                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 74

                                                                    APRIL TERM, A.D. 2013


                                                                             June 17, 2013


NICHOLAS M. MONTEE,

Appellant
(Defendant),

v.                                                                  No. S-12-0166

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                       Appeal from the District Court of Laramie County
                        The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel;
      David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee:
      Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney
      General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D.
      Jackson, Director, Emily N. Thomas, Student Director, and Shaina A. Case,
      Student Intern, Prosecution Assistance Program, University of Wyoming, College
      of Law.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] Nicholas M. Montee was convicted of second degree arson. His claim on appeal
is that there was insufficient evidence to support his conviction. We conclude that the
evidence was sufficient, and we will affirm.

                                           ISSUE

[¶2] Mr. Montee presents a single issue: Was there sufficient evidence to support a
conviction of second degree arson? The State presents the same issue with more
elaboration:

              Under Wyo. Stat. Ann. § 6-3-102(a), a person is guilty of
              second degree arson if he starts a fire with intent to destroy or
              damage property to collect insurance. At trial, the State
              presented evidence that Mr. Montee admitted he started a fire
              in his late mother’s house, which he stood to inherit.
              Moreover, the State offered circumstantial evidence showing
              he intentionally started the fire to collect insurance proceeds.
              Did the State provide sufficient evidence for a reasonable jury
              to find Mr. Montee guilty?

                                          FACTS

[¶3] Mr. Montee’s mother died in 2010. He and his brother were her only heirs, and he
was appointed personal representative of her estate. The estate’s most valuable asset was
a home located on several acres in rural Laramie County. Mr. Montee had lived there
with his family all of his life, and continued to consider it his place of residence after his
mother died, although he was living with his fiancée in Cheyenne at least part of the time.

[¶4] When Mr. Montee testified at his trial, he explained that, after his father’s death in
2001, his mother began to “hoard everything.” As he described it, “She just would buy
and buy and gather stuff and stick it everywhere.” As a result of the home’s poor
condition, an appraiser for the estate determined that it had essentially no monetary value.
The real estate was worth up to $49,000. There was a mortgage on the property for
approximately $13,000. Because the estate had limited liquidity, Mr. Montee advanced
more than $8,000 from his own assets to pay the estate’s expenses, including mortgage
payments.

[¶5] On the afternoon of February 13, 2011, a neighbor saw smoke coming from the
Montee home, and called to report it. One of the responders contacted Mr. Montee to
inform him of the fire. When Mr. Montee arrived, he told the responder that he had been
at the home about an hour before the fire was reported. He also told the responder that


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the insurance policy on the home had lapsed, but that he had just recently renewed it.
After the fire was controlled, because the firefighters suspected arson, they assigned
“somebody to baby-sit the scene overnight to make sure it wasn’t tampered with.”

[¶6] Detective Thomas of the Laramie County Sheriff’s Department, a certified fire
“origin-and-cause technician,” was assigned to investigate the cause and origin of the
fire. He detailed the results of his investigation at trial. His initial impression was of “a
home severely damaged by a fire,” and he was “also struck by the amount of household
goods and clothing and things that were accumulated in the home.”

[¶7] Detective Thomas’s investigation eliminated several possible causes of the fire.
He ruled out natural causes such as lightning because the weather on the day of the fire
had been dry and windy with no precipitation. The propane supply to the Montee home
had been shut off for several months, so he ruled out an accidental gas fire. He found no
evidence that it was an electrical fire. He ruled out the electrical space heaters as sources
of the fire because there was no burn pattern on the floor underneath them. Having ruled
out these accidental causes, Detective Thomas began to suspect that the fire was set
intentionally.

[¶8] Detective Thomas explained to the jury the evidence suggesting arson. Evidence
of petroleum distillates was found in one of four samples taken from the home, although
the exact nature of the material was not determined. Examining the property around the
Montee home, Detective Thomas noted a detached storage shed with a “cluster of fishing
poles laying beside it.” He explained that it was significant to find “fishing poles in
February outside of a shed rather than inside” because “one of the flags of an
intentionally started fire is that a person gets valuable items out of the structure before
they burn it.” Inside this shed, he found firearms “laid on the floor, kind of on top of
each other. Generally,” he explained, “firearms are stored respectfully in some way
where they’re not laying on top of each other. Again, this appeared to be a hurried
gathering . . . similar to the fishing poles.” Other factors suggesting arson to Detective
Thomas included the isolated, rural location, and the fact that a new insurance policy on
the home had been purchased shortly before the fire. As Detective Thomas explained,
none of these factors by itself proved arson, “but if you accumulate several factors in the
course of your investigation that could become significant.”

[¶9] Detective Thomas also testified that Mr. Montee was the last person known to be
at the home, and he had been there within an hour of when the fire was reported. There
was evidence that Mr. Montee was experiencing financial difficulties, including the fact
that he had been on leave from his job without pay since August, 2010. Mr. Montee was
frustrated by the condition of the home and the amount of work he was required to do to
clean up the property.

[¶10] In April, 2011, Detective Thomas and another detective interviewed Mr. Montee


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for nearly four hours. That interview was recorded, and the recording was played in its
entirety for the jury during trial. Mr. Montee described various medical problems he had
experienced, and related his financial difficulties, admitting that he had considered
contacting a bankruptcy lawyer. He confirmed that he had been at the home on the day
of the fire, and explained he went there to feed the dogs and look for a knitting machine
he believed to be in his mother’s bedroom. He left around 2 o’clock in the afternoon, and
received the phone call about the fire approximately an hour later. Mr. Montee said that
he would “accept responsibility for possibly accidentally starting it,” adding, “I’m the
only one there . . . I’m the one that had to have done it.”

