                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1578

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                   Tommy William Mix,
                                       Appellant.

                                Filed October 17, 2016
                                       Affirmed
                                     Reilly, Judge
                          Concurring specially, Johnson, Judge

                                 Polk County District Court
                                  File No. 60-CR-11-2966

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

         Appellant challenges his first-degree arson conviction on the grounds that (1) the

conviction must be reversed because the evidence is insufficient to establish that he
intentionally caused the fire and (2) that he is entitled to a new trial because the district

court erred by admitting appellant’s wife’s testimony over his spousal-privilege objection.

Because we determine that sufficient evidence supports the conviction and the district court

did not commit reversible error by permitting appellant’s wife to testify at trial, we affirm.

                                          FACTS

       Appellant Tommy William Mix lived in a two-story house in Crookston with his

wife, K.M., and their daughter, S.M. Appellant’s house suffered from a number of

structural problems, including water intrusion from the roof and cracks in the foundation.

Appellant contacted his friend, B.T., to prepare a bid for repairs to the roof. During a tour

of the home, B.T. noticed that there were “major problems” with the roof, and appellant

confided in B.T. that “[i]f there was some way that [he] could get out of living in the house

and get rid of the house, he would probably be better off.” Appellant had recently been

laid off from employment and told B.T. that “between the house and losing a job and his

car payments and everything, it was just really frustrating for him.”

       The night of the fire, appellant was at home with his wife and daughter. K.M. and

S.M. went to bed at about 10:00 p.m. in their upstairs bedrooms, and appellant fell asleep

on the main floor of the home. K.M. awoke in the middle of the night to a strong gas smell

in the house. K.M. went downstairs and saw appellant standing on the staircase landing.

He told her to go back upstairs to bed, which she did. A short time later, appellant began

screaming from the kitchen that there was a fire. K.M. smelled a strong odor of gasoline

and ran downstairs to find appellant standing by the stove in the kitchen. K.M. ran upstairs

to awaken her daughter and get her out of the house.


                                              2
       Firefighters responded to the emergency call and extinguished the fire. Firefighters

saw a five-gallon gas can in the kitchen as well as “a couple pots or pans . . . with some

liquid inside of them” in the oven. The firefighters also smelled a “fairly strong odor of

gasoline” coming from the pans in the oven. Because it was “fairly out of the ordinary to

find gasoline in a home,” the fire chief immediately contacted the state fire marshal’s office

to assist in investigating the fire. Deputy State Fire Marshal Kevin Mahle conducted an

“origin-and-cause” investigation into the fire to determine where the fire originated and its

most likely cause. Based upon the fire patterns and movement patterns from the fire, Mahle

concluded that the fire started near the top or right-hand side of the stove in the kitchen.

Mahle observed a gas can near the stove and two pans inside the oven with “residual liquid

in both of those pans that smelled and appeared to be similar to . . . gasoline.” Mahle sent

samples from the pans to the Minnesota Bureau of Criminal Apprehension (BCA) crime

lab to be tested for ignitable liquids. The BCA confirmed that the liquid was gasoline.

Mahle also found irregular burn patterns along the floor “extending from the area of the

stove through the center of the kitchen,” indicating that an ignitable liquid had been added

to the fire. Based upon his experience, Mahle concluded that the fire was intentionally set

with the use of gasoline. An investigation revealed that there was no sign of forced entry

into the home and there was no evidence that anyone other than appellant, K.M., and S.M.

were in the home when the fire started.

       At the time of the fire, a property and casualty insurance company insured the home.

Appellant made a claim to the insurance company for losses incurred as a result of the fire.

The insurance company denied the claim.           Insurance investigator Zack Spykerman


                                              3
independently investigated the fire and determined that the point of origin of the fire was

to the right of the stove in the kitchen, that there were two frying pans in the oven with

liquid residue that was later determined to be gasoline, and that the only three people

present in the house when the fire started were appellant and his wife and daughter.

