*1 Dakota, Plaintiff of South STATE Appellee, HAGE, Appellant. Defendant
Donald
No. 18487. Dakota. Supreme Court of South Sept. Argued 1994. May 1995. Decided *2 Barnett, Atty. Gen.,
Mark Sherri Sundem Wald, Gen., Pierre, Atty. plaintiff Asst. for appellee. of of De- Michael Stonefield Office Public Pennington County, Rapid City, fender for appellant. for defendant and KONENKAMP, Justice. Hage of
A convicted Donald Second Arson four counts of De- Degree Third gree pleaded guilty Arson to a Part II charging him an Information as Habitual Of- following appeal, he the fender. On raises issues:
I. Was the evidence sufficient sus- tain a conviction Third (Count IX)?
II. Was evidence sufficient to sus- generally? tain convictions its III. Did the trial court abuse discre- allowing prior of tion burglaries of arson at one sites? missing in the Third Did the element IV. constitute Arson instruction plain error? affirm all convictions.
We
FACTS long
In Fall 1992 a two-month suc- of pre-dawn occurred in cession of arsons City, beginning with the Rapid southeast away ending one block Livermore home and Suspicion Riss home. focused at authorities Hage when witnesses informed Hage, neighbor the Risses and of Livermores, conspicuous peculiarly at day of Riss fire. The after the scene voluntarily fire, November Rapid City investigators at met acknowledged being He Department. Police fire, but denied scene of the Riss at the Upon ques- further seeing fires. other he had seen the tioning then conceded of gave varying accounts Livermore the scene. Still further upon he came how witnessing two admitted the interview he fires, versions again giving inconsistent other with these con- confronted events. When tradictions, “I know I ha- Hage responded, haven’t, I I ain’t I know done them. ven’t that, Livermore, light dog I fires that much I’d don’t where knew and would anybody ever do that to hurt or.” He was respond aggressively to him. arson, charged soon with nine counts of all telling during After first authorities having ignition. a similar mode investigation Riss fire that he had not seen *3 Hage’s At all the evidence in the close of fires, Hage other conceded that he saw judgment trial the court entered of ac the Livermore fire as he walked home from quittal finding three counts on insufficient job Upon his at K-Mart around 6:00 a.m. linking Hage respective to those checking, the authorities discovered that he guilty fires. The found him on five of employed during was not at K-Mart this remaining the six counts. For his Second interview, point during At time. another his Degree Arson and Habitual Offender convic Hage said he did not become of the aware eighty-five tions the court sentenced fire until after he came home from K-Mart years penitentiary. in the He received fif bed, by and went to but was awakened years penitentiary teen in the on each of his blowing open smell of smoke his window. Arson, four convictions for Third all morning blowing away The wind that concurrently. run sentences to Because j from his window however. sufficiency of the evi challengjes Plaza Fire. Midtown dence we facts most favorable sumijnarize 7,1992 firefighters At 3:48 a.m. on October verdiqts. Sondreal, to the responded to a call at the Midtown Plaza N.W.2d building burning office where fire was Livermore Fire. through the roof. It took two to three hours 3, 1992, family On October the Livermore originated to subdue the blaze. The fire had destroyed Though home was fire. in a common area near a in a stairwell dead house was secured before the Livermores hallway again end on the second floor. Once weekend, had left town for the com- arson; investigators primary ig- deduced knowledge neighborhood mon that the nition site was too burned to determine if always properly. back door would not close particular materials kin- had been used as Firefighters reported that the front door was dling, but trash had been used as tinder in whe¿ first, they unlocked arrived. At fire attempt separate to start a fire in two other investigators believed that either a television building. areas of the Midtown tenants had pile or a of debris under a desk in of the one neglecting a habit of to lock the main en- ignition point. bedrooms served as the On leaving building trance door when at examination, investigators further concluded night. At his interview admitted to that the television was a “victim of the fire being away watching one block fire rather than the source of the fire.” Based trucks from Hardees Restaurant where he all the circumstances the authorities con- he said had been for over two hours since incendiary origin. firmed the fire an leaving nearby closing at bar time around burned, days A few after his home had Mr. testimony 2:00 a.m. The State elicited that it sifting through Livermore was the remains would take a little over seven minutes to Hage, parents when who lived with his next- walk from the bar to Hardees. esti- door, began walking around the scene. Liv- mated it took him “not even a half hour.” relationship ermore did not have a close Investigators believed that the fire had been Hage, occasionally but the two chatted. burning from one to two hours before 3:48 Hage mentioned that he awoke to the smell a.m. morning of smoke on the of the fire and also Dental Fire. Office cryptically remarked about the Livermores’ dog, Bristy, perished in between 5:30 and 6:30 a.m. on who had Sometime saying, “Boy, you just never know whether October 1992 someone broke into and set Benusis, going Bristy he’s to bite and he isn’t.” fire to the offices of Dr. Kenneth when strangers, according pediatric ceiling was hostile to dentist.1 A tile and air duct earlier, rug complex, general 1. Hours a cardboard box and throw which was accessible to the ignited lobby apartment public. connecting Hage had been in the of an No evidence to