STATE OF SOUTH DAKOTA v. JACQUELINE KROUSE
#29711-a-PJD
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2022 S.D. 54; OPINION FILED 08/31/22
ARGUED APRIL 27, 2022
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JACQUELINE KROUSE, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA
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THE HONORABLE JEROME A. ECKRICH III Retired Judge
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SHAWN M. NICHOLS CLAIRE E. WILKA of Cadwell, Sanford, Deibert & Garry, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.
MARK VARGO Attorney General STEPHEN G. GEMAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
DEVANEY, Justice
[¶1.] The defendant appeals her conviction, following a bench trial, of second-degree arson arising from a fire that occurred in her home for which she made a claim to her insurance company for damages and losses. The defendant asserts that this Court‘s review is confined to the circuit court‘s findings of fact; that the circuit court erred in denying her motion for judgment of acquittal; and that she was denied her fundamental right to due process and a fair trial. We affirm.
Factual and Procedural Background
[¶2.] On March 13, 2019, at approximately 11:00 p.m., Sioux Falls Fire and Rescue personnel responded to a 911 call reporting a home fire. Firefightеrs extinguished the fire; however, before being suppressed, the fire burned basement walls and continued upward, burning the dining room floor and causing significant smoke damage throughout several portions of the home. Sioux Falls Fire and Rescue Investigator Tyler Tjeerdsma, who was assigned to investigate the cause of the fire, arrived shortly after fire suppression efforts began and collected information from the firefighters on the scene. He also spoke with the owner of the home, Jacqueline Krouse, and her boyfriend, Steven Veenhof, who was present during the fire. Krouse told Tjeerdsma that she was having problems with a fireplace in the basement and that a breaker kept tripping. She claimed that she went in and out of the mechanical room where the breaker panel was located, and roughly five minutes after one of her trips into the room, she noticed a small fire on the floor. She told Tjeerdsma that she left the room to get a towel, wet it down, and return to the room, but by the time she got back, the fire was too big to put out, so she went upstairs to call 911.
[¶3.] After examining the evidence and collecting information, Tjeerdsma determined that the fire started in the mechanical room in the basement. He traced the point of origin to the east wall of the mechanical room by some charred cardboard boxes. However, he could not determine the cause of the fire. He wrote in his report that “[w]ithout the benefit of additional evidence or information the specific cause of the fire will remain undetermined.” He further wrote that his analysis of the evidence and information “was sufficient to support that the fire was the result of an unintentional act” and that “no evidence or information was discovered that would support any deliberate act which would have caused this fire.”
[¶4.] The day after the fire, Krouse submitted a claim to her insurer, State Farm Insurance Company, seeking to recover for the damage to her home. Prior to the fire, Krouse‘s home was valued at over $1 million. At the time of the fire, she was self-employed as an artist and received $21,000 a month in alimony from her ex-husband. She was the only person living in the home full time. Krouse claimed that it was her plan to keep the home until her children graduated from high school, and with her son nearing graduation, she had started to prepare the home to be listed for sale.
[¶5.] State Farm assigned claim representative Myra Olson to Krouse‘s insurance
[¶6.] During the meeting, Krouse related to Olson a version of events leading up to the fire that differed in some respects from the version she provided to Tjeerdsma. Krouse told Olson that on the evening of March 13, she and Veenhof had gotten into an argument, after which she went to the basement. Krouse explained that she walked into a theater room in the basement to inspect a recently completed рaint job. Krouse stated that she noticed about an inch of water on the floor in the theater room and smelled smoke, then followed the smell, and noticed smoke coming out of the mechanical room. She told Olson that when she opened the door, she saw a small fire on the concrete floor. She also told Olson “she had done something with the fireplace that then caused her to go and attempt to flip a breaker . . . just prior to the fire.”
