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August 17, 1983


From the Circuit Court of Taney County; Criminal Appeal; Judge James Clifford Crouch.

Motion for Rehearing Overruled, Transfer Denied September 7, 1983. Application Denied October 18, 1983.

Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.

The opinion of the court was delivered by: Flanigan

A jury found defendant guilty of arson in the second degree, § 569.050, *fn1 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." *fn2 § 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, inspected 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 qualification 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 stopped 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 ...

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