State v. Craven

657 S.W.2d 357, 1983 Mo. App. LEXIS 4093
CourtMissouri Court of Appeals
DecidedAugust 17, 1983
DocketNo. 12793
StatusPublished
Cited by7 cases

This text of 657 S.W.2d 357 (State v. Craven) 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. Craven, 657 S.W.2d 357, 1983 Mo. App. LEXIS 4093 (Mo. Ct. App. 1983).

Opinion

FLANIGAN, Presiding Judge.

A jury found defendant guilty of arson in the second degree, § 569.050,1 and he was sentenced to five years’ imprisonment. Defendant appeals.

Defendant’s first point is that the evidence was insufficient to support the verdict and that the trial court erred in overruling defendant’s motion for judgment of acquittal filed at the close of all the evidence. In ruling the issue of the sufficiency of the evidence this court must “consider the facts in evidence and all favorable inferences to be drawn therefrom, in the light most favorable to the State, and reject all contrary evidence and inferences.” State v. Clark, 652 S.W.2d 123, 124 (Mo. banc 1983).

“A person commits the crime of arson in the second degree when he knowingly damages a building or inhabitable structure by starting a fire or causing an explosion.”2 § 569.050. “In order to make a submissible case on a charge of arson, the state must prove: 1) a building was on fire; 2) the fire was of incendiary origin; 3) defendant participated in the commission of the crime.” State v. DuBose, 617 S.W.2d 509, 511 (Mo.App.1981).

Harice Christian, a Branson police officer, was on routine patrol at 4:30 a.m. on July 22,1981, about five blocks from the Sammy Lane Boat Dock. He noticed “fire and flames jumping up in the air in the direction of the boat dock.” He proceeded to the scene of the fire and the fire department arrived there five or six minutes later. Rex Asseline, owner of the boat dock, testified that as a result of the fire the “whole south half of the dock was almost totally destroyed. We lost one Lane excursion boat, a fishing boat, a pontoon boat, a cabin cruiser, ten motors ... quite a bit of extensive damage.” The dock included an office which was the “principal business office” for the Sammy Lane Boat Line. Asseline testified that he had not given permission for the fire to be set.

William Zieres, an investigator for the Missouri State Fire Marshal’s office, in[359]*359spected the scene of the fire at about 8 a.m. on July 22. Zieres found a burn pattern on the dock flooring. The pattern was “in the shape and of the type which would normally be found where a poured flammable liquid burned.” Zieres, whose qualifications as an expert in the field of arson investigation have not been challenged by defendant, testified, without objection, “there could be no other cause for this type pattern other than a deliberate setting.”

On one of the boats which was not burned Zieres found “a bunch of firecrackers and the remains of a cigarette ash under the firecrackers.” The firecracker-cigarette combination can be used as a “delay device” for the setting of a fire.

There was testimony by a state’s witness that the carpet on one of the boats contained “petrol distillate consistent with gasoline.” Starr Pugh testified that at 4:30 a.m. she saw defendant “walking toward the lake — in the direction of the Sammy Lane Boat Dock.” She also testified that at the preliminary hearing, where defendant “conducted his own defense,” defendant “admitted to me he had been down at the boat dock at the time I saw him.”

Michael Colburn and Charles Mallonee were at the Farmhouse Cafe, which was located about half a mile from the boat dock. At about 5:10 a.m. defendant came in the cafe and told Mallonee he wanted to talk to him outside. Mallonee and defendant went outside and had a conversation. Then the three men went to the boat dock. According to Colburn defendant said “he had been there earlier — at the time the boat dock was burning.” Mallonee testified that when he stepped outside with defendant, defendant said, “Did you see that neat little fire I set?” Mallonee said, “Yeah, did you do that?” Defendant said, “Yeah.” According to Mallonee defendant also said that he had been at the dock before the fire started and was there “before the fire trucks arrived.”

State’s witness Kim Herron testified that she worked at the Ozark Family Steakhouse where defendant also worked. On the afternoon of the day of the fire the witness “was reading the paper, reading about Sammy Lane burning down, and defendant told me that he did it. I said ‘no, you didn’t do that’ and he kept telling me that he did and he appeared serious. We talked about it for probably 15 minutes.”

This court holds that the foregoing evidence was sufficient to support the conviction. Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in denying defendant’s request for the giving of MAI-CR2d 2.26, which is entitled “Arson: Accident, Carelessness or Natural Cause.” A similar complaint was made in State v. Thomas, 526 S.W.2d 893 (Mo.App.1975). There the court held that it was not necessary to give the instruction where there was no evidence to support it. The court said, “the evidence, completely undisputed, was that the fire was deliberately set.” Such is the situation here. Defendant argues that the instruction should have been given because there was evidence “that it was raining the morning of the fire,’ and that evidence, says defendant, supports a reasonable inference “that the fire could have started by a lightning bolt.” Defendant further argues that because the burning involved a boat dock, it was a reasonable inference “that the boat line has gasoline on the premises and therefore the fire could have been started by accident or carelessness.”

The record is devoid of any evidence that there was any lightning on the morning of the fire. Although there was evidence that gasoline was involved in the fire, the state’s evidence was clearly to the effect that the fire was intentionally set and there was no evidence to the contrary. Defendant’s second point has no merit.

Defendant’s third point is that the trial court erred in permitting the state to amend the information three days before the trial, by changing the date of the offense from July 23, 1981 to July 22, 1981. The record shows that defense counsel, two months before the trial, had suggested to the prosecutor that the information be amended so as to show the correct date. [360]*360On the morning of the trial the court said to defense counsel, “Do you object to the filing of it [the amended information] and to proceeding based on the amended information?” Counsel’s response was, “Your Honor, I do not object to the filing of the amended petition [sic] and, like I said, whether or not we proceed on the original petition or the amended petition, I’ll leave that up to the ruling of the court.” The court then permitted the amendment. Later defense counsel said, “Just for the record I would like to object to proceeding on the first amended petition.”

The record demonstrates that defense counsel initially had no objection to the amendment and later changed his mind. Rule 23.08 permits the amendment of an information at any time before verdict, “if no additional or different offense is charged and if a defendant’s substantial rights are not thereby prejudiced.” That rule further provides that no such amendment shall cause delay of a trial unless the court finds that a defendant needs further time to prepare his defense by reason of the amendment.

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Bluebook (online)
657 S.W.2d 357, 1983 Mo. App. LEXIS 4093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-craven-moctapp-1983.