HOUCHIN (ANGELA) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 25, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001084-MR
ANGELA HOUCHIN
v.
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 07-CR-00042
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON, AND KELLER, JUDGES.
KELLER, JUDGE: Angela Houchin (Angela) appeals her convictions of seconddegree arson, insurance fraud, and second-degree wanton endangerment, arguing
that the trial court erred: (1) when it permitted the Commonwealth to introduce
expert testimony on rebuttal; (2) when it failed to instruct the jury on facilitation;
and (3) when it granted the Commonwealth’s motion to try Angela with her
husband (David). For the reasons set forth below, we affirm.
FACTS
On April 16, 2007, a grand jury indicted Angela for arson in the first
degree, fraudulent insurance acts, and wanton endangerment in the first degree.
These charges arose from a fire that essentially destroyed a house owned by the
Houchins.
At trial, Margaret Lasley, one of the Houchins’ neighbors, testified
that she saw smoke coming from the Houchins’ house at approximately 6:00 a.m.,
and she called the fire department. Volunteer firefighter Jim Kinser testified that
when he arrived on the scene there was heavy smoke. It took approximately thirty
minutes to get the fire under control and, although no firefighters were injured,
they were at risk of serious bodily injury while fighting the fire. Ronald Johnston,
another firefighter, testified that the joists and floor were burned, which he thought
was unusual. Because of this, Johnston recommended calling in an investigator to
determine the cause of the fire.
Deputy Fire Marshall Buddy Steel (Steel) testified that he examined
the fire scene and saw a hole in the living room floor. Steel testified that the hole
was the point of origin for the fire. Such a hole is unusual and indicates something
was poured on the floor because a fire generally “burns up and out.” A hole in a
floor indicates that something was poured on the floor. Following his examination,
Steel contacted a state arson investigator. That arson investigator, Detective Scott,
testified that the fire originated at the hole in the floor and appeared to be
incendiary, not accidental.
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The Commonwealth also presented testimony from Tremain Smith
(Tremain), a representative from the Houchins’ insurer, Allstate, and from Robert
Smith (Robert), an arson investigator retained by Allstate. Tremain testified
regarding the terms of and payments made under the insurance policy. Robert
testified regarding his investigation of the fire and his conclusion that the fire was
incendiary and not accidental.
Four of Angela’s coworkers testified that Angela complained about
financial difficulties before the fire and indicated that she believed she would lose
the house through foreclosure. Three of the coworkers also testified that Angela
complained about “bad wiring” and/or “hot spots” in the house before the fire.
One of the coworkers testified that Angela stated that the house would burn before
the bank could foreclose.
The Houchins’ daughter (Debra) testified that she had moved from the
house in May 2006 because she had graduated from high school and wanted to live
with a friend. When she moved, Debra took a number of her late sister’s
belongings with her. Debra admitted that she spoke with investigators but stated
that she could not remember saying that her parents were having marital
difficulties, that her parents talked about moving, or that her father had asked her
to move from the house shortly before the fire. Detective Scott testified that Debra
made those statements to him. The Commonwealth played a recording of Debra’s
statement to Detective Scott to the jury, which contradicted Debra’s testimony and
was consistent with Detective Scott’s.
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Angela read the statement from a neighbor, Stanley Decker, indicating
that he saw Angela leave her house at 4:00 a.m. the morning of the fire, which was
a little earlier than usual.1 Angela called no other witnesses.
David called several witnesses, only one of whom, Victor Thomas
Tharp (Tharp), is pertinent to this appeal. Tharp, a master electrician, testified that,
based on his review of one of the photographs of the fire scene, the wiring was
faulty. Specifically, Tharp noted sharp edges on the junction box and the absence
of a “Romex connector” which would have prevented the wires from coming into
contact with the edges of the junction box. According to Tharp, the wiring method
shown would have resulted in “low level arcing,” leading to overheating and a fire.
Finally, Tharp stated that, in his opinion, the fire was the result of the faulty wiring.
