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State v. Smith

Court of Criminal Appeals of Tennessee, Jackson

April 25, 2017


          Session March 7, 2017

         Appeal from the Circuit Court for Henry County No. 15368 Donald E. Parish, Judge

         Joseph L. Smith ("the Defendant") was convicted of attempted arson under a theory of criminal responsibility and received a three-year sentence; he was ordered to serve one year in the workhouse and the remainder of the sentence on community corrections. On appeal, the Defendant argues that the trial court erred in its denial of his motion for judgment of acquittal and his motion for new trial because the testimony of the accomplices was not sufficiently corroborated by independent evidence. The Defendant also contends that the evidence introduced at trial was insufficient for a rational juror to have found him guilty of attempted arson beyond a reasonable doubt and that the trial court should not have instructed the jury on the offense of attempted arson. After a thorough review of the record and applicable case law, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          James H. Bradberry, Dresden, Tennessee, for the appellant, Joseph L. Smith.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Matthew F. Stowe, District Attorney General; and Paul Hessing, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and James Curwood Witt, Jr., J., joined.



         I. Factual and Procedural Background

         On July 7, 2014, the Henry County Grand Jury indicted the Defendant for arson under a theory of criminal responsibility.[1] At trial, Officer Brian Davis testified that he was a patrol deputy with the Henry County Sheriff's Office. On February 21, 2014, as Officer Davis was driving north on Highway 79 at approximately 1:00 a.m., he observed two individuals walking towards Paris on the side of the road, approximately 500 feet away from Smith's Tire Barn. He stated that "[b]efore [he] could stop to make contact with them, [he] noticed a fire[]" at Smith's Tire Barn. Officer Davis observed "flames coming out of the roof area around . . . the front door[]" of Smith's Tire Barn. Officer Davis described the flames as appearing "pretty big[, ]" like the building "had [not] been burning too awful long." He explained that he did not see smoke coming from the building because it was dark outside. Officer Davis contacted dispatch and requested fire units to come to the location; he then approached the two individuals who were walking and later identified them as co-defendants William Tomlan and Michael Alred. While Officer Davis spoke with co-defendants William Tomlan[2] and Alred, "a vehicle . . . pulled up behind [him] and stopped in the center turn lane of the highway." Officer Davis testified that the vehicle was a Dodge truck driven by co-defendant Diane Tomlan. He identified all the individuals at the scene, "called for assistance to the scene, [and] secured the scene." Officer Davis stated that he had no further interactions with any of the co-defendants and that he did not speak with the Defendant on February 21, 2014.

         On cross-examination, Officer Davis testified that he did not escort the co-defendants to the Sheriff's Department, and he did not take any statements from the co-defendants. Officer Davis testified that he completed an incident report related to the offense but that he did not have any information that connected the Defendant to the offense.

         Steve McClure testified that he had worked as a certified fire investigator and explosive handler for the Bomb and Arson section of the Tennessee State Fire Marshall's Office for over sixteen years. Mr. McClure stated that in general, a fire, police, or sheriff's department notifies him of a fire that is a "significant loss, " that is suspected to be "foul play, " or that has unclear circumstances. After arriving at the scene of a fire, Mr. McClure stated that he "access[es] the scene" by looking at the exterior of the structure and talking to the owner about the value of the structure and whether the structure was insured. He also speaks with witnesses and any first responders to determine what they observed. After the owner of the structure consents to an examination, Mr. McClure "continue[s] with an actual examination on the exterior, and then move[s] into the interior." In the interior of the structure, Mr. McClure "look[s] at the most significant burn, where the largest damage of fire is on the outside and that kind of gives [him] a clue as to where the biggest degree of fire was or the largest value of fire." He then determines whether the cause of the fire was accidental, incendiary, or undetermined based on the "heat source" of the fire, or the material that ignited and initially caused the fire. Mr. McClure explained that a heat source could be a match, a cigarette, a chemical reaction, or "radiant heat from an appliance."