       The state charged appellant with first-degree arson. Following a four-day jury trial,

the jury found appellant guilty of the charged offense. Appellant appealed his conviction.

                                     DECISION

                                             I.

       Appellant argues that the evidence is insufficient to support his arson conviction

because the state failed to prove beyond a reasonable doubt that appellant caused the fire.

Our review of a sufficiency-of-the-evidence challenge is “limited to a painstaking analysis

of the record to determine whether the evidence, when viewed in a light most favorable to

the conviction, was sufficient to permit the jurors to reach the verdict which they did.”

State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005) (quotation omitted). Where a

conviction or an element of the criminal offense has been proven by circumstantial

evidence, as it was here, we apply a heightened standard of review. State v. Al-Naseer,

788 N.W.2d 469, 473 (Minn. 2010); see also State v. Jacobson, 326 N.W.2d 663, 665

(Minn. 1982) (recognizing that arson convictions often rest upon circumstantial evidence

because there are typically no witnesses at the scene when the fire is discovered).

Heightened scrutiny is a two-step process requiring the reviewing court to first “identify

the circumstances proved” and defer to the jury’s “acceptance of the proof of these

circumstances,” and then “examine independently the reasonableness of all inferences that


                                             4
might be drawn from the circumstances proved, including inferences consistent with a

hypothesis other than guilt.” State v. Porte, 832 N.W.2d 303, 310 (Minn. App. 2013)

(quotations omitted); Al-Naseer, 788 N.W.2d at 473-74, 477 (quotation omitted).

       A person is guilty of first-degree arson when he “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 (2010). Here, the evidence

establishes the following circumstances: appellant, his wife, and their daughter used the

home as their dwelling; appellant was recently laid off from his employment; the house

suffered from structural problems and appellant stated he might be better off if he got rid

of the house; there was no sign of forced entry into the home on the night of the fire or any

evidence that non-family members were present in the home; appellant’s wife woke up

twice during the night and, both times, found appellant in the lower level of the home where

the fire originated; appellant’s gas can was found next to the stove; burn patterns on the

kitchen floor indicated the fire was intentionally set using an ignitable fluid; two experts

independently found a gas can next to the stove and two pans containing a liquid that

smelled like gasoline in the oven; and the crime lab confirmed that the liquid in the oven

was gasoline.

       Appellant argues that the circumstances showing motive are weak. Whether the

defendant had the motive, means, and opportunity to commit arson is important in

determining guilt in a sufficiency-of-the-evidence challenge. State v. Conklin, 406 N.W.2d

84, 87 (Minn. App. 1987). While the state has “no burden of establishing a motive” for a

criminal offense, “if the state can establish a credible motive, credibility is lent to the state’s


                                                5
contention that the accused committed the crime.” State v. Berndt, 392 N.W.2d 876, 879

(Minn. 1986). The state presented evidence that appellant was having financial difficulties.

Appellant filed for personal bankruptcy approximately one year before the fire and was

laid off from his employment two months before the fire. Appellant and B.T. both testified

that the house had ongoing structural problems, and B.T. testified that appellant wanted to

“get rid of the house.” This testimony establishes that appellant had a motive to set the

fire. The evidence shows that the fire was started using gas from appellant’s gas cans,

establishing his means to set the fire. The state also presented evidence that appellant had

the opportunity to set the fire. There was no sign of a forced entry into the home and the

only people in the home at the time the fire started were appellant, his wife, and his

daughter. Taken together, the testimony presented by the state establishes appellant’s

motive, means, and opportunity to set the fire.

       The second step in our analysis is to determine whether the circumstances proved

are consistent with guilt and inconsistent with any hypothesis other than guilt. Al-Naseer,

788 N.W.2d at 473-74. At this step, we do not defer to the jury’s “choice between

reasonable inferences.” Id. at 474 (quotations omitted). Appellant argues the state’s

circumstantial evidence is “weak,” but does not offer an alternative explanation for the fire.

