Opinion
A151737
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. DEVIN LEE JAMES SCHMIDT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR 1505145)
Defendant Devin Lee James Schmidt appeals from a judgment of conviction, after a jury trial in which he was found guilty of committing arson on an inhabited structure for setting fire to the home he shared with his mother and her boyfriend in Eureka, California. Schmidt raises a single issue involving admission of two pieces of evidence he claims were irrelevant and unduly prejudicial, specifically, that his blood was on a gasoline can firefighters found inside a bedroom in the home, and that he admitted having earlier in the day turned up burners on the stove in an attempt to burn his mother's food because he was angry at her. We find no error and therefore affirm.
BACKGROUND
I.
In Limine Motions
Prior to trial, Schmidt moved to exclude among other things (1) evidence that he and his mother had argued on the day of the fire, and that later she emerged from her bedroom to find all of the burners on the stove turned on and at a high level, and (2) Schmidt's admission to investigators that he had turned the burners on in order to burn food his mother was cooking. He argued that because the stove was not found to be a source contributing to the fire, the evidence was irrelevant under Evidence Code section 350 and that any probative value would be outweighed by the risk it would "confuse the jury as to the evidence actually associated with the structure fire since the earlier incident in no way contributed to the fire."
All further statutory references are to the Evidence Code. --------
Schmidt also sought to exclude evidence that suspected gasoline or other accelerant was used in the fire, that a gas can was located in a bedroom within the house and that Schmidt's DNA was found on that gas can. As to this evidence, he argued the test of debris from the fire was inconclusive as to the use of an accelerant, that there was insufficient causal connection between the gas can and the origin of the fire and that the evidence about accelerant should be excluded under section 352 to avoid confusing the jury.
The People cross-moved to admit this evidence, arguing the evidence about the prior argument and Schmidt's turning up the stove burners was relevant to show defendant had a motive to set the fire and that the gas can with his blood on it was relevant to show he was present when the fire started.
The trial court denied defendant's motions to exclude the above-described evidence and granted the People's countermotions. Addressing the first issue "with the burner and the situation with the mother that occurred prior to it," the court said, "I do think that is probative and, under 352, I would not exclude that. . . . I think it's relevant." After further discussion, the court added, "Because it's going to mental state for this particular crime, the maliciousness of it, that it was not an accident, that it was intentional and the like." The court concluded it was relevant to state of mind and that its probative value was not outweighed by concerns of undue prejudice.
Addressing the motion to "exclude evidence regarding suspected gas accelerants used and that the gas can was located," the court denied it after noting, "I think it is relevant. What was located on the scene is relevant, and I don't think its probative value is outweighed."
II.
Evidence at Trial
In 2015, Schmidt lived with his mother Amy Dees and her boyfriend Joshua Rapp at Rapp's home in Eureka, California. On November 3 of that year, Schmidt and his mother argued, and after Dees went into her room to avoid him, Schmidt either turned on or turned up the burners on the kitchen stove and left the house. Dees turned the burners off, closed the windows and at about 1:50 p.m. left the house with a friend.
A neighbor who lived across the alley had looked out her window and seen Dees and Schmidt arguing in front of their garage for about 15 minutes. She saw Dees go into the house and observed Schmidt walk into the yard and in and out of the garage several times. Sometime later, while watching television, the neighbor heard the slamming of a door from Rapp's house and again looked out her window, where she saw Schmidt standing on the porch, where he bent down and then stood up. He walked away from the house with a dog on a leash and a satchel. She then saw smoke coming from the back of Rapp's home and called the fire department. While on the phone, she heard an explosion and saw more flames coming from the windows. After the explosion, she saw Schmidt continue walking away from the home with "a far off look in his eyes," "a blank look."
Within minutes of the neighbor's call, firefighters arrived. It was about 2:30 p.m. They saw smoke coming out the window of Rapp's house and a Duraflame package burning on the front porch, on top of the door mat. They moved the Duraflame package and forced their way into the house through the front door. The home was full of smoke, making visibility poor. As he searched for potential victims, firefighter Kyle Brown found a gas can with blood on it in one of the bedrooms.
At some point while away from the home, Dees checked her cell phone and saw that Rapp had texted her numerous times saying his house was on fire and urging her to come home. When she arrived, fire and police department personnel were still on the scene, and Rapp was present. Schmidt arrived sometime later. Schmidt had cuts on his hands and reddish brown stains on his clothing. He first told a firefighter his dog had bit him. A few minutes later, he told another firefighter he had cut his hands while breaking bottles with sticks. He admitted he had turned on the burners earlier in an attempt to burn his mother's food because he was angry with her. By the end of his conversations with firefighters, Schmidt had become agitated.
On the day of the fire, the firefighters' lead investigator interviewed firefighters and other witnesses and inspected the home's exterior and surrounding area. In front of a shed that was detached from the home, he found a tote bag with blood on it. He also found blood on the door to the shed and on the deck of the house. Inside the house, there was a strong smell of gasoline. There were signs of an explosion in the living room, with some indication it was the result of an accelerant. The master bedroom was in "total disarray," with overturned dressers, the bed turned over, the mattress thrown to the side, and smoke damage high up on the walls. He found overturned and charred dressers in the middle of the master bedroom along with some charred clothing. In another bedroom, he found a gas can with what appeared to be gasoline inside, and blood on the outside. In the master bathroom, there was smoke damage, a mirror had been smashed and the glass shower stall was shattered. The shattered mirror and glass did not appear to be the result of heat or fire. In the kitchen, there was moderate heat and smoke damage and the refrigerator was turned over. Smoke and heat damage to the back and side of the refrigerator indicated it had been turned over prior to the fire. There was a red gas can in the middle of a bedroom, along with some debris from firefighting efforts. He noticed blood on the gas can. At trial, the investigator opined that the fire had been set intentionally and originated from two locations in the house: at the front door and at the bottom of a dresser in the master bedroom. The stove was not the source of the fire. The investigator interviewed Schmidt, who had fresh cuts and bandages on his hands. He asked about them, and Schmidt told him he was walking around breaking sticks.
