State v. Long

625 So. 2d 377, 1993 WL 394671
CourtLouisiana Court of Appeal
DecidedOctober 6, 1993
DocketCR93-142
StatusPublished
Cited by2 cases

This text of 625 So. 2d 377 (State v. Long) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Long, 625 So. 2d 377, 1993 WL 394671 (La. Ct. App. 1993).

Opinion

625 So.2d 377 (1993)

STATE of Louisiana, Plaintiff-Appellee,
v.
Kenneth & Shirley LONG, Defendants-Appellants.

No. CR93-142.

Court of Appeal of Louisiana, Third Circuit.

October 6, 1993.

*378 Clifford Royce Strider III, for State of Louisiana.

Elizabeth L. Hall, for Kenneth & Shirley Long.

Before DOUCET, KNOLL and DECUIR, JJ.

KNOLL, Judge.

On May 11, 1990, the State charged defendants, Kenneth and Shirley Long, by a bill of information with committing arson with the intent to defraud, a violation of LSA-R.S. 14:53. Defendants waived their right to trial by jury. After a bench trial, the trial court found defendants guilty as charged. The sentencing court sentenced defendants to 5 months in the custody of the Department of Corrections. The sentence was suspended and the sentencing court placed defendants on 5 years active supervised probation on the conditions that defendants serve 30 days in the parish prison, pay a fine of $1,000 and court costs of $106.50, serve 500 hours of community service, pay $120,000 in restitution, refrain from criminal conduct, and pay a $20 monthly supervision fee.

On appeal, defendants allege 4 assignments of error. However, defendants only briefed two assignments of error. Accordingly, in conformity with the Uniform Rules, Courts of Appeal, Rule 2-12.4 we consider the 2 unbriefed assignments of error abandoned. The remaining assignments of error allege insufficiency of evidence and ineffective assistance of counsel.[1] We affirm.

*379 SUFFICIENCY OF THE EVIDENCE

Defendants contend that the evidence was insufficient to support their convictions, and that the circumstantial evidence relied upon by the trial court did not exclude every reasonable hypothesis of innocence.

Arson with intent to defraud is defined in LSA-R.S. 14:53 as the setting fire to, or damaging by any explosive substance, any property, with the intent to defraud.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The fact finder must weigh the respective credibility of the witnesses, and the appellate court should not second guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Incorporating the rule of circumstantial evidence found in LSA-R.S. 15:438 with the Jackson standard, an appellate court must determine that when viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact would have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. State v. Porter, 454 So.2d 220 (La. 3rd Cir.), writ denied, 457 So.2d 17 (La.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1205, 84 L.Ed.2d 347 (1985); State v. Morris, 414 So.2d 320 (La.1982). Additionally, circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982).

On November 20, 1989, defendants' home burned in the early morning hours. While the undisputed cause of the fire is arson, the question of whether defendants are the arsonists is at issue in this case.

Adrion Doiron, the chief of the Volunteer Fire Department for the City of Woodworth, was the first to respond to the fire. A motorist had reported the fire to Woodworth Chief of Police Calvin Watts at approximately 3:40 a.m. Doiron circled defendants' home to determine what type of fire was involved and to plan his attack. He found a free burning fire in the rear utility room and a free burning surface burn on the exterior wall adjacent to the master bedroom. All doors were deadbolted and had to be forced open with a sledgehammer. Likewise, all windows were locked, except one window to the utility room which the fire seemed to have blown out.

Several occurrences indicated arson via use of an accelerant. For instance, instead of requiring the usual 1,500 gallons of water to contain the fire, this fire required 38,000 to 40,000 gallons. Also, the fire in the utility room would restart after being extinguished. Moreover, the pattern of burning on the exterior wall, a separate surface burning, indicated the use of accelerants.

After being notified by Doiron, Idal Guillot of the State Fire Marshall's Office deemed the fire a result of arson. Daniel Snow, a fire investigator with INS Investigation Bureau, Inc., was informed of a bomb threat defendants received on November 17, 3 days prior to the fire. A person called the Longs' residence and left a message to the effect that a bomb had been planted 2 years earlier and was set to explode at 6:00 p.m. that evening.

Snow felt that the fire originated at 2 points—the utility room and the outer wall of the master bedroom. He found no evidence of a bomb, Molotov cocktail, or other explosive device, but suspected that accelerants were splashed on the outer walls and ignited. He also excluded an accidental fire from a kerosene heater which was in the utility room, because the most intense fire was on the wall opposite the heater at floor level. George Hero, an electrical engineer, reported that the fire was not electrical in origin.

Snow analyzed 2 samples of debris from the utility room and rear porch area adjacent to the master bedroom wall and found volatile residue of a straight run petroleum *380 distillate. Straight run petroleum distillates include gasoline, kerosene, diesel fuel, and lighter products such as paint thinner and napthas. Although defense counsel presented evidence that certain household products commonly found in utility rooms are flammable, the record is void of evidence that any of these items were present in the Longs' utility room. Snow found 2 Coleman fuel cans in the backyard. Shirley Long explained in a deposition that they may have had Coleman fuel cans in their backyard for camping.

Defendants were not at home the night of the fire because of the bomb threat they had received on November 15, 1989. Officer Gilbert Benoit of the Woodworth Police Department was called to defendants' home around 4:00 p.m. on November 15th to listen to the threat which had been left on defendants' answering machine. Officer Benoit did not call the Rapides Parish Bomb Squad because the call seemed to be a prank call by "a kid trying to impersonate an adult." Defendants left their home to stay with Mrs. Long's mother, who lived nearby. Occasionally, they returned home to wash clothes, bathe, or retrieve clothing. At 3:22 a.m. on the morning of the fire, Chief of Police Watts stopped Kenneth Long for speeding. Kenneth was travelling his usual route to Lecompte at the time he usually picked up newspapers for his daily paper route. Chief Watts could not determine whether Kenneth was coming from the direction of his (Long's) home or the home of his (Long's) mother-in-law. Chief Watts merely warned Kenneth for speeding. He testified that Kenneth did not act unusual.

Kenneth proceeded to the area where he picked up the newspapers every morning.

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Related

State v. Sosa
892 So. 2d 633 (Louisiana Court of Appeal, 2004)
State v. Long
643 So. 2d 132 (Supreme Court of Louisiana, 1994)

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Bluebook (online)
625 So. 2d 377, 1993 WL 394671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-long-lactapp-1993.