Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Appeal from the Criminal Court for Davidson County No. 2011A617 Monte Watkins, Judge
Eliot Kerner, Franklin, Tennessee, (on appeal); and Nathan Moore, Nashville, Tennessee, (at trial), for the appellant, Jeremy Wendell Thorpe.
Herbert H. Slatery, III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Victor S. Johnson, III, District Attorney General; Sharon Reddick and Tali Rosenblum, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
We will summarize the evidence presented at trial in light of the fact that the sole issue on appeal is Defendant's challenge to the legal sufficiency of the evidence to sustain his conviction for aggravated arson and more specifically that the State failed to prove the necessary mens rea element that Defendant acted "knowingly." In December 2010, Nadir Mardonov owned a house located on Burchwood Avenue in Nashville. He had divided the home into two apartments, one on the ground floor and one which occupied the second floor. Defendant and his girlfriend, Brandi Stanback, resided in the downstairs portion and Nicole Jackson lived alone upstairs. Defendant and Ms. Stanback had been together as a couple for several years as of early December 2010, when Ms. Stanback decided to end the relationship. She moved out of the home on Burchwood Avenue. She did this when Defendant was not in town, and she also moved some of her furniture to storage. Ms. Stanback moved into a hotel. She left her pet cat and some of her clothes and other personal items at the Burchwood Avenue house.
Subsequently, on the evening of December 6, 2010, while Ms. Stanback was at the hotel she received a phone call from Defendant. Defendant told Ms. Stanback that he wanted her to come home. Ms. Stanback stated that she was not going to return to live with Defendant. At trial Ms. Stanback testified that Defendant's response was that he was going to burn up her "stuff" and he would kill or burn her cat. Defendant suddenly terminated the phone call by saying "Oh, shit, I've got to go."
Ms. Stanback called and tried to reach Defendant on both the house landline and on Defendant's cell phone, but he did not answer. Somewhat concerned about Defendant's threats, she drove to the house on Burchwood Avenue about an hour after the phone conversation with Defendant. Upon arrival, Ms. Stanback saw "fire trucks everywhere, " and she saw "firemen everywhere." Defendant was also present outside the house. Defendant got into the car with Ms. Stanback. She asked Defendant, "[w]hat did you do?" Defendant told her that he had set a piece of paper on fire and threw it on their bed. On a later date, Defendant told Ms. Stanback that he had to help Ms. Nicole Jackson get out of the house after the fire started.
The fire had been extinguished by the time Ms. Stanback had arrived at the scene. She went inside and observed that the fire had started in the bedroom. She testified that "everything in the bedroom was just completely burned up." She also testified that the fire had gone through the ceiling of the bedroom and into the upstairs apartment occupied by Ms. Jackson. Ms. Stanback also testified that she, Defendant, and Ms. Jackson all normally parked their respective vehicles in the driveway of the house whenever they were home, and the driveway extended to the back side of the house.
Billy Deering, an Assistant Fire Marshal and the supervisor of the Nashville Fire Department's Fire Investigations Unit, investigated the fire at the home on Burchwood Avenue. At trial he was allowed to testify as an expert witness in the area of fire investigations. He arrived at the scene of the fire at approximately 9:00 p.m. There were several firemen present, and they were in the process of "wrapping up" when Mr. Deering arrived. Ms. Jackson had already been transported to Vanderbilt Medical Center for treatment for smoke inhalation and an injured arm. He testified that there were at least two 9-1-1 calls made - one by Ms. Jackson who initially thought a burglary might be in progress when she heard windows break and the other by Defendant.
After examining the premises, Mr. Deering spoke with Ms. Stanback and Defendant, who were both still inside Ms. Stanback's vehicle. He asked each person what had happened. Defendant initially said he did not know, but shortly thereafter admitted that he had "lit a piece of paper and dropped it on some clothes." Mr. Deering took several photographs of both the outside and the inside of the house. Ms. Jackson's vehicle is displayed in one of the pictures, parked a few feet from the exterior stairs leading up to her apartment. Fire damage was shown on the house's exterior wall near the stairs, indicating that the fire came out of the window of the downstairs bedroom where the fire was started.
In Mr. Deering's expert opinion the fire originated in the downstairs bedroom in a location that Ms. Stanback identified as where a wicker chest was present prior to the fire. He observed that actual damages from the fire (excluding smoke and water damages) were confined to the bedroom where the fire started and to the upstairs room immediately above that bedroom. Mr. Deering testified that in his expert opinion the "fire was an incendiary, which means it was started by human hands. And, in my opinion, [Defendant] started that fire."
On cross-examination Mr. Deering stated that there was some evidence which indicated the fire may have smoldered "for a long period of time" before flames erupted. He based this on Ms. Jackson's statement that she had smelled smoke "for some time" but had investigated inside and outside and saw nothing out of the ordinary. Mr. Deering stated during direct examination that Defendant admitted that he had placed a mattress from a separate bedroom onto the fire in the burning bedroom to try and smother the flames. Mr. Deering testified during dross-examination that Defendant's "[b]ringing the mattress over and adding it on to that smoldering fire, added additional fire load to the fire."
According to the owner of the house, Nadir Mardonov, damages to the house as a result of the fire amounted to approximately eighty-thousand ($80, 000.00) dollars.
Nicole Jackson testified that she resided in the apartment above Defendant's apartment in the house on Burchwood Avenue. On December 6, 2010, she was at home in her bedroom when she began to detect a strange chemical smell at approximately 6:00 p.m. She left to get fresh air and some food for dinner. When she returned the odor was still present. She had parked her vehicle about ten feet from the exterior staircase where she "always" parked the vehicle. She arrived back at home about 7:00 p.m. When she was eating her dinner, she started to hear glass breaking at about 8:00 p.m. Her first concern was that someone was breaking into the house. She called 9-1-1 and reported a burglary and went into her bathroom to hide. She left the bathroom after a few minutes and entered her bedroom and living room and noticed smoke filling the upstairs. She called 9-1-1 again and reported a fire. She observed flames upstairs and went to the exterior staircase to escape. The fire had already reached the staircase and flames were going down the metal part. In order to escape, Ms. Jackson had to jump toward the bottom of the stairwell over flames. She hit an elbow on the side of the stairwell which resulted in a hairline fracture. Defendant was at the ...