this ter, thought if apparent effort to the man asked Mulder had been altered an fire, possibly might fire be connected to the other recent at- control the flow fires. He also mentioned that he had noticed spread tempt it to to the second to cause walking he was from smoke as home work at investigators separate floor. found two Fire Manufacturing. Perdue Mulder thanked the trays in ignition points. One of the two man his and asked for name address. ordinarily autoclave which held sterilized replied The his name man first empty found after was. dental instruments was “H-A-G-G,” Donald, spelled last name his searched the fire. When authorities later address, gave a nonexistent walked they Hage’s on December bedroom away. investigators later determined in his found three dental instruments desk using ignited scrap fire had as been ended, single drawer: a small size dental *4 Scrap building kindling. materials from a mirror; single-ended “Henry # 23 a Schein” nearby piled site were found construction “Henry a shepherd’s explorer; hook and At under the bus as well. trial Mulder iden- excavator. Dr. Schein” #22 double-ended Hage tified as the man he encountered that although he could not Benusis testified that morning. identify positively instruments found in Hage’s definitely as his tools or interview, room dental Hage At admitted his that specifically missing indicate that these were a.m. friends around 6:00 on October had emphatic he that after the these dropped him off at a convenience store near precisely matched three instruments high he was drawn school. claimed types of he used. Dental instru- coming up dental tools from to smoke behind church sizes, shapes blowing in ments come different and him which the wind was toward as brands, preferred Contradictory Dr. to a but Benusis use he home. evidence in- walked opposite “Henry blowing # 22 wind in the double-ended excavator dicated the Schein” Furthermore, explained morning. patients. his He further direction that when on child arrived, smoke; Mulder he did see that there are four available sizes of dental mirrors, and doors shut. Ar- prefers he to bus’s windows were but use the shortest mirror, investigators that the distribu- just son testified single-ended a the same as size: panes on window confirmed tion of smoke Hage’s Dr. the one found desk. Benusis no be Mulder’s observations: smoke would single-ended shepherd’s a hook also uses capture Hage’s Hage’s attention. visible to “Henry explorer. Dentists of- Schein” #23 by stipula- his credibility was further eroded for adult ten use double-ended instruments for tion at trial that he did work Perdue dentist, pediatric Dr. patients, as a Benu- Manufacturing. using single-ended tools to sis favored dental injury possible squirming to chil- minimize Riss Fire.
dren. A Riss at smoke alarm awoke Mrs. 4:30 Bus Fire. and a.m. November 1992. She her on sought neighbor’s a shelter at home. husband Doug arrived at When teacher Mulder firefighters the blaze which osten- As battled just Rapid City High School after Christian along sibly originated on fire from trash set 30, he man 6:00 a.m. on October saw a stand- house, stranger to Hage, a exterior ing The man informed near a school bus. neighbor, appeared the Risses and the inside fire bus Mulder there was a in the that Hage approached neighbor’s home. Mr. running people away. that he had seen some Riss, doing, how he was and mentioned asked one, nor he notice Mulder had seen no did neighbor’s recently witnessed his approached of a fire until he sev- repeated home He this behavior burn. doors, open the the bus. to bus Unable and, witnesses, according be- eral times to through gained an unlocked two men access general came a nuisance. They opened the window. windows interrogation on November During a his put out the fire with water and doors and to the Riss that he was drawn During their encoun- stated extinguisher. fire brief acquitted Hage However, time and locale. The the trial court blaze was submitted. proximity charge count. to the due to its sent this Degree fire perpetrator after he saw smoke and flames from Arson all state that the parents’ intentionally his on the house same street when must set fire to or burn or cause he arrived there 4:00 a.m. Degree around after an to be burned a structure. Ar- First early morning additionally requires knowledge A service son walk. station em- that the ployee occupied. confirmed that left the station structure is SDCL 22-33-1. Sec- for knowledge home on foot between 3:00 and 3:30 a.m. ond Arson eliminates the Investigators requirement. concluded that the fire had SDCL 22-33-2. The Third thirty sixty burned employs minutes before it was Arson statute the term suppressed “unoccupied at 5:11 a.m. meaning any Statements structure” struc- reporter suggest- news who covered occupied the fire ture which is not an structure. 22-1-2; yet ed that smoke was not visible from SDCL SDCL 22-33-3.2 The defini- Hage’s house at the tion “any time first claimed of structure includes house.” spotted to have the fire. prosecutor SDCL 22-1-2. If the elected not charge prove the Livermore presented expert testimony The State dur- structure, occupied logical- home was an then ing the trial that the recent series of fires fit ly encompassing the house fell under the all profile investigators known arson as “not category unoccupied of an structure. This profit An pro- arson.” arsonist with this Solem, Court noted Goodroad v. characteristically ignites file fires in secluded *5 (S.D.1987): 141, N.W.2d 146 areas, normally day, at the same time of using a similar each A method time. “not for why We are prosecutor unaware of profit” usually arsonist will return to the prosecution, chose the lesser offense for survey damage. scene to watch the fire or evidentiary whether problems it was or
purely prosecutorial
discretion.
