Opinion
No. 49A02-1012-CR-1367
08-31-2011
NELSON GARY, II, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : ELLEN M. O'CONNOR Indianapolis, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT:
ELLEN M. O'CONNOR
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
JANINE STECK HUFFMAN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley E. Kroh, Master Commissioner
Cause No. 49G03-1005-FB-35972
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES , Judge
Case Summary
Nelson Gary, II, appeals his convictions for Class B felony arson and three counts of Class C felony criminal confinement. We affirm.
Issues
The issues before us are:
I. whether there is sufficient evidence to convict Gary of Class B felony arson; and
II. whether there is sufficient evidence to convict Gary of three counts of Class C felony criminal confinement.
Facts
Gary has two children with Jacquelyn Booker, JB1 and JB3. Booker has a third child, JB2. On May 1, 2010, JB1 was five years old, JB2 was three years old, and JB3 was seven months old. Gary and Booker were in a relationship and Gary was babysitting the children, even though Booker had a protective order against him. He had been sleeping in Booker's van that was parked in the driveway of Booker's house because Booker's mother would not let him in the house. That morning, Booker woke up and got the kids ready to go with her to get a binder for her Census job. She got the children dressed and took them with her in her van. Gary had slept in the van the night before and came along with Booker and the children.
Booker and Gary took turns driving to three or four pay phones, trying to contact Booker's supervisor. Booker became upset about not being able to get a hold of anyone because she was supposed to start work that day. Booker and Gary got into an argument. After trying to make a call from a pay phone, Booker went back to her van and told Gary to get out of the van so she could drive. Booker told Gary to go to his friend's apartment across the street. Gary instead reached in the van to grab the keys out of the ignition, but Booker smacked his arm. They continued arguing, and Gary put his foot in front of a tire. Gary told Booker to run over his foot, but that he would call the police if she did. Booker reversed the van to avoid running over Gary's foot, and he moved his foot behind the tire. This went on for seven to eight minutes before Booker ran over Gary's foot because that was her only way to get away.
Booker drove home taking different routes because she could see Gary running after her. She pulled in front of her house and sat there for a couple of minutes when she saw him running. Booker then drove to her grandmother's house, but no one answered the door, so she drove back home. On the way home, Booker saw Gary on the next block over from her house. When Booker pulled up in front of her house, she saw smoke coming out of it. Because she did not have a key to her house, Booker used a card to open the door. There was a lot of smoke when Booker opened the door, so she went to her neighbor's house to call 911. As she went in to her neighbor's house, she could see Gary trying to get into her van, but her immediate concern was getting the fire department to her house. When Booker went back outside, the van, with the children still inside, was gone.
Lieutenant Derrick Sayles of the Indianapolis Fire Department determined there were two origins of fire, both located on the couch in the front room of the house, and ruled out all accidental causes. Detective James Albin of the Indianapolis Metropolitan Police Department did not see any sign of forced entry, and no one saw Gary entering Booker's house. When Detective Albin and Booker drove to where she and Gary had argued, Booker saw her van in a Family Dollar parking lot. Gary had left the van in the parking lot with the doors locked and the engine running. Gary had taken the children with him, but their car seats remained in the van.
After Gary took the van, he took the children to his brother's house. They stayed for about five to ten minutes, and then he took the children to Family Dollar, where he left the van in the parking lot. Gary and the children started walking until a friend drove up and gave them a ride. Gary asked his friend to take them to his aunt's house ten to fifteen minutes away by highway, and they stayed there for more than three hours. Gary then called his sister, Brittany. Brittany told him that the police were looking for him to locate the children and that if he gave the children back, he would not have to worry about anything. Brittany picked up the children, and returned them to Booker.
After the children left, Gary walked from his aunt's house to an abandoned apartment, where he stayed for several days. Gary finally talked to his father, and found out that there was a warrant out for his arrest and that Gary was suspected of starting the fire. Gary's father told him to turn himself in, which he did on May 6, 2010.
The State charged Gary with Count I, Class B felony arson; Count II, Class B felony arson; Count III, Class C felony criminal confinement; Count IV, Class C felony criminal confinement; Count V, Class C felony criminal confinement; and Count VI, Class A misdemeanor invasion of privacy. The court dismissed Count VI, found Gary guilty on Count I and Count II, and took Count III, Count IV, and Count V under advisement. Then, the court vacated judgment on Count II and found Gary guilty on Count III, Count IV, and Count V. Gary now appeals.
Analysis
Gary contends the State presented insufficient evidence to support his convictions for one count of Class B felony arson and three counts of Class C felony criminal confinement. In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence nor do we assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). We look to the evidence and reasonable inferences drawn therefrom that support the verdict. Id. We will uphold the conviction if there is probative evidence from which a fact finder could have found the defendant guilty beyond a reasonable doubt. Id.
