U.S. v. Markum, 92-6219

• Decision Date: 08 September 1993
• Docket Number: No. 92-6219,92-6219
• Citation: 4 F.3d 891
• Parties: 38 Fed. R. Evid. Serv. 896 UNITED STATES of America, Plaintiff-Appellee, v. Judy Louise Brown MARKUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 891

4 F.3d 891

38 Fed. R. Evid. Serv. 896

UNITED STATES of America, Plaintiff-Appellee, v. Judy Louise Brown MARKUM, Defendant-Appellant.

No. 92-6219.

United States Court of Appeals, Tenth Circuit.

Sept. 8, 1993.

William C. Devinney, Oklahoma City, OK, for defendant-appellant.

Ted A. Richardson, Asst. U.S. Atty. (Joe Heaton, U.S. Atty., with him on the brief), Oklahoma City, OK, for plaintiff-appellee.

Before BALDOCK and BRORBY, Circuit Judges, and VRATIL ¹, District Judge.

VRATIL, District Judge.

Judy Louise Brown Markum appeals her conviction for one count of conspiracy to commit arson and mail fraud in violation of 18 U.S.C. Sec. 371, and one count of mail fraud in violation of 18 U.S.C. Sec. 1341 by means of 18 U.S.C. Sec. 2 (aiding and abetting). Markum also appeals her guidelines sentence for those offenses. Specifically, Markum contends (1) that evidence of guilt was insufficient; (2) that the district court erred in admitting expert opinion evidence; and (3) that the district court improperly enhanced her sentence under the United States Sentencing Commission, Sentencing Guidelines ("U.S.S.G.") Sec. 3C1.1 (1988) (obstruction of justice based upon trial testimony) and Sec. 2K1.4 App. C (amend. #330) (knowingly creating a risk of death or bodily injury). We have jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742, and remand for resentencing under U.S.S.G. Sec. 3C1.1.

I. Sufficiency of the Evidence

Evidence is sufficient to support a conviction if the evidence and the reasonable inferences drawn therefrom, when viewed in the light most favorable to the government, would allow a reasonable jury to find defendant guilty beyond a reasonable doubt. See, e.g., United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.1992), cert. denied, McGlynn v. United States, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992). The sufficiency of the evidence is a question of law subject to de novo review. Id.

The evidence in this case was as follows:

Markum and her co-defendant, Jackie Mullins, experienced severe financial difficulties as early as January, 1987. The property insurance on Markum's residence had lapsed for non-payment of premiums and the utilities were disconnected for non-payment on June 4, 1987. As a result, Markum vacated the residence and moved into her mother's home.

Mullins owned and operated Show Business Video and also lived with his mother. Mullins' video business did not fare well in the summer of 1987, and suppliers placed it on C.O.D. status. During this time, Markum and Mullins had little or no income. In September of 1987, however, they jointly obtained a $45,000 loan secured by a mortgage on Markum's home and the inventory of Mullins' video business. Markum and Mullins used the loan proceeds to pay off the first mortgage on Markum's home and to reinstate its property insurance. They deposited the remaining cash, totaling $21,000, in the video store business account.

On May 28, 1988, nine months after Markum and Mullins had reinsured the Markum home, fire destroyed the property. Markum had vacated the home some eleven months earlier and the house was apparently vacant at the time it burned. It had minimal furnishings, the lawn was grown up in weeds, at least one window was broken, and a rototiller and lawn mower occupied the kitchen. According to the first witness at the scene, the fire at that point consisted of two unconnected blazes: a large fire in the kitchen and a smaller fire in a back bedroom.

The fire department extinguished the blaze and, before leaving the scene, inspected the attic for heat buildup and (as a precautionary measure) doused it with water. This effort, in total, consumed 1,100 gallons of water. About an hour after the firefighters returned to the station, however, they received a second alarm on the Markum house. Fire Chief Buck Pearson testified that when he and the firefighters returned, the Markum house was "totally involved, top to bottom, north, south, ... totally engulfed in flames." Only the foundation survived the second fire. Chief Pearson testified that he had seen fires rekindle, but never in such a short time or so completely. He testified that a quick and devastating rekindling is extremely rare because a house is soaked with water in the process of extinguishing the original fire. Chief Pearson therefore concluded that the second fire was "suspicious," and testified that, in his opinion, the second fire was a completely separate fire and not a rekindling of the first blaze.

Markum and Mullins were each at the residence between the time of the first and second fire.

