            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                          FEBRUARY 1998 SESSION
                                                          May 22, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE,           *    C.C.A. # 01C01-9705-CC-00165 Clerk
                                                   Appellate Court

             Appellee,        *    MONTGOMERY COUNTY

VS.                           *    Hon. Robert W . Wedemeyer, Judge

JOHN JASON BAKENHUS,          *    (Aggravated arson, arson, theft over $500,
                                   aggravated burglary, misdemeanor theft,
             Appellant.       *    civil rights intimidation)




For Appellant:                     For Appellee:

Gregory D. Smith                   John Knox Walkup
One Public Square, Ste. 321        Attorney General and Reporter
Clarksville, TN 37040
(on appeal)                        Janis L. Turner
                                   Counsel for the State
Edward E. DeWerff                  Criminal Justice Division
103 S. Third Street                Cordell Hull Building, Second Floor
Clarksville, TN 37040              425 Fifth Avenue North
(at trial)                         Nashville, TN 37243-0493

                                   Arthur F. Bieber
                                   Assistant District Attorney General
                                   204 Franklin Street, Ste. 200
                                   Clarksville, TN 37040




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, JUDGE
                                        OPINION

                The defendant, John Jason Bakenhus, was indicted for aggravated

arson, two counts of arson, three counts of civil rights intimidation, aggravated

burglary, theft of property over five hundred dollars and theft of property under five

hundred dollars. The jury returned guilty verdicts on all nine counts. The trial court

imposed a Range I, effective sentence of twenty-two and one-half years and

ordered restitution in excess of $65,000. The defendant was convicted for the

same acts in federal court. The state and federal sentences are to be served

concurrently.



                In this appeal of right, the defendant presents the following issues for

our review:

                (I)    whether the evidence is sufficient to support a
                verdict for aggravated arson;

                (II)   whether the trial court erred by admitting a
                photograph of a swastika and a sketch of a Klu Klux Klan
                lynching; and

                (III) whether the indictments in counts VII, VIII and IX
                contain a material variance that warrants their dismissal.



                We find no error and affirm the judgment of the trial court.



                During the early morning hours of August 4, 1994, James L. Johnson

and his family were awakened by a loud noise. Johnson told his wife to call 911, got

a gun, and went to investigate. When he opened his front door, Johnson discovered

his garage on fire and then noticed someone in a small white car drive by several

times. Sometime after daylight, Johnson discovered melted siding and burned

shutters. He found broken liquor bottles in the flower bed and smelled gasoline or

diesel fuel. Johnson found a hate letter in his mailbox and noticed eight or ten small


                                             2
holes in his front gutter, which appeared to be caused by a shotgun blast.



              Nine days later, Georgia O'Hara, who lives on the same road as

Johnson, learned that there had been a fire at her residence. Firefighters and police

were at the scene when she returned at about 9:00 P.M. The damage was

extensive. An antique fish tank had been "shot out," and two television sets, valued

at $400 and $300, had been stolen. The glass frame in which she kept a

photograph of her adopted son was smashed.



              On the same day, Robert Smith, a local newspaper photographer,

received an anonymous phone call. The caller claimed that "A.F." was responsible

for burning a house and that if the "n------ in the area didn't get out of the area, then

he was going to kill them all."



              On August 18, 1994, Vester Lee Carney, the president of an

organization comprised wholly of African-Americans, learned that their historic

meeting lodge was fully engulfed in flames. The building was completely destroyed.

The picnic pavilion was marred with spray-painted racial slurs. The charter and

historic photographs of former members had been damaged and discarded outside

the building. A kerosene heater valued at eighty dollars was stolen from the lodge.



              Brian Beuscher was introduced to the defendant in late July of 1994 by

a mutual friend Charles Neblett. Beuscher recalled that the defendant, then twenty-

one years old, was attempting to organize a group which would conduct acts of

violence against African-Americans and Hispanics in return for payment. Beuscher,

age sixteen at the time, signed an oath and joined the group. Five other members

between the ages of fourteen and sixteen were also recruited by the defendant.


                                            3
             Beuscher testified that on August 4, 1994, he, Neblett, and the

defendant prepared Molotov cocktails by filling liquor bottles with gasoline and

inserting a cloth wick. They also had ski masks and gloves, a shotgun, the Molotov

cocktails, and a note Beuscher had written at the direction of the defendant: "Dear

Johnsons, A.F. wants you to leave our white community! You coons! Coon hunting

season is open! A.F." At about midnight, they left in Neblett's truck. Beuscher

testified the defendant provided instructions. They parked at a cemetery about one

hundred feet from the Johnson residence, put the note in the Johnson's mailbox and

fired the shotgun at his residence. Neblett threw two lighted Molotov cocktails at the

house and hit the attached garage. The defendant remained in the truck. Afterward

the three men returned to the defendant's house, got in his vehicle, and returned to

the Johnson residence to observe what they had accomplished.