Instead, appellant argues that while the state’s evidence “might be consistent with a rational

inference of guilt,” the circumstances proved are insufficient to “exclude hypotheses of

innocence.” Appellant’s argument is not compelling. The circumstances proved are

consistent with appellant’s guilt and “inconsistent with any rational hypothesis except that




                                              6
of guilt.” Al–Naseer, 788 N.W.2d at 474-75 (quotations omitted). We therefore conclude

that the evidence is sufficient to support appellant’s first-degree arson conviction.

                                             II.

       Appellant argues that the district court committed reversible error by permitting his

wife to testify at trial despite his objection based on spousal privilege. Minnesota’s spousal

privilege statute provides that

              [a] husband cannot be examined for or against his wife without
              her consent, nor a wife for or against her husband without his
              consent, nor can either, during the marriage or afterwards,
              without the consent of the other, be examined as to any
              communication made by one to the other during the marriage.

State v. Griffin, 834 N.W.2d 688, 692 n.6 (Minn. 2013) (quoting Minn. Stat. § 595.02,

subd. 1(a) (2012)). The statute contains several exceptions to spousal privilege, including

the crime exception. Minn. Stat. § 595.02, subd. 1(a) (2012). The crime exception provides

that spousal privilege “does not apply to . . . a criminal action or proceeding for a crime

committed by one [spouse] against the other or against a child of either[.]” Id. “We review

evidentiary rulings by a district court regarding the availability of a privilege established

by statutory or common law for an abuse of discretion.” State v. Zais, 805 N.W.2d 32, 36

(Minn. 2011) (citing State v. Gianakos, 644 N.W.2d 409, 415 (Minn. 2002)). “But the

initial determination of whether a particular testimonial privilege or exception exists as a

matter of law is a question that we review de novo.” Id. “Generally, the marital privilege

is construed narrowly and the exceptions are construed broadly.” Id. at 38.

       Before trial, the state indicated that it would introduce K.M.’s testimony regarding

her observations on the night of the fire and her conversations with her husband. Appellant,


                                              7
who was married to K.M. at the time of trial, objected to his wife testifying based on

spousal privilege. The district court overruled appellant, stating that “there did not seem

to be much in terms of what I would call . . . the normally confidential . . . communication

between spouse[s] – if she’s going to testify about her activities and what she observed

defendant doing that night[.]” Following the first day of trial, the district court made

additional factual findings with respect to appellant’s assertion of spousal privilege:

              [T]he allegation is that it was a fire that began at 4:00 a.m. in
              the morning; that [K.M.] was home. She was awakened by
              activity, noticed the smell of gasoline. She sees [appellant],
              ends up going back upstairs; that she hears him swear. She
              goes downstairs towards the kitchen where she sees flames;
              that she goes back upstairs to get [their daughter] to awaken
              her so they both can get out of the house as the fire is going.

                     ....

                     I am going to find, at least in terms of solely the issue
              of marital privilege, that those facts support that this arson, as
              it was committed, did pose a special danger to human life, that
              being the life of [K.M.].

       The district court’s decision to permit K.M. to testify over appellant’s objection was

informed by the Minnesota Supreme Court case of Zais, 805 N.W.2d at 32. In that case,

our supreme court considered whether the spousal privilege applied in a disorderly conduct

case where defendant-husband “was trying to break down the garage door” and “knocked

out some panels in the garage door with a hook” while his wife was inside the house. 805

N.W.2d at 35. Before trial, the state notified the defense that defendant’s wife was a

proposed witness in the trial proceedings. Id. The defense moved to exclude her testimony

based on spousal privilege and the district court agreed, ruling that disorderly conduct



                                              8
“does not create a personal injury sufficient to destroy the spousal privilege.” Id. The state

appealed, and this court reversed and remanded, concluding that the state had established

that the crime exception to spousal privilege applied to a disorderly conduct offense if the

underlying conduct “was directed at and adversely affected or endangered” the other

spouse. Id. (citing State v. Zais, 790 N.W.2d 853, 857-64 (Minn. App. 2010). The supreme

court granted review on the issue of whether the crime exception to spousal privilege

applies to a disorderly conduct offense. Id. The defense argued that the charged offense

of disorderly conduct could not be considered a crime committed by one spouse against

the other because it is a “public offense committed against the public at large and not a

specific individual.” Id. at 39. Defendant argued that the crime exception “only applies to

crimes directed at a person, such as assault or domestic violence.” Id.

