This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




State of Minnesota,



Nancy Louise Spain,


Filed May 5, 1998


Harten, Judge

Dakota County District Court

File No. K2-96-2646

Pamela M. Cecchini, 2850 Metro Drive, Suite 527, Bloomington, MN 55425 (for appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.



Nancy Louise Spain appeals from her conviction for first-degree arson in violation of Minn. Stat. § 609.561 (1996). She challenges (1) the sufficiency of the evidence, (2) the exclusion of videotaped demonstrative evidence, (3) the denial of her motion to read back certain testimony, and (4) the imposition of a triple upward durational sentencing departure. We affirm.


In the fall of 1996, Eugene Letendre allowed his ex-wife, appellant Nancy Louise Spain, to pay rent and live in his house temporarily until she found an apartment. Although they did not resume an intimate relationship, at one point Spain asked Letendre to put her name on the deed to his house, but he refused.

During the evening on October 5, 1996, Letendre drank beer with friends at a bar. After the bar closed at 1:00 a.m., they went to a late-hours restaurant where Letendre had breakfast, returning home at about 2:40 a.m. He turned the living room light on in order to get to his bedroom. On his way through the living room he did not see anyone sleeping on the living room couch where Spain usually slept. Letendre's daughter's car was gone and the door to her room was closed, so he assumed that Spain was sleeping in his daughter's room.

At about 3:00 a.m., Letendre was awakened by his dog. He heard a "thud," and a noise like a tin can falling on a floor. Then he saw two-foot-high flames rising from the hardwood floor, running the length of his bed. As Letendre tried to extinguish the flames with his comforter, he saw Spain in the hallway outside his bedroom. She said that the house was on fire, and he told her to get the dog outside. Letendre ran to the kitchen and called 911. Firefighters arrived and extinguished the blaze. They succeeded in confining the fire to Letendre's bedroom. Investigators recovered a can of lighter fluid from the bedroom and noticed a combustion pattern burned into the floor. The burn pattern ran along the length and foot of Letendre's bed.

The state charged Spain with first-degree arson. At trial, the state argued that Spain had doused the wooden floor surrounding Letendre's bed with lighter fluid and ignited it. But Spain contended that Letendre himself caused the fire by falling asleep with a lit cigarette, which ignited spilled lighter fluid that he carelessly had left in his bedroom.

Letendre testified that he never smoked cigarettes in bed. He testified that on the night of the fire, he did not smoke in his bedroom. He also testified that the can of lighter fluid found in his bedroom was different from the brand he always buys, and that he kept the lighter fluid in the garage. The police found Letendre's brand of lighter fluid in the garage.

A fire department captain testified that flames in the house were rolling over the firefighters' heads, a flaming that usually occurs when everything in a room ignites instantaneously.

A firefighter testified that he saw a can of charcoal lighter fluid and a burn pattern on the bedroom floor. The burn pattern ran the length of the bed and then turned and ran the length of the foot of the bed forming a pattern more consistent with a deliberate pour than a mere spill. Another firefighter testified that the only flammable liquids he found remaining in Letendre's house were a can of brake fluid on the kitchen table, and a can of lubricant on a couch end table. He also testified that he was familiar with the brand of lighter fluid found in the bedroom, and believed that its spout would not leak if tipped over. A third firefighter testified that he found the same burn pattern on the bedroom floor as found by the first firefighter. He also noted that the couch in the living room was made up neatly, with the blankets tucked in as though it had not been used.

A private fire investigator testified that he found a six-foot burn line in the floor alongside the bed, from which he inferred that a flammable liquid started the fire. He also testified that the fire pattern was inconsistent with the sort of pattern he would expect if a cigarette started an accidental fire.

An insurance adjuster testified that two or three days after the fire, Spain called him and sought benefits from Letendre's homeowner's policy to compensate her for purported damage to her property. It was stipulated that Spain had declared bankruptcy and had several outstanding bills.

Letendre and Spain's son testified that he noticed that Spain's property was missing from the house the day after the fire. He also testified that he never saw his father smoke in bed or keep lighter fluid in the bedroom. He recalled seeing lighter fluid in the garage only. Letendre and Spain's daughter testified that she never saw her father smoke in bed or keep lighter fluid in the bedroom. Letendre's two companions at the bar and restaurant testified that he did not appear intoxicated or under the influence of alcohol when he left to return home on the night of the fire. A police officer testified that Spain told him that she lost all her personal belongings in the fire, and that she did not have a storage locker. He also testified that he found a storage ticket among Spain's belongings, that he searched the storage garage, and that it held personal items, most of which were women's clothing. Letendre's neighbor testified that the day after the fire, he saw Spain fill her car with boxes and a suitcase and drive away.