[¶7.] Olson also conducted a walk-through of the home. She testified that there were several “red flags” based on her observations of the overall condition of the home. In particular, the furniture in the upstairs living room had been pushed to the middle of the room, there were no photos or paintings on any of the walls, everything had been taken off thе bookshelves, multiple areas of the home needed repairs, the carpet had been pulled up in a bedroom downstairs and piled in the center of the room, the staircase to the basement was half painted, and certain personal items such as Krouse‘s purse, laptop, and contacts were in her vehicle on the evening of the fire. Because Olson could not determine the cause of the fire, she informed Krouse that she would be recommending that State Farm hire a fire investigator to attempt to determine how the fire started.1
[¶8.] State Farm hired Jeff Blomseth to investigate the cause of the fire, and on March 19, Blomseth met with Krouse at the residence. During the interview, Blomseth obtained preliminary information from Krouse regarding what she saw and what happened the night of the fire and whether any issues may have existed in the home such as lighting issues, renovations being made, etc. Krouse‘s explanation to Blomseth about discovering water in the theater room and then smelling smoke was similar to the version she provided to Olson. Krouse told Blomseth that when she discovered a small fire in a pile of debris on the mechanical room floor, she tried to “move the pile with her foot, a little[,]” and observed small flames within the debris. She explained that she then went to the bathroom adjacent to the mechanical room to wet a towel to put on the fire and called for Veenhof.
[¶9.] During Blomseth‘s physical investigation of the origin and cause of the fire, he examined the charred debris pile in the mechanical room layer by layer to evaluate
[¶10.] Krouse told Blomseth that seven to ten days prior to the fire, she had placed various items of garbage in the area where the debris pile was located, including towel-type materials, an old box of stick matches, latex and acrylic artist paint, and some rags from painting and staining projects completed approximately five weeks prior to the fire. Neither Tjeersdma nor Blomseth located stain rags in the mechanical room, but Blomseth opined that even if such rags had been present, neither stain rags nor anything of that nature caused the fire. He explained that based on his experience and training, staining approximately five weeks prior to the fire and putting the rags in a pile seven to ten days before the fire would not be consistent with a theory that the rags started the fire.
[¶11.] While Blomseth acknowledged that the stain rags “are capable of self-heating[,]” he explained that these types of fires are “extremely dirty fires” that “will smoke for a long period of time” before producing flames. He further explained that because the pile was on a concrete floor, the floor “would act like a heat sink and would be drawing any heat that it‘s trying to build up, and it would be dissipating that as it‘s trying to build it.”
[¶12.] Blomseth concluded based on his initial investigation that the fire was not accidental; howеver, he testified that he did not know who started the fire. Consequently, he went back to the home on April 1, with an electrical engineer, Dan Choudek, to further investigate the cause of the fire. Choudek testified that his role involves examining a building‘s electrical systems to help determine where a fire started. After obtaining background information from Blomseth and conducting his own investigation at the scene, it was clear to Choudek that the fire started in the mechanical room and that there was not an electrical cause for the fire.
[¶13.] Blomseth interviewed Krouse a second time and asked her to once again explain what she had been doing when the fire started. During this subsequent interview, Krouse told him that he should “just look at the video camera because that would record everything.” Blomseth then had Choudek collеct the video recording from the in-home security system with Krouse‘s permission.
[¶14.] After considering this additional information, Blomseth maintained his opinion that the fire was nonaccidental. He testified that it was an incendiary fire, one that occurred under circumstances “when there shouldn‘t have been a fire.” After reviewing the video footage, he concluded that the fire was caused by “[t]he application of an open flame to combustible materials.” Blomseth described what he observed on the video; in particular, in his view, the footage showed Krouse walking toward the mechanical room while holding an item in her hand that looked similar to a box of wooden stick matches and also showed her retrieve an item from the box and make “what appear[ed] to [him] to be a striking motion” before walking intо the mechanical room. After Blomseth viewed the video footage, he informed law enforcement of the video recording and also shared it with Tjeerdsma.
[¶15.] On September 3, 2019, Krouse was indicted on one count of second-degree arson alleging she started the fire with the intent to destroy or damage property to
[¶16.] In addition to the testimony from Tjeerdsma, Blomseth, Choudek, and Olson, the State presented testimony from Chase Kuhlman, a certified fraud examiner from the South Dakota Division of Criminal Investigation who had examined Krouse‘s bank records for the three-month period prior to the fire. Although Krouse‘s bank account had a positive balance of $16,000 at the time of the fire, the amount Krouse was spending each month fаr exceeded the $63,000 in alimony payments deposited in the account during this timeframe.