       The Minnesota Supreme Court rejected this argument, holding that “[t]he disorderly

conduct statute does not exclude conduct that is directed against one person. Consequently,

we conclude that the crime exception may be applicable to the charged offense of

disorderly conduct in this case.” Id. at 40. The Zais court then “considered whether the

State’s proposed evidence regarding the elements of the disorderly conduct charge,

together with the [defendant’s] actual conduct, establish[ed] that the crime was committed

by one spouse against the other.” Id. at 40-41. The supreme court found that the state’s

proposed evidence established that defendant “committed the offense of disorderly conduct

against his wife,” and therefore concluded that the crime exception to spousal privilege

applied. Id. at 41.




                                              9
       Zais contemplates that “the crime exception to the marital privilege statute in section

595.02, subdivision 1(a) . . . requires that the [reviewing] court examine not only the

elements of the crime, but also the underlying conduct of the defendant to determine

whether the crime was ‘committed’ by one spouse against the other.” 805 N.W.2d at 38.

With respect to the first prong of this test, the elements of arson include that a person

“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. Arson is classified as a property crime.

Minn. Stat. § 609.561, subd. 1; State v. Myers, 416 N.W.2d 736, 737 (Minn. 1987)

(defining arson as a “property offense committed by physical means”). A person may be

guilty of first-degree arson of a dwelling “whether the inhabitant is present therein at the

time of the act or not.” Minn. Stat. § 609.561, subd. 1. However, Minnesota law also

recognizes first-degree arson as a “crime of violence.” Minn. Stat. § 624.712, subd. 5

(2014) (“‘Crime of violence’ means: felony convictions of the following offenses . . .

609.561 (arson in the first degree).”). A “crime of violence,” in turn, is further defined as

“an offense that has as an element the use, attempted use, or threatened use of physical

force against the person or property of another,” or “any other offense that is a felony and

that, by its nature involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” Campos v. State,

816 N.W.2d 480, 484 n.3 (Minn. 2012) (citing 18 U.S.C. § 16 (2006)).

       Minnesota appellate courts have repeatedly held that “crime against a person”

applies to crimes “whose elements and classifications do not specifically include ‘personal

injury,’ based on the substance of the crime and the underlying conduct.” Zais, 790 N.W.2d


                                             10
at 862, aff’d, 805 N.W.2d 32 (citing State v. Myers, 627 N.W.2d 58, 62-63 (Minn. 2001)

(holding that obstruction of legal process is a crime against a person if the underlying

conduct creates a special danger to human life); State v. Notch, 446 N.W.2d 383, 385

(Minn. 1989) (noting that burglary is also a crime against a person if, “as committed,” it is

against a person)). Thus, a property crime may be characterized as a crime against a person

where it carries some special risk to human life. See State v. Nunn, 297 N.W.2d 752, 754

(Minn. 1980) (holding that burglary of a dwelling “should not be deemed a purely property

offense because . . . such an offense always carries with it the possibility of violence and

therefore some special risks to human life”); see also State v. Amundson, 828 N.W.2d 747,

752-53 (Minn. App. 2013) (holding that in determining whether a crime is a “crime against

a person” for purposes of permissive consecutive sentencing, the court looks to whether

the conduct “poses a special danger to human life”). The elements of the crime here

support a decision that, while first-degree arson is a property crime, it also carries “special

risks to human life,” Nunn, 297 N.W.2d at 754, and is a crime of violence.