A Minnesota Bureau of Criminal Apprehension forensic chemist testified that he tested samples of the floor from Letendre's bedroom with a gas chromatograph and found a chemical used in paint thinner, mineral spirits, and charcoal lighter fluid.

Spain presented a toxicologist witness who testified that Letendre's blood serum alcohol content of .08 indicated that he probably had drunk 7 or 8 cans of beer on the night of the fire, and probably had a blood alcohol content (BAC) of .09 to .11. The toxicologist also described the degree of impairment such BAC could cause. Spain also called a private consultant who testified that no pour pattern was possible on hardwood, that he believed that the fire started in the bed, and that smoking in bed and clutter caused the fire. Spain did not testify. The jury found Spain guilty of first-degree arson.

At sentencing, the district court found severe aggravating circumstances that supported an upward durational departure to triple the presumptive sentence of 48 months. The aggravating circumstances included (1) premeditation with stealth and planning, (2) vulnerable victim, (3) particular cruelty, (4) physical injuries, (5) emotional and psychological trauma, and (6) exploitation of a trust relationship. The court imposed a sentence of 144 months.


1. Sufficiency of the Evidence. On review of sufficiency of the evidence to support a conviction, we view the evidence and all reasonable inferences in a light most favorable to the verdict. State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997). Circumstantial evidence is entitled to the same weight as any other evidence provided the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt. Id. at 750. Spain's conviction for first-degree arson was based wholly on circumstantial evidence.

To obtain a conviction for first-degree arson, the state must establish that the accused, "unlawfully by means of fire or explosives, intentionally destroys or damages any building that is used as a dwelling at the time the act is committed, * * * ." Minn. Stat. § 609.561, subd. 1 (1996). Spain does not contest that a fire damaged a building used as a dwelling. She disputes only the sufficiency of the evidence showing that she intentionally set the fire.

The testimony of Letendre, the fire department captain, the paramedic supervisor, the three firefighters, the private fire investigator, and the BCA chemist allowed the jury to conclude that the fire began suddenly from flammable liquid that was spread deliberately, that the fire did not result from an accidental spill or a dropped cigarette, and that Letendre did not smoke in his bedroom or keep lighter fluid in his bedroom. Considered in the light most favorable to the verdict, this evidence established, inconsistent with any other rational theory, that the fire was started intentionally.

Letendre's testimony allowed the jury to conclude that Spain was the only person in the house with him on the night of the fire, that she was immediately outside his room when the fire started, and that he had not supplied the can of lighter fluid found in his room. There was evidence to support an inference that Spain was lying when she told the firefighters that she was sleeping on the couch. The testimony of the police officer, the insurance adjuster, Spain and Letendre's son, and Letendre's neighbor, supported a finding that Spain lied when she said that her personal belongings were destroyed in the fire and that she was not renting a storage locker; there was evidence that she had removed her personal belongings to a storage locker and had tried to take advantage of the fire to defraud the Letendre's insurer. Finally, there was no evidence of anyone other than Letendre and Spain in the house on the night of the fire. Considered in the light most favorable to the verdict, we conclude that the evidence supports a jury finding that Spain started the fire, which is inconsistent with any other rational hypothesis.

2. Defense Experimental Evidence. We review under a clear abuse of discretion standard a trial court's decision as to whether to admit evidence of experiments performed outside the jury's view. State v. Johnson, 291 Minn. 407, 412, 192 N.W.2d 87, 91 (1971).

Spain contends that the district court abused its discretion by excluding a videotaped experiment. The experiment involved igniting a fire using charcoal lighter fluid and pieces of material on an unburned portion of the floor removed from Letendre's bedroom. Spain intended to demonstrate that a fire would not leave a "pour pattern" on the floor.

In excluding the evidence, the district court stated that the experiment

does not simulate the fire in question here and may indeed be highly misleading with respect to the issue of what's referred to as a pour pattern or a burn pattern. It doesn't reflect when in time in this fire, the actual fire, that pattern that appeared on the floor may have occurred, and may indeed be highly misleading. And under Rule 403 the court finds that its misleading value can outweigh any probative value. On that basis it is excluded.

The district court considered the proffered evidence, and determined that its admission risked misleading the jury. The amount of lighter fluid used in the experiment was less than that used in the house fire, the experiment lacked a substantial "fire load" (such as a mattress and comforter), and the surrounding temperature did not reach the heat intensity of the house fire. We conclude that the district court's ruling was not a clear abuse of its discretion.

3. Reading Testimony to Jury. We review under an abuse of discretion standard a district court's decision on whether to read back trial testimony. State v. Daniels, 332 N.W.2d 172, 177 (Minn. 1983).

Jury requests for review of testimony after retiring for deliberation are governed by criminal procedural rules:

1. If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom. The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.

2. The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

Minn. R. Crim. P. 26.03, subd. 19(2).