[¶17.] When the State concluded its presentation of evidence, Krouse moved for judgment of acquittal. She claimed that the State failed to present sufficient evidence that she started the fire or that she started the fire with the requisite intent to cause damage in order to collect insurance proceeds. The circuit court denied Krouse‘s motion.
[¶18.] As part of her defense, Krouse presented expert testimony from certified fire investigator Cliff Dahl. Dahl testified that he had interviewed Krouse and Veenhof and had conducted an onsite investigation of the fire on May 12, 2020. He also reviewed Blomseth‘s report. While he agreed the fire originated in the mechanical room, he did not agree with Blomseth‘s opiniоn on the cause of the fire. In Dahl‘s view, based on the information he had received from Krouse, the circumstances leading up to the fire suggested that it was caused by spontaneous combustion. In particular, he relied on Krouse‘s statement that there were balled-up rags used for staining woodwork in the mechanical room. Dahl testified that these rags likely started heating within the pile and ignited once being exposed to oxygen in the air. He opined that based on the way the debris pile burned, the fire did not start on top of the pile but rather inside the pile.
[¶19.] Dahl disagreed with Blomseth‘s testimony that a spontaneous fire was not possible. In Dahl‘s view, a spontaneous fire could start “anywhere from days to months” after the stain rags were placed in a pile and the pile could smolder without visible smoke for a long time. Based on Krouse‘s statement to him that she kicked the debris pile, Dahl believed that the introduction of oxygen to the pile started “to get this combustion going in there, which is generating smoke” and then fire.
[¶20.] With regard to the security video footage, Dahl did not believe that the recording depicted Krouse holding a matchbox or that she was striking a match before walking into the mechanical room. He noted that the room was dark, and the video did not show any glow. Ultimately, Dahl opined that the fire in Krouse‘s home was accidental and Krouse did not start it.
[¶21.] During cross-examination, Dahl acknowledged that when he was first asked to opine on the cause of the fire he stated in his report that if he was asked “to swear under oath if the fire was caused by spontaneous combustion,” he would say no. He attempted to explain his differing trial testimony by stating that there is always a possibility that something else happened. Although he offered that he is 99.9% sure that the fire was caused by spontaneous combustion, he acknowledged that he was not able to sift through the debris pile, as Blomseth had done, because by the time he examined the scene more than a year later, the debris pile was not in the same condition. He also acknowledged that his opinion was dependent on
[¶22.] Krouse did not testify, but Veenhof testified as a defense witness. He testified about Krouse‘s plan to sell the home, her hiring of a realtor, and that she was in the process of completing multiple painting and repair projects in the home and removing items so that a realtor could stаge the house for a showing. Veenhof testified that on the evening of the fire, recent rainfall on top of two feet of frozen snow had caused water to enter the theater room and after he noticed the water, he informed Krouse. Sometime later that evening, Veenhof and Krouse got into an argument and Krouse went downstairs. While Veenhof was upstairs working on his computer, he heard the smoke alarm go off and then started smelling smoke. He recalled asking Krouse: “Is this a real fire?” According to Veenhof, Krouse was not concerned, and she made a joke about popcorn having started on fire the week prior. He testified that when Krouse came upstairs, she was “kind of running around looking for something” and he thought she might have been looking for flashlights. Krouse then went downstairs.
[¶23.] Not long afterwards, Vеenhof went downstairs and noticed Krouse in the mechanical room looking “visibly startled by the size of the fire.” According to Veenhof, Krouse tried to smother the fire with a towel, but “the wind from the towel pushe[d] the flame back” and the fire went straight up and “got really tall really fast” so they ran out of the room. Veenhof explained that they were looking for water and a bucket but could not find one. When it became apparent there was no way they were going to be able to put out the fire, Veenhof called 911. The recording of this call was admitted as an exhibit and much of the interaction between Veenhof and Krouse was captured on this recording. Veenhof testified that Krouse tried to enter the mechanical room again, but the smoke was too thick. She then switched her focus to finding the cats but could not find them, and Veenhof took Krouse out of the home, where they waited outside barefoot and without coats until the firefighters arrived.
