SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 26, 2012
In the Court of Appeals of Georgia A12A1624. BARBER v. THE STATE.
ADAMS, Judge.
Kelvin Douglas Barber Jr. was convicted by a jury of arson in the first degree,
OCGA § 16-7-60 (a) (3). The trial court denied his motion for new trial, and Barber
filed the present appeal, arguing that the evidence was insufficient to support his
conviction, and that the trial court erred by failing to charge the jury on his sole
defense of accident.
The evidence adduced at trial, viewed to support the jury’s verdict as we must
on appeal, shows that on March 4, 2009, Barber and his wife, Denise Barber, lived
in a house they jointly owned located at 217 Bonnie Sue Drive in Villa Rica, Georgia.
Denise’s sister, Belinda Yvonne Kent, and her two children were also residing in the
home at that time. Barber and Denise were having marital problems and Barber, who had been
unemployed for approximately four years and had been having an affair, had taken
money from the couple’s joint bank account that Denise, who was employed at Wal
Mart, used to pay bills. Barber and Denise argued about the money the night before
the fire was set, and that argument continued into the next day when Barber went to
the bank and discovered that Denise had moved the money from their joint account
to an account that he could not access. Barber came home and the argument continued
until Barber left the house. Belinda and her fiancé were leaving the house for an
errand and then to go to church, and Denise decided to leave with them so she would
not be alone in the house when Barber returned.
Belinda testified that she and her fiancé returned to the house because she
forgot her Bible, and that she smelled gasoline as soon as they pulled into the
driveway.1 Belinda looked inside the house through the glass panels by the front door
and saw that the foyer was “glazed” with a substance. Although Belinda’s fiancé was
urging her to get away from the house, she testified that she noticed lights on inside
and put her key into the lock to try and open the door. However, before she could get
1 Belinda testified that they parked about two feet from the garage door.
2 inside, she saw Barber jump down from the upstairs area to the garage and that the
next thing she heard was a “boom.”
Gary Thomas, who was a certified fire investigator and fire chief for the Carroll
County Fire Rescue Department, testified that when firefighters entered the house
they saw a small fire on the left hand side of the garage which they extinguished.
After the smoke cleared somewhat, firefighters saw a man, subsequently identified
as Barber, lying over the driver’s seat into the passenger seat inside a vehicle that was
parked on the right side of the garage. Barber would not or could not open the door
and officers at the scene took him out of the car. Thomas described Barber as semi-
conscious, which, he explained, meant that Barber did not respond to “verbal stimuli”
but that he did respond to painful stimuli such as being pinched.
William E. “Bill” Ford, another fire investigator with Carroll County, acted as
the independent investigator of the fire, arriving about an hour after the fire had been
extinguished. Ford testified that he smelled gasoline immediately upon entering the
home and his inspection of the home revealed smoke and heat damage throughout the
house but no fire damage to the upper floor. He concluded that the fire had been
located in the left side of the garage and testified that the flames melted the nearby
duct work. Further, he said that there would have been more damage if the sprinkler
3 system located in the garage area had not properly activated and controlled the fire
until fire fighters arrived.
Ford said he also discovered three empty quart “squirt” bottles of charcoal
lighter fluid in the kitchen garbage can and that he detected the odor of freshly used
lighter fluid. He found two more quarts of lighter fluid in a Dollar General bag in the
garage. Ford said he also observed what appeared to be torn up books and shredded
papers in the upstairs and lower level bathtubs. Ford saw two gasoline containers in
the area where the fire started, and opined that gasoline had been poured out onto the
floor from one of the containers; he also found three more gas containers in the rear
seat of the vehicle where Barber was found. Ford testified that there were wooden
kitchen matches “everywhere” and a gas soaked rag had been stuffed in the neck of
the gas tank. Ford later verified that Barber had purchased lighter fluid, matches and
three of the gasoline storage cans from a Dollar General Store and had filled the
gasoline cans at a Citgo station. Further, certain articles of Barber’s clothes later
tested positive for both gasoline and charcoal lighter fluid. Based on this evidence
and other evidence, Ford said he determined that the fire had been intentionally set.
Ford interviewed Barber later that night. Barber verified many of Ford’s
observations, and admitted that he had purchased three cans of gasoline in addition
4 to the two he already had at home, and that he had also purchased lighter fluid and
matches. He told Ford that he had poured gasoline and lighter fluid throughout the
house, and then started the fire on the left side of the garage with a match. His said
his intention was to commit suicide, and that he intended for the house and vehicle
to burn up and that he would burn up with the vehicle.
Denise testified that while they were in the midst of their argument the night
before, Barber had looked around and commented that it used to be a nice house, and
then said words to the effect that it would be a shame if it was set on fire. Denise also
testified that she had personal effects damaged or destroyed due to the heat and
smoke damage, but that none of Barber’s personal effects were destroyed. Denise
testified on cross-examination that she believed Barber attempted to burn the house
down both to get back at her and to kill himself.