         Mr. McClure testified that around 5 a.m. on the morning of February 21, 2014, he was assigned to investigate the fire at Smith's Tire Barn on Highway 79. After arriving at the scene, he observed "a burn structure that was still smoking." Mr. McClure noted that the walls and roof of the structure had collapsed. He then "notified [his] agent in charge out of Jackson and requested additional help." When the additional agents arrived at the scene, Mr. McClure "requested a ladder truck and started doing some aerial photos of the structure[, ]" which he used "to look at the top side of the structure to see where the fire maybe had breached or burned through the roof to kind of give [him] a better understanding." He explained that generally, if an object does not block the spread of a fire, "the fire burns up and out[.]" When the fire reaches the ceiling of the structure, the fire continues to spread, and "generally it will breach through a roof or a structure once it burns through the ceiling." Mr. McClure stated that because Smith's Tire Barn contained rubber tires and oil, he believed it would be hard to determine the heat source of the fire "because of the massive amount of fuel load, " or "things that burn inside the structure." He testified that the "degree of burn" at the scene, or the amount of charring the structure sustained, was extensive.

         By using the ladder truck to observe the aerial view of the structure, Mr. McClure determined that the fire had "a higher degree of intensity[]" in the area "toward the back [and] to the left of the office" because "the roofing material . . . had almost burned completely through [compared to] the other areas of the structure." He explained that fire generally burns for the longest amount of time at the location where the fire started. Mr. McClure stated that the walls and roof of the structure were metal and that the location of the high intensity area indicated that the fire possibly started at that location or that the "fuel load" was located in that area. He explained that a larger volume of "fuel load" would "naturally . . . burn more and create more fire volume." Mr. McClure then obtained a sketch of the structure drawn by co-defendant William Tomlan, which depicted the layout of the contents of the structure. After the Defendant, who owned Smith's Tire Barn, consented to an examination of the interior of the structure, Mr. McClure "found a lot of metal bands from tires, where there were tires piled up[]" and four steel tire racks. He noted that one rack was "perfectly intact and straight up, " but another rack was "starting to . . . drop down." Mr. McClure testified that a fiberglass boat was found in "south end" of the structure "to the right of the office[.]" Mr. McClure also found a van located to the left of the boat. He noted that the top of the van was made of fiberglass, which "was melted down kind of like the boat was[, ]" but the boat sustained more damage than the van. He observed that the portion of the structure where the boat was located was still standing, but the portion where the office was located was not. He stated that, based on his examination, he could not determine whether the fire was more intense in the area to the left of the office because the fire began there or because the large amount of tire tubes was the "fuel load" of the fire. Mr. McClure testified that he took pictures of the scene, and the pictures were admitted into evidence.

         After Mr. McClure investigated the scene of the fire, he spoke with the District Attorney's Office and took out a warrant for arson against the Defendant. He also spoke with co-defendant William Tomlan at the jail after informing him of his Miranda rights; based on his communication with co-defendant William Tomlan, Mr. McClure obtained a warrant to search for a safe in a storage building on the Defendant's property. He observed tire tracks leading to the storage building at issue. Inside the storage building, Mr. McClure observed "a cabinet, like kitchen cabinets, sitting on top of the safe" with a window blind draped over the safe. He obtained a second warrant to open the safe, but the safe was empty. Mr. McClure concluded that the fire at Smith's Tire Barn was "incendiary, " meaning an individual had set the fire, but he could not determine what caused the fire.

         On cross-examination, Mr. McClure explained that, if co-defendant William Tomlan had not sketched the contents of the structure, he still would have inspected the interior of the structure. Mr. McClure stated that prior to arresting the Defendant, the Defendant agreed to be interviewed by Mr. McClure; however, the Defendant did not attend the interview. Mr. McClure agreed that, after the Defendant did not attend the scheduled interview, the Defendant's trial counsel called Mr. McClure to set up another interview, but Mr. McClure was out of town. He also agreed that, after he obtained a warrant to open the safe, the Defendant agreed to open the safe. Mr. McClure stated that the cabinet sitting on top of the safe in the storage building did not fit around the safe, and it "was as wide as the safe." He explained that he obtained a warrant to arrest the Defendant for arson "based on what [he] saw at the scene, all the interviews, [and] the confessions or statements from the co-defendants." Mr. McClure stated that he had no evidence that the Defendant set the fire or was at the scene of the fire. Mr. McClure further explained his reasoning for arresting the Defendant for arson in the following exchange:

