Cross v. State ( 1998 )

Eldridge, Judge.

A Walker County jury found Mike Cross guilty of the 1992 burglary and first degree arson of Armuchee Elementary School in Lafayette, Walker County, Georgia, as a result of which the elementary school was almost completely consumed by fire. He appeals.¹

Although Cross enumerates nine errors on appeal, his one and one-half page “Argument and Citation of Authority” challenges only the sufficiency of the evidence based upon (1) the alleged false testimony of State’s witness Steve Hackney; and (2) the alleged failure of the State to prove “the incendiary nature of the fire,” thereby overcoming the “presumption” that fire is the result of accidental or providential cause. We disagree and thus affirm the judgment of the court below.

On appeal, the evidence must be viewed in a light most favorable to support the verdict, and a defendant no longer enjoys a presumption of innocence. An appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Moreover, it is for the jury to resolve any conflicts in the evidence, and this Court will not substitute its judgment for that of the jury. Green v. State, 218 Ga. App. 648, 649 (463 SE2d 133) (1995); Frazier v. State, 219 Ga. App. 768, 771 (3) (467 SE2d 338) (1996).

Here, Steve Hackney, who is Cross’ cousin and co-defendant, took the stand on behalf of the State. He testified that Cross was paid money from an unidentified source to burn Armuchee Elementary School and that Cross offered him $50 to help.

According to Hackney, on January 29, 1992, Cross, Hackney, and Tim Moses, who is the younger brother of Cross’ girlfriend, met at Cross’ apartment which is located across the street from his place of employment, Prow-Tow Wrecker service in Chattanooga, Tennessee. They got into a black, rollback wrecker that Cross took from Prow-Tow. Cross then drove the threesome to a nearby gas station to fill up a five-gallon gas can. They proceeded on Highway 136 to Lafayette in Walker County, Georgia. When they passed by Armuchee Elementary School, Cross told the others, “there’s what we’re going to do.”

Moses got scared and told Cross that he “didn’t want to have nothing to do with no fire and didn’t want to go to jail for arson.” Cross then drove to the Old General Store on Highway 136 in nearby Villanow, Georgia, where he contacted a man to give Moses a ride back to Chattanooga. They met the man at another store on Highway 136; the man was driving a gold Cadillac, and he took Moses back to Cross’ apartment.

Thereafter, Cross made another telephone call, telling the person on the other end of the conversation, “I’m fixing to do the job now.” Cross and Hackney then drove back to the elementary school where Cross told Hackney “to stand outside and if anybody come for me to yell or run.” Using a brick, Cross broke a window in the front door of the school. He entered the school through the front door carrying the five-gallon gas can and several rags. Shortly thereafter, Hackney saw fire in the hallway of the school. Cross came out carrying a VCR and a small grey box. He went back inside briefly to retrieve the gas can, threw it into the back of the wrecker, and then drove Hackney back to Hackney’s home in Rossville, Georgia. On the way, Cross gave Hackney the $50 and “told me to keep my mouth shut. . . . [I]f I said anything to anybody about us burning the school down he would kill me.”

In addition to the testimony of Hackney, Tim Moses testified that he went with Cross and Hackney in the black wrecker; that he saw Cross fill up the gas can; that he asked to go home because “I didn’t want no part of any trouble”; and that a man driving a gold Cadillac picked him up and drove him back to Cross and his sister’s apartment in Chattanooga.

The manager of the Old General Store testified that he saw a black, rollback wrecker across the street on the night the school burned.

Cross’ girlfriend gave a statement to the investigator that Cross told her he had been asked to burn the school; she testified at trial that when Cross returned home that night, “he smelled like something had been burned.” She testified that she remembered the night that her brother Tim Moses left the apartment with Cross and Hackney, but returned alone in a gold Cadillac.

Further, Johnny Hackney (no relation to Steve Hackney) testified that Cross had approached him and “[h]e was wanting to burn a school and he was wanting me to help him.” The school was in Lafayette, and Cross offered to pay him for the help. Johnny Hackney turned down the offer but met with Cross sometime later. At that time, Cross told him that “he did the school and he got paid for it.”

Decided September 1, 1998. Prank B. Perry, for appellant. Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

David Hixon, who. is Cross and Steve Hackney’s uncle, testified that he saw the two men in the parking lot of a service station where Steve told him that “they had gotten some money off of burning the school.” Cross then told Steve to “shut up,” and the two men left. However, two weeks later Hixon saw Steve Hackney in the laundromat where Steve again brought up the burning; he told Hixon that “they picked up some gasoline. . . . [T]hey went down and burnt the school.”

The State also introduced expert testimony from personnel at the Georgia Bureau of Investigation which demonstrated that the fire at Armuchee Elementary School was not accidental or providential; testimony showed that the fire was intentionally set using an accelerant. A crime laboratory analysis showed the unexplained presence of accelerant in samples taken from the suspected originating points of the fire, i.e., the teacher’s lounge, the hallway outside the lounge, and a connecting classroom. An arson investigator further testified that nothing in his investigation showed that either the furnace or the electrical wiring played a part in the fire that destroyed the school. The State introduced pictures taken immediately after the fire which showed that the main electrical panel, the furnaces, and the breaker box in the furnace room were left largely unscathed by the fire.

We find the evidence more than sufficient to prove the “incendiary nature of the fire” and that the burning of Armuchee Elementary School was neither accidental or providential. Further, although Cross characterizes the testimony of Steve Hackney as false and incredible, the jury obviously decided to the contrary. We will not substitute our judgment for theirs. Under the evidence presented here, a rational trier of fact could have found Cross guilty beyond a reasonable doubt of the offenses of burglary and arson in the first degree. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

1 Cross’ appeal is before us pursuant to the trial court’s granting of an out-of-time appeal.