State v. Siraguso , 1980 Mo. App. LEXIS 3279 ( 1980 )

SHANGLER, Judge.

The defendant Siraguso was convicted of the arson of a dwelling house and sentenced to imprisonment for two years. The appeal contends among other grounds that the evidence was not sufficient to submit the offense to the jury. We agree.

The evidence taken most favorably to the judgment of conviction shows: the residence was owned by one Lorraine Kamler who occupied the premises with two teenage daughters. The house burned on June 9,1978. At the time of the fire, she and the girls were at the home of another daughter. They left the residence several days before, out of fear. The home was burglarized on June 2, 1978, the contents ransacked, and black marks and red numbers were smirched on the bedroom doors — as well as other symbols which intimated the vandals would return to molest them, [on one bedroom door, a daughter found a note: “We missed you this time, little Dago lover, but we’ll be back.”] On about that date, Ms. Kamler received a telephone call: “You don’t scare easy, do you?” When demanded his identity, the caller said only, “Get out.” This episode was only the culmination of tragedies which attended occupancy of that house. In February of 1977 she was raped there, her husband left her thereafter, and the mother and daughters began to be harassed by threats and obscene telephone calls. A voyeur was seen around the windows and the peeper was finally apprehended by the aid of a neighbor. The burglary and smirches of the home on June 2,1978, so terrified the daughters that they refused to remain there any longer. Thus, on June 5, 1978, mother and daughters left with intention to return later.

Ms. Kamler entrusted the key to the residence to the defendant Siraguso, a young man of twenty-one years. The defendant had known the Kamlers for some ten years — in fact, they were distant relatives. There was no qualm about entrustment of the premises to Siraguso and Ms. Kamler gave him the key. [She had asked the police to look after the home as she had reported every other incident of harassment and lawlessness but was told the department could not keep a twenty-four hour watch.] Ms. Kamler informed one Thompson, a neighbor on the other side of the street [and her insurance agent], of her departure from fright and of her destination. Ms. Kamler visited the home on each day, June 6th, 7th and 8th, and found everything in order.

The defendant Siraguso entered the Kamler residence near midnight on June 8, 1978. He was accompanied by one Spino. They used the key to unlock the door for entry. Once inside, they looked around the upper floor — but not the basement — and found the house “a mess.” The bedroom doors were smeared with red and black paint and the screened porches were slit. The two young men turned on the television set for the baseball game. In a short time, the police arrived in response to a prowler call. [They were summoned by neighbor Thompson who was distracted from his own engrossment in the baseball game by the sound of broken glass and the sight of a van backed up into the Kamler garage.] The police asked Siraguso and Spino to explain their presence. The defendant related that they were there to watch over the premises by request of the owner, and explained the harassments which prompted her departure. The defendant displayed identification and demonstrated that the key given him opened the front door. The defendant attempted to reach Ms. Kamler by telephone to corroborate the narrative, but without success. The officers spent some twenty minutes on the premises. They perused the first floor and garage, but not the basement. They obtained the license number of the van in the garage the two men used for transportation. One of the officers, McCoy, detected some odor, but was not able to identify it because an allergy then interfered with his olfactory perception. The officers were satisfied the two men were on the premises legitimately, and so departed.

The officers left at about five minutes to one o’clock on the morning of June 9th. Within minutes of the police departure, neighbor Thompson heard two “puffs” from across the street and saw flames shoot out of the basement window wells. Thompson ran across the street just as Siraguso and Spino pulled out of the driveway in the van. He heard them say: “Let’s get out of here.” Thompson pounded on the vehicle and said: “Where are you going?”, to which there was no reply. He then said: “Say, there’s a fire,” to which they replied: “Yes, we know and we’re getting out of here.” The van accelerated away. The defendant Siraguso explained that, as they sat there, there was a sound of explosion accompanied by black smoke. They surmised that the locus was in the basement but could not enter because of the fumes. By that time smoke so enveloped the entire house that the telephone was no longer accessible nor the area bearable. They jumped into the van to drive away, and as they did, they confronted Thompson who asked what was wrong. They told him of the fire — although that condition was obvious — and asked him to telephone the fire and police departments. The two men were stopped by police at the lot used to park Double S Vending vehicles, some distance away. The defendant Sira-guso was employed by Double S to service cigarette machines and collect the coins. The van was used in that occupation. Sira-guso was allowed personal use of the vehicle freely, according to the employer. The employer was aware also that Siraguso mowed lawns for additional earnings and probably used the van to transport that machine as well.

