Opinion
No. 111,503.
2014-12-24
STATE of Kansas, Appellee, v. Timothy Raymond MATAS, Appellant.
Appeal from Dickinson District Court; Benjamin J. Sexton, Judge.Mitchell B. Christians, of Salina, for appellant.Andrea Patrick, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Dickinson District Court; Benjamin J. Sexton, Judge.
Mitchell B. Christians, of Salina, for appellant. Andrea Patrick, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
After a bench trial, the district court convicted Timothy Raymond Matas of violating a county ordinance prohibiting leaving a fire unattended. He appeals the sufficiency of the evidence. We affirm.
Based on events stemming from July 2, 2013, the State charged Matas with one count of intentionally permitting an open burn without giving prior notification to the Dickinson County Emergency Communications Center and one count of failing to remain in continuous attendance with (or of) a burning operation, both violations of county ordinances. At a bench trial in magistrate court, Matas was convicted of failing to remain in continuous attendance with a burning operation and acquitted of permitting an open burn without prior notification. Matas timely appealed the conviction and requested a trial de novo before the district court. On February 24, 2014, the district court held Matas' bench trial.
Bart Hettenbach testified at the trial that on July 2, 2013, at 5:29 p.m., he called Dickinson County dispatch to report a fire at 1200 Avenue and Quail Road. He lived nearby and reported seeing smoke. The property was located in a rural area approximately 30 minutes outside of Abilene.
Alyssa Giffen–Kent, the dispatcher, testified she recognized the address as belonging to Matas.
Deputy Cory Ward responded to the call at approximately 5:45 p.m. Ward testified he approached the fire to determine if he could put it out. No one was attending the fire when Ward arrived. Ward found the fire in a large circular pit. He observed an old fiberglass boat and two wooden TV consoles. The boat had been reduced to a molten puddle and the TV stands were still on fire. Because Ward was unable to extinguish the fire, he called the fire department.
Ward contacted Matas at 6:20 p.m. Ward asked Matas if he had been at his property that day. Over the phone, Matas said he had not been there but offered to go to the scene. In person, however, Matas admitted he had been at the property that day. Matas told Ward he had gone to the property after lunch to pull an engine off of a boat. Matas denied setting the fire and told Ward it had been a week since he had set a fire on the property. Ward issued Matas a citation. Matas never indicated someone else had been with him. Instead, Ward learned at a later court hearing that David Sims had been with Matas on his property that day. Ward then contacted Sims on December 26, 2013.
Sims testified he often helped Matas with side jobs for cash. Sims, an army veteran, suffers from memory problems due to head trauma he received while in Iraq. However, Sims told Ward he specifically remembered working for Matas on July 2, 2013, because Matas had called him that night to inform him law enforcement had been called regarding the fire. Matas asked Sims to tell police he had not been there that day. Sims' testimony was consistent with what he told Ward on December 26, 2013.
Sims testified Matas had picked him up early in the morning on July 2, 2013. They went to the Matas property to cut thistles to fill the fiberglass boat. Around noon, they went to lunch in Hope, Kansas. They left the restaurant at 1:30 p.m. when it closed. Sims testified they returned to the Matas property to remove a motor from a boat they had burned a few days earlier. They loaded the motor onto a trailer. Sims testified they set fire to a burn pile between 2 p.m. and 3 p.m. Sims testified the pile consisted of a fiberglass boat, tires, a couple of wood TVs, 8–10 plastic TVs, branches, two chairs, and one table. Once the fire was burning, Sims testified he and Matas took the trailer and boat engine to Herington to scrap. Matas then took Sims home around 4:30 p.m.
Matas testified in his own defense. He agreed he and Sims were together on July 2, 2013. However, his version of the day's events differed. Matas testified he and Sims spent the morning looking for items to salvage. Around noon, they dropped off a trailer full of branches and grass and then went to Hope for lunch. Matas agreed they had left the cafe at 1:30 p.m. to return to his property to pull an engine from a boat. Matas testified they took the boat engine to Herington around 4:10 p.m. Matas stated they left Herington at 4:30 p.m. and he took Sims straight home.