Tim Frost, an investigator with Allstate Insurance Company, testified that the
house was insured by Allstate and that Allstate paid approximately $62,791 on the
damage claim following the fire; $61,387.49 of that amount was paid because of
damage to the house. He also testified that Allstate had not given anyone permission
to set fire to the house.
5 Barber also testified at trial. He admitted that he put gasoline “everywhere” in
the house and in the garage and that he set the fire because he was depressed and had
“had enough” and wanted to kill himself. He further testified that he had no intent to
deprive his wife of her rights in the house. Barber also admitted that he drove his
vehicle to the Dollar General Store and bought the gasoline cans and then went back
inside and purchased lighter fluid. He said he then went to the gas station and filled
up the gasoline cans. He also testified that he first tried to commit suicide by carbon
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SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 26, 2012
In the Court of Appeals of Georgia A12A1624. BARBER v. THE STATE.
ADAMS, Judge.
Kelvin Douglas Barber Jr. was convicted by a jury of arson in the first degree,
OCGA § 16-7-60 (a) (3). The trial court denied his motion for new trial, and Barber
filed the present appeal, arguing that the evidence was insufficient to support his
conviction, and that the trial court erred by failing to charge the jury on his sole
defense of accident.
The evidence adduced at trial, viewed to support the jury’s verdict as we must
on appeal, shows that on March 4, 2009, Barber and his wife, Denise Barber, lived
in a house they jointly owned located at 217 Bonnie Sue Drive in Villa Rica, Georgia.
Denise’s sister, Belinda Yvonne Kent, and her two children were also residing in the
home at that time. Barber and Denise were having marital problems and Barber, who had been
unemployed for approximately four years and had been having an affair, had taken
money from the couple’s joint bank account that Denise, who was employed at Wal
Mart, used to pay bills. Barber and Denise argued about the money the night before
the fire was set, and that argument continued into the next day when Barber went to
the bank and discovered that Denise had moved the money from their joint account
to an account that he could not access. Barber came home and the argument continued
until Barber left the house. Belinda and her fiancé were leaving the house for an
errand and then to go to church, and Denise decided to leave with them so she would
not be alone in the house when Barber returned.
Belinda testified that she and her fiancé returned to the house because she
forgot her Bible, and that she smelled gasoline as soon as they pulled into the
driveway.1 Belinda looked inside the house through the glass panels by the front door
and saw that the foyer was “glazed” with a substance. Although Belinda’s fiancé was
urging her to get away from the house, she testified that she noticed lights on inside
and put her key into the lock to try and open the door. However, before she could get
1 Belinda testified that they parked about two feet from the garage door.
2 inside, she saw Barber jump down from the upstairs area to the garage and that the
next thing she heard was a “boom.”
Gary Thomas, who was a certified fire investigator and fire chief for the Carroll
County Fire Rescue Department, testified that when firefighters entered the house
they saw a small fire on the left hand side of the garage which they extinguished.
After the smoke cleared somewhat, firefighters saw a man, subsequently identified
as Barber, lying over the driver’s seat into the passenger seat inside a vehicle that was
parked on the right side of the garage. Barber would not or could not open the door
and officers at the scene took him out of the car. Thomas described Barber as semi-
conscious, which, he explained, meant that Barber did not respond to “verbal stimuli”
but that he did respond to painful stimuli such as being pinched.
William E. “Bill” Ford, another fire investigator with Carroll County, acted as
the independent investigator of the fire, arriving about an hour after the fire had been
extinguished. Ford testified that he smelled gasoline immediately upon entering the
home and his inspection of the home revealed smoke and heat damage throughout the
house but no fire damage to the upper floor. He concluded that the fire had been
located in the left side of the garage and testified that the flames melted the nearby
duct work. Further, he said that there would have been more damage if the sprinkler
3 system located in the garage area had not properly activated and controlled the fire
until fire fighters arrived.
Ford said he also discovered three empty quart “squirt” bottles of charcoal
lighter fluid in the kitchen garbage can and that he detected the odor of freshly used
lighter fluid. He found two more quarts of lighter fluid in a Dollar General bag in the
garage. Ford said he also observed what appeared to be torn up books and shredded
papers in the upstairs and lower level bathtubs. Ford saw two gasoline containers in
the area where the fire started, and opined that gasoline had been poured out onto the
floor from one of the containers; he also found three more gas containers in the rear
seat of the vehicle where Barber was found. Ford testified that there were wooden
kitchen matches “everywhere” and a gas soaked rag had been stuffed in the neck of
the gas tank. Ford later verified that Barber had purchased lighter fluid, matches and
three of the gasoline storage cans from a Dollar General Store and had filled the
gasoline cans at a Citgo station. Further, certain articles of Barber’s clothes later
tested positive for both gasoline and charcoal lighter fluid. Based on this evidence
and other evidence, Ford said he determined that the fire had been intentionally set.