The officers who intercepted the van immediately after the fire detected an odor of gasoline from the van. Officer Whorton testified to “a puddle of gasoline” on the floor mat between the two front seats.¹ A segment of the mat was preserved and laboratory analysis determined that the material was impregnated with gasoline. The employer Walton explained that a gasoline container was often carried in the front area of the van as a precaution against an empty tank. That was because the driver often had in custody sums of money from the machines and the practice to carry additional gasoline was to avoid the need to leave the vehicle unattended during a search for fuel. The officers also took into custody the clothes and shoes of defendant Siraguso for examination. The laboratory analysis reported there was no trace of gasoline or gasoline fumes on the apparel.

The cause of the fire was from the ignition by a hot water heater of clothes soaked with gasoline. The garments, according to Fire Investigator McKiddy, were saturated with the fluid and then placed between the furnace and heater. In due time, as the vapors rose from the basement floor, they were ignited by the pilot light of the hot water heater, and the fire thence spread onto the first floor through the heat duct. The heat caused cans of flammable insecticide to explode, so that the firemen confronted not only the flames and smoke, but also toxic vapors. Inspection of the premises disclosed a five gallon gasoline can in the garage which emitted the fluid odors. Laboratory examination disclosed that the fluid was gasoline. There was no attempt to test the container for fingerprints, however. The witness Distasio testified that he mowed the lawn for Ms. Kamler, the last time about a week before the fire, and recalled a five gallon gas container in the garage. He used his own fuel, however, since the can contained a gas and oil mixture unsuitable to the mower.

The arson of a dwelling house within [then] §§ 560.010 and 560.015, RSMo 1969, requires proof of two elements beyond a reasonable doubt: (1) that the accused set fire to the structure, and (2) that the accused did so intentionally. MAI-CR 7.02. The conviction, therefore, must rest on evidence that the accused was an agent of the crime. A conviction must rest on something more than guess, or suspicion, or even probability of guilt. There must be evidence that the accused affirmatively participated in the criminal venture, or consciously shared or associated in the act. State v. Miller, 536 S.W.2d 524, 527[3-5] (Mo.App.1976). When the facts of the crime are proved by circumstantial evidence, the concatenation of circumstances the prosecution asserts for guilt must be consistent with the hypothesis of guilt, and must be inconsistent with innocence, and exclude every reasonable hypothesis that the accused was innocent. State v. Franco, 544 S.W.2d 533, 534[2] (Mo. banc 1976). It is for the prosecution to forge every connection in the chain of proof, and not the duty of the accused to break the sequence of the circumstantial evidence to be entitled to acquittal. State v. Irby, 423 S.W.2d 800, 802[1] (Mo.1968). In this assessment of the proof, evidence that the accused was present at the scene and had opportunity to commit the crime does not suffice as circumstantial evidence of guilt. State v. Morse, 515 S.W.2d 608, 610[2-6] (Mo.App.1974). Nor does flight alone suffice as a circumstance for conviction where the accused has a reasonable explanation consistent with a hypothesis other than that of consciousness of guilt. State v. Castaldi, 386 S.W.2d 392, 395[4, 5] (Mo.1965).

The evidence placed the defendant Siraguso and companion Spino at the scene of the fire [although not in the basement where the arson was committed], showed his quick flight and disclosed that the van he and the companion occupied gave off some redolence of gasoline and yielded traces of the fluid from the floor mat. None of these circumstances, alone or combined, is inconsistent with the innocence of the defendant.

The evidence was undoubted that the defendant Siraguso was on the premises legitimately. They were entrusted to his protection by the owner. The defendant and companion arrived — from the best inferences — close to midnight, and within a half-hour, the police came in response from a prowler call from neighbor Thompson. The police left after twenty minutes [about 12:55 a. m.] and within minutes, the fire was detected. The fire, according to prosecution expert McKiddy, was ignited by contact between vapors from the soaked garments on the basement floor and the hot water heater pilot light. The combustion, according to the expert testimony, was not instantaneous but when, in due course, the vapors exuded from the garments and rose to the flame. The evidence raises clear inference that the process of combustion was of a duration beyond the presence of the defendant on the premises that night. Nor was there any evidence that Siraguso was there recently outside the presence of the owner. The opportunity for Siraguso to perform the arson was shown, but that opportunity was not exclusive. The evidence was clear that the screens to the premises windows were slit so that a person could gain entry without a key. The recent breaks into the home, the vandalism, threats, peep episodes, rape and other ravages, show that others had not only opportunity, but purpose to further destroy the Kamler property, even by fire. These circumstances are as consistent with the innocence of the defendant Siraguso as with his guilt, and thus, do not exclude every reasonable hypothesis of innocence. State v. Eye, 492 S.W.2d 166, 168[2] (Mo.App.1973).

