State v. John Bakenhus ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
May 22, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. # 01C01-9705-CC-00165 Clerk
Appellate Court
Appellee, * MONTGOMERY COUNTY
VS. * Hon. Robert W . Wedemeyer, Judge
JOHN JASON BAKENHUS, * (Aggravated arson, arson, theft over $500,
aggravated burglary, misdemeanor theft,
Appellant. * civil rights intimidation)
For Appellant: For Appellee:
Gregory D. Smith John Knox Walkup
One Public Square, Ste. 321 Attorney General and Reporter
Clarksville, TN 37040
(on appeal) Janis L. Turner
Counsel for the State
Edward E. DeWerff Criminal Justice Division
103 S. Third Street Cordell Hull Building, Second Floor
Clarksville, TN 37040 425 Fifth Avenue North
(at trial) Nashville, TN 37243-0493
Arthur F. Bieber
Assistant District Attorney General
204 Franklin Street, Ste. 200
Clarksville, TN 37040
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, John Jason Bakenhus, was indicted for aggravated
arson, two counts of arson, three counts of civil rights intimidation, aggravated
burglary, theft of property over five hundred dollars and theft of property under five
hundred dollars. The jury returned guilty verdicts on all nine counts. The trial court
imposed a Range I, effective sentence of twenty-two and one-half years and
ordered restitution in excess of $65,000. The defendant was convicted for the
same acts in federal court. The state and federal sentences are to be served
concurrently.
In this appeal of right, the defendant presents the following issues for
our review:
(I) whether the evidence is sufficient to support a
verdict for aggravated arson;
(II) whether the trial court erred by admitting a
photograph of a swastika and a sketch of a Klu Klux Klan
lynching; and
(III) whether the indictments in counts VII, VIII and IX
contain a material variance that warrants their dismissal.
We find no error and affirm the judgment of the trial court.
During the early morning hours of August 4, 1994, James L. Johnson
and his family were awakened by a loud noise. Johnson told his wife to call 911, got
a gun, and went to investigate. When he opened his front door, Johnson discovered
his garage on fire and then noticed someone in a small white car drive by several
times. Sometime after daylight, Johnson discovered melted siding and burned
shutters. He found broken liquor bottles in the flower bed and smelled gasoline or
diesel fuel. Johnson found a hate letter in his mailbox and noticed eight or ten small
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holes in his front gutter, which appeared to be caused by a shotgun blast.
Nine days later, Georgia O'Hara, who lives on the same road as
Johnson, learned that there had been a fire at her residence. Firefighters and police
were at the scene when she returned at about 9:00 P.M. The damage was
extensive. An antique fish tank had been "shot out," and two television sets, valued
at $400 and $300, had been stolen. The glass frame in which she kept a
photograph of her adopted son was smashed.
On the same day, Robert Smith, a local newspaper photographer,
received an anonymous phone call. The caller claimed that "A.F." was responsible
for burning a house and that if the "n------ in the area didn't get out of the area, then
he was going to kill them all."
On August 18, 1994, Vester Lee Carney, the president of an
organization comprised wholly of African-Americans, learned that their historic
meeting lodge was fully engulfed in flames. The building was completely destroyed.
The picnic pavilion was marred with spray-painted racial slurs. The charter and
historic photographs of former members had been damaged and discarded outside
the building. A kerosene heater valued at eighty dollars was stolen from the lodge.
Brian Beuscher was introduced to the defendant in late July of 1994 by
a mutual friend Charles Neblett. Beuscher recalled that the defendant, then twenty-
one years old, was attempting to organize a group which would conduct acts of
violence against African-Americans and Hispanics in return for payment. Beuscher,
age sixteen at the time, signed an oath and joined the group. Five other members
between the ages of fourteen and sixteen were also recruited by the defendant.
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Beuscher testified that on August 4, 1994, he, Neblett, and the
defendant prepared Molotov cocktails by filling liquor bottles with gasoline and
inserting a cloth wick. They also had ski masks and gloves, a shotgun, the Molotov
cocktails, and a note Beuscher had written at the direction of the defendant: "Dear
Johnsons, A.F. wants you to leave our white community! You coons! Coon hunting
season is open! A.F." At about midnight, they left in Neblett's truck. Beuscher
testified the defendant provided instructions. They parked at a cemetery about one
hundred feet from the Johnson residence, put the note in the Johnson's mailbox and
fired the shotgun at his residence. Neblett threw two lighted Molotov cocktails at the
house and hit the attached garage. The defendant remained in the truck. Afterward
the three men returned to the defendant's house, got in his vehicle, and returned to
the Johnson residence to observe what they had accomplished.
