Opinion
2019-SC-0725-MR
09-30-2021
MARK E. SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Kristin Leigh Conder Assistant Attorney General
NOT TO BE PUBLISHED
ON APPEAL FROM MARSHALL CIRCUIT COURT HONORABLE JAMES T. JAMESON, JUDGE NO. 17-CR-00067
COUNSEL FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate
COUNSEL FOR APPELLEE: Daniel J. Cameron Attorney General of Kentucky Kristin Leigh Conder Assistant Attorney General
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Mark E. Smith was convicted by a Marshall County jury of first-degree assault and first-degree arson. Consistent with the jury's recommendation, the Marshall Circuit Court sentenced Smith to twenty years' imprisonment for the assault and twenty-five years' imprisonment for the arson with the sentences to run concurrently. On appeal, Smith asserts two errors. First, Smith contends the trial court erred by refusing to instruct the jury on self-protection and imperfect self-protection. Second, he argues that the trial court erred when it denied his motion for a directed verdict on the first-degree arson charge. For the following reasons, we affirm the Marshall Circuit Court.
I. BACKGROUND
At approximately 8:30 P.M. on January 28, 2017, Edward Harris's home security system alerted the Possum Trot Volunteer Fire Department to a fire at Harris's residence. Upon arrival, firefighters observed light smoke. Based on the presence of Harris's vehicle in the driveway, they concluded Harris was likely still in the residence. Once inside, Firefighter Robert Foyer saw a smoke-filled living room with a cone of fire centered on a chair in the middle of the room. After quickly dousing the fire, Foyer and another firefighter began searching for Harris.
They located Harris on the floor in the mudroom. Harris had suffered gashes to his forehead and the top of his head and severe burns to his face, right arm, and right side. His clothes had melted into his skin. Firefighters removed Harris from the residence and returned to continue their search of the home. They removed the remains of the smoldering chair in the living room from the home. Harris's home suffered extensive smoke damage, as well as damage due to firefighters' efforts to ensure that the fire did not reignite.
In addition to the burned chair, the police investigation of the scene found a broken shovel, a partially used container of charcoal lighter fluid, a fire-damaged revolver, a locked gun safe, and evidence that Harris drug himself after the fire started from the location of the chair to the mudroom where he was discovered.
After investigating the events and conducting a series of interrogations, police arrested Harris's former friend and business partner, Smith. Smith and Harris had been close for several years. For a time, the two had a small home improvement construction company. They closed this company when Harris developed a leg infection resulting in the amputation of his left leg. The amputation prevented him from continuing to work in construction. Harris then took out a loan to start a fishing business. Harris, due to his limited mobility, operated the boat's motor, while Smith handled the fishing. This business failed too, in part because Harris's disability made it difficult to operate the boat. According to Smith, the difficulties caused by Harris's disability served as the catalyst for the events of January 28, 2017.
After the fire, Smith was interviewed by police on two separate occasions. First, on February 3, 2017, Smith denied being at Harris's home on the date in question. At this interview, Smith provided the names of other individuals for police to investigate. Marshall County Sheriff's Department Detective Hilbrecht was able to rule out Smith's alternate suspects and spoke to Smith again on February 24, 2017.
During the second interview, which was recorded and played for the jury, Smith admitted that he went to Harris's house on the night in question. His stated intent was to discuss what had happened to their friendship, but the discussion escalated into an argument. Smith asserted that during this argument, Harris got up from his chair and retrieved a pistol from his gun safe. Smith asked Harris why he had the gun. Harris replied that it was for self-protection, and that if he had intended to shoot Smith, he would have done so already.
Smith told Detective Hilbrecht that he then went out to the porch. While on the porch, he saw a shovel and reentered the house with that shovel. Smith indicated that he did not know exactly where the gun was at this point. Smith swung the shovel, hitting Harris in the head. He hit Harris again in an attempt to "swat away the gun" as Harris reached for it. Smith said, "[Harris] went to turn around or something, I don't know if he's going to sit in the chair or what, but I seen him sit the gun down on the edge of the chair, and when he did, that's when I swung the shovel."
Initially, Smith maintained that he did not remember starting the fire but that he just "sort of snapped." Detective Hilbrecht continued to ask about the fire; eventually, Smith conceded that he lit the chair on fire. Smith detailed where the charcoal lighter fluid was located and stated that he ignited the fire with his own lighter. Smith blamed his outburst on uncontrolled Post Traumatic Stress Disorder (PTSD) resulting from his deployment as an Army special forces soldier and the horrors he saw overseas. Following the interview, Hilbrecht received a certified copy of Smith's military record from The National Archives. The record showed that Smith served for two years and two months before being discharged. Smith was a truck driver in a transportation unit located in Fort Bragg, North Carolina and had never been deployed to a combat zone, and in fact, had never been outside the United States.