The evidence implies that the fire combusted during the interval between the departure of the police and the signs of flame and smoke only minutes later. The defendant had exclusive access to the premises for that purpose from arrival at the house somewhat before midnight. The police came thirty minutes later and remained for twenty minutes or so. [The time of arrival of defendant is established credibly other than the Siraguso testimony by the narrative of prosecution witness Thompson, the neighbor across the street, who was made alert to the entry by the noise of the van into the garage.] If speculation were permissible to assume that Siraguso brought fuel [the source of which was never determined — whether from the container in the garage or as part of the specimen recovered from the car floor mat] and then soaked garments with gasoline and then placed them between the furnace and hot water heater for combustion in due time, we would need to assume further that despite the criminal nature of the enterprise, the defendant conducted the venture openly, because:

the defendant entered through the front door and placed the van visibly in the open garage,

the defendant remained on the premises despite the known hazard of fire, with the house.lights on to view a television broadcast of a baseball game, made no effort to remove the incendiary material, then not yet combusted, after the police came and learned his identity and the license number of the van, the defendant parked the van in the garage in open view and in a place vulnerable to any fire of the residence, so as to impede any quick exit.

If speculation were, on the other hand, that the fire was set after the police left, we need assume that the criminal act was undertaken despite the recent arrival of the police and disclosure of identity. Even that speculation would contradict the expert evidence that the combustion was the result of a process² rather than of an immediate ignition. Even more, these assumptions are contradicted by the physical fact that no trace of gasoline fuel or fume was found on the clothes of defendant Siraguso, are otherwise impaired by the want of evidence as to the source of the fuel.

There remains the circumstance of the flight of the defendant from the fire scene. Flight from the scene of a crime connotes guilt, but only where there is other evidence of the commission of a crime. State v. Thompson, 363 S.W.2d 711, 714[3] (Mo. banc 1963). Flight from a fire or other danger out of human fear, however, is conduct consistent with innocence. State v. Castaldi, supra, 1. c. 395[4, 5]; Wharton’s Criminal Evidence, § 214 (18th ed.). The defendant gave the explanation that he had attempted to reach the telephone to notify the authorities about the fire but that the black smoke and fire prevented that and made longer stay precarious. In his words: “I had to get the van out of the garage for one thing because the house was on fire. And we was, like I said, more or less panicked and coughing.” It was the testimony of defendant that as they left in the van, they shouted to Thompson, by then come from across the street, that there was a fire and to call the fire and police departments. The witness Thompson confirmed that exclamation by the defendant in the report to the police. The flight of the defendant from a house aflame and asmoke was an event consistent with innocence, and so not a valid component of circumstantial proof of guilt.

The evidence raises suspicion of guilt, but to prove a conviction, there must be some evidence to associate the defendant directly to the commission of the crime of which he is accused. State v. Eye, supra, l.c. 168[3, 4], State v. Lane, 497 S.W.2d 207, 209[1, 2] (Mo.App.1973). The evidence taken most favorably to the prosecution does not prove a willful act of the defendant to set fire to the dwelling. The incendiary origin of a fire and the guilty agency of an accused may be shown by circumstantial evidence.³ In this case, the circumstantial evidence was not sufficient for submission of the offense or conviction of the defendant on the charge. State v. Bunton, 453 S.W.2d 949, 952[4-7] (Mo.1970).

The judgment of conviction is vacated and the defendant is ordered discharged.

TURNAGE, P. J., concurs. MANFORD, J., dissents in separate opinion filed.

1 . That testimony was from memory of the events. Whorton acknowledged that his official report made no mention of a “puddle.”

