State v. Bolds

913 S.W.2d 393, 1996 Mo. App. LEXIS 55, 1996 WL 12815
CourtMissouri Court of Appeals
DecidedJanuary 16, 1996
DocketNos. WD 49099, WD 50794
StatusPublished
Cited by12 cases

This text of 913 S.W.2d 393 (State v. Bolds) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bolds, 913 S.W.2d 393, 1996 Mo. App. LEXIS 55, 1996 WL 12815 (Mo. Ct. App. 1996).

Opinion

ULRICH, Judge.

Larry Bolds appeals his conviction of arson in the second degree, section 569.050 RSMo 1994, after a jury trial and his sentence of four years incarceration. He claims the trial court erred in overruling his motion for judgment of acquittal, asserting that the evidence was insufficient to prove his guilt beyond a reasonable doubt. He also claims the trial court erred in sustaining the states’ motion in limine to exclude the testimony of Mr. Osborne regarding statements he had heard another person make. Mr. Bolds claims the statements constituted an exception to the hearsay rule. Mr. Bolds also appeals the denial of his 29.15 motion without evidentiary hearing. The appeals are consolidated. Rule 29.15(0.

The judgment of conviction is affirmed, and the judgment denying Mr. Bolds’ Rule 29.15 postconviction motion is affirmed.

On July 10, 1992, the Independence Fire Department received an alarm at approximately 10:30 p.m. that a residence located at 709 South Glenwood in Independence was burning. Detective Brad Slaybaugh of the Independence Police Department observed Mr. Bolds’ house ablaze and called the fire department.

When the fire department arrived, the entire residence was engulfed in flames. A fire of this magnitude and volume is unusual, and Chief Welchert requested that a fire investigator be sent to the scene. Detective Kelly Scott responded to the call. Mr. Bolds told Detective Scott at the scene of the fire that he had arrived home between 9:45 and 10:00, went inside the structure to call his girlfriend and then went back outside to repair his truck. Mr. Bolds said that from a window he noticed a small fire in his living room. He said he then ran next door to the home of Ms. Nadine Howery and pounded on the door, but no one opened the door. He then claimed to have driven to a nearby gas station where he instructed the attendant to call the fire department. Detective Scott noticed during his conversation with Mr. Bolds that Mr. Bolds smelled of raw diesel fuel, an odor which he testified is distinctively different from the diesel emissions of the fire trucks then present.

Ms. Nadine Howery testified that the evening of July 10, 1992, she looked out her front door and saw Mr. Bolds’ home engulfed in flames and Mr. Bolds leaving the driveway in his truck. She did not hear anyone knock at her door that evening.

Detective Scott’s investigation revealed heavy burn patterns within what had been Mr. Bolds’ house consistent with a flammable liquid pour pattern. He could find no accidental or natural origin of the fire. Detective Scott concluded that the fire was of an incendiary origin, caused by unknown persons pouring an unknown flammable or combustible liquid, believed to be diesel fuel, throughout the first and second floors of the [396]*396structure and ignited with an unknown hand-held ignition source.

Mr. Steven Wilson, fire investigator for INS Investigations, Inc. (INS), also investigated the fire scene. Apparently INS conducts investigations in behalf of insurance companies of suspicious incidents resulting in loss and insurance claims. Mr. Wilson concluded that the fire was not caused by natural or accidental events. He concluded that the fire was intentionally set with the aid of accelerants.

The house was originally insured by Mr. Bolds on February 12, 1992, with policy coverage of $15,000 on the home and $7,500 on the contents. On March 24, 1992, Mr. Bolds increased coverage to $35,000 and $17,500 respectively. The policy lapsed due to nonpayment of premium in April of 1992. Only three days prior to the fire, Mr. Bolds reinstated the policy effective immediately. Brian Atkinson, a claims representative with Missouri Farm Bureau Insurance, investigated Mr. Bolds’ claim for loss on the house. He testified that Mr. Bolds stated David Miller had threatened to burn down the Bolds residence.

The jury found Mr. Bolds guilty of arson in the second degree. The trial court then sentenced Mr. Bolds as a prior offender to four years imprisonment. Mr. Bolds filed a timely appeal from his conviction and a timely pro se motion for postconviction relief. The motion was denied without an evidentia-ry hearing, which he also appeals. The appeals are consolidated.

I. Rule 29.15 Postconviction Motion

Mr. Bolds claims that the motion court erred in denying his motion for post-conviction relief under Rule 29.15 without an evi-dentiary hearing. He claims that his trial counsel was ineffective in that he refused to allow Mr. Bolds to testify at trial, and he failed to call witnesses whose testimony would have established that someone else committed the crime.

Review of a motion court’s denial of posteonvietion relief is limited to determining whether the findings of fact and conclusions of law were clearly erroneous. Rule 29.15(j); State v. Nolan, 872 S.W.2d 99,104 (Mo. banc 1994). Findings and conclusions are clearly erroneous only if after review of the entire record this court is left with a definite and firm impression that a mistake has been made. Dehn v. State, 895 S.W.2d 55, 58 (Mo.App.1995).

To prevail on a claim of ineffective assistance of counsel, movant must satisfy a two prong test. First, the movant must show that counsel’s performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and second, that this deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Prejudice exists only when trial counsel’s error is outcome determinative State v. Harris, 870 S.W.2d 798, 814 (Mo. bane 1994), cert. denied, — U.S. -, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994). Movant must overcome the presumption that counsel is competent and has the burden of proving counsel’s ineffectiveness by a preponderance of the evidence. State v. Williamson, 877 S.W.2d 258, 262 (Mo.App.1994).

A. Trial Counsel’s failure

to allow Mr. Bolds to testify.

Mr. Bolds asserts that his trial counsel coerced him into not testifying because his counsel advised him that his testifying would not be in his best interest. Mr. Bolds’ counsel’s advice included informing him that by testifying, the jury would be informed of his prior felony convictions. Trial counsel testified at the sentencing hearing that he had recommended the defendant not testify, but that he informed him that the decision was his and that he could testify if he so desired.

A defendant has no constitutional entitlement to a postconviction relief evidentiary hearing to determine whether his right to testify was infringed upon by his counsel when he merely asserts that counsel prevented him from testifying. State v. Starks, 856 S.W.2d 334, 337 (Mo. banc 1993). At a minimum, he must provide specific facts to sup[397]*397port his assertion. Id. A motion court should not hold an evidentiary hearing if the record conclusively shows that the movant is not entitled to relief. Kelley v. State, 866 S.W.2d 879, 880 (Mo.App.1993).

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Bluebook (online)
913 S.W.2d 393, 1996 Mo. App. LEXIS 55, 1996 WL 12815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bolds-moctapp-1996.