STATE OF MINNESOTA

IN COURT OF APPEALS

A05-58

In the Matter of the Welfare of: E.A.A.M., Child.

Filed October 11, 2005

Affirmed

Stoneburner, Judge

Mower County District Court

File No. JX-04-50248

John M. Stuart, Minnesota Public Defender, Leslie Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Patrick W. Flanagan, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney, 201 First Street NE, Austin, MN 55912 (for respondent)

Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

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

STONEBURNER, Judge

On appeal from adjudication of delinquency for committing arson in the second degree in violation of Minn. Stat. § 609.562 (2002), appellant argues that the evidence was insufficient as a matter of law to support the adjudication. We affirm.

FACTS

Lisa Sangineto was employed as a cashier at the Sheriff’s Youth Ranch Thrift Store. On the relevant day, appellant, a juvenile, arrived at approximately 3:15 p.m. to work at the thrift store. Sangineto and appellant were the only employees in the store at the time. Appellant’s task was to sort through bags of clothes in the northeast corner of the back room. Sangineto showed appellant his task and went to the front of the store to wait on customers. Approximately 15 minutes later Sangineto checked on appellant. She smelled cigarette smoke and asked appellant if he too smelled the smoke. He said he did not. Before Sangineto could investigate further, the bell rang and she left to go to the front of the store to wait on customers. Approximately 15 minutes later appellant came to the front and informed Sangineto that the clothes were on fire. Sangineto ran to the back room and observed a tall flame, close to the ceiling and close to where appellant had been sorting clothes.

Other people had been working in a different area of the store earlier in the day, and had access to the area where the fire apparently started. These people left approximately 20 minutes before appellant arrived for his shift. Sangineto testified that she did not smell cigarette smoke when she first took appellant to the back room to show him his task that day.

State-certified arson and fire investigator Steven Wolf arrived about two hours after the fire was discovered. He testified about his investigation as an expert witness. Wolf determined that the fire started in the northeast corner of the back room but could not discover physical evidence of the cause of the fire. He ruled out an electrical outlet in the area as the cause of the fire. Wolf testified that his investigation eliminated “all natural causes” and “all accidental causes” of the fire but did not eliminate intentional causes. Wolf specifically ruled out a cigarette as a cause of the fire based on his testimony that a cigarette would have started a smoldering fire that would have produced smoke, which would have been noticed long before flames became apparent. Wolf testified that studies have shown that it takes 90 minutes to five hours of smoldering before a cigarette will ignite a couch into flames. He opined that the large, open flame of the type Sangineto described would have been caused by “direct flame contact, a match or lighter.”

The first officer who responded to the fire interviewed appellant. He testified that appellant seemed nervous, would not make eye contact, and avoided questions, but denied any involvement in the fire. Wolf interviewed appellant, who said he noticed a flame and reported it. Appellant said he did not have a lighter and had not been smoking.

The district court found that appellant committed arson in the second degree, and adjudicated him delinquent. This appeal followed.

D E C I S I O N

On appeal, this court’s review of a delinquency adjudication is “limited to ascertaining whether, given the facts and legitimate inferences, a fact finder could reasonably” find that the juvenile committed the offense charged. In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996). In a challenge to the sufficiency of the evidence, we conduct a careful review of the record to determine whether the evidence, viewed in a light most favorable to the decision, was sufficient to permit the fact-finder to reach the decision it made. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The fact-finder determines the credibility and weight to give to testimony. State v. Lodermeier, 539 N.W.2d 396, 397 (Minn. 1995). This court assumes that the fact-finder believed the evidence supporting the state’s theory of the case and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). A reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the juvenile committed the offense charged. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

In a case of second-degree arson, the state must prove beyond a reasonable doubt that the defendant, by means of fire or explosives, intentionally destroyed or damaged a non-dwelling building of any value. Minn. Stat. § 609.562 (2002). The state often must rely on circumstantial evidence to prove that a fire was criminal in nature. State v. Jacobson, 326 N.W.2d 663, 665 (Minn. 1982).

“Convictions based on circumstantial evidence warrant particular scrutiny.” State v. Scharmer, 501 N.W.2d 620, 621 (Minn. 1993). But “circumstantial evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty” and inconsistent with any other rational hypothesis. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). A “conviction may stand only where the circumstances form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” Id. The circumstantial evidence as a whole need not exclude all possibility that the defendant is innocent, it must only make such a theory seem unreasonable. State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985), cert. denied,476 U.S. 1141 (1986). The fact-finder is in the best position to evaluate the circumstantial evidence surrounding the crime. Id.

Appellant argues that the circumstantial evidence presented in this case is consistent with a rational hypothesis other than that he intentionally started the fire. The rational hypothesis he suggests is that a cigarette, discarded by someone in the group of workers who left before he arrived, caused the fire.

Appellant asserts that Wolf’s expert opinion was of little value and the district court improperly relied on it. Generally speaking, this court defers to the fact-finder’s determination of the weight and credibility to give to expert witnesses. State v. Triplett, 435 N.W.2d 38, 44 (Minn. 1989). In this case, Wolf explained why a discarded cigarette was not “the best explanation” for the cause of the fire, and his explanation was consistent with the direct evidence. Wolf also testified that he ruled out accidental causes of the fire. Wolf acknowledged that the time it would take a smoldering fire to ignite into large, open flames depended on variables including the material involved, humidity in the room, and ventilation, and that he had not specifically evaluated those factors in this case. But Wolf had been a fire investigator for about seven-and-one-half years and had investigated 450 to 500 fires. He investigated according to standard procedure, took notes and photographs and drew a diagram.

An expert’s opinions must be based on facts in evidence in order to have adequate foundation and the expert should not be allowed to speculate. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982). Appellant did not object to Wolf’s testimony as lacking in foundation or on any other ground. And from our review of the record we conclude that there was an adequate foundation for Wolf’s opinion that the fire was intentionally started within a time frame that logically ruled out any source other than appellant. Given Wolf’s expert testimony about the progression of a fire started by a cigarette, appellant’s hypothesis that a discarded cigarette started the fire is not a rational hypothesis.

Affirmed.