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09/14/93 STATE MISSOURI v. JACOB WALD

September 14, 1993

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
JACOB WALD, DEFENDANT-APPELLANT. JACOB WALD, MOVANT-APPELLANT, V. STATE OF MISSOURI, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY. Honorable M. Keithley Williams, Judge

Flanigan, Crow, Garrison

The opinion of the court was delivered by: Flanigan

A jury found defendant guilty of arson in the first degree, § 569.040, *fn1 and he was sentenced, as a prior and persistent offender, to 30 years' imprisonment. Defendant appeals, and that appeal is Case No. 18066. After the jury trial, defendant filed a motion under Rule 29.15, seeking post-conviction relief. The motion was denied after an evidentiary hearing. Defendant's appeal from that denial is Case No. 18543. The appeals have been consolidated and will be dealt with separately in this opinion.

Case No. 18066

Defendant contends that the trial court committed error: (1) in receiving the testimony of witnesses Larry Harsh and Mary Goade to the effect that the fire "would have been such as to cause serious physical injury or death"; (2) in rejecting defendant's offer of proof as to evidence of a fire of a similar nature which occurred on May 1, 1991, at a house located at 603 Persimmon and occupied by Mary Goade; (3) in giving Instruction 9, MAI-CR.3d 312.10, the so-called "hammer" instruction; and (4) in giving Instruction 4, MAI-CR.3d 302.04, which defined "reasonable doubt."

Defendant does not challenge the sufficiency of the evidence to support the verdict. In addition to its formal portions, the information charged that defendant, on August 10, 1991, "knowingly damaged an inhabitable structure consisting of a house located at 627 High Street, Joplin, Jasper County, Missouri, and defendant did so by starting a fire at a time when persons were then present, and thereby recklessly placed such persons in danger of death or serious physical injury."

The state's evidence showed that on August 10, 1991, between 3:00 and 3:30 a.m., defendant was in the vicinity of Mary Goade's house located at 627 High Street, Joplin. In the house at that time were Mary Goade, her 13-year-old son Michael, and Tommy Theus.

State's witness Atchie Derrick, who lived nearby, testified that shortly before the fire he saw defendant get out of a vehicle which stopped near the Goade house. The driver drove off. A few minutes later, the witness saw defendant walk down the alley to the home of Mary Goade. Defendant was carrying something. Defendant walked through a gate into Mary Goade's back yard and walked around the house, "like he had it all mapped out." The witness heard glass break and heard defendant say, "I told you, you bitch, I'd get even with you." That remark was followed immediately by three explosions. The witness was acquainted with defendant and positively identified him.

Mary Goade testified that her son Michael woke her and said, "Mom, I smell smoke." Mary walked to the kitchen to see if any appliances had shorted out and saw a fire at the end of her daughter's bed. The occupants of the house escaped.

Mary Goade testified that she knew defendant. She said, "There was a time when he and I were seeing each other on a regular basis. We had a falling out. There was some bickering going on after we split the sheets."

During the prosecutor's examination of Mary Goade, the following occurred:

Q. Now, with regard to this fire, and again this is a pretty silly question, would this fire, had it gone unchecked, would that have caused you and your son and Mr. Theus, would that have caused you serious physical injury or death?

A. Yes, it would.

Joplin policeman Larry Harsh testified that he was on duty in the area and smelled smoke. He saw Mary Goade and her son Michael emerging from the house at 627 High Street. He saw them "fall on the front porch or just off the front porch," and about the same time "the house flashed." He notified the dispatcher of the house fire because "the house was flashing and flames were coming off the porch area. . . . I decided I was going to take my gun belt off and crawl up to the house and get the people off the front porch because the flames were so heavy. As I approached the house, flames were being sucked back into the house. I moved them from the porch area to a tree about 30 feet from the porch."

When the prosecutor asked, "If you had not moved them, would they have been burned," Harsh responded, "Oh, yes, without a doubt." He also said that this was not "a small fire by any means. . . . This whole house -- when they opened the door, the whole house flashed, the whole house burned, just -- completely."

A fire investigator testified that the fire was intentionally set and that in the center of the bedroom where the fire originated there was evidence of a "flammable liquid pour."

Defendant's first point is that the trial court committed plain error in receiving into evidence the testimony of witnesses Larry Harsh and Mary Goade, quoted above, to the effect that the fire "would have been such as to cause serious physical injury or death." Defendant contends ...


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