Doyle Anthony Jones v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-632

MARCH 16, 2005

DOYLE ANTHONY JONES AN APPEAL FROM THE WASHINGTON

APPELLANT COUNTY CIRCUIT COURT [NO. CR03- 850-2]

V.

STATE OF ARKANSAS HONORABLE KIM M. SMITH, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

A Washington County jury found appellant Doyle Anthony Jones guilty of arson, and sentenced him to forty years in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in denying his motion for directed verdict on the specific grounds that (1) the State did not prove the fire was not caused by natural causes and (2) there was insufficient evidence to show that he started the fire. We affirm.

The facts of this case are as follows. Karla Hyde and Ricky Jones, the appellant's brother, have been involved for many years. They both attest that their relationship is far from perfect. On May 7, 2003, Hyde and Ricky Jones lived at 3087 Cummings Road in Washington County. After an altercation, Hyde testified that she left their home. The following morning, Hyde went to the prosecutor's office and filed for an order of protection. Ricky Jones was subsequently served with the protective order. After learning that the order of protection had been served, Hyde testified that she and her daughter drove to the home "sometime after 4:30 and before 5:00that afternoon." As she was driving down the highway to her home, Hyde testified that she "heard almost like an explosion sound. [My daughter] and I looked down the road and there was the biggest cloud of black smoke you've ever seen just pouring up into the sky. We got about halfway down the road and one of the neighbors came up and said my house was on fire." Hyde admitted that she told a sheriff's deputy and the fire marshal that she believed Ricky Jones burned the house down out of anger for being served a protective order and told to leave. When asked if Ricky Jones had ever threatened her before, she replied, "I told them that he had said previously in anger that I would never get the house, that he would burn it down before that."

Ricky Jones testified for the State that he and his girlfriend had been in an argument, after which he was home and received an order of protection. He testified that the process server followed him throughout the home while he gathered some belongings. Ricky Jones left his home and went to his mother's home. He stated that he was "pretty upset" when he arrived at his mother's home. He testified further that:

When I told Doyle what had happened he told me not to worry about it. I then got a can of beer and talked to Phillip and Doyle [his brothers] some more. Again Doyle said, "Don't worry about it," and the next thing I see he's loading up gas bottles in the back yard. After I saw him pour gasoline into the bottles, he went over to a burn pile we had in the backyard after some yard work. He dumped some gas on the pile, lit it, and said, "That will work." Then he returned to filling up the bottles and putting them in a backpack.

After watching him do this, I went back inside to gather my thoughts. I didn't have a home to go to so I went inside and sat with my mom. As I sat there and talked with my mom, I knew what Doyle was going to do. I sat there and I thought, "He's really going to do this." After I came to this realization I went back outside and he was gone. I wandered around outside of the house for a while, very confused and upset. I then went to my friend Adam Turner's home in Suburban Mobile Home Park in Farmington. It's about four blocks from my mom's house so I just walked over there. He wasn't home but his next door neighbor Wayne Owens was. I went back and forth between their two places. It was about 4:00 or 4:30 at the time. After I saw them I proceeded to get drunk. After a while my brother Phil came and picked me up and told me that my house had burned.

When asked if he set the fire, Ricky Jones denied the allegation. He also admitted that he failed to tell the authorities about appellant in an effort to "protect my brother." Ricky Jones stated that this was not the first time he had been served with an order of protection, that he was angry when he was served, and that he had threatened months earlier to burn Hyde out. Ricky Jones noted no electrical or utility problems at the home.

Imogene Phillips, a neighbor of Hyde and Ricky Jones, testified that she had allowed appellant "to cross my fence to go fishing." Phillips testified that it was about 4:00 that evening and that appellant was wearing a backpack at the time. Phillips testified that she was not certain of the date of this incident, but stated that appellant came back to her home on the same day to use her telephone. She testified that appellant called for someone to pick him up.

Appellant's other brother, Phillip Jones, testified that he was at Ricky's home when the protective order was served. Thereafter, they along with another friend drove to their mother's home. Phillip testified that Ricky was really upset. Phillip testified that he took his brother Doyle to the tobacco shop and left him there. Phillip stated that Doyle told him that "he was going with a boy named Gary he had met there in the parking lot, but I never saw them leave together." Phillip remembered taking Ricky to the trailer park and also remembered going back to pick him up after his mother told him to tell Ricky that his home "was burning." Phillip testified that, after he picked up Ricky, they immediately went back to their mother's home. He testified that the phone rang and he went to pick appellant up at Imogene Phillips's place. When he got there, Phillip testified that appellant had a fishing pole and a backpack with him. He stated further that: "I had a vague conversation with Doyle after we left Imogene Phillips' house. He said something about smoke or something. I really can't remember."

Jimmy Carolyn VonCannon, a neighbor of appellant's mother, also testified at trial. She testified that:

I had a conversation with the Defendant outside on my carport about the fire after it had happened. He came over and we were talking and I looked at him and I said, "Doyle, Ican read you." I said, "I can read you." I could tell he was acting fidgety. I said, "You're the one that burned down your brother's house." I said, "You're the one that did it." And he said, made a comment back, "The bitch deserved it Carol. The bitch deserved it." And that was it.