I. Arson
Gary challenges the sufficiency of the evidence to support his conviction for Class B felony arson. To convict Gary of Class B felony arson, the State was required to prove he knowingly or intentionally damaged Booker's dwelling without her consent by means of fire, explosive, or destructive device. See Ind. Code § 35-43-1-1(a). The State has the burden to show a fire was not accidental, and it will be presumed accidental absent such a showing. Wise v. State, 719 N.E.2d 1192, 1200 (Ind. 1999). "Arson is almost always subject to proof only by circumstantial evidence . . . ." Id. (quoting Barton v. State, 490 N.E.2d 317, 318 (Ind. 1986)). This court has noted four circumstantial elements that may prove guilt of arson: presence at the scene, conduct before and after the fire, proof that the fire was intentionally set, and motive. Belser v. State, 727 N.E.2d 457, 465 (Ind. Ct. App. 2000).
Gary argues that, because the fire originated on the couch, there was no evidence of forced entry, and no one saw him enter the house, there is not enough evidence to support his conviction for arson. He also asserts that there is no evidence he has a key to the house and that there is no direct evidence linking him to this crime. Although no one saw Gary entering the house and there is no evidence he has a key, Booker herself entered the house without a key and without any evidence of force. Gary could have done the same.
As to the first of four circumstantial elements of guilt, Gary was present at the scene of the fire. Booker saw Gary running toward her house when she pulled in front of it, and she saw him again on the next street over when she returned and saw smoke coming from the house. She also saw him at her van when she was at a neighbor's house making a 911 call. Gary had to have been at the scene of the fire because the children went missing when Booker left her neighbor's house and he admitted to taking them.
Next, Gary's conduct before and after the fire was suspicious. Before the fire, Gary seemed to be chasing after Booker's van after their argument. After the fire, Gary took the children away. Gary only returned the children after he had already fled from the scene of the fire. He returned the children because his sister told him the police were looking for them. After returning the children, Gary went into hiding in an abandoned apartment until he turned himself in on May 6, 2009.
Additionally, Lieutenant Sayles determined, from the origins of the fire being on the couch at two ends, that this was an intentionally-set fire. There was also no source of electrical ignition. Lieutenant Sayles's expert opinion was that the fire was started with a combustible material lit by open fire.
Finally, Gary had a motive to retaliate against Booker based on their earlier argument and her running over his foot. Gary also mentioned that Booker has a habit of calling the police on him. Based on the above facts, there is sufficient circumstantial evidence to prove Gary knowingly set fire to Booker's house.
II. Criminal Confinement
Gary contends that there is insufficient evidence to support his convictions for three counts of Class C felony criminal confinement. Class C felony criminal confinement is defined as follows:
(a) A person who knowingly or intentionally:I.C. § 35-42-3-3. "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." I.C. § 35-41-2-2(b).
(1) confines another person without the other person's consent(b) The offense of criminal confinement defined in subsection
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commits criminal confinement. Except as provided in subsection (b), the offense of criminal confinement is a Class D felony.
(a) is:
(1) a Class C felony if:
(A) the person confined or removed is less than fourteen (14) years of age and is not the confining or removing person's child;
(B) it is committed by using a vehicle; or
(C) it results in bodily injury to a person other than the confining or removing person . . . .
Gary argues he merely took the children to his brother's apartment for pizza and that, although he intentionally drove away, he did not intend to confine the children. He specifically argues that he used no force or threat of force and that there was no evidence the children did not want to go with him. He also argues that he had permission to drive them on a daily basis and that he is their dad and babysitter rather than a stranger. Although Gary is the father of two of the three children, he may still be charged with criminal confinement of all three children. See Maxwell v. State, 731 N.E.2d 459, 463 (Ind. Ct. App. 2000) ("[T]he jury could reasonably have concluded that Maxwell confined his daughter knowingly or intentionally without her consent."); see also Richards v. State, 816 N.E.2d 72, 74 (Ind. Ct. App. 2004) ("a child of tender years is regarded as incapable of consenting to criminal confinement when taken from its legal guardian").
Gary has a protective order against him, and does not argue he has any legal custodial rights to the children.
On a daily basis when Gary babysat, Booker knew he was babysitting her children. Earlier that day, however, Booker had told Gary to get out of the van and go to his friend's house. Clearly, she had terminated any permission Gary had to watch her children that day.
Booker later left her children in the van to check on her smoking house. This was not a situation where she had abandoned her children and Gary needed to "rescue" them. The children were five and under and, being used to Gary babysitting them, they would not have known they being were taken away from their mother without her permission, so it is only logical that they did not resist. The evidence is sufficient to support Gary's confinement convictions.
Conclusion
There is sufficient evidence for a fact finder to find Gary guilty on one count of Class B felony arson and three counts of Class C felony criminal confinement. We affirm.
Affirmed. RILEY, J., and DARDEN, J., concur.