             Over the next few days, Beuscher met with the defendant to review

plans for their next "mission" which targeted another house on the same road. He

recalled that the defendant drew a layout of the house and discussed stealing items

to sell. Beuscher testified that the defendant planned to pour out a gallon of

gasoline in the residence rather then using Molotov cocktails. On the date of the

O'Hara fire, Beuscher and the defendant, using ski masks and gloves, and armed

with a shotgun and pistol, drove the defendant's vehicle to a place near the

residence. Beuscher remembered knocking on the front door and that no one

answered. He testified that the defendant kicked in the back door and directed

Beuscher, who was armed with a pistol, to enter first. The defendant also entered

the residence and instructed Beuscher to steal the television set from the living

room. The defendant fired his shotgun into a fishtank then directed Beuscher to

steal a second television set. Beuscher asserted that the defendant then poured

gasoline throughout the kitchen and living room, breaking glass figurines and a


                                          4
framed photograph that hung by the front door. Beuscher claimed neither had

ignited the fire but acknowledged that the house was burning. Beuscher and the

defendant fled the scene, hid the television sets, and concealed their gloves and

masks in the defendant's briefcase. Beuscher denied preparing Molotov cocktails

for this arson and said he did not know how the two empty liquor bottles ended up in

the O'Hara house.



              A few nights later, the defendant asked Beuscher to participate in a

third arson which targeted the Great Benevolent Lodge. Beuscher refused,

explaining that he was tired. He testified that the defendant admitted he and Neblett

had burned the lodge. Beuscher acknowledged that he helped the defendant pawn

a kerosene heater stolen from the lodge and one of the televisions stolen from the

O'Hara residence.



              Detective Clifton Smith of the Montgomery County Sheriff's

Department investigated the Johnson fire. He found broken liquor bottles, a piece of

cloth from the flower bed which smelled like gasoline or petroleum, and a shotgun

wadding from a number eight shell. The Johnsons provided Detective Smith with

the hate letter.



              Detective Smith also investigated the O'Hara fire. He found two

unbroken liquor bottles, cloth wicks which smelled of petroleum, an antifreeze jug,

and a number six Winchester shotgun shell. He recalled seeing a number of broken

figurines, the shattered fishtank, and a smashed photograph still hanging on the

wall. The fire damaged the kitchen, bathroom, stairs and back door area.



               A few days later, Detective Smith responded to the fire at the 110-


                                           5
year-old Great Benevolent Lodge which was fully engulfed in flames. The

magnitude of the fire prevented investigators from determining whether accelerants

had been used. A nearby picnic shelter was defaced with racial slurs and the

phrase, "A.F. Strikes Again."



             Detective Smith testified that he connected the three incidents by the

letter left in the Johnson mailbox, the anonymous phone call to the newspaper, and

the graffiti at the lodge. He predicted that the next Saturday night another incident

might occur, so he organized a stake-out. The defendant was stopped and

consented to a search of his vehicle. Accelerants were discovered. Eventually, the

defendant confessed. His statement led to the discovery of pawn tickets, a shotgun,

number six and eight shells, and empty cans of spray paint.



             Other officers found the defendant's briefcase from the garage of his

father's house. It contained organization rules, regulations, oath, and a membership

list. There were manuals on bomb making and war devices and a piece of paper

listing types of grenades and explosives. Officers photographed a painting of a Nazi

swastika on the wall of the defendant's bedroom. The defendant provided

investigators with a small notebook containing hand drawings of a hooded KKK

member lynching a man.



              In his statements to Detective Smith, the defendant denied having

animosity toward African-Americans but acknowledged that he despised interracial

marriages. Although he initially denied membership in an extremist organization,

he inquired whether Detective Smith had found a note in a mailbox, whether anyone

had called the newspaper, and whether any graffiti had been found on a roadway or

building. Detective Smith reviewed the membership list, contacted and interviewed


                                           6
the members, and finally confronted the defendant who then admitted his guilt.