On rebuttal, the Commonwealth called Thomas Eaton, Ph.D. (Eaton).
Eaton testified that he participated in the investigation of the fire, at the request of
Allstate’s investigator, to determine if the electrical system was a possible cause or
source of the fire. Following his investigation, Eaton determined that the fire was
not caused by an electrical failure or by an electrical accident. Furthermore, Eaton
testified that the fire was hotter than would be expected because the copper wire
near the origin of the fire melted. According to Eaton, the temperature of a
“normal” house fire will not reach a level that would melt copper wiring.
Following the presentation of the majority of the evidence, Angela
made several motions regarding the charges. The court granted Angela’s motion to
1
We note that Mr. Decker was present for trial; however, because of scheduling problems, the
parties agreed to let Angela read his statement in lieu of live testimony.
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reduce the arson charge from first degree to second degree. The court also
determined that instructions on both first- and second-degree wanton
endangerment were appropriate. Based on the evidence, the jury found Angela
guilty of second-degree arson, insurance fraud, and second-degree wanton
endangerment.
STANDARD OF REVIEW
The issues raised by Angela on appeal involve different standards of
review; therefore, we will set forth the appropriate standard as we analyze each
issue.
ANALYSIS
1. Expert Testimony
On appeal, Angela argues that the trial court erred when it permitted
Eaton to testify on rebuttal. In support of this argument, Angela states that Eaton
“introduced a new premise regarding the fire, by testifying to the presence of
melted copper wires” as evidence that the fire was considerably hotter than would
be expected. Angela faults the Commonwealth for not disclosing this prior to
Eaton’s testimony thus depriving her of the ability to adequately prepare a crossexamination.
We review a trial court’s rulings regarding the admission or exclusion
of evidence for abuse of discretion, whether the evidence is offered as part of a
case in chief or on rebuttal. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999); and Pilon v. Commonwealth, 544 S.W.2d 228, 231 (Ky. 1976). “The test
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for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire
and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Angela’s argument that the Commonwealth failed to timely disclose
Eaton’s testimony is somewhat disingenuous. At the end of the second day of trial,
Angela objected to introduction of any testimony from Eaton in the
Commonwealth’s case in chief. In her objection, Angela argued that she had no
prior notice that Eaton would testify, had no report from Eaton, and therefore
would be unable to adequately cross-examine Eaton. The Commonwealth
admitted that it had not previously disclosed Eaton because it did not intend to call
Eaton as a witness until it learned that David intended to call Tharp as a witness.
Furthermore, the Commonwealth stated that it did not have a report from Eaton
and that, beyond saying that the fire was not electrical in origin, the
Commonwealth did not know what Eaton’s testimony would be. Because of
scheduling difficulties and questions about whether Tharp would testify or be
permitted to testify, the Commonwealth offered a compromise. At the
Commonwealth’s suggestion and after the jury was dismissed for the day, Eaton
was brought into the courtroom and the attorneys for David and Angela were
permitted to discover from him the bases of his opinions. Although the court
initially suggested that the proceedings be on the record, David’s counsel objected
and the parties agreed to conduct the “interview” of Eaton off the record.
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Therefore, it appears that both David and Angela were given ample opportunity to
discover the bases of Eaton’s opinions prior to his testimony at trial.
Angela’s argument that Eaton introduced a new premise regarding the
cause of the fire is also unpersuasive. David, by calling Tharp to testify that the
fire was electrical in nature, introduced this premise. Eaton simply testified to
rebut that premise. In doing so, he offered the bases for his opinions, which the
parties were given an opportunity to explore before his testimony. Therefore, we
discern no abuse of discretion by the trial court in permitting Eaton to testify on
rebuttal.
2. Jury Instructions
Angela argues that the trial court erred by not giving an instruction on
facilitation. Alleged errors regarding jury instructions are questions of law and
must be examined using a de novo standard of review. Hamilton v. CSX Transp.,
Inc., 208 S.W.3d 272, 275 (Ky. App. 2006). “Instructions must be based upon the
evidence and they must properly and intelligibly state the law.” Howard v.
Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981).
A person is guilty of criminal facilitation when, acting
with knowledge that another person is committing or
intends to commit a crime, he engages in conduct which
knowingly provides such person with means or
opportunity for the commission of the crime and which in
fact aids such person to commit the crime.
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Kentucky Revised Statute (KRS) 506.080(1). “Facilitation reflects the mental state
of one who is ‘wholly indifferent’ to the actual completion of the crime.” Perdue
v. Commonwealth, 916 S.W.2d 148, 160 (Ky. 1996).
Angela argues that, while there is no evidence that she started the fire,
the jury could have concluded from the evidence that David had made up his mind
to start the fire and that Angela was merely facilitating David’s actions by telling
coworkers about wiring problems in the house and the Houchins’ financial
difficulties. The trial court determined that the evidence would not support a
finding of facilitation. We agree.
Angela’s actions, telling coworkers about financial difficulties and
wiring problems before the fire, if anything, establish that Angela took part in
planning the fire. These actions do not establish that Angela, while indifferent to
David’s intent, provided him with the means or opportunity to commit a crime.
Therefore, we discern no error in the trial court’s refusal to give an instruction on
facilitation.
3. Separate Trials
Angela argues that the trial court erred when it granted the
Commonwealth’s motion to consolidate her case with David’s for trial. In support
of her argument, Angela states that the following factors mitigated in favor of
separate trials: (1) she argued at trial that the evidence against David was stronger
than the evidence against her; (2) her request for a facilitation instruction was
antagonistic to David; (3) David’s defense of “actual innocence” was antagonistic
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to her; (4) statements from Angela and David were played for the jury, although
Angela does not indicate how David’s statement directly prejudiced her; and (5)
that Angela’s coworkers testified about Angela’s statements regarding the
Houchins’ financial difficulties and her fear the house would burn.
In Kentucky, joint trials are favored when charges arise from the same
set of facts. Foster v. Commonwealth, 827 S.W.2d 670, 679 (Ky. 1991). “In order
to justify the granting of a severance, it must appear that the defendants have
antagonistic defenses, or that the evidence as to one defendant tends directly to
incriminate the other.” Id. (citing Tinsley v. Commonwealth, 495 S.W.2d 776, 780
(Ky. 1973)). “If it appears that a defendant or the Commonwealth is or will be
prejudiced by . . . joinder for trial, the court shall . . . grant separate trials of
defendants or provide whatever other relief justice requires.” Kentucky Rules of
Criminal Procedure (RCr) 9.16. “The trial judge has broad discretion to determine
whether the risk of prejudice requires severance and such a decision will be
overturned only upon a clear showing of an abuse of discretion.” Epperson v.
Commonwealth, 809 S.W.2d 835, 838 (Ky. 1990).
Having reviewed the record and Angela’s arguments on appeal, we
discern no error in the trial court’s decision to try Angela and David together.
Angela and David both argued that the fire was accidental. Therefore, neither
claim of innocence was antagonistic to the other. A facilitation instruction for
Angela may have been antagonistic to David; however, the court gave no such
instruction. Furthermore, any complaint regarding such an instruction would have
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properly been David’s, not Angela’s, as would any complaint regarding the
testimony from Angela’s coworkers. Finally, although the jury heard the
statements given by Angela and David, neither blamed or accused the other, thus
avoiding any potential problems under Bruton v. United States, 391 U.S. 123, 88 S.
Ct. 1620, 20 L. Ed. 2d 476 (1968).
Based on the above, we discern no error in the court’s determination
to try Angela and David together.
CONCLUSION
As set forth above, we discern no error in the trial court’s
determination to permit Eaton to testify on rebuttal; it’s refusal to instruct the jury
on facilitation; or in its determination to try the Houchins together. Therefore, we
affirm.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Jack Conway
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Todd D. Ferguson
Frankfort, Kentucky
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