Schmidt was arrested at the scene and searched before being taken to jail. He had a lighter in one of his pockets. He provided a statement at the jail after waiving his Miranda rights. He admitted arguing with his mother at home that day, and turning up the stove from level 6 to level 9 and leaving it unattended. His mother had been cooking french fries and his plan was to burn them. He left home at about 12:30 p.m. to attend a meeting and an alcohol recovery treatment program. He was ejected from the program at about 1:40 p.m. because he smelled like alcohol and then went behind a shopping mall and broke sticks and bottles and punched bricks. At about 3:00 p.m. he went to a gas station and bought alcohol. After that, he returned home and saw the house had been set on fire and was devastated by the sight of it. He had cut his hands on a previous day when he reached for a cup in the sink and mistakenly grabbed a knife. He had not dripped blood outside the house or on the gas cans.
Rapp typically stored gasoline in the garage and backyard shed. The gas can found in the bedroom was normally stored in one of the sheds. In the weeks before the fire, he and Schmidt had done some home improvement projects that required the use of various tools and equipment Rapp had around the house. Schmidt's hands had not been injured or bleeding during those projects.
From evidence processed from the scene it was determined that the blood on the gas can and the latch to the gate in the back yard matched Schmidt's DNA. A test of debris found at the scene was inconclusive regarding the presence of ignitable liquids.
DISCUSSION
Schmidt's arguments on appeal are a reprise of his arguments below, although he makes them at greater length here. He contends the gas can and stove burner evidence "did not constitute proof that appellant committed the charged offense," the fact that he left the burners on was irrelevant since the stove was not connected to the arson fire, and the fact that his DNA was on the gas can "had, at most, only very slight probative value, since appellant lived in the house and therefore can be assumed to have used the can for normal, non-criminal purposes." Further, he argues, the evidence of both had "a high potential for causing undue prejudice."
One is tempted to respond simply by asking the currently popular rhetorical question, "Seriously?" But we will not leave it at that.
The fact that Schmidt argued with his mother earlier in the day obviously had a bearing on motive and intent. So did the fact that he turned on (or if his view is accepted, turned up) the stove burners and, according to his mother, opened the windows. The jury did not have to accept his claim that he did this only with the intent of trying to burn her food, especially since by all accounts he turned on (or up) multiple burners, and further opening the windows would provide oxygen that could increase the possibility the flames would ignite something on or near the stove. Even assuming this initial ineffectual effort to cause a fire in the same house on the same day could not properly be used to show his propensity to commit or attempt to commit arson, it was strong evidence of Schmidt's vengeful mental state on the day of the arson. Further, far from irrelevant, the presence of the gas can, with Schmidt's fresh blood on it, in a bedroom inside the house was strong evidence of identity. It linked him directly to the fire. Whether or not the debris that was tested showed conclusively that accelerants were used in the fire is of little consequence. There was ample other evidence that accelerants were used, including the smell of gasoline in the house, the signs of an accelerant explosion, the presence of the gas can in the bedroom and the presence of gasoline in the gas can. In view of this evidence, the fresh blood on the gas can provided strong evidence of identity: that, contrary to his denials, Schmidt was indeed the person who set the fire.
But even if there had been no other evidence that an accelerant was used, the presence of the gas can with Schmidt's blood on it was still strong evidence of identity. This is because, whether or not accelerant was ultimately used to start the fire, plainly whoever started the fire considered using it. Schmidt's suggestion that there could have been lawful uses of the gas can might have some merit if the can had been found in the shed or the backyard or elsewhere. But it is hard to imagine a legitimate use for a gas can containing gasoline in the bedroom of a house. As firefighter Kyle Brown testified in response to the question whether he noticed anything out of the ordinary about the gas can, "Out of the ordinary to me is the gas can in a bedroom. So, immediately, it was out of the ordinary to me to see the gas can when I saw it." A jury could legitimately view the gas can in the bedroom as evidence that the person who started the fire in the house intended to start it, and brought the gas can into the house with the idea of using gasoline as an accelerant. And just as legitimately, when it turned out that fresh blood of Schmidt's was found on the can, the jury could conclude Schmidt was the one who in fact set the house on fire.
Because the evidence Schmidt objected to was relevant to motive, intent and identity, it was not error to admit it. Its probative value was, in fact, great. And, no reverse pun intended, the evidence was not inflammatory and therefore was not prejudicial in the sense meant by section 352. "For this purpose, 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) "Evidence is substantially more prejudicial than probative under Evidence Code section 352 if it poses an intolerable ' "risk to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Guerra (2006) 37 Cal.4th 1067, 1114, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) There was no such risk of unfairness or unreliability here.
In short, we conclude the trial court did not abuse its discretion in admitting either the stove burner evidence or the gas can evidence. For the same reason, we reject Schmidt's perfunctory argument that their admission violated his right to a fair trial and to due process of law under state and federal constitutions. (See People v. Partida (2005) 37 Cal.4th 428, 439 ["the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair"].)
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.