              The defendant confessed to Detective Smith that he had instructed

Beuscher to write the note and to shoot at the Johnson house. He also admitted

providing Molotov cocktails to Neblett to throw at the house. He acknowledged his

involvement in both the O'Hara and lodge fires. The defendant conceded that he

had entered the lodge, lit some paperwork, and helped Neblett paint racial slurs on

the picnic shelter. The defendant admitted having another member make the

anonymous telephone call to the newspaper and informed Detective Smith that

"A.F." were initials for the Aryan Faction.



              A fingerprint expert, Paul Llewellyn, Jr., testified that the fingerprints on

the papers found in the briefcase matched those of the defendant. John McOwen, a

forensic chemist, found that the liquor bottles, wicks and gasoline mixture at the

Johnson residence were consistent with those similar items discovered at the

O'Hara residence. His tests also confirmed the presence of gasoline in the

antifreeze jug recovered from her home.



                                              I

              Initially, the defendant claims that the evidence was insufficient for the

aggravated arson because he was "not present" when the Johnson residence was

burned. The defendant contends that he is guilty only of facilitation to commit a

felony for the acts of Beuscher and Neblett.



              On appeal, of course, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the


                                              7
witnesses, the weight to be given their testimony, and the reconciliation of conflicts

in the proof are matters entrusted to the jury as trier of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light

most favorable to the state, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).



              A person "who knowingly damages any structure by means of a fire or

explosion ... [w]ithout the consent of all persons who have a possessory, proprietary

or security interest therein" commits arson. Tenn. Code Ann. § 39-14-301.

Aggravated arson is arson committed "[w]hen one or more persons are present

therein." Tenn. Code Ann. § 39-14-302. "'Knowing' refers to a person who acts

knowingly with respect to the conduct or circumstances surrounding the conduct

when the person is aware of the nature of the conduct or that the circumstances

exist. A person acts knowingly with respect to a result of the person's conduct when

the person is aware that the conduct is reasonably certain to cause the result."

Tenn. Code Ann. § 39-11-302(b). A person is held criminally responsible for the

conduct of another when:

              Acting with intent to promote or assist the commission of
              the offense, or to benefit in the proceeds or results of the
              offense, the person solicits, directs, aids, or attempts to
              aid another person to commit the offense[.]

Tenn. Code Ann. § 39-11-402(2).



              There was proof that the defendant organized Aryan Faction, recruited

members, and eventually provided Beuscher with a shotgun. There was testimony

that the defendant formulated the content of the hate letter left in the Johnson

mailbox. The defendant provided the materials and helped assemble the Molotov

                                           8
cocktails. He gave Beuscher and Neblett instructions for the crimes against the

Johnsons. There was proof that he watched the commission of the crimes from only

a hundred feet away. Molotov cocktails were thrown against the brick wall of the

garage while the Johnsons were inside sleeping. In our view, the evidence was

sufficient to show that while Neblett committed the aggravated arson, the defendant

shared in his intent, directed his actions, and aided in completion of the offense.

Because there was adequate proof that the defendant was criminally responsible for

Neblett's conduct, the evidence is sufficient to support the conviction for aggravated

arson.



                                            II

              The defendant next complains that the trial court erred by admitting

into evidence a sketch and a photograph of a painting because the prejudicial effect

of these exhibits outweighed their probative value. The state argues that the

exhibits were admissible to show intent to intimidate, an element of the offense of

civil rights intimidation. The trial judge ruled that the exhibits were admissible to

prove the defendant's intent to intimidate based on racial prejudice and to show the

defendant's connection to Aryan Faction. These exhibits are best described as

follows:

              Exhibit 43:   A poster-size, rectangular painting of a
                            black swastika in a white circle on a red
                            background resembling the Nazi flag;

              Exhibit 44:   A crude 5 x 7 inch sketch in red ink
                            depicting a Klu Klux Klan member in hood
                            and robe gesturing toward a man hanging
                            by a noose from a tree.



              The admissibility of this evidence is governed by Tenn. R. Evid. 403.

See also State v. Banks, 564 S.W.2d 947 (Tenn. 1978). "Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

                                            9
danger of unfair prejudice, confusion of the issues, or misleading the jury ...." Tenn.

R. Evid. 403. The evidence must be relevant and its probative value must outweigh

any prejudicial effect. Banks, 564 S.W.2d at 950-51. Relevant evidence "means

evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence." Tenn. R. Evid. 401. Whether to admit the

photograph or sketch is within the discretionary authority of the trial court and will

not be reversed absent a clear showing of an abuse. State v. Dickerson, 885

S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn.

Crim. App. 1985).