Over the next few days, Beuscher met with the defendant to review
plans for their next "mission" which targeted another house on the same road. He
recalled that the defendant drew a layout of the house and discussed stealing items
to sell. Beuscher testified that the defendant planned to pour out a gallon of
gasoline in the residence rather then using Molotov cocktails. On the date of the
O'Hara fire, Beuscher and the defendant, using ski masks and gloves, and armed
with a shotgun and pistol, drove the defendant's vehicle to a place near the
residence. Beuscher remembered knocking on the front door and that no one
answered. He testified that the defendant kicked in the back door and directed
Beuscher, who was armed with a pistol, to enter first. The defendant also entered
the residence and instructed Beuscher to steal the television set from the living
room. The defendant fired his shotgun into a fishtank then directed Beuscher to
steal a second television set. Beuscher asserted that the defendant then poured
gasoline throughout the kitchen and living room, breaking glass figurines and a
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framed photograph that hung by the front door. Beuscher claimed neither had
ignited the fire but acknowledged that the house was burning. Beuscher and the
defendant fled the scene, hid the television sets, and concealed their gloves and
masks in the defendant's briefcase. Beuscher denied preparing Molotov cocktails
for this arson and said he did not know how the two empty liquor bottles ended up in
the O'Hara house.
A few nights later, the defendant asked Beuscher to participate in a
third arson which targeted the Great Benevolent Lodge. Beuscher refused,
explaining that he was tired. He testified that the defendant admitted he and Neblett
had burned the lodge. Beuscher acknowledged that he helped the defendant pawn
a kerosene heater stolen from the lodge and one of the televisions stolen from the
O'Hara residence.
Detective Clifton Smith of the Montgomery County Sheriff's
Department investigated the Johnson fire. He found broken liquor bottles, a piece of
cloth from the flower bed which smelled like gasoline or petroleum, and a shotgun
wadding from a number eight shell. The Johnsons provided Detective Smith with
the hate letter.
Detective Smith also investigated the O'Hara fire. He found two
unbroken liquor bottles, cloth wicks which smelled of petroleum, an antifreeze jug,
and a number six Winchester shotgun shell. He recalled seeing a number of broken
figurines, the shattered fishtank, and a smashed photograph still hanging on the
wall. The fire damaged the kitchen, bathroom, stairs and back door area.
A few days later, Detective Smith responded to the fire at the 110-
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year-old Great Benevolent Lodge which was fully engulfed in flames. The
magnitude of the fire prevented investigators from determining whether accelerants
had been used. A nearby picnic shelter was defaced with racial slurs and the
phrase, "A.F. Strikes Again."
Detective Smith testified that he connected the three incidents by the
letter left in the Johnson mailbox, the anonymous phone call to the newspaper, and
the graffiti at the lodge. He predicted that the next Saturday night another incident
might occur, so he organized a stake-out. The defendant was stopped and
consented to a search of his vehicle. Accelerants were discovered. Eventually, the
defendant confessed. His statement led to the discovery of pawn tickets, a shotgun,
number six and eight shells, and empty cans of spray paint.
Other officers found the defendant's briefcase from the garage of his
father's house. It contained organization rules, regulations, oath, and a membership
list. There were manuals on bomb making and war devices and a piece of paper
listing types of grenades and explosives. Officers photographed a painting of a Nazi
swastika on the wall of the defendant's bedroom. The defendant provided
investigators with a small notebook containing hand drawings of a hooded KKK
member lynching a man.
In his statements to Detective Smith, the defendant denied having
animosity toward African-Americans but acknowledged that he despised interracial
marriages. Although he initially denied membership in an extremist organization,
he inquired whether Detective Smith had found a note in a mailbox, whether anyone
had called the newspaper, and whether any graffiti had been found on a roadway or
building. Detective Smith reviewed the membership list, contacted and interviewed
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the members, and finally confronted the defendant who then admitted his guilt.