A few days after the fire, Mullins and Markum went to various furniture stores to compile a list of personal property for insurance purposes. From one store they obtained a list which was clearly labelled "estimate." From another store they obtained a list of items which Markum had allegedly purchased there within the past two years. In fact, no purchases had been made at either store. After Markum and Mullins secured these lists, Mullins notarized the signatures of the store proprietors without their knowledge. On the first list, the phrase "estimate" was changed to "purchased 1989." Markum and Mullins submitted an insurance claim for all items on both lists. According to an insurance claim which Markum had previously submitted, however, some of the listed items had been stolen in a burglary some six months before the fire.

Markum gave Mullins a power of attorney and he claimed and collected the Markum house insurance proceeds on her behalf. As a result of Mullins' claim, the insurance company sent a check for $1,500.00 (representing an advance payment of benefits) to Markum's insurance adjustor in Norman, Oklahoma, via United States mails. The adjustor delivered the check to Markum at her mother's home in Pauls Valley, Oklahoma. On August 12, 1988, the insurance company paid Markum the balance of the proceeds. Three days later, Mullins took $1,687.00 of the insurance money and used it to pay past due premiums and reinstate insurance on the contents of his video business.

On September 30, 1988, fire destroyed the newly-insured contents of Mullins' video business. Markum had been working at the video store on a daily basis, in an unpaid capacity, for several weeks before the fire. On the day before the fire, a witness saw her remove a heavy cardboard box from the video store.

Around 7:55 a.m. on the morning of the fire, a witness saw Mullins sitting in his dark blue Chrysler New Yorker in a vacant parking lot about a block from the video store. According to the witness, Mullins drove slowly past the video store at about that same time, although Mullins usually did not arrive at the video store before 10:00 or 10:30 a.m. About two minutes before the fire broke out, another witness saw a white man with light hair (a description which fit Mullins) standing at the front of the video store, locking or unlocking the door. The witness later saw the same man, crying, at the scene of the fire. At 8:05 a.m., a police dispatcher made three attempts to contact Mullins by telephone at his residence, but received no answer.

Mullins' video store was located between a furniture store and a credit agency in a strip shopping center where all of the businesses (except those on either end) shared common interior walls. The video store suffered extensive damage in the fire. The adjoining credit agency and furniture store sustained damage, although to a lesser degree. No one was in the furniture store at the time of the fire, but the manager of the credit agency was in her office when the fire broke out. She escaped unharmed but badly frightened.

When firefighters arrived at the video store, the front door was locked and to gain entry, they broke through the plate glass. Once inside, they smelled a strong odor of gasoline. Chief Pearson testified that the men had to act fast because they had a "tremendous fire inside ... a hot fire, a dangerous fire." The firefighters feared an explosion and, as Chief Pearson testified, this was the type of fire where "one mistake would leave you a dead man." Expert testimony established that the video store fire was definitely incendiary in origin. Even Mullins agreed that the fire was the result of arson.

Mullins later submitted an insurance claim requesting reimbursement for loss of the contents of the video store due to "fire and theft." Mullins sent his proof of loss to the insurance company via U.S. mail. In all, Mullins claimed that 1,600 video tapes had been stolen or destroyed in the fire. Mullins claimed that a theft had occurred, although no exterior door or window showed signs of forced entry and witnesses testified that far fewer than 1,600 tapes had been in the store at the time of the fire. Also, some of what Mullins called "videos" were actually empty cases. After the fire, Markum and Mullins each asked adjacent tenants if anyone had been "poking around," asking questions about the fire.

When viewed in the light most favorable to the guilty verdict, the evidence adduced at trial and the permissible inferences to be drawn therefrom were sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that: (1) Markum and Mullins conspired to commit arson ² and mail fraud in violation of 18 U.S.C. Sec. 371; and (2) Markum aided and abetted Mullins in the commission of mail fraud in violation of 18 U.S.C. Sec. 1341 and was therefore properly convicted and punished as a principal under 18 U.S.C. Sec. 2. ³ See United States v. Grimes, 967 F.2d 1468, 1470-72 (10th Cir.1992).

II. Expert Testimony

The trial court's decision to admit expert testimony is reviewable for abuse of discretion. United States v. Barbee, 968 F.2d 1026, 1031 (10th Cir.1992); The Post Office v. Portec, Inc., 913 F.2d 802, 806 (10th Cir.1990). If appellant failed to object at trial or objected on grounds not now asserted as error, review is for...