In
event,
ANALYSIS
hardly
position
Goodroad is
in a
to
complain
charged
that he was
and sen-
Sufficiency
1.
of the Evidence To Sustain
tenced on the lesser offense.
Conviction for Third
Arson
(Count IX).
Sufficiency
II.
of Circumstantial
Evi-
charged Hage
The State
with Third
dence to Sustain Convictions.
Degree Arson of the Livermore residence.
judgment
acquittal
moved for
of
at the
reviewing
sufficiency
In
of the
conclusion of the
contending
State’s case
evidence,
a
only
verdict can
be set aside
the evidence was insufficient
aas matter of where the evidence and the reasonable infer
Haase,
charge.
law to sustain the
State v.
ences to be drawn therefrom fail to sustain a
62,
(S.D.1989);
446 N.W.2d
65-66
State v.
theory
guilt.
Burtzlaff,
rational
of
State v.
Bonrud,
785,
(S.D.1986).
393 N.W.2d
789
(S.D.1992);
411 used, witnesses, These method: no accelerants were each was weighing or evidence. of readily fueled with whatever was available solely jury’s province functions lie within nearby, such as trash. was unem- Burtzlaff, fact. 498 as ultimate trier of regularly spent midnight ployed and to Svihl, 4; N.W.2d at N.W.2d walking Rapid alone around dawn hours Huettl, (S.D.1992); v. 379 N.W.2d State Walking Hage’s City. typical mode of 298, 302 corresponded fires transit and the with the against Hage case The State’s Hage gave areas where he walked. false and evi purely circumstantial. Circumstantial contradictory statements to law enforcement more reli equal dence and sometimes is relating his movements to these fires. about (State Best, v. able than direct evidence gave At the scene of the bus fire he false (S.D.1975)), N.W.2d 447 however name and address. More than once he upon state is that to happened The established rule to have a fire while claimed job. upon traveling conviction circumstantial evi- from a warrant home nonexistent alone, facts and circumstances dence such surrounding the The circumstances Liver- must are with each be shown as consistent definitely fires more and Riss tied charged, guilt party other and Hage’s possession pediatric these arsons. by any as cannot reasonable the- such type, of the exact size and brand dental tools ory party charged true and the be be use, prefers Dr. which could have Benusis rule This does mean innocent.... trays taken from one of his been every as evidence must be such to exclude empty after autoclave found estab- possible hypothesis of innocence. Rather tangible link to the office dental lished only requires the exclusion reasonable Perhaps the most tenuous connection arson. hypothesis of innocence. fire was Hage and a the Midtown between But here the crime fit a Plaza case. even Esslinger, 357 N.W.2d 530-31 State *6 pattern: kindling; trash used as clear was omitted). (S.D.1984) (citations conclude We parts in secluded of the fires were started of that from our careful review the record vicinity building; building was in the the than sufficient the State’s evidence was more Hardees; go Hage to from the bar to traveled arson each of the five fires. to establish on fire by investigator’s estimate the was an question jury the was The then is whether 2 3 at a time somewhere around to started and circumstances con- presented with facts Hage by his admission was a.m. when own Hage’s guilt, each and with sistent with other area; Hage again once walking in the theory any be as cannot reasonable such to witness the blaze. was on the scene Hage Hage innocent? denied true and be right jury only the to consider The starting any no to fires and one testified all in connection with Hage’s admissions rarely seeing proven Arson is him start one. case, it also circumstances in the but other through testimony. eyewitness regard his statements as them- false could had, may conviction be even While a guilt. v. tending to Wilson evince selves though that the ac- there is no evidence 895, 613, States, 16 40 162 U.S. S.Ct. United he position in could cused a where was West, (1896). Wright v. 1090 See also L.Ed. fire, there must be some- ignited have 2482,120 277,112 