The defendant confessed to Detective Smith that he had instructed
Beuscher to write the note and to shoot at the Johnson house. He also admitted
providing Molotov cocktails to Neblett to throw at the house. He acknowledged his
involvement in both the O'Hara and lodge fires. The defendant conceded that he
had entered the lodge, lit some paperwork, and helped Neblett paint racial slurs on
the picnic shelter. The defendant admitted having another member make the
anonymous telephone call to the newspaper and informed Detective Smith that
"A.F." were initials for the Aryan Faction.
A fingerprint expert, Paul Llewellyn, Jr., testified that the fingerprints on
the papers found in the briefcase matched those of the defendant. John McOwen, a
forensic chemist, found that the liquor bottles, wicks and gasoline mixture at the
Johnson residence were consistent with those similar items discovered at the
O'Hara residence. His tests also confirmed the presence of gasoline in the
antifreeze jug recovered from her home.
I
Initially, the defendant claims that the evidence was insufficient for the
aggravated arson because he was "not present" when the Johnson residence was
burned. The defendant contends that he is guilty only of facilitation to commit a
felony for the acts of Beuscher and Neblett.
On appeal, of course, the state is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which might be drawn therefrom.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the
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witnesses, the weight to be given their testimony, and the reconciliation of conflicts
in the proof are matters entrusted to the jury as trier of fact. Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light
most favorable to the state, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).
A person "who knowingly damages any structure by means of a fire or
explosion ... [w]ithout the consent of all persons who have a possessory, proprietary
or security interest therein" commits arson. Tenn. Code Ann. § 39-14-301.
Aggravated arson is arson committed "[w]hen one or more persons are present
therein." Tenn. Code Ann. § 39-14-302. "'Knowing' refers to a person who acts
knowingly with respect to the conduct or circumstances surrounding the conduct
when the person is aware of the nature of the conduct or that the circumstances
exist. A person acts knowingly with respect to a result of the person's conduct when
the person is aware that the conduct is reasonably certain to cause the result."
Tenn. Code Ann. § 39-11-302(b). A person is held criminally responsible for the
conduct of another when:
Acting with intent to promote or assist the commission of
the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to
aid another person to commit the offense[.]
Tenn. Code Ann. § 39-11-402(2).
There was proof that the defendant organized Aryan Faction, recruited
members, and eventually provided Beuscher with a shotgun. There was testimony
that the defendant formulated the content of the hate letter left in the Johnson
mailbox. The defendant provided the materials and helped assemble the Molotov
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cocktails. He gave Beuscher and Neblett instructions for the crimes against the
Johnsons. There was proof that he watched the commission of the crimes from only
a hundred feet away. Molotov cocktails were thrown against the brick wall of the
garage while the Johnsons were inside sleeping. In our view, the evidence was
sufficient to show that while Neblett committed the aggravated arson, the defendant
shared in his intent, directed his actions, and aided in completion of the offense.
Because there was adequate proof that the defendant was criminally responsible for
Neblett's conduct, the evidence is sufficient to support the conviction for aggravated
arson.
II
The defendant next complains that the trial court erred by admitting
into evidence a sketch and a photograph of a painting because the prejudicial effect
of these exhibits outweighed their probative value. The state argues that the
exhibits were admissible to show intent to intimidate, an element of the offense of
civil rights intimidation. The trial judge ruled that the exhibits were admissible to
prove the defendant's intent to intimidate based on racial prejudice and to show the
defendant's connection to Aryan Faction. These exhibits are best described as
follows:
Exhibit 43: A poster-size, rectangular painting of a
black swastika in a white circle on a red
background resembling the Nazi flag;
Exhibit 44: A crude 5 x 7 inch sketch in red ink
depicting a Klu Klux Klan member in hood
and robe gesturing toward a man hanging
by a noose from a tree.
The admissibility of this evidence is governed by Tenn. R. Evid. 403.
See also State v. Banks, 564 S.W.2d 947 (Tenn. 1978). "Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the
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danger of unfair prejudice, confusion of the issues, or misleading the jury ...." Tenn.
R. Evid. 403. The evidence must be relevant and its probative value must outweigh
any prejudicial effect. Banks, 564 S.W.2d at 950-51. Relevant evidence "means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence." Tenn. R. Evid. 401. Whether to admit the
photograph or sketch is within the discretionary authority of the trial court and will
not be reversed absent a clear showing of an abuse. State v. Dickerson, 885
S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn.
Crim. App. 1985).
