                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0425

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                              Steven Hamilton Whitney,
                                     Appellant.

                               Filed January 30, 2017
                                      Affirmed
                                  Halbrooks, Judge


                          Crow Wing County District Court
                              File No. 18-CR-15-1810

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and

Kirk, Judge.
                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges his first-degree arson conviction, arguing the state failed to

prove beyond a reasonable doubt that he used a flammable liquid as defined by Minn.

Stat. § 609.561, subd. 3(b)(3) (2014). We affirm.

                                          FACTS

       On May 5, 2015, appellant Steven Hamilton Whitney purchased and pumped a

small amount of gasoline into a gas can. Whitney then drove to a house where he

formerly resided and started a fire near the garage. The fire charred the garage and

spread about 30 feet along a nearby fence before the fire department arrived and

extinguished it.

       Officer Michael Kulzer, who is trained in basic arson investigation, responded to

the reported fire and, upon his arrival, noticed a partially melted gas can and smelled the

odor of gasoline. Witnesses at the scene identified Whitney as the person who started the

fire, and Officer Kulzer saw Whitney purchasing gasoline on surveillance footage at a

nearby gas station. Whitney was later arrested and charged with arson.

       At trial, Officer Kulzer testified that gasoline is a flammable liquid under the arson

statute; but he did not specifically testify to the vapor pressure of gasoline. The jury

found Whitney guilty of first-degree arson (flammable liquids) and second-degree arson.

This appeal follows.




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                                     DECISION

       Whitney contends the state did not present sufficient evidence to convict him of

first-degree arson because it failed to introduce evidence that gasoline has a vapor

pressure not exceeding 40 pounds per square inch at 100 degrees Fahrenheit.

       In considering a claim of insufficient evidence, this court must determine whether

the evidence, when viewed in the light most favorable to the conviction, is sufficient to

allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430

(Minn. 1989). This court must assume “the jury believed the state’s witnesses and

disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn.

1989). We will not disturb a guilty verdict if the jury, acting with due regard for the

presumption of innocence and the requirement of proof beyond a reasonable doubt, could

reasonably conclude the defendant was guilty of the charged offense. Bernhardt v. State,

684 N.W.2d 465, 476-77 (Minn. 2004).

       A person who intentionally damages a building with a fire that he started or

accelerated using a flammable liquid commits first-degree arson. Minn. Stat. § 609.561,

subd. 3(a), (b)(4) (2014). The jury was instructed that a flammable liquid is “any liquid

having a flash point below 100 degrees Fahrenheit and having a vapor pressure not

exceeding 40 pounds per square inch absolute at 100 degrees Fahrenheit.” See Minn.

Stat. § 609.561, subd. 3(b)(3) (2014).

       Whitney contends that the state did not meet its burden of proof because it failed

to prove that gasoline’s vapor pressure met the vapor-pressure requirement in the

definition of a flammable liquid. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,


                                           3
1073 (1970) (holding that a defendant cannot be convicted unless the state provides

“proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged”).

       Here, the prosecutor relied on Officer Kulzer’s testimony to establish that gasoline

is a flammable liquid as defined by the statute. Officer Kulzer did not testify to the vapor

pressure of gasoline. But he did testify that “gasoline is a class 1-B flammable liquid.”

When the prosecutor asked Officer Kulzer whether gasoline met the statutory definition

of a flammable liquid, he responded, “It does. It has a flash point of under a hundred

degrees. This specifically, I believe, has a flash point of—gasoline specifically has a

flash point of 73 degrees.”

       While it would have been preferable for the prosecutor to have specifically asked

Officer Kulzer about the vapor pressure of gasoline, the prosecutor did ask the officer the

fundamental question of whether gasoline meets the statutory definition of a flammable

liquid. To that question, Officer Kulzer responded affirmatively. This evidence, when

viewed in the light most favorable to the conviction, is sufficient to allow a reasonable

jury to conclude that gasoline is a flammable liquid.

       Affirmed.




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