[¶24.] Krouse also presented testimony from Brad Horstman, who completed an inspection of her home on February 26, 2019, at the request of Krouse because of her plan to sell the home. He testified that although he did not find any major issues with Krouse‘s home, he noted renovations and maintenance that needed to be completed before a buyer would be interested in the home. He described Krouse as being “very nervous about the process” and “relieved” when there was “no terrible news” to report.
[¶25.] However, during cross-examination, Horstman agreed that his written inspection report designated several items in the home as being in poor or fair condition and in need of repair. The report also noted water damage and stains in the bathrooms and the mechanical room, as well as a plumbing leak under the kitchen sink, and recommended further evaluation by a contractor to repair these things. Horstman further testified that had there been water in the home during his inspection, that would be a “major problem” that “would take money to fix[.]”
[¶26.] After the defense rested, the State re-called Tjeerdsma in rebuttal. He noted that his report indicated that if he received additional information, his conclusion could change, and he explained that after viewing the video footage and based on everything he now knows, his opinion had changed. Tjeerdsma thereafter opined that ignition by spontaneous combustion would not be consistent with the way the smoke
[¶27.] At the conclusion of the case and after closing arguments, the court recessed to deliberate, and the next day, issued an oral ruling. The court first identified the elements of the crime for which Krouse had been charged and noted that the State has the burden to prove each element beyond a reasonable doubt. The court then briefly summarized the evidence presented, stating that Krouse‘s “versions of her movements in the minutes prior to the fire‘s outside break are not consistent with the evidence.” The court summarized events captured on the video recording. In particular, the court noted that the video depicted Krouse carrying a rectangular object approximately the sizе of a kitchen matchbox into the mechanical room; smoke emitting from the room approximately two minutes after Krouse entered; Krouse exiting the room while smoke was emitting; Krouse thereafter standing near the doorway “watching where there is now obviously a growing fire within the room“; and Krouse walking “slowly upstairs.” The court found that based on its review of the video, Krouse‘s “pace” and “body language” suggest “an absence of panic.” The court rejected Krouse‘s theory and her expert‘s opinion that the fire started as a result of spontaneous combustion, in part, because the expert indicated in his May 15 report that he could not swear under oath that the fire was caused by spontaneous combustion. The court noted there was “no significant evidence of fire origin or cause in the record to explain why” Dahl was now able to offer a contrary opinion. The court found Krouse guilty of second-degree arson, concluding that the State met its burden of proof beyond a reasonable doubt.
[¶28.] Krouse appeals, and the issues raised are restated as follows:
- Whether the circuit court‘s factual findings are legally sufficient to support a conviction of second-degree arson.
- Whether the circuit court erred when it denied Krouse‘s motion for judgment of acquittal.
- Whether Krouse was denied her constitutional right to due process.
Analysis and Decision
1. Whether the circuit court‘s factual findings are legally sufficient to support a conviction of second-degree arson.
[¶29.] Krouse contends that this Court‘s review of the circuit court‘s guilt determination is confined to the circuit court‘s findings of fact. She further claims that her conviction for second-degree arson in violation of
[¶31.] Under
[¶32.] Here, like in Nekolite, neither party requested that the circuit court enter special findings under
2. Whether the circuit court erred when it denied Krouse‘s motion for judgment of acquittal.
[¶33.] Krouse notes that under
[¶34.] It is well settled that:
“[A] motion for judgment of acquittal attacks the sufficiency of the evidence, which is a question of law whether the motion is considered before or after the jury‘s verdict.” State v. Wolf, 2020 S.D. 15, ¶ 12, 941 N.W.2d 216, 220. “A question regarding the sufficiency of the evidence to sustain a conviction is reviewed de novo.” State v. McReynolds, 2020 S.D. 65, ¶ 11, 951 N.W.2d 809, 814. When reviewing the sufficiency of the evidence, the Court considers “[w]hether there is evidеnce in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” Wolf, 2020 S.D. 15, ¶ 13, 941 N.W.2d at 220 (citation omitted). On review, the Court “accept[s] the evidence and the most favorable inferences that can be fairly drawn from it that support the verdict.” Id. (quoting State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342). This Court does not “resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence on appeal. If the evidence including circumstantial evidence and reasonable inferences drawn therefrom sustain a reasonable theory of guilt, a guilty verdict will not be set aside.” Id. (quoting Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at 342).