At the close of the Commonwealth's evidence, Smith moved for a directed verdict on all charges. The court denied the motion. When the parties discussed jury instructions, Smith objected to giving instructions generally. He made specific objections to the jury being given instructions for first-degree and second-degree arson, rather than only third-degree arson. Smith also tendered a self-protection instruction.
The trial court ruled that the second-degree arson instruction was not warranted, but that the first-degree and third-degree arson instructions were warranted. The court noted that Smith did not merely give affirmative responses to otherwise leading questions from police about the arson, but instead made specific, affirmative statements, even correcting the detective's statements and providing additional facts. The court said this evidence permitted a reasonable jury to find Smith guilty of either first-degree or third-degree arson, depending on how the jury viewed the facts.
The court also denied defense counsel's request to include a self-protection instruction. The court said it was generally open to self-protection instructions where the evidence supports them, but found the facts in this case did not support the instruction. The court emphasized that during his interview with police, Smith said Harris put the gun down before Smith struck him with the shovel, and that Harris told Smith that he did not intend to shoot Smith. Furthermore, Smith made no claim that Harris actually threatened him or that the gun had ever been pointed at him. The only time Smith stated Harris reached for the gun was after Smith first struck him. Defense counsel objected to the court's interpretation of the audio from the police interview. Defense counsel contended that it was Harris who "brought a gun to a verbal argument" and thereby escalated the conflict. Based on this fact, counsel argued that Smith had a reasonable belief of a need to defend himself.
The court instructed the jury consistent with its ruling. The jury found Smith guilty of first-degree assault and first-degree arson. Following the jury's recommendation, the trial court sentenced Smith to twenty years' imprisonment for assault and twenty-five years' imprisonment for arson, to be served concurrently. Smith appeals, asserting he was entitled to the tendered self-protection instruction and to a directed verdict on the first-degree arson charge.
II. ANALYSIS
A. The trial court did not abuse its discretion in denying Smith's request for a self-protection instruction.
Smith's first claim of error is the trial court's denial of a self-protection instruction. "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). "When the question is whether a trial court erred by: (1) giving an instruction that was not supported by the evidence; or (2) not giving an instruction that was required by the evidence; the appropriate standard for appellate review is whether the trial court abused its discretion." Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015), overruled on other grounds by Univ. Med. Ctr., Inc. v. Shwab, No. 2019-SC-0641-DG, 2021 WL 3828487 (Ky. Aug. 26, 2021)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
KRS 503.050 provides that a person may use physical force, including deadly physical force, if he believes that such force is necessary to protect against death or serious physical injury by another person. A jury instruction on self-defense "is necessary once sufficient evidence has been introduced at trial which could justify a reasonable doubt concerning the defendant's guilt." Hilbert v. Commonwealth, 162 S.W.3d 921, 925 (Ky. 2005), superseded on other grounds by KRS 503.055, 505.050(4). When a defendant and the prosecution present different accounts of an incident, "the decision as to whose story to believe is . . . an issue for the jury." Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995).
We recently addressed a trial court's decision regarding whether to include jury instructions on the right to use deadly force in Downs v. Commonwealth, 620 S.W.3d 604 (Ky. 2020). In Downs, we stated,
We have made clear that there must be sufficient evidence in the record to substantiate the instruction:
The criterion is whether movant, in good faith, believed it was necessary to exercise extreme force in saving his own life. It is not every assertion of such belief that is adequate to support a plea of self-defense. It is the whole circumstances which surround the incident that must be considered by the trial judge in deciding whether an instruction on self-defense is proper or whether an instruction on self-defense with limitations is proper.Id. at 614 (emphasis added) (quoting Stepp v. Commonwealth, 608 S.W.2d 371, 374 (Ky. 1980)).
The trial court made extensive findings regarding its decision to deny Smith's request for a self-protection instruction. The trial court made the following oral findings in support of its denial: (i) Smith indicated Harris sat the gun on the chair and made no statement that Harris ever retrieved the gun; (ii) Smith never claimed the gun was pointed at him or otherwise brandished in his direction; (iii) Harris made a direct statement that he did not intend to use the gun and that it was for his protection; (iv) Smith left the home after Harris got the gun; (v) Smith returned to the home with the shovel; (vi) Smith stated "Harris turned around, I seen him set the gun on the edge of the chair, and I swung the shovel"; and (vii) Smith stated that after Harris fell, Harris reached for the gun, and Smith "swatted at it." In its subsequent trial order, the Marshall Circuit Court wrote:
At the close of evidence, instructions were discussed. Specifically, the defendant requested an instruction regarding self-protection (whether perfect or imperfect). Based on the defendant's audio recorded interrogation played in court (that was difficult to hear), the Court was originally of the opinion that some evidence may have existed supporting such an instruction. Further, this Court generally takes the position that the better option is to allow such an instruction if there is any legitimate question as to whether the instruction is supported by the evidence.