              When questioned by Detective Smith, the defendant denied harboring

racial animosity toward African-Americans. He initially denied membership in any

extremist group. The crime of civil rights intimidation requires a showing by the state

that the defendant damaged, destroyed, or defaced real property "with the intent to

unlawfully intimidate another because that other exercised a right or privilege ...."

Tenn. Code Ann. § 39-17-309(b)(4). The General Assembly declared that the

citizens of this state are afforded protection from "unlawful intimidation" regardless

of their race. Tenn. Code Ann. § 39-17-309(a). In our view, the photograph and

sketch are valuable to prove the defendant's intent to intimidate his victims because

of their race. While we concede that the exhibits may be offensive and crude, any

prejudice is outweighed by their significant probative value as to the charged

offense. See, e.g., United States v. McInnis, 976 F.2d 1226 (9th Cir. 1992) (holding

that under Fed. R. Evid. 403, exhibits portraying swastikas and racial slurs were

properly admitted to prove racial animus, an element of 42 U.S.C. § 3631(a), use of

force to interfere with housing rights on account of race).




                                           10
                                          III

             The defendant contends that Counts VII, VIII and IX contain material

variances and must be dismissed. The indictments allege as follows:

             SEVENTH COUNT:
             [T]hat on the 13th day of August, 1994, ... [the
             defendant] ... unlawfully, feloniously and knowingly did
             commit arson ... by knowingly damaging a structure, to
             wit: Great Benevolent Lodge 210 ....

             EIGHTH COUNT:
             [T]hat on the 13th day of August, 1994, ... [the
             defendant] ... unlawfully and knowingly did obtain ... a
             kerosene heater, under the value of Five Hundred
             ($500.00) Dollars, property of Great Benevolent Lodge
             210 ....

             NINTH COUNT:
             [T]hat on the 13th day of August, 1994, ... [the
             defendant] ... unlawfully, knowingly and feloniously did
             damage real property of members of Great Benevolent
             Lodge 210, with the intent ... to unlawfully intimidate said
             members ....

The proof at trial was that the defendant committed these crimes on August 18,

1994. The state contends that the variance is not material.



             The provisions of both the Federal and Tennessee Constitutions

guarantee the criminally accused knowledge of "the nature and cause of the

accusation." U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to comply with

these constitutional guidelines, an indictment or presentment must provide notice of

the offense charged, adequate grounds upon which a proper judgment may be

entered, and suitable protection against double jeopardy. State v. Pearce, 7 Tenn.

65, 67 (1823); State v. Byrd, 820 S.W.2d 739 (Tenn. 1991); Tenn. Code Ann. § 40-

13-202. A variance between the indictment and the evidence presented at trial is

not fatal unless it is both material and prejudicial, State v. Moss, 662 S.W.2d 590

(Tenn. 1984), thus affecting the substantial rights of the accused. State v. Mayes,

854 S.W.2d 638, 639-40 (Tenn. 1993) (citing Berger v. United States, 295 U.S. 78,


                                          11
82 (1935)). A variance is not material where the indictment and the proof

substantially correspond, the defendant is not misled or surprised at trial, and the

defendant is protected from a second prosecution for the same offense. Moss, 662

S.W.2d at 592. "Unless a special date is essential or time critical to the case, the

time of an offense alleged in the indictment is not material." State v. Hardin, 691

S.W.2d 578, 580 (Tenn. Crim. App. 1985) (citing State v. Fears, 659 S.W.2d 370

(Tenn. Crim. App. 1983)). In Fears, the defendant was charged with aggravated

rape of the victim "on the ____ day of July, 1981." The evidence presented at trial,

however, did not establish that the offense occurred in July. A panel of this court

held that the variance was not material:

              Since time is not an essence of the offense and time will
              not bar the commencement of prosecution of this
              offense, the time of the commission of the offense
              averred in the indictment is not material, and proof is not
              confined to the time charged.

Fears, 659 S.W.2d at 374 (citations omitted).



              The defendant was adequately informed of the charges he had to

defend and was, in our view, sufficiently protected against a second prosecution for

those offenses. The date of the offense was not particularly material and did not

handicap the defendant in the preparation or trial of his case. Because there is only

one Great Benevolent Lodge 210 to be destroyed in August of 1994, the variance in

dates should not have been a surprise. The proof substantially corresponded with

the indictment.



              Accordingly, the judgment of the trial court is affirmed.



                                           _________________________________
                                           Gary R. Wade, Judge



                                           12
CONCUR:



______________________________
William M. Barker, Judge



______________________________
Curwood Witt, Judge




                                 13
