Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-384

                                        AUGUST TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Orleans Unit,
                                                       }    Criminal Division
                                                       }
 Paul H. Mason                                         }    DOCKET NO. 578-11-08 Oscr

                                                            Trial Judge: David A. Jenkins

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals his convictions following a jury trial of one count of first-degree arson
and one count of burning to defraud an insurer. On appeal, defendant argues that the court erred
in (1) denying defendant’s request for a mistrial because of a statement made by an excused juror
during jury draw; (2) allowing an expert witness to testify as to his belief that defendant set the
fire without sufficient cautionary instructions to the jury; and (3) denying defendant’s motion for
acquittal for insufficient evidence. We affirm defendant’s convictions. In addition, we address a
certified question from the trial court regarding the ability of the homeowner’s insurance
company to receive restitution from defendant. As to the certified question, we conclude that
defendant may be ordered to pay the insurance company restitution and remand that matter to the
criminal division.

        The charges against defendant were brought following a fire in the house of his friend,
homeowner Randy Blake, in the early morning of August 5, 2007. A neighbor and a passerby
both noticed the blaze and notified the fire department around 3 a.m. The local fire chief
referred it to an investigator. Lieutenant Detective Cruise of the State Police Fire Investigation
Unit investigated the fire, and concluded that it was incendiary in nature.

        Jury draw occurred on March 29, 2010. During the jury draw, the prospective jurors
were asked whether they knew defendant. One prospective juror answered: “I know [defendant]
because my sister is married to his cousin, and [defendant] actually stayed with them for a while.
I think he was on house arrest for something.” The juror was dismissed. There is no record in
the transcript of an objection by defendant, but there was an unrecorded bench conference
following the statement. The court then instructed the jury,

                If you hear anything during these proceedings, I charge you that
                these are not things that you should discuss in your deliberations.
                It’s not evidence and it may not be the law, so you are to disregard
                anything you’ve learned about what may be the evidence and
                decide the case only on the evidence that you hear from the
                witnesses, and take the charge, take the law from the Court which I
               will give you at least before you deliberate, and not from anything
               that’s said here in questions, answers, or suggestions as to the law.

        The trial proceeded. As part of its case, the State presented testimony from defendant’s
girlfriend at the time of the fire and from the homeowner. The girlfriend testified that defendant
had told her that he planned to burn down the house for the insurance money, and that he was
expecting homeowner to give him twenty percent of any recovery. There were also recorded
conversations played for the jury between defendant and his girlfriend regarding the fire. The
homeowner testified that he and defendant had a conversation about burning down the house and
discussed when the homeowner would be away. The homeowner also testified that they agreed
to share the insurance money and that defendant would receive ten percent.

        In addition, Lieutenant Detective Cruise, who is trained in accordance with a nationally
recognized guideline for fire and explosion investigation, testified concerning his expert opinion
about how the fire started. He explained the methodology he used to investigate the fire, based
on national guidelines. He listed the factors used in the investigation, including witness
observations and the fire and burn analysis. After describing and analyzing the fire scene photos
and explaining his interpretation of the burn patterns on the first day of trial, he described the
interview phase of his investigation on the second day of trial. He recounted interviews that he
conducted with various individuals including defendant, defendant’s girlfriend and the
homeowner. Defendant objected to admission of these conversions, arguing that it was up to the
jury to determine the veracity of the witnesses and the import of their statements. The court
overruled these objections. Based on his investigation, the expert testified that he concluded the
fire was incendiary and set by defendant.

         At the close of the State’s case, defendant moved for judgment of acquittal. The court
denied the request, concluding that there was sufficient evidence to convict. Defendant did not
testify, but presented testimony from his coworker who testified that defendant was working with
him as a bouncer the night and early morning of the fire. Although the coworker could not
remember when defendant left that night in particular, he testified that usually on a Saturday
night defendant would not leave until after 2:30 a.m., and likely not until 3 a.m. In closing
arguments, defendant’s theory of the case was that defendant did not have enough time to set the
fire. He argued that it was ignited by someone else in association with homeowner. As his
attorney argued: “we’re not contesting that this was a fire that was set, we’re saying that Randy
set it or that someone in Randy’s employ set it.”

        The court charged the jury. As to expert witnesses, the court instructed the jury: “The
weight to be given to expert testimony is solely a matter for your determination. You can believe
all, part, or none of any expert witness’ testimony.” Defendant objected to the instructions on
two points unrelated to expert witness testimony. The jury found defendant guilty on both
counts. On April 19, 2010, defendant filed a post-trial motion claiming, among other things, that
the potential juror’s comment tainted the jury pool and that Lieutenant Detective Cruise was
impermissibly allowed to testify about defendant’s guilt. The court denied the motion and
sentenced defendant. Defendant appealed.

       Subsequently, the State requested restitution for the homeowner’s insurance company
based on amounts it paid to homeowner and the mortgagees on the property. The parties
submitted an agreed statement of facts and the court certified the following question of law to
this Court: whether defendant could be ordered to pay the insurance company restitution. The
question was entered on this pending docket for defendant’s direct appeal.