       Next, we consider “all relevant underlying facts” to determine whether the state’s

evidence, combined with appellant’s actual conduct, establish that his crime was

“committed by one spouse against the other.” Zais, 805 N.W.2d at 38-39. The state’s

evidence establishes that appellant’s wife and daughter were present in the home when the

fire started. K.M. awoke during the middle of the night because she thought she smelled a

strong scent of gasoline in the house. K.M. went downstairs and encountered appellant on

the staircase landing. Appellant told her to go back upstairs. Later, K.M. was again alerted

when she heard appellant scream that there was a fire in the kitchen. K.M. went downstairs


                                              11
and found appellant in front of the stove, where she smelled gasoline and saw flames.

Appellant’s daughter was asleep in her upstairs bedroom throughout this exchange. Based

upon this evidence, the state has established that appellant committed a first-degree arson

offense against his spouse. Appellant set fire to his home, knowing that his wife and

daughter were sleeping upstairs. Appellant’s conduct posed a special danger to human life,

namely, that of his wife and daughter. Nunn, 297 N.W.2d at 754. We therefore conclude

that the district court did not err when it determined, given this factual situation, that the

crime exception to spousal privilege applies where appellant intentionally sets fire to a

home in which his wife and daughter are present, creating a special danger to their lives

and making them crime victims.

       Affirmed.




                                             12
JOHNSON, Judge (concurring specially)

       I respectfully disagree with part II of the opinion of the court insofar as it reasons

that the district court did not err by overruling Mix’s objection to the trial testimony of his

wife, K.M. I would reason that the district court erred in its ruling because the crime-

against-the-spouse exception to the marital privilege does not apply in this case. But I also

would reason that the district court’s error is harmless. Therefore, I concur in part I and

concur in the judgment.

                                              A.

       Mix argues in part II of his brief that the crime-against-the-spouse exception to the

marital privilege does not apply and, consequently, that the district court erred by

permitting his wife to testify at trial. The crime-against-the-spouse exception applies in a

prosecution “for a crime committed by one [spouse] against the other [spouse].” Minn.

Stat. § 595.02, subd. 1(a) (2014). Because the issue is a matter of statutory interpretation,

we apply a de novo standard of review to the district court’s application of the statute, based

on the record that existed at the time of the district court’s ruling. State v. Zais, 805 N.W.2d

32, 36 (Minn. 2011).

       In Zais, the supreme court instructed lower courts to consider “the elements of the

crime charged” and “the underlying conduct supporting the crime.” Id. at 39. I would

agree with the premise that, based on the elements of the offense, a spouse of a defendant

charged with arson is a victim of the crime if the spouse had an ownership interest in the

dwelling that was destroyed or damaged. See Peters v. District Court, 183 N.W.2d 209,

210-12 (Iowa 1971) (holding that wife may testify against husband charged with setting

                                             CS-1
fire to home jointly owned by them). But a spouse is not necessarily a victim of arson if

the spouse does not have an ownership interest in the dwelling that was destroyed or

damaged. See Creech v. Commonwealth, 410 S.E.2d 650, 651-52 (Va. 1991) (holding that

crime-against-spouse exception to spousal privilege does not apply to prosecution of man

charged with setting fire to home owned solely by him). In this case, Mix was the sole

owner of the family’s dwelling; his wife had no ownership interest in the property at the

time of the fire.

       The district court reasoned that Mix was accused of committing a crime against his

wife on the ground that “this arson, as it was committed, did pose a special danger to human

life,” i.e., his wife’s life. This court affirms the district court’s ruling for the same reason.

In my view, the particular manner in which Mix was accused of committing arson, based

on the record before the district court at the time of its ruling, did not put his wife in special

danger. Both Mix and his wife were inside the home, were exposed to the same risks, and

exited the home together. K.M. was not sleeping when the fire was started; she had been

awake, had talked to Mix moments earlier, and had just gone back upstairs but had not yet

gone back to bed. Mix alerted his wife to the fire promptly and loudly to ensure that she

was able to escape. She did, in fact, escape and was not injured. Mix’s actions were not

completely free of risk, but there does not appear to have been a “special danger” that any

member of the family would perish or would be injured. The facts of this case are very

different from arson cases in which death or injury is likely because a defendant

intentionally and surreptitiously sets fire to a dwelling while another person is inside and

does not provide assistance to the person inside the dwelling. See, e.g., State v. Daniels,

                                              CS-2
380 N.W.2d 777 (Minn. 1986); State v. Martinson, 422 N.W.2d 282 (Minn. App. 1988).