State v. Ahmed, 2022 S.D. 20, ¶ 14, 973 N.W.2d 271, 221. The sufficiency of the evidence as to each element is examined below.
a. Whether the State presented sufficient evidence to sustain a finding that Krouse started the fire.
[¶35.] Krouse contends that Blomseth‘s opinion that she started the fire was biased, self-serving, and insufficient to support that she intentionally started the fire. She contrasts his opinion with the report Tjeerdsma issued after his investigation, in which Tjeerdsma concluded that the fire was accidental and had an undetermined cause. In her view, “[t]he conflicting opinions between Tjeerdsma and Blomseth as to the cause belie any reasonable finding that the State proved beyond a reasonable doubt that Krouse started the fire.”
[¶36.] She further asserts that the State‘s evidence overall was insufficient because it “is based on speculation as to [her] actions and movements.” She claims
[¶37.] The circuit court watched the video footage and considered the evidence presented concerning Krouse‘s statements about her movements prior to the fire starting. The court ultimately found that Krouse‘s movements as depicted in the video footage were not consistent with what she claimed she had been doing. Our review of the footage on appeal leads to the same conclusion.
[¶38.] The video shows Krouse coming down the stairs, wearing a sweater, carrying what appears to be a wine glass, and walking toward the theater. About a minute later, the video shows her walking slowly back into the family room from the theater area with her hand over her mouth. Krouse does not enter the mechanical room. Instead, she walks toward a different side of the family room and disappears from sight for several minutes. The video then shows Krouse walking back toward the theater, but she stops, pauses, then turns around and slowly walks to the kitchen/bar area, while still holding what appears to be a wine glass. After looking at a book for a minute or so, Krouse walks toward the bedroom area, and about a minute later, she walks back into the kitchen for a few minutes and then slowly upstairs. None of the video footage during this fourteen-minute timeframe shows Krouse entering the mechanical room.
[¶39.] Four minutes after going upstairs, the video shows Krouse, with her sweater nоw draped off her shoulders, coming down the stairs and walking toward the mechanical room. As she enters the mechanical room, Krouse is holding something in her hand that is consistent with the size and shape of a kitchen matchbox.4 Approximately two minutes later, smoke begins to emerge from the doorway to this room. After three and a half minutes, Krouse comes out of the room, with her sweater now hanging from one wrist. She then stands by the doorway for 20 seconds, looking into the room and watching the smoke, while still holding something in her left hand. Thereafter, she walks slowly toward the stairs but turns around and walks back to the mechanical room and reenters. She comes back out of the room a few seconds later, goes back in again for another ten seconds, then comes out, puts her sweater back on, and goes upstairs. None of this is done in a hurried fashion. A minute later Krouse walks down the stairs and toward the mechanical room holding a towel and waiving it a couple times in the air as she walks into the room. The video also shows Veenhof walking down the stairs shortly afterward and going into the bedroom area. The recording then cuts off.
[¶40.] In essence, Krouse seeks reversal because the video does not directly show her starting the fire. However, this Court “will not set aside a verdict ‘[i]f the evidence, including the circumstantial evidence and reasonable inferences drawn therefrom, sustains” the circuit court‘s guilt finding. State v. Abdo, 2018 S.D. 34, ¶ 25, 911 N.W.2d 738, 744 (citation omitted). Moreover, contrary to Krouse‘s interpretation
b. Whether the State presented sufficient evidence to sustain a finding that Krouse acted with the requisite intent.
[¶41.] Krouse asserts that the State “presented nothing more than rank speculation, thinly veiled as evidence, as to [her] purported criminal state of mind.” In particular, she contends that the evidence of her financial circumstances was insufficient because “it failed to account for [her] comfortable alimony, supplemental income, the equity in her home, and the fact that she planned to list the home for sale.” She further contends that thеre is no evidence to support that at the time she started the fire she intended to destroy or damage property to collect insurance for the loss. Finally, she argues that the circuit court could not rely on conduct that occurred after the arson—namely her submission of the claim to State Farm—to conclude she acted with the requisite intent.