Also testifying for the State were Fire Chief Thomas McCorkle and Fire Marshall John Jenkins. McCorkle testified that on May 8, 2003, he responded to the residence. He testified that, because of the size of the fire, the firemen had to use well over 9,000 gallons of water to put it out. "Normally, on a house that size, a 1,000 gallon pumper will put it out." McCorkle testified that he thought accelerant was poured inside the home.

Next, Jenkins testified that he responded to the scene of the fire, and immediately began to investigate. He testified that:

my first general impression, because of smoke colors and different things, is that [it] could be an arson fire. In general terms, an arson or accelerated fire will have blacker smoke. It will be dark colored versus more of a brown or gray type smoke. This fire did have that. I did observe the black smoke because a little bit later on it was still emitting some black smoke.

We did everything we could to rule out an accidental fire. Because of the progression of the fire and the way it fell in, still in the flame, active fire process, and what we could observe, how completely combusted that it already was in the amount of time, which was a short period of time, we knew that it was almost going to be impossible at that time to pull any samples. No samples were able to be pulled to test for an ignitable liquid or sent to the crime lab at that point and we knew that it was going to be several hours if [we] could do that even.

From his investigation, Jenkins was unable to make the determinations of burn patterns and points of origin based on the intensity of the fire and the fact that the house was completely damaged and destroyed, but gleaned that the fire started in the rear of the house. Jenkins admitted that he did not test a lighter found outside of the home nor did he try to test the charred wood at the back door for any of the accelerants. No bottles of gasoline were found around the home.

Following the State's presentation of the evidence, appellant moved for a directed verdict on the ground that the State had failed to overcome the presumption that the fire was of natural causes. He also argued that there was insufficient evidence that he started the fire. The trial court denied the motions.

Only one witness testified on behalf of the defense, Daniel Gaches. Gaches testified that he was a friend of Ricky Jones and that Ricky Jones admitted to him that "him and Karla got into a fight and to keep her from getting anything he burned the place down." Gaches admitted that he had been in trouble with the law and that he was in jail with appellant when he gave his statement. Thereafter, the defense rested and renewed its motions, which were again denied. Subsequently, the jury found appellant guilty of arson and this appeal followed.

In reviewing the denial of a motion for directed verdict, the appellate court considers the evidence in the light most favorable to the appellee and affirms the trial court's decision if there is substantial evidence to support the conviction. Allen v. State, 40 Ark. App. 158, 842 S.W.2d 468 (1992). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial; however, when circumstantial evidence is relied upon, it must exclude every other reasonable hypothesis other than guilt of the accused; the question of whether circumstantial evidence excludes other reasonable hypotheses is for the fact finder to determine. Whisenant v. State, 85 Ark. App. 111, 145 S.W.3d 833 (2004). Intent can seldom be proven by direct evidence and must usually be inferred from circumstances surrounding the crime; the jury is allowed to draw upon its common knowledge and experience to infer intent from the circumstances. Id. It is the responsibility of the jury to determine credibility, and the jury is not required to believe the testimony of any witness, including the appellant. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).

A person commits arson if he starts a fire or causes an explosion with the purpose of destroying or otherwise damaging an occupiable structure that is the property of another person. See Ark. Code Ann. § 5-38-301 (Repl. 1997). In order to overcome the common-law presumption against arson, the State must prove not only the burning of the building, but also that it was burned by the willful act of some person criminally responsible for his acts, and not by natural or accidental causes. Allen v. State, supra.

Appellant argues first that the State failed to rebut the common-law presumption that the fire was of natural causes. To support his assertion, appellant relies on several cases, including Boden v. State, 270 Ark. 614, 605 S.W.2d 429 (1980) (holding that even though appellant confessed that he committed the arson, the supreme court found insufficient evidence to support the conviction where the State failed to rebut the presumption that the fire was not purposely started), and Thomas v. State, 300 Ark. 369, 779 S.W.2d 161 (1989) (holding that there was insufficient evidence to support a conviction for arson even though the defendant confessed). Appellant's reliance on those cases is misplaced.

Both Boden and Thomas lack testimony that established, in those instances, that the fires were purposely started. Here, however, the State has produced an abundance of evidence from which a jury could reasonably infer that the fire was willful and intentional and that appellant set the fire. McCorkle and Jenkins testified that the black smoke and the fire intensity both indicated that the fire was started with accelerants. Appellant's brother, Ricky Jones, testified that his brother tested the gasoline on a pile of burning leaves and made the comment, "That will work," after which he filled bottles with gasoline and he placed the bottles into a backpack. Additionally, Imogene Phillips testified that appellant came to her home, carrying a fishing pole and a backpack and requesting access to her yard to go fishing and came back later to use the phone so that someone could come and get him. Appellant's brother, Phillip Jones, testified that he picked appellant up from Imogene Phillips's home on the day of the fire.

Based on the foregoing evidence, substantial evidence supports the State's contention thatthe fire was willful and intentional and that appellant started it. As such, we affirm.

Affirmed.

Pittman, C.J., and Robbins, J., agree.