L.Ed.2d 225 S.Ct. 505 U.S. way personal in thing connecting him (1992). although the cases that We conclude burning. actual with the circumstantial, wholly against him were Related 5 Am.JuR.2d Offenses cumulatively was suffi- the evidence viewed (1962). § 55 jury out reasonable for the rule cient Hage innocence and convict hypothesis of eyewitness own By his admission charge. each of on or near the scene testimony was All fires in this series of arsons. four Burglaries at Den- of Prior III. Evidence Rapid City approximately be in occurred tal Office. within two a.m. and 6:30 a.m. 2:15 tween burglar had been during peri Benusis’s office a two-month miles of each other Dr. year before his office approximately one ignited by a ized similar fires had been od. The 412 nor, 248, (S.D.1985). gutted by
was fire. The unknown 378 intruder N.W.2d 256 When syringes, powder, preserved took white and Novocain. properly appeal issue is not later, burglary Another six occurred months we plain will not it address unless error is Dr. anything 306, but Benusis was not aware if Holloway, shown. State v. 482 N.W.2d (S.D.1992). taken. Arson was associated with plain ap 309 “[T]he error rule burglaries. of previous cases, either these plies only exceptional and then sought question Benusis about these applied cautiously; must be the rule does not events. The trial court refused to encompass trial, allow this every which error occurs at (SDCL 19-12-3) testimony citing 403 only Rule those which are errors both obvious provides pertinent part: which and substantial.” Id. relevant,
Although
may
be ex-
Plain error exists if the omission
probative
if
value
substantially
cluded its
is
twenty-five
of the
dollar element substantial
danger
outweighed by
preju-
unfair
ly impaired Hage’s rights, thereby prejudic
dice,
issues, misleading
confusion of the
or
Brammer,
ing
111,
him. State v.
304 N.W.2d
jury,
...
(S.D.1981). Prejudicial
114
error
error is
Hage argues
proof
prior
these
bur
which in
probability
all
must
produced
have
glaries could
have rebutted
State’s theo
jury’s
some
upon
effect
is
verdict and
ry that he
dental
obtained the
tools at the
rights
party
harmful to the substantial
allegedly
office;
he
time
set fire to the dental
assigning
Phillips,
it.
State
489 N.W.2d
they support
theory
his alternative
on how
(S.D.1992);
Michalek,
617
State v.
may
have obtained these instruments.
(S.D.1987).
N.W.2d
also
must
Evidence of other
is
offenses
relevant if it
prove
evidence,
prob
under the
tends make “the existence of
fact that
ably would have
returned
different verdict.
consequence
is of
to the determination of the
Weisenstein,
State v.
367 N.W.2d
probable
probable
action more
less
or
than it
(S.D.1985).
would be without the evidence.” SDCL 19-
12-1;
Reutter,
(S.D.
State v.
jury propose instruction or alternative WUEST, Justice, Retired concur. appeal. instruction waives the issue for 7; Burtzlaff, SABERS, J., 493 N.W.2d at O’Con concurs result. J., GILBERTSON, having been the time this case of the Court at
member considered, participate. did not result). SABERS, (concurring in Justice I, more care- On Issue the state should be selecting appropri- language that more ful unnecessary charge, ately otherwise fits could result and mislead future confusion in similar circumstances. defendants III, Interestingly, on Issue the trial court prior burglaries of excluded evidence of two being af- office. This denial is the dentist’s testimony firmed on the basis that the would only and confuse serve mislead the I result because the the issues. concur in permitted to offer evi- defendant should be defense, support his whatever is. dence to IV, the trial court should have On Issue the value of the instructed property to exceed burned $25.00. However, the evidence SDCL 22-33-3. clearly did and I concur result because the all of the was sufficient to sustain
convictions. Dakota, Plaintiff
STATE South Appellee, Henry BUSACK, Defendant *8 Charles Appellant.
No. 18705. Supreme Court of South Dakota. on Briefs Jan. 1995. Considered May 1995. Decided