DEFENSE COUNSEL: Okay. So you're telling me the only basis for the arrest of [the Defendant] [was] the interviews and statements of the co[-]defendants in this case?
MR. MCCLURE: And the fact that I couldn't call the fire. If I called -- if I could have found an accidental reason for the fire, I wouldn't have called it incendiary, because there would have been a conflict in judgment there. But based on a totality of the case and the interviews, the [District Attorney's Office] instructed me to issue a warrant for [the Defendant].
DEFENSE COUNSEL: Okay. What evidence, . . . other than the testimony of the statements of the co[-]defendants[, ] do you have that places [the Defendant] at the scene of the fire or instructing anyone to set the fire, outside of those statements, do you have any other evidence that supports that?
MR. MCCLURE: All the evidence that I have was based on co[-]defendants.

         Mr. McClure stated that he obtained a subpoena for the Defendant's phone records as well as the records from the Defendant's wife's phone, but he did not find any evidence in the phone records that linked the Defendant to co-defendants Diane and William Tomlan or co-defendant Alred. Mr. McClure stated that he had no independent knowledge, outside of the co-defendants' statements, that linked the Defendant to the fire at Smith's Tire Barn.

         On redirect-examination, Mr. McClure stated that evidence at the scene, such as the fact that he found a damaged boat and van in the structure, corroborated the statement of co-defendant William Tomlan. He also stated the location where the safe was found corroborated the statement of co-defendant William Tomlan. On recross-examination, Mr. McClure agreed that the structure at issue was a mechanic shop and that he would expect to find vehicles, such as a boat or a van, at a shop because the vehicles needed to be repaired.

         Robert Dooley testified that he was a field team supervisor for Federated Mutual Insurance Company and that he supervised field adjusters and handled "large, complicated property losses." Mr. Dooley stated that he was the insurance adjuster who investigated the loss of the property at Smith's Tire Barn. He explained that the Defendant owned an insurance policy that insured Smith's Tire Barn and that Federated Mutual Insurance Company covered that policy. Mr. Dooley stated that the Defendant created the insurance policy on Smith's Tire Barn on August 30, 2013, in the amount of $1, 200, 000 for the building and $800, 000 for the contents. He explained that, at his company, the marketing representatives assist the property owner in choosing the coverage amounts for each building, [3] but he noted that the coverage value for contents is "usually set by the business owner." Mr. Dooley stated that, after a business owner placed a value on the contents of a building and the policy was written, the field services division would send a company representative or independent contractor to "come out and do a post-inspection to make sure the building has the proper value of insurance on it." After inspecting, the representative would then write an "engineering report to support the value of the structure that was written on the policy." However, he stated that a representative attempted to inspect the Defendant's business at Smith's Tire Barn "on multiple occasions" but was unsuccessful.

         Mr. Dooley stated that the morning of February 21, 2014, the Defendant "called in the fire loss to Federated Insurance through [its] claim contact center." He stated that he briefly spoke to the Defendant the morning after the fire, but he did not speak to the Defendant again until his company conducted an "examination under oath" with the Defendant. He explained that, if a claim was made on the Defendant's insurance policy covering Smith's Tire Barn, his company would have to "pay out for a covered loss[.]"

         Co-defendant Diane Tomlan[4] testified that on February 20, 2014, she lived in a mobile home on Highway 69 and that the property where the home was located was owned by the Defendant. She stated that co-defendant William Tomlan lived in a separate mobile home on the Defendant's property and explained that she had previously been married to co-defendant William Tomlan. She and the Defendant had a "verbal lease agreement" that she would pay the electricity bill for the mobile home; she also stated that she occasionally paid rent to the Defendant and that the Defendant gave her money "about twice a week[.]" Co-defendant Diane Tomlan met the Defendant when co-defendant William Tomlan began working for the Defendant; she explained that she frequently visited Smith's Tire Barn to "hang out, visit, and talk" with the Defendant because he and his wife "wanted to start a relationship with [her]." Co-defendant Diane Tomlan stated that at the time of the offense she was in a romantic relationship with the Defendant. She stated that "[he] would come and stay two or three nights out [of] the week with [her] in that [mobile home]." She stated that her son, co-defendant Michael Alred, lived with her in the mobile home; however, the Defendant did not want her son to live with her because her son would "take up" for her when she had a disagreement with the Defendant. ...

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