The district court found the jury's request to review the toxicologist's testimony unreasonable under the circumstances and concluded that reading back the testimony would be unduly burdensome. The district court noted that if it read back the testimony, it would also have to read back the testimony of other witnesses who testified as to Letendre's sobriety. The district court surmised that reading back all of that testimony would consume the bulk of a day.

Spain cites State v. Spaulding, 296 N.W.2d 870 (Minn. 1980), to support her contention that the district court abused its discretion. Spain notes that the toxicologist's testimony is 24 pages and estimates that all relevant testimony would incorporate 67 pages; this she compares to Spaulding in which the supreme court found trial court abuse of discretion in refusing to reread 35 pages of testimony. Id. at 878. But the basis for the supreme court's reversal in Spaulding was not the number of pages that the trial court refused to read. Instead, the supreme court held that the trial court, having told the jury at the outset of deliberations that it would not allow testimony to be read back, on that basis denied a subsequent jury request for testimony review. The trial court was found to have abused its discretion by refusing to exercise any discretion in regard to the requested testimony. Id.

In Daniels, the supreme court held that a trial court did not abuse its discretion in refusing to read back testimony where the trial court found that to do so would unduly emphasize part of the evidence. 332 N.W.2d at 176-77. The supreme court noted that review of testimony could have involved reading anywhere from the few pages advocated by defendant to the 300 pages envisioned by the state. Id. at 177.

Here, the district court's comments indicate an obvious exercise of discretion in considering the reading back of testimony. The district court weighed the time it would take to find and read the requested testimony and other testimony necessary to offset any unfair emphasis. The district court also weighed the other evidence the jury received as to intoxication, and concluded that the jury had ample evidence to fairly decide the issue. We conclude that the district court did not abuse its discretion in denying the request.

4. Sentencing: Severe Aggravating Circumstances. A district court must find that severe aggravating circumstances exist to support an upward sentencing departure of more than twice the presumptive sentence. Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996). We review under an abuse of discretion standard a district court's decision to impose an upward departure. Id. at 326. On review, determining whether severe aggravating circumstances are present must be based on our collective experience in reviewing a large number of criminal appeals from all the judicial districts. Id. at 327.

We first examine the record to determine whether it supports the trial court's stated reasons for a departure. State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review denied (Minn. June 19, 1996). Even if a trial court relied partly on improper considerations, we will affirm a sentence if it is justified by sufficient aggravating factors. Id. An element of the crime for which a defendant is being sentenced cannot be considered an aggravating factor. State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996), review denied (Minn. July 10, 1996).

Spain contends that no aggravating factors were present. We disagree.

a. Planning. Planning to determine when a victim would be most vulnerable is an aggravating factor. State v. Kindem, 338 N.W.2d 9, 17 (Minn. 1983). The record allows the inference that Spain had prepared her attack, but waited to commit it until after Letendre returned home and fell asleep. Planning is not an element of arson.

b. Victim Vulnerability. Vulnerability of the victim is well-established as an aggravating factor. Minnesota Sent. Guidelines II.D.2.b.(1). The fire occurred when Letendre was sleeping, after returning in the early morning hours following a late night out with friends at a bar and a restaurant.

c. Cruelty. Cruelty to the victim is an established aggravating factor. Minnesota Sent. Guidelines II.D.2.b.(2). The record supports the inference that Spain specifically started the arson in a place that would create a high probability of Letendre burning to death. Knowingly, placing someone's life in danger is not an element of arson.

d. Physical Injuries. Physical injuries constitute an aggravating factor. State v. Strommen, 411 N.W.2d 540, 545 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987). Letendre suffered burns on his feet, hands, and thighs. Physical injury to a person is not an element of arson.

e. Psychological Factors. Psychological injuries constitute aggravating factor. Id. At sentencing, Letendre stated, "I seen her staring in at me waiting for me to die. * * * I am devastated over the whole works. I don't know why she did that." Psychological injury to a person is not an element of arson.

f. Exploitation of Trust. Exploitation of a trust relationship between a perpetrator and a victim is an aggravating circumstance. State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18, 1988). Letendre allowed Spain to live temporarily in his house because she was the mother of his children and in dire economic straits. Again, this is not an element of arson.

The district court did not abuse its discretion in finding the six aggravating factors. The arson here was not, as argued by Spain, at worst "a plain vanilla" case of arson. Spain did not merely start a house on fire; she deliberately did so in a way that would likely kill the sleeping homeowner who was allowing her to live in his house until she could improve her financial situation. Based on the foregoing aggravating factors and our experience in reviewing a large number of criminal appeals from all the judicial districts, we conclude that the district court did not abuse its discretion in finding severe aggravating circumstances and imposing a triple upward durational departure.