This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-95-2112

Robert F. Shook, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 11, 1996

Affirmed as modified

Willis, Judge

Le Sueur County District Court

File No. K393200

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Alison E. Colton, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Donald H. Spartz, Le Sueur County Attorney, P.O. Box 156, Le Center, MN 56057 (for Respondent)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

This appeal is from a postconviction order denying appellant Robert Shook's postconviction petition challenging a judgment of conviction and sentence on two counts of first-degree arson. See Minn. Stat. ' 609.561, subd. 2(a) (1992). Shook argues that the prosecutor committed prejudicial misconduct, that the evidence is insufficient to sustain the conviction, and that he should not have been adjudicated and sentenced on two counts. We affirm as modified, vacating one conviction and reducing appellant's sentence to 48 months.

FACTS

On October 9, 1992, a fire broke out in an abandoned grocery store next to the Shamrock Bar that Shook owned in the town of Kilkenny. The fire destroyed the bar, an adjacent post office building that Shook also owned, and the former grocery store. The state filed a complaint charging Shook with two counts of first-degree arson and one count of second-degree arson.

The deputy fire marshal testified that there were six separate points of origin of the fire, with as many as four of them showing the use of an accelerant. A kerosene can was found in the abandoned grocery. The door to the store building appeared to have been forced open. Police found a pry bar in Shook's motor home, which several witnesses testified was parked near the bar at the time of the fire.

Three juveniles testified that just before the fire they saw Shook walk up to the grocery store door, apply force to it, and enter, or appear to enter, the abandoned building. Several witnesses testified that they saw Shook inside the bar that evening, but did not notice any odor of an accelerant on his person. One witness, however, testified that Shook changed clothes during the course of the evening. BCA testing of Shook's clothing detected no common liquid accelerant, except the possibility of a trace on one boot.

Shook's insurance agent testified that Shook had a total of $154,000 in insurance on the bar property, of which he would receive $132,000. He also testified that the bar's gross sales had decreased 33% in five years. The agent testified that at the time of the fire Shook owed him about $12,000, including amounts due on his automobile and homeowner's insurance policies. One banker who dealt with Shook testified that there were no problems with his business account; another testified that there were overdrafts in Shook's checking account.

The owner of the abandoned grocery store testified that she had no insurance on the building. She testified that she had sold the building to Shook, but Shook made no payments on the contract for deed and she canceled it.

The jury found Shook guilty of both counts of first-degree arson, one for arson of a building used as a dwelling and one for arson of a building with others present in it. At sentencing, the court adjudicated Shook guilty of both counts and imposed a 58-month sentence, with a stay of execution.

D E C I S I O N

I.

Shook argues that the prosecutor committed prejudicial misconduct by misstating the reasonable doubt standard in closing argument. Shook's failure to object to the argument he now challenges weighs heavily against reversing his conviction on this ground. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). The prosecutor gave a lengthy explanation of the reasonable doubt standard, emphasizing the necessity of using common sense in making important decisions, and he used the decision to marry as an example of an important decision. He then apologized strongly to the jury for attempting to state the law, explaining that was for the court to do.

The trial court instructed the jury that a reasonable doubt is a doubt "based upon reason and common sense." The prosecutor's argument did not suggest that the jury could convict if they merely had a common sense feeling that he was guilty. The record supports the postconviction court's conclusion that the prosecutor's argument was not misconduct but, at most, an inartful example of what constitutes a reasonable doubt. See generally State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (stating that an appellate court generally defers to the trial court's discretion in determining whether prosecutor has committed prejudicial misconduct).

II.

Shook contends the evidence is insufficient to support his conviction. In reviewing a claim of insufficiency of the evidence, this court must view the evidence in the light most favorable to the jury's verdict, assuming the jury believed the state's evidence and disbelieved evidence to the contrary. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). If a reasonable jury, considering the state's burden of proving the defendant guilty beyond a reasonable doubt, could have found him guilty, the conviction must be affirmed. Id.