In this case, the intended victim of Mix’s crime was not his wife but, rather, the insurance

company that had issued him a homeowner’s policy.

       In addition, other circumstances indicate that Mix did not commit arson against his

wife. K.M. did not ask prosecutors to file charges against her husband; rather, the local

fire department asked the police department to initiate a criminal investigation. In her pre-

trial statements to investigators, she did not state that her husband had started the fire;

rather, she said that he did not do it. Nothing in the record indicates that there were any

problems in the marital relationship. In fact, the prosecutor previously asked the district

court for permission to examine K.M. as a hostile witness, see Minn. R. Evid. 611(c),

stating that K.M. “clearly . . . identified with an adverse party,” that she did not want to

testify but had been served with a subpoena, that she was “still married to Mr. Mix,” and

that there was “no animosity between them.” The prosecutor’s statement makes clear that

this is not a case in which a defendant coerced or threatened a victim into refraining from

assisting investigators or prosecutors.    For this reason, the district court’s ruling is

especially repugnant to the long-standing purpose of the marital privilege: to not “cause

strife between the parties to a marriage contract,” to not undermine families and thus

“weaken the entire social structure,” to not impose “antagonistic interests . . . upon the

intimate relations of husband and wife,” and to avoid “the harm to the public which results

from marital discord.” State v. Gianakos, 644 N.W.2d 409, 416 (Minn. 2002) (quoting

State v. Feste, 205 Minn. 73, 74-75, 285 N.W. 85, 86 (1939)). These circumstances set

this case apart from Zais, a case in which the defendant had quarreled with his wife one

                                           CS-3
day earlier and obviously directed his criminal conduct toward his wife, who reported it to

law enforcement and apparently cooperated with the prosecution. See 805 N.W.2d at 35.

       Thus, I would conclude that Mix was not accused of committing a crime against his

wife, that the crime-against-the-spouse exception to the marital privilege does not apply,

and that the district court erred by overruling Mix’s objection to his wife’s testimony.

                                             B.

       The state argues in the alternative that any error by the district court would be a

harmless error. See Minn. R. Crim. P. 31.01; State v. Expose, 872 N.W.2d 252, 260-61

(Minn. 2015) (applying harmless-error test to erroneous admission of testimony protected

by privilege). The state’s alternative argument has merit. As described in the opinion of

the court, the state’s evidence was strong. The state’s forensic evidence showed that the

fire was intentionally set, and Mix did not disagree when he testified on cross-examination.

The evidence shows that only three persons were present in the home when the fire started:

Mix, his wife, and his daughter. The state’s evidence also shows that Mix was unemployed

and was experiencing financial difficulties, including the prospect of expensive repairs to

his home. Mix’s testimony that he did not start the fire does not appear to be nearly as

convincing as the state’s evidence. In closing argument, Mix’s attorney could do little

more than emphasize the state’s obligation to prove its case beyond a reasonable doubt. In

addition, K.M.’s testimony was mostly repetitive of her pre-trial statements. The audio-

recordings of those statements were played for the jury, and Mix does not contest the

admissibility of those statements on appeal.       Furthermore, the prosecutor’s closing

argument relied almost exclusively on the testimony of the state’s other witnesses and on

                                           CS-4
K.M.’s pre-trial statements. Thus, I would conclude that the district court’s erroneous

admission of K.M.’s testimony did not “substantially influence[] the verdict.” See Expose,

872 N.W.2d at 260.

      For these reasons, I join in the court’s decision to affirm Mix’s conviction.




                                          CS-5
