This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-99-1231

 

 

State of Minnesota,

Respondent,

 

vs.

 

Charlotte Mae Garner,

Appellant.

 

 

Filed April 4, 2000

Affirmed

Lansing, Judge

 

Itasca County District Court

File No. K3981388

 

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

John F. Muhar, Itasca County Attorney, Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN 55744 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Charlotte Garner guilty of first-degree arson in violation of Minn. Stat. § 609.561, subd. 1 (1996).  On appeal from the judgment of conviction, Garner challenges the sufficiency of the evidence to support the jury’s verdict.  The evidence establishes each of the elements of the offense and is sufficient to support the jury’s determination of Garner’s guilt.  We affirm.

FACTS

            In January 1998, firefighters and police officers responded to a smoke report at Charlotte Garner’s rental house and discovered an active fire in a second-floor closet and an extinguished fire in the basement.  After inspecting the premises, Fire Chief Scott Cook determined that both fires had been set intentionally.  The state charged Garner with first-degree arson in violation of Minn. Stat. § 609.561, subd. 1 (1996), and a jury found her guilty of the charge.

On appeal from the judgment of conviction, Garner does not dispute the sufficiency of the evidence to establish the elements of first-degree arson, but disputes that the evidence is sufficient to establish beyond a reasonable doubt that she was the person who committed the arson.

D E C I S I O N

Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences drawn from those facts, a jury reasonably could conclude that the defendant committed the crime charged.  State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998).  We do not retry the facts, but instead view the evidence in the light most favorable to the verdict and assume the jury believed the witnesses whose testimony supported the verdict and disbelieved the evidence that did not.  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).

The record contains more than sufficient evidence from which the jury could reasonably have concluded that Garner intentionally set the fires.  See Minn. Stat. § 609.561, subd. 1 (1996) (“Whoever unlawfully by means of fire * * * intentionally destroys or damages any building used as a dwelling” is guilty of first-degree arson).  Officer Gene Bennett testified that in February 1998, within a month after the fire, Garner appeared at the Grand Rapids Police Department and asked to speak with him.  Although initially she denied knowing anything about the fire, later in the conversation she made incriminating statements from which the jury could have inferred guilt.  In response to Bennett’s statement that the truth about the fire would come out sooner or later, for example, Garner asked what would happen if she were found guilty.  When Bennett explained what might happen, she responded she would have “nothing to do with treatment [or] *  *  * jail time.”  She also asked how long judicial proceedings would take and whether she could admit to the fire but not go to court.  Later in the conversation, when Bennett raised the possibility that someone could have been injured in the fire, Garner started laughing and said, “There wasn’t that much smoke in there * * * And I think you guys torched it more than what I did.”  After Bennett commented that she did not do a good job starting the trashcan fire, Garner stated, “I didn’t do a good job anywhere.”

In August 1998, Garner again appeared at the police department and asked to speak with Bennett.  This time, she admitted to starting the fire during a period of depression caused by her boyfriend leaving her and the removal of her children from her home.  She told Bennett she worked alone and used paint thinner to start the fire.  She also stated that she was not good at building fires and that the charcoal that investigators found in her basement had nothing to do with the fire.

Although at trial Garner denied making the inculpatory statements, the jury was free to disbelieve her testimony and to rely on Bennett’s account of the conversations instead.  See State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998) (“A factfinder evaluates the credibility of witnesses and need not credit a defendant’s exculpatory testimony.”) (citation omitted); State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (“the jury is free to question a defendant’s credibility, and has no obligation to believe a defendant’s story”).  Garner’s claim that Bennett’s testimony was unreliable because the audio portion of his second videotaped conversation with Garner was not retrievable ignores well-settled law that credibility determinations are exclusively the jury’s province.  State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).

            Garner also challenges the lack of physical evidence connecting her to the crime. But BCA test results showed the presence of an accelerant in a piece of wood, a kerosene lamp, and a paint-thinner jug taken from the closet.  Although the presence of an accelerant in at least two of these items is consistent with lawful use and thus does not necessarily indicate criminal activity, the jury could have reasonably concluded that Garner put the kerosene lamp and the paint-thinner jug in the closet deliberately to accelerate the fire.  The absence of evidence of an accelerant in other items taken from the home is legally insignificant in light of reliable testimony that accelerants usually burn up during the fire and thus are rarely found in testing.

            Finally, we are unpersuaded by Garner’s claim that the conviction should be reversed because the state failed to present eyewitness testimony placing her at the house around the time of the fire.  Garner’s neighbor testified that she saw a female with sandy-blond, shoulder-length hair leave Garner’s house in a tan car almost two hours before the fire was reported.  Again, the evidence was conflicting, but the jury could have concluded that the neighbor saw Garner.  Given the arson investigator’s testimony that the fires could have been set hours before they were reported, we conclude that even if the state had the burden of placing Garner at the house around the time of the fire, which it does not, her argument is unpersuasive.

            The state provided more than enough evidence on which the jury reasonably could find beyond a reasonable doubt that Garner committed first-degree arson.

Affirmed.