Ford interviewed Barber later that night. Barber verified many of Ford’s
observations, and admitted that he had purchased three cans of gasoline in addition
4 to the two he already had at home, and that he had also purchased lighter fluid and
matches. He told Ford that he had poured gasoline and lighter fluid throughout the
house, and then started the fire on the left side of the garage with a match. His said
his intention was to commit suicide, and that he intended for the house and vehicle
to burn up and that he would burn up with the vehicle.
Denise testified that while they were in the midst of their argument the night
before, Barber had looked around and commented that it used to be a nice house, and
then said words to the effect that it would be a shame if it was set on fire. Denise also
testified that she had personal effects damaged or destroyed due to the heat and
smoke damage, but that none of Barber’s personal effects were destroyed. Denise
testified on cross-examination that she believed Barber attempted to burn the house
down both to get back at her and to kill himself.
Tim Frost, an investigator with Allstate Insurance Company, testified that the
house was insured by Allstate and that Allstate paid approximately $62,791 on the
damage claim following the fire; $61,387.49 of that amount was paid because of
damage to the house. He also testified that Allstate had not given anyone permission
to set fire to the house.
5 Barber also testified at trial. He admitted that he put gasoline “everywhere” in
the house and in the garage and that he set the fire because he was depressed and had
“had enough” and wanted to kill himself. He further testified that he had no intent to
deprive his wife of her rights in the house. Barber also admitted that he drove his
vehicle to the Dollar General Store and bought the gasoline cans and then went back
inside and purchased lighter fluid. He said he then went to the gas station and filled
up the gasoline cans. He also testified that he first tried to commit suicide by carbon
monoxide poisoning, but when that did not work, he went into the house and
scattered papers and books and “stuff” around everywhere.
Based on this and other evidence presented at trial, the jury convicted Barber
of arson in the first degree on Count 1 of the indictment, which tracked the language
of OCGA § 16-7-60 (a) (3), and found him not guilty of arson in the first degree on
Count 2 of the indictment, which tracked the language of OCGA § 16-7-60 (a) (4).
1. Pursuant to OCGA § 16-7-60 (a) (3),
[a] person commits the offense of arson in the first degree when, by means of fire or explosive, he or she knowingly damages . . . [a]ny dwelling house, . . . whether it is occupied, unoccupied, or vacant and when such is insured against loss or damage by fire or explosive and such loss or damage is accomplished without the consent of both the insurer and the insured.
6 Barber argues that his conviction must be reversed because his intent in setting
the fire was to commit suicide, not to burn or damage the house or cause loss to the
insurer. Further he argues that the evidence is insufficient to show that he set the fire
knowing it would spread to or cause damage to other parts of the house. But OCGA
§ 16-7-60 (a) (3) does not require that the fire be set with the intent to defraud the
insurer; rather, the offense of arson in the first degree is shown under that section if
the accused “knowingly damages” any insured dwelling without the consent of the
insured by fire or explosive. “‘Knowingly’ indicates an awareness of the
consequences of one’s action. ‘The use of (knowingly) in an indictment is equivalent
to an averment that the defendant knew what he was about to do, and, with such
knowledge, proceeded to do the act charged.’ Black’s Law Dictionary, p. 872 (6th ed.
1990).” Youmans v. State, 270 Ga. App. 832, 836 (2) (608 SE2d 300 (2004). Here the
evidence, including Barber’s statement to the fire investigators, clearly showed that
Barber poured gasoline and lighter fluid throughout the house and garage, and not
just on his person. Further, the evidence shows that Barber ripped up books and
papers and spread them throughout the upper levels of the house as well. And Barber
told investigators that he intended for the house to burn, as well as the vehicle he was
inside. Although the fire investigator testified that the fire did not spread beyond the
7 garage because the sprinkler system worked, that area did suffer direct fire damage
and the smoke and heat damaged the entire house, causing over $60,000 in damage.
Thus, the elements of the crime of arson in the first degree were clearly shown here,
and Barber’s argument to the contrary is unavailing.
2. Barber also urges that the trial court should have charged the jury on his
“sole defense” of accident, arguing that there was at least slight evidence to warrant
the charge.
As is pertinent here, the transcript shows that the trial court, pursuant to
Barber’s request at trial, charged the jury as follows: “A person should not be found
guilty of any crime committed by misfortune or accident where it satisfactorily
appears there was no criminal scheme, undertaking or intention[,]” OCGA § 16-2-2,
which is essentially the charge that Barber now contends should have been given.
Assuming without deciding that there was at least slight evidence warranting the
charge, we find the charge as given clearly and fairly presented the issues to be tried,
including defendant’s theory of defense. E.g., Tarvestad v. State, 261 Ga. 605, 606
(409 SE2d 513) (1991). This enumeration is thus also without merit.
Judgment affirmed. Barnes, P. J., and McFadden, J., concur.