When questioned by Detective Smith, the defendant denied harboring
racial animosity toward African-Americans. He initially denied membership in any
extremist group. The crime of civil rights intimidation requires a showing by the state
that the defendant damaged, destroyed, or defaced real property "with the intent to
unlawfully intimidate another because that other exercised a right or privilege ...."
Tenn. Code Ann. § 39-17-309(b)(4). The General Assembly declared that the
citizens of this state are afforded protection from "unlawful intimidation" regardless
of their race. Tenn. Code Ann. § 39-17-309(a). In our view, the photograph and
sketch are valuable to prove the defendant's intent to intimidate his victims because
of their race. While we concede that the exhibits may be offensive and crude, any
prejudice is outweighed by their significant probative value as to the charged
offense. See, e.g., United States v. McInnis, 976 F.2d 1226 (9th Cir. 1992) (holding
that under Fed. R. Evid. 403, exhibits portraying swastikas and racial slurs were
properly admitted to prove racial animus, an element of 42 U.S.C. § 3631(a), use of
force to interfere with housing rights on account of race).
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III
The defendant contends that Counts VII, VIII and IX contain material
variances and must be dismissed. The indictments allege as follows:
SEVENTH COUNT:
[T]hat on the 13th day of August, 1994, ... [the
defendant] ... unlawfully, feloniously and knowingly did
commit arson ... by knowingly damaging a structure, to
wit: Great Benevolent Lodge 210 ....
EIGHTH COUNT:
[T]hat on the 13th day of August, 1994, ... [the
defendant] ... unlawfully and knowingly did obtain ... a
kerosene heater, under the value of Five Hundred
($500.00) Dollars, property of Great Benevolent Lodge
210 ....
NINTH COUNT:
[T]hat on the 13th day of August, 1994, ... [the
defendant] ... unlawfully, knowingly and feloniously did
damage real property of members of Great Benevolent
Lodge 210, with the intent ... to unlawfully intimidate said
members ....
The proof at trial was that the defendant committed these crimes on August 18,
1994. The state contends that the variance is not material.
The provisions of both the Federal and Tennessee Constitutions
guarantee the criminally accused knowledge of "the nature and cause of the
accusation." U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to comply with
these constitutional guidelines, an indictment or presentment must provide notice of
the offense charged, adequate grounds upon which a proper judgment may be
entered, and suitable protection against double jeopardy. State v. Pearce, 7 Tenn.
65, 67 (1823); State v. Byrd, 820 S.W.2d 739 (Tenn. 1991); Tenn. Code Ann. § 40-
13-202. A variance between the indictment and the evidence presented at trial is
not fatal unless it is both material and prejudicial, State v. Moss, 662 S.W.2d 590(Tenn. 1984), thus affecting the substantial rights of the accused. State v. Mayes,
854 S.W.2d 638, 639-40 (Tenn. 1993) (citing Berger v. United States, 295 U.S. 78,
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82 (1935)). A variance is not material where the indictment and the proof
substantially correspond, the defendant is not misled or surprised at trial, and the
defendant is protected from a second prosecution for the same offense. Moss, 662
S.W.2d at 592. "Unless a special date is essential or time critical to the case, the
time of an offense alleged in the indictment is not material." State v. Hardin, 691
S.W.2d 578, 580 (Tenn. Crim. App. 1985) (citing State v. Fears, 659 S.W.2d 370(Tenn. Crim. App. 1983)). In Fears, the defendant was charged with aggravated
rape of the victim "on the ____ day of July, 1981." The evidence presented at trial,
however, did not establish that the offense occurred in July. A panel of this court
held that the variance was not material:
Since time is not an essence of the offense and time will
not bar the commencement of prosecution of this
offense, the time of the commission of the offense
averred in the indictment is not material, and proof is not
confined to the time charged.
Fears, 659 S.W.2d at 374 (citations omitted).
The defendant was adequately informed of the charges he had to
defend and was, in our view, sufficiently protected against a second prosecution for
those offenses. The date of the offense was not particularly material and did not
handicap the defendant in the preparation or trial of his case. Because there is only
one Great Benevolent Lodge 210 to be destroyed in August of 1994, the variance in
dates should not have been a surprise. The proof substantially corresponded with
the indictment.
Accordingly, the judgment of the trial court is affirmed.
_________________________________
Gary R. Wade, Judge
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CONCUR:
______________________________
William M. Barker, Judge
______________________________
Curwood Witt, Judge
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