Shook points to weaknesses in eyewitness testimony that he broke down the grocery store door, to the state's failure to find evidence of an accelerant on his clothes or person, and to the lack of strong evidence of motive. But these arguments ask this court to reweigh the evidence, which is contrary to the general rule that it is for the jury to weigh the evidence, and this court must view the evidence in the light most favorable to the state. See State v. Formo, 416 N.W.2d 162, 165 (Minn. App. 1987), review granted (Minn. Feb. 17, 1988), appeal dismissed, 426 N.W.2d 865 (Minn. 1988).

The credibility of the eyewitness testimony that Shook forced open the grocery store door was for the jury to determine. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). We must assume the jury believed that testimony. Furthermore, given that evidence placing Shook at the site of the fire, in suspicious circumstances shortly before the fire started, any weaknesses in the evidence of financial motive or use of an accelerant do not undermine the verdict.

The supreme court has reversed an arson-murder conviction based in part on the lack of accelerant evidence. State v. Berndt, 392 N.W.2d 876 (Minn. 1986), cert. denied, 479 U.S. 1046 (1987). But in Berndt there was evidence that the fire was set with five gallons of gasoline, an amount that a man as intoxicated as the defendant was could not easily spread without spilling some on himself or retaining some odor of gasoline. Id. at 880. Moreover, the defendant was still on the scene when police and firefighters arrived. Id. at 877. Here, there is no evidence that a large quantity of accelerant was used. Shook also had time to change his clothing, and his motor home was parked nearby, providing a place to do so.

Motive is not an element the state is required to prove, but is often considered critical to proof of an arson case. See id. at 879 (noting that a credible motive, which would lend credibility to the state's case, was not shown in arson-murder prosecution). This court has reversed an arson conviction where the state failed to show the defendant was in "deep financial difficulty." Formo, 416 N.W.2d at 165. But in Formo, the evidence that the defendant had the means and opportunity to start the fire was also lacking. Id. at 165-66. Here, the state's evidence of motive and of Shook's access to the means to start the fire was sufficient, given the eyewitness testimony presented.

III.

Shook argues that the trial court erred in adjudicating him guilty and sentencing him on both arson counts and, therefore, in using one count to increase his criminal history score on the other.

The state argues that because there were multiple victims and the court could have imposed an upward sentencing departure, multiple convictions are proper. This is not a sentence departure case, nor is it a case involving only multiple sentencing. Cf. Bangert v. State, 282 N.W.2d 540, 546-47 (Minn. 1979) (noting multiple-victim exception to protection against multiple sentencing). The issue is whether Shook can be convicted on two counts for the same act of arson. See Minn. Stat. ' 609.04 (1992).

This court has held that a defendant cannot be convicted of both first-degree arson and second-degree arson for setting one building on fire. State v. Lewis, 385 N.W.2d 352, 356 (Minn. App. 1986), review denied (Minn. May 29, 1986). Both of the first-degree arson counts charged against Shook were based on the arson of the same building, the Shamrock Bar building. The risk to those who used the second floor as a dwelling may be different from the risk to the bar patrons on the first floor. But setting fire to a single building is a single offense, as Lewis indicates. Moreover, the supreme court has held, in the analogous context of burglary, that the multiple victim exception does not allow multiple burglary convictions based on the presence of more than one person in the building. State v. Hodges, 386 N.W.2d 709, 711 (Minn. 1986).

Shook arguably could have been convicted and sentenced for multiple counts of arson based on the destruction of more than one building. But after the state dismissed the charge of second-degree arson, he was charged only with arson of the Shamrock Bar building. Because he could be convicted only once for that act, his criminal history score could not be increased by using one of the two convictions. Accordingly, we modify the sentence by reducing it to 48 months, the presumptive sentence for a person with a criminal history score of zero.

Affirmed as modified.


Footnotes

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ' 10.