However, upon a later detailed review of the recorded interrogation in chambers, it was clear to this Court that no evidence existed to support such an instruction. Further, the Court was very concerned that if such an instruction were given, under the circumstances, the jury could easily be confused by the inclusion of such instructions and misapply the law due to the lack of evidence supporting any self-protection instruction(s).
The evidence must support the defendant's belief that deadly force "is necessary to protect himself against death [or] serious physical injury," KRS 503.050(2). A nonspecific statement of fear is insufficient. Even fully accepting the version of events most favorable to Smith's motion, Smith's own statements provide no basis for a self-protection instruction. The trial court therefore did not act in a way that was arbitrary, unreasonable, unfair, or unsupported by sound legal principles in denying Smith's request for a self-protection instruction. Thus, the trial court did not abuse its discretion and did not err.
B. Smith was not entitled to a directed verdict on the first-degree arson charge.
The standard of review for denial of a motion for directed verdict is as follows:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (emphasis added). Under KRS 513.020(1),
A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and;
(a) The building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or
(b) Any other person sustains serious physical injury as a result of the fire or explosion or the firefighting as a result thereof.Smith argues he was entitled to a directed verdict on the first-degree arson charge because the Commonwealth failed to prove he intended to destroy or damage Harris's home. He argues that the jury should have only been instructed on third-degree arson. Third-degree arson requires only that the defendant acted wantonly, as opposed to intentionally, with respect to damaging the building. KRS 513.040(1).
"Credibility and weight of the evidence are matters within the exclusive province of the jury." Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999) (citing Estep v. Commonwealth, 957 S.W.2d 191, 193 (Ky. 1997)). Jurors are free to believe parts and disbelieve other parts of a witness's testimony. See id. The defendant's "intent may be inferred from the act itself or from the circumstances surrounding it." Talbott v. Commonwealth, 968 S.W.2d 76, 86 (Ky. 1998). The defendant is "presumed to intend all logical and probable results of his conduct," and his intent may be inferred from his actions preceding and following the charged offense. Stopher v. Commonwealth, 57 S.W.3d 787, 802 (Ky. 2001).
Smith's own statements indicated he started the fire. Defense counsel admitted that if Smith started the fire, then he knew the building was occupied at the time. The only question was whether the evidence supported a reasonable juror's finding that Smith intended to destroy or damage Harris's home. Smith argues that his statement to police that he just "snapped" and his claim that he did not know why he started the fire are evidence of lack of intent. Furthermore, defense counsel emphasized that there was fluid remaining in the charcoal starter fluid container, and that the fire was restricted to the chair. Smith also contended that Harris's house was full of other flammable materials and that firefighters easily extinguished the fire in minutes, and that if he actually wanted to do damage to or destroy Harris's home, it would have been easy for him to do so. Smith argued that this evidence was all circumstantial of his lack of intent to cause damage beyond that done to the chair. Therefore, Smith alleges the jury should only have been instructed on the lesser offense of third-degree arson.
These facts may support Smith's contention that a jury could have found him guilty of third-degree arson rather than first-degree arson, but that is irrelevant when considering a directed verdict motion. The question on a directed verdict motion in this case is not whether evidence could support a finding of guilt on third-degree arson, but instead is whether the evidence supported a jury finding that Smith was guilty of first-degree arson when viewed in the light most favorable to the Commonwealth. The fact that the fire failed to significantly damage Harris's home does not automatically mean that Smith did not intend to damage the home. The jury could believe that given the small space, the use of charcoal lighter fluid on the chair, the inference that Smith secured the door behind him when he left, and Smith's false statements to police prior to his confession, Smith intended for the fire started in the chair to damage at least some portion of Harris's home. Based on the evidence, a reasonable jury could also conclude that Smith attempted to limit the evidence of arson by igniting the chair near Harris's smoking materials and merely failed to achieve the results he sought due to the rapid alarm from Harris's security system and the fire department's response.
Accordingly, it would not be clearly unreasonable for a jury to find guilt. Therefore, the trial court did not err in denying Smith's motion for a directed verdict as to the first-degree arson charge.
III. CONCLUSION
For the foregoing reasons, we affirm the Marshall Circuit Court's judgment and sentence.
All sitting. All concur.