State v. Nelson

674 S.W.2d 220, 1984 Mo. App. LEXIS 4664
CourtMissouri Court of Appeals
DecidedJune 27, 1984
DocketNo. 13108
StatusPublished
Cited by8 cases

This text of 674 S.W.2d 220 (State v. Nelson) 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. Nelson, 674 S.W.2d 220, 1984 Mo. App. LEXIS 4664 (Mo. Ct. App. 1984).

Opinion

HOGAN, Judge.

A jury has found defendant Rosalyn Nelson guilty of spousal homicide by manslaughter in contravention of the provisions of § 565.005, RSMo 1978,1 and her punishment has been assessed at imprisonment for a term of 3 years. She appeals. We affirm.

Defendant married her husband, Ronald Erwin Nelson (hereinafter “Ron” or “Ron-zo” or the victim), in December 1980. At the time of the victim’s death, he and the defendant lived in a two-story house in Gallatin, Missouri. Three of defendant’s children by prior marriages lived with them. The victim leased and operated a tavern. He also conducted an automobile detail cleaning operation. The defendant assisted in both businesses.

On the night of August 5, 1982, defendant and the victim were both working at the tavern. Shortly before midnight Ron left the tavern and went home. A flash fire occurred at the Nelson residence shortly after 1 a.m. Firemen and police officers arrived about 1:15. They discovered the victim lying halfway through an open upstairs window on the southwest side of the house. The room from which the victim had attempted to escape was a second-floor bedroom near the south end of a second-floor hallway, about 15 feet above the ground. The pattern of the fire and the autopsy finding that the victim died as a result of burn injuries peculiar to very hot fires convinced the Daviess County authorities that his death had been intentionally caused. This prosecution followed.

In this court, the defendant challenges the sufficiency of the evidence to support the judgment of conviction, but only with respect to her criminal agency. No complaint of instructional error is made. There is no assertion that the verdict reflects prejudicial ambiguity or inconsistency. We therefore set to one side the vexing problem of the proper gradation of homicides under present statutes. The ambiguities which caused concern were finally resolved in our Supreme Court’s rulings in Love v. Missouri, 670 S.W.2d 499 (Billings, J., concurring) (Mo. banc 1984) and State v. Baker, 636 S.W.2d 902, 904-5 (Mo. banc 1982). We are not required to ignore the difference between first-degree murder as defined by present § 565.003 and manslaughter as defined by present § 565.005. There was a quarrel between the defendant and her husband shortly before the fire occurred. We do not say there was substantial evidence of adequate provocation; we merely say that the finding of the jury is not entirely illogical and we are not required to pursue the subject.

Having said that, and realizing that manslaughter is not first-degree murder, for convenience we refer to State v. Petersen, 640 S.W.2d 123, 124 (Mo.1982), for a statement of the elements of homicide by arson. They are: 1) The occurrence of [223]*223a fire which causes the death of a person; 2) an opportunity on the part of the accused to set the fire; 3) an incendiary fire, which 4) was ignited by the defendant. Id. at 124; State v. Paglino, 319 S.W.2d 613, 621 (Mo.1958). When the proof of guilt is circumstantial, the circumstances on which the State relies must be consistent with each other and the guilt of the accused. The evidence must be inconsistent with a hypothesis of innocence and must exclude every rational hypothesis except that of guilt. State v. Petersen, 640 S.W.2d at 124.

This last rule is tempered by the equally well established principle that the circumstances need not be absolutely conclusive of guilt nor demonstrate the impossibility of innocence, and the mere existence of other possible hypotheses is not enough to take the case from the jury. State v. Morgan, 592 S.W.2d 796, 805 (Mo. banc 1980); State v. Franco, 544 S.W.2d 533, 534-35 (Mo. banc 1976), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). Further, even when the State’s proof of guilt is entirely circumstantial, all evidence upon the whole record tending to support the guilty verdict must be taken as true, contrary evidence must be disregarded and every reasonable inference tending to support the verdict must be indulged. State v. Lee, 556 S.W.2d 25, 32[13] (Mo. banc 1977); State v. Cobb, 444 S.W.2d 408, 412[3] (Mo. banc 1969); State v. Morris, 564 S.W.2d 303, 304[1] (Mo.App.1978).

The State produced a number of photographs and diagrams in aid of its proof. We do not have all the exhibits before us, but those which we have show that the Nelson residence was a two-story frame and stucco house with a steeply-pitched gable roof. There were second-floor dormer windows on both the south (front) and north (rear) sides of the house, presumably to provide natural light and ventilation for the second floor.

The fire was confined to the second floor. The two floors were joined by a stairwell which enclosed two parallel flights of stairs. We take it that this stairwell is somewhere near the rear (north) side of the house. The steps ascended 8 to 10 steps northward to a landing; the second flight consisted of 4 or 5 steps which ran parallel to the first flight. At the top of the staircase there was a bannister immediately to the right (west) of the staircase. This bannister was immediately above the landing.

At the top of the stairs there was a second-floor hallway which ran south 18 feet. It was 5 feet wide. Ron was sleeping in a second-floor bedroom which opens to the west (right) off the south (front) part of the second-floor hallway.

It is beyond cavil that the victim died as a result of a fire. Dr. Kirk Arnold, a Kansas City pathologist, was the autopsy surgeon. This physician noted extensive burns on the victim’s body but concluded it was more likely that he had died as a result of laryngospasm induced by the inhalation of heat and the toxic substances produced by the fire.

The State had the following evidence tending to prove that the fire was an incendiary fire:

a) The flames were limited to the second-floor hallway. This hall provided passage to a bathroom and two bedrooms, including the victim’s bedroom, which had no door. Samples of the hall carpet showed the presence of gasoline.

b) “Burn patterns” on the hall carpet, diagrammed after the fire, resembled puddles connected by a thin line. This phenomenon is known as a “pour pattern.” To the trained eye, the pour pattern indicates the area upon which and the direction in which a flammable liquid has been poured onto a carpet or other surface. The expert testimony was that about one gallon of gasoline had been used.

c) Burn patterns on the hallway walls indicated the presence of a fire accelerant. The arson investigators who inspected the premises found a “v-pattern” on the walls. This pattern indicates the nature of a fire’s origin. A fire of accidental origin produces a normal “v-pattern.” The pattern found in the second-floor hallway of the Nelson [224]

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674 S.W.2d 220, 1984 Mo. App. LEXIS 4664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-moctapp-1984.