Matas testified the boat they pulled the engine from had been burned by an unknown person prior to them removing the engine. Matas denied knowledge of a second boat on the property. He also denied setting the fire on his property on July 2, 2013.
Matas argued the fire could not have been started when the State suggested it had because, as Matas contends, the fire “could not have been there unattended and unreported for those three hours.” Additionally, the amount of damage from the fire, according to Matas, indicated the fire was started much later than between 2 p.m. and 3 p.m. as Sims indicated. After considering and weighing the evidence and testimony, the district court found it had “no doubt, that there was a fire started that day. That Mr. Matas and Mr. Sims started that fire, and that Mr. Matas did not stay continuously during that burning operation.” The court convicted Matas of unlawfully and intentionally failing to remain in continuous attendance with a burning operation. Matas received a $268 fine. Matas filed a timely appeal.
Matas challenges the sufficiency of the evidence supporting his conviction.
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining where a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). Appellate courts do not reweigh the evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Kettler, 299 Kan. 448, 466, 325 P.3d 1075 (2014). It is only in rare cases whether the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983); see State v. Naramore, 25 Kan.App.2d 302, 322, 965 P.2d 211, rev. denied 266 Kan. 1114 (1998).
Matas was convicted of violating Dickinson County Resolution 062812A(3), a class B misdemeanor, which prohibits an individual from unlawfully and intentionally failing to remain in continuous attendance with a burning operation. It is undisputed that there was an unattended fire on Matas' property in Dickinson County on July 2, 2013
To uphold Matas' conviction for violating the county ordinance, we must find there was sufficient evidence from which a rational factfinder could reasonable infer that Matas intentionally and unlawfully failed to remain in the continuous presence of a burning operation.
Before finding Matas guilty, the trial court noted Matas initially told Ward he had not been out to the property on July 2, 2013. However, once on the scene, Matas changed his story and admitted being out at the property earlier in the day. The court also noted Sims testimony that he and Matas started the fire and then left it unattended was “pretty clear.” Obviously, the court determined Sims' testimony was credible.
Matas contends the testimony and evidence presented are insufficient to support his conviction. Matas argues the timing of the fire, the description of the fire, and Sims' memory problems support reversal of his conviction. He argues the damage sustained by the fire suggests the fire had not been burning as long as Sims' testimony indicated. Matas also contends the conflicting testimony between what Sims testified they burned—many televisions, a large pile of tires, a dining room set, a second boat—and what Ward testified he had seen burning—a boat and two televisions—suggests Sims' memory problems affected his credibility. Matas correctly points out inconsistencies in the evidence that could have justified a different verdict. Nevertheless, his argument lacks legal support because we would have to make our own credibility determinations and reweigh evidence in order to reach Matas' requested result, and when conducting a sufficiency review, we will not do that. See Kettler, 299 Kan. at 466. “Instead, an appellate court considers all evidence—even if there is conflicting evidence or reasons to question its credibility—and does so in the light most favorable to the State.” 299 Kan. at 469.
This is not a rare case in which the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable. See Matlock, 233 Kan. at 5–6. Thus, Sims' version of events on July 2, 2013, is part of our consideration, which clearly indicates Matas and Sims together started the fire on Matas' property and then left it unattended.
In summary, differing versions of events were presented to the district court through different witnesses and argument. In this mix of evidence, there was sufficient evidence, when viewed in the light most favorable to the State, that a rational factfinder could have found Matas guilty beyond a reasonable doubt of starting the fire on his land and then failing to remain in continuous presence of the fire The district court did not err in finding Matas guilty of leaving a fire unattended in violation of Dickinson County Resolution 062812A(3).
Affirmed.