Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                          Mar 31 2014, 9:18 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                           GREGORY F. ZOELLER
Appellate Public Defender                       Attorney General of Indiana
Crown Point, Indiana
                                                JAMES B. MARTIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES EDWIN GARDNER, III,                       )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 45A03-1307-CR-259
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Diane Ross Boswell, Judge
                              Cause No. 45G03-0912-FB-128


                                      March 31, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       James Edwin Gardner, III, appeals his conviction of arson, a Class B felony. Ind.

Code § 35-43-1-1 (2002). We affirm.

                                          ISSUE

       Gardner presents one issue for our review, which we restate as: whether there was

sufficient evidence to support the conviction of arson.

                        FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the verdict follow. In 2006 and 2007, Gardner had a

relationship with Kaneka Turner. At some point in 2007, Turner ended the relationship;

however, Gardner continued to contact Turner, causing her to call the police on several

occasions and to obtain a protective order against him in May 2008.

       On October 9, 2008, Gardner called Turner’s cell phone.        Turner was in an

appointment and did not answer the phone. Gardner continued to call, and Turner

eventually answered the phone and told him to stop calling. Gardner did not heed

Turner’s request and continued to call her cell phone. Later in the day, Turner again

answered and told Gardner to stop calling. Gardner responded, “You want me to stop

calling you? Well, b****, when you get home, you won’t have a home.” Tr. p. 493. On

her way home, Turner saw smoke in the sky in the direction of her house, and when she

arrived home, she found her house on fire. The fire had started in her bedroom, and fire

investigators concluded the fire was intentionally set using an accelerant. The house was

deemed uninhabitable.



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       Turner moved to a new residence but did not inform Gardner of her new address.

At some point, Gardner discovered Turner’s new address by following her brother to her

new house. Gardner continued calling Turner, and, on December 10, 2008, when she

told him to stop, he said, “You want me to burn that house down too?” Id. at 515.

Turner replied that he did not know her new address. In response, Gardner sent her a text

message containing the house number of her new residence. When Turner returned home

that day, a friend of Gardner’s was sitting in his red Mustang on the street near the end of

her driveway. As Turner drove up her driveway, she saw Gardner running across the

front yard away from the house. Turner then discovered that the basement door of her

new house was burned and charred. She called the police, but she did not call the fire

department because the fire was out by the time she discovered it.

       Megan Cecil, who lives in the area, testified that on December 10, 2008, she was

delivering some documents and was driving down a narrow alley when she encountered a

person in a red car. She noted that the person did not move the car over to give her room

to pass, as is customary, and the person would not look in her direction. After she

delivered the documents, Cecil returned to the area where she had seen the red car and

noticed that the car was still there. As she pulled up near the car, it sped off.

       The police officer who responded to Turner’s call testified that the screen on the

screen door was cut, and the wooden door was charred. Another police officer testified

that the police department ran the license plate number for the red Ford Mustang and

obtained information on the owner. The officer testified that the owner’s address was



                                               3
less than a block away from Gardner’s address, and Turner testified that Gardner did not

have a car.

          In addition to other charges, Gardner was charged with two counts of arson for the

October 2008 fire and one count of arson for the December 2008 fire, all as Class B

felonies. A jury trial in April 2012 resulted in a deadlocked jury on the three counts of

arson, although the jury found Gardner guilty of several other charges. In May 2013

Gardner was re-tried on five charges, including the three counts of arson. This jury trial

resulted in a guilty verdict for the December 2008 arson and verdicts of not guilty on both

October 2008 arson charges. In this appeal Gardner challenges his conviction of arson

for the December 2008 fire.

                               DISCUSSION AND DECISION

          Gardner contends that the State presented insufficient evidence to sustain his

conviction of arson for the December 2008 fire at Turner’s residence. Particularly, he

argues that the State failed to prove that the fire was intentionally set and that it was set

by him.

          Arson is almost always subject to proof by circumstantial evidence. Belser v.

State, 727 N.E.2d 457, 464 (Ind. Ct. App. 2000) (citing Wise v. State, 719 N.E.2d 1192,

1200 (Ind. 1999)), trans. denied. In reviewing the sufficiency of circumstantial evidence

leading to a conviction, we use the same standard of review as when the evidence is

direct.     McGowan v. State, 671 N.E.2d 1210, 1214 (Ind. Ct. App. 1996).             When

reviewing claims of insufficiency of the evidence, we neither weigh the evidence nor

judge the credibility of the witnesses. Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App.

                                               4
2008). We instead consider only the evidence that supports the conviction and any

reasonable inferences to be drawn therefrom. Id.

      In this case, the evidence focused on three circumstantial elements of guilt —

motive, conduct before the fire, and presence at the scene. Gardner’s violent nature

toward Turner since she broke off their relationship in 2007 resulted in Turner obtaining

a protective order in 2008. Gardner was upset with Turner for ending their relationship

and for not answering his persistent phone calls. In addition, Gardner was unwilling to

heed Turner’s requests to leave her alone and stop calling her. Most notably, Gardner

repeatedly called Turner on December 10, 2008, and Turner refused to answer the phone.

When Gardner continued to call, Turner answered the phone and told him to stop calling.

Gardner responded, “You want me to burn that house down too?” Tr. p. 515. Turner’s

previous residence, specifically her bedroom, had been intentionally set on fire using an

accelerant just two months prior, rendering the house uninhabitable.       When Turner

arrived home, Gardner’s friend was waiting in his car at the end of Turner’s driveway,

and Gardner ran across the front yard away from Turner’s house. Turner found her

screen door cut and the wooden door charred.

      Standing alone, evidence of motive, presence, or opportunity is insufficient to

prove guilt; however, evidence of such factors collectively may be sufficient to link a

defendant to a fire. Belser, 727 N.E.2d at 465. Additionally, we defer to the jury’s

determination that the defendant set the fire. See id. at 464 (citing Wise, 719 N.E.2d at

1200). The evidence here sufficiently links Gardner to the fire at Turner’s residence on

December 10, 2008 so as to support his conviction of arson.

                                           5
                                 CONCLUSION

      For the reasons stated, we conclude there was evidence sufficient to sustain

Gardner’s conviction of arson.

      Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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