[¶42.] Contrary to Krouse‘s claim, the circuit court could consider her conduct after the fire, including the fact that she promptly submitted a claim to State Farm specifically to collect insurance for the loss. Such evidence is probative on the question whether she acted with the requisite intent at the time she started the fire. Neither case cited by Krouse (State v. Jackson, 2009 S.D. 29, 765 N.W.2d 541 and State v. Swalve, 2005 S.D. 17, 692 N.W.2d 794) suggests otherwise.6
[¶44.] In addition to the evidence that Krouse put in a claim with State Farm (which when viewed in combination with the evidence showing that Krouse intentionally started the fire would support a reasonable inference that Krouse started the fire to collect insurance proceeds) a reviеw of the court‘s oral findings and additional evidence in the record further support that she acted with the requisite intent. In particular, the State presented evidence that Krouse had to complete a number of renovations and repairs before her house could be listed for sale, and then to compound matters, on the night of the fire, the recent storm resulted in standing water in the theater room. The State also presented evidence revealing that during the months preceding the fire, Krouse‘s expenditures far exceeded her monthly alimony income, that Krouse was familiar with fire insurance claims given her past employment with State Farm, and that she started a fire in the mechanical room where she could conceivably blame other ignition sources for the fire. It is reasonable to infer from this evidence that at the time Krouse started the fire, she acted with the intent to submit a fraudulent claim to collect insurance proceeds for the loss. Therefore, there is sufficient evidence in the record to sustain a finding that Krouse acted with the requisite intent at the time she started the fire.
[¶45.] Krouse has “not identified how the evidence in the record—if believed by the [court]—fails to sustain the finding of guilt beyond a reasonable doubt[.]” See State v. Hemminger, 2017 S.D. 77, ¶ 40, 904 N.W.2d 746, 759. Rather, she simply contends that this Court should weigh the evidence differently. This we cannot do. The circuit court did not err in denying her motion for judgment of acquittal.
3. Whether Krouse was denied her constitutional right to due process.
[¶46.] Krouse alleges that because private investigators, like Blomseth, are not subject to the same constitutional constraints as law enforcement, her right to a fair trial was impeded.7 To her, this “in and of itself is the issue in this case” because Blomseth, on behalf of State Farm, “essentially conducted the entire criminal investigation of Krouse in a manner that was neither subject to the same procedural requirements imposed on law enforcement nor capable of attack under standard criminal procedure.” She also contends that her “constitutional right to a fair opportunity to defend against the charges” was undermined because “[t]he entirety of the State‘s case-in-chief was
[¶47.] This Court has consistently held that “every accused, innocent or guilty, is entitled to a fair trial.” State v. Pellegrino, 1998 S.D. 39, ¶ 25, 577 N.W.2d 590, 600 (citation omitted).
“[D]ue process is in essence the right of a fair opportunity to defend аgainst the accusations.” State v. Packed, 2007 S.D. 75, ¶ 23, 736 N.W.2d 851, 859 (quoting State v. Luna, 378 N.W.2d 229, 233 (S.D. 1985)). “An alleged violation of a defendant‘s constitutional right to due process is reviewed de novo.” State v. King, 2014 S.D. 19, ¶ 4, 845 N.W.2d 908, 910.
[¶48.] Although Krouse contends that her ability to defend against the charges was undermined, a review of the record does not support that she was denied a meaningful opportunity to present a complete defense. While Krouse refers to Blomseth‘s alleged bias and State Farm‘s financial motivation, she was not denied the opportunity to argue these points to the circuit court. Similarly, even if her expert could not conduct a “full-blown investigation” because items had been moved by State Farm‘s investigator, the circuit court was able to consider these circumstances in reaching its decision. Moreover, whether her expert might have found something different had law enforcement inspected the scene rather than Blomseth is speculative. Krouse was not deprived of her constitutional rights to due process and a fair trial.
[¶49.] Affirmed.
[¶50.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices, concur.