2 . The narrative of prosecution fire expert McKiddy describes the location, cause and origin of the fire:

“Basically our investigation entailed an examination of at first going to the most fire damaged area which was confined to the northwest comer of the basement in the residence ... [immediately to the south of that there were all kinds of clothes scattered on the floor ... there was a large quantity of clothes there that this aroma that was similar to gasoline was coming from. In this area from the west wall over to the location approximately 10 feet away of where the hot water heater and the gas furnace were these clothes were scattered about.” [Tr. 86, 87] “This hot water heater we believe this to be the source of ignition. The fíammable liquid vapors that had associated occurred in the basement and built up until it reached a level of fumes, gasoline is a highly flammable liquid and it’s heavier than air and it tends to settle to the floor. And as they rise up they seek a source of ignition. And we believe the hot water heater to be the source of ignition for this particular fire." [Tr. 80] [emphases added]

3 . The standard of appellate review of a criminal conviction enunciated, and last reaffirmed, by the Missouri Supreme Court en banc is that the elements of the offense be supported by substantial evidence. City of Kansas City v. Oxley, 579 S.W.2d 113, 115[2] (Mo. banc 1979). Substantial evidence is defined as “evidence from which the triers of fact reasonably could find the issue in harmony therewith.” State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51 (1936). Our review, and determination that the evidence shows no criminal agency between the defendant and the incendiary fire, consciously employs that standard. That the proof is by circumstantial evidence does not vary the principle. State v. Thomas, 452 S.W.2d 160, 162[1-3] (Mo.1970); State v. Lasiey, 583 S.W.2d 511, 515 (Mo. banc 1979). In the Oxley case, nevertheless, the court acknowledged that although the standard of appellate review was whether the conviction rests on substantial evidence, [1. c. 115] “review must depend in some measure upon the degree of persuasion required.” The court cited the Gregory exposition of the scope of review of a criminal conviction [96 S.W.2d l.c. 52]:

In a criminal case liberty and sometimes life are involved, and there cannot be a conviction except upon a finding of guilt beyond a reasonable doubt. Necessarily, therefore, it becomes the duty of an appellate court as a matter of law to decide whether the evidence was sufficient to induce a belief of the defendant’s guilt beyond a reasonable doubt in the minds [of the trier of the facts] ...” [emphasis supplied]

The court in Oxley, notwithstanding, rendered opinion on the traditional substantial evidence test of appellate review.

In recent decision [Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] the United States Supreme Court announced as a matter of due process of law the constitutional principle presaged by Gregory that a court must consider, not whether there was any [substantial] evidence to support the state court conviction, but whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. Jackson was an attack against the state conviction by federal habeas corpus Rule 2254. The Jackson principle of criminal review was posed to our Supreme Court en banc in State v. Holt, 592 S.W.2d 759 (Mo. banc 1980), but was not treated definitively, since the Holt court was satisfied that the evidence supported conviction by either standard. The court withheld determination [1. c. 774[27]] “whether the Jackson standard applies to a direct review by this court of a conviction.” We are compelled to the conclusion, notwithstanding Jackson was a collateral attack of a criminal conviction, that the constitutional principle obligates a state court to the beyond a reasonable doubt stan- ' dard on direct review. Jackson merely extends the rationale of In re Winship, 397 U.S. 358, 364[8], 90 S.Ct. 1068, 1073[8], 25 L.Ed.2d 368 (1970) that

the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

The Jackson decision merely extends to appellate review of a criminal conviction, as a matter of due process, the very standard Winship employs for a trial conviction, as a matter of due process [Jackson, 443 U.S. l. c. 318, 99 S.Ct. l. c. 2789];

After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must not be simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt” ... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The court in Jackson announces no novel function for a state appellate court. Our constitutional jurisdiction extends to the direct review of criminal convictions. That jurisdiction encompasses determinations of complaint that the evidence does not support conviction. Jackson announces merely the principle of due process that a criminal verdict may not stand when a court of review determines that on the record evidence no rational trier of fact could have found the proof of the crime beyond a reasonable doubt.

Jackson imposes a more stringent view of the evidence than does the substantial evidence test to sustain conviction. In a word, Jackson grants a defendant a more favorable review. Our opinion employs the traditional substantial evidence quantum to vacate the conviction. Thus, even after a view of the evidence most favorably to the prosecution, we still find the State failed to prove the criminal agency of the defendant by substantial evidence — let alone that a rational jury could have found that element of proof beyond a reasonable doubt. We conclude, as did our Supreme Court en banc in Holt, that by whatever standard, the record evidence does not support that element of the proof. For that reason, the conviction must be vacated.