by specific means against property of another. The means provided in the statute are "fire or explosive". I.C. 35-43-1-1(a). Therefore, although a conspiracy to commit murder, for example, need not include proof of agreement as to the specific method to be used, a conspiracy to commit arson must include proof of an agreement to damage the property of another by means of fire or explosive. Here, pursuant to the information, the State must prove Survance agreed with Nave to damage the mobile home belonging to Ronald Gilly by means of fire. Such proof is lacking. ²

The State need not show a formal arrangement or the use of particular words to prove an agreement but must show an accord "in the sense of a common purpose and understanding, to commit the intended felony, by joining at its foundation or by participating in it after it has been formed." Williams v. State, 409 N.E.2d at 573. The existence of the agreement may be inferred from the conduct of the parties or proved by circumstantial evidence but cannot be inferred from commission of the criminal act alone or from commission of the overt act alone. Woods v. State, 413 N.E.2d at 573.

Here, the State proved Survance's commission of the overt act of supplying Nave with the key and a map to the mobile home site and, through Nave's testimony, proved an agreement between Survance and Nave to "destroy" the home. The State argues this evidence is sufficient to support a reasonable inference that Survance intended Nave to leave the home a total loss for insurance purposes. Therefore, the State contends it is "quite logical to infer that the parties conspired to commit arson". Appellee's brief at 9. This contention does not advance the State's case.

Although burning is perhaps the most logical way to destroy the interior of a mobile home, we are aware that alternate methods of property destruction exist, although...