                                                2
        Defendant first argues that the potential juror’s comment tainted the jury pool and
necessitated a new trial. Motions for a new trial are entrusted to the discretion of the trial court
and will not be disturbed absent an abuse of that discretion. State v. Grega, 168 Vt. 363, 370
(1998). “[T]he trial judge is in the best position to determine whether a jury has been tainted,
and consequently, every reasonable presumption in its favor is accorded to the ruling below.” Id.
(quotation and alteration omitted). Although it is unclear from the record that this objection was
properly preserved for appeal,1 we nonetheless consider it and conclude that the court did not err
in denying the motion. The individual was dismissed from the jury pool. Further, the isolated
comment had no bearing on the actual issues involved in the case, and there was no evidence that
the comment “affected the jury’s ability to make a fair and impartial decision.” Id. Finally, the
judge provided a curative instruction to prevent any misuse of the statement. Under these
circumstances, the court did not abuse its discretion in denying the motion.

        Defendant also argues that he is entitled to a new trial because the State’s expert was
impermissibly permitted to offer an opinion on defendant’s guilt, without the court “caution[ing]
the jury regarding the weight it should assign to so-called ‘expert testimony.’ ”2 As an expert,
Lieutenant Detective Cruise was qualified to testify as to his opinion of how the fire started and
could rely on hearsay evidence to form his opinion. V.R.E. 702, 703; State v. Prior, 174 Vt. 49,
56-57 (2002). We do not address any claim regarding the quality of the court’s instructions
because defendant failed to object to the court’s instructions regarding expert witnesses
following the jury charge, V.R.Cr.P. 30, and does not argue plain error on appeal. State v.
Lampman, 2011 VT 50, ¶ 33, __ Vt. __ (mem.).

        Next, defendant argues that the court erred in denying his motion for acquittal. In
reviewing a motion for acquittal, “we must consider whether the evidence, when viewed in the
light most favorable to the State and excluding any modifying evidence, fairly and reasonably
tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable
doubt.” State v. Muscari, 174 Vt. 101, 105 (2002) (quotation omitted). Defendant’s claim that
the State’s evidence was insufficient because no physical evidence was found at the scene to link
him to the fire is not dispositive since the incendiary nature of a fire may be proven by
circumstantial evidence. State v. Perras, 117 Vt. 163, 167 (1952). We are also not persuaded by
defendant’s argument that the State’s evidence was insufficient because the State relied on the
testimony of defendant’s girlfriend and the homeowner, both of whom defendant claims
presented unreliable and inconsistent evidence. The credibility of witnesses does not have an
impact on the sufficiency of the evidence, however, but on the weight to be given that
evidence—a matter for the jury to decide. State v. Hinchliffe, 2009 VT 111, ¶ 22, 186 Vt. 487.
When viewed in a light most favorable to the State, the testimony of defendant’s girlfriend, the
homeowner and the State’s expert all provided enough evidence to demonstrate that the fire was
incendiary.

       1
           The record does not reveal that defendant moved for a motion of acquittal at the jury
draw. The transcript indicates that following the potential juror’s comment there was a bench
conference, but it was not recorded. In trial court post-trial motions, trial counsel represented
that a motion for mistrial was made. This assertion is insufficient, however, to preserve the
issue. It is defendant’s responsibility to preserve an objection for the record. Defendant should
have either ensured that the record reflected the objection or for purposes of appeal created a
statement of the proceedings in accordance with the procedures described in Rule of Appellate
Procedure 10(c).
       2
         Defendant did not argue either in the trial court or in this Court that the opinion that
defendant set the fire was inadmissible.
                                              3
        Finally, we address the legal question certified from the criminal division as to whether
defendant may be ordered to pay restitution to the insurance company. We have held that when
an insurance company is directly damaged by a crime, it may receive restitution as the victim of
the crime. State v. Bonfanti, 157 Vt. 625, 629 (1991). In this case, the insurance company’s
status as a direct victim is even more apparent than in a case involving arson only because
defendant was also convicted of burning to defraud an insurer—by definition a crime that harms
the insurance company. See id. at 628 (analogizing harm caused to insurance company by arson
to harm caused by embezzlement). In addition, as agreed on in the statement of undisputed facts,
the homeowner was a codefendant and in privity with the insurance company that paid claims to
third parties. Therefore, as in Bonfanti, the acts of defendant and homeowner, his codefendant,
caused direct harm to the insurance company and may be recouped through restitution. The
matter is remanded for the criminal division to determine the amount of restitution and
defendant’s ability to pay. See State v. Sausville, 151 Vt. 120, 121-22 (1989) (requiring finding
on defendant’s ability prior to ordering restitution).

       Defendant’s convictions for first-degree arson and burning to defraud an insurer are
affirmed. The restitution matter is remanded to the criminal division.

                                            BY THE COURT:


                                            _______________________________________
                                            John A. Dooley, Associate Justice

                                            _______________________________________
                                            Denise R. Johnson, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice




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