[¶11] He then said that, if he had started the fire, “it started in the kitchen because I
know I touched that stove.” Later, he said he thought he had turned on the stove. Then
he admitted, “I’m positive I turned it on.” He also said that there were papers and other
items on and near the stove when he turned it on.

[¶12] When asked why he had turned the stove on and left the house, Mr. Montee
explained, “There would be so many reasons. . . . I didn’t care anymore. I didn’t want
to deal with it anymore.” He also said he “wanted this house to go away.” He later told
the detectives, “I will accept responsibility . . . for the house burning down. I will accept
that responsibility,” and explained, “I know I turned the stove on, and I know I said
‘screw it.’” Later, he reconfirmed, “I know I turned on the stove, and I walked out.” The
detective asked, “And you knew it would start the house on fire?” Mr. Montee
responded, “I’m positive. I knew that it would.”

[¶13] However, even though Mr. Montee admitted to starting the fire in the kitchen, he
consistently maintained throughout the interview that he had not started a fire in his
mother’s bedroom closet. Detective Thomas testified that his initial hypothesis was that
the fire had started on the west end of the house in the mother’s bedroom closet. After
interviewing Mr. Montee, however, the detective

              went back and investigated the second location in the kitchen
              more firmly, found confirming evidence . . . there were two
              locations where the fire started.

                     One of the factors in an arson is multiple starts because
              they want to make sure it burns down, so it is logical in an
              arson fire there are more than one start locations, and both
              appear to be start locations.

                      I gave the kitchen more credence, ultimately, because
              he confessed to starting the fire there. He did not confess to
              starting the fire in the bedroom. . . .



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                    I felt that I had concluded rightfully that he had
             committed the arson, and just because he wouldn’t confess to
             both locations didn’t mean that a crime wasn’t committed.

As a result of his investigation, Detective Thomas concluded that the fire started “on the
cooking surface of the island in the kitchen,” with a possible secondary point of origin in
the mother’s bedroom closet.

[¶14] Another witness who testified at Mr. Montee’s trial was Rick Baldwin, a fire and
explosives investigator for the insurance company that had recently insured the Montee
home. The conclusions of his investigation were largely consistent with Detective
Thomas’s conclusions. For example, he said there was no lightning or other weather
phenomenon that could have started the fire, though there had been high winds the day of
the fire. He found no signs of the fire starting near the space heaters. He ruled out
electrical wiring, switches, appliances, and other heat-producing equipment as causes of
the fire. He also thought it unusual to find a number of fishing rods and reels outside in
the wintertime, and further noted that he found no dust or grass or leaves on the fishing
equipment, suggesting they had not been outside for long. Like Detective Thomas,
Mr. Baldwin concluded that Mr. Montee started the fire.

[¶15] In one respect, however, Mr. Baldwin’s conclusions differed from Detective
Thomas’s. He concluded that the “primary area of origin that is consistent with the
damage and destruction done to this building is in the master bedroom closet on the west
side of the building.” With regard to the kitchen, Mr. Baldwin believed either that the
fire started in the bedroom closet and was driven toward the kitchen, or that a second fire
could have been set in the kitchen. Mr. Montee had told him that a bag of coal and
bottles of propane fuel used for camping were in the kitchen. Mr. Baldwin said that such
things are “usually not found in a kitchen together,” and “together they form a pretty
potent fuel package.” He believed it possible that a fire started in the bedroom closet,
moved toward the kitchen and “caught that fuel package” on fire. However, the
information he had was not enough to say whether a second fire was set in the kitchen or
the fire moved to the kitchen from the bedroom closet. “It could have happened either
way.”

[¶16] The attorney for the estate of Mr. Montee’s mother confirmed that the
homeowner’s insurance policy on the Montee home had lapsed in December of 2010 for
lack of payment. The attorney stressed the need for Mr. Montee to maintain insurance
coverage in order to preserve the estate’s property. An insurance agent confirmed that
Mr. Montee had purchased a new homeowner’s policy on January 28, 2011. When
purchasing the new policy, Mr. Montee specifically asked the insurance agent if the
policy covered fire. The agent told him it did. The manager of the insurance agency
testified that Mr. Montee submitted a claim on the insurance on February 14, 2011, one
day after the fire.


                                            4
[¶17] The jury found Mr. Montee guilty of second degree arson. He was sentenced to a
term of three to five years incarceration, which was suspended in lieu of three years of
supervised probation. Mr. Montee challenges his conviction in this appeal.

                               STANDARD OF REVIEW

[¶18] In reviewing the sufficiency of the evidence, we apply the following standard of
review:

             [W]e examine and accept as true the State’s evidence and all
             reasonable inferences which can be drawn from it. We do not
             consider conflicting evidence presented by the defendant. We
             do not substitute our judgment for that of the jury; rather, we
             determine whether a jury could have reasonably concluded
             each of the elements of the crime was proven beyond a
             reasonable doubt.       This standard applies whether the
             supporting evidence is direct or circumstantial.

Guerrero v. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012), quoting
Anderson v. State, 2009 WY 119, ¶ 6, 216 P.3d 1143, 1145 (Wyo. 2009).

                                     DISCUSSION

[¶19] The crime of arson in the second degree is set forth in Wyo. Stat. Ann. § 6-3-
102(a) (LexisNexis 2011): “A person is guilty of second-degree arson if he starts a fire
or causes an explosion with intent to destroy or damage any property to cause collection
of insurance for the loss.” Applying this statute in Mr. Montee’s trial, the district court
instructed the jury that the elements of the crime were as follows:

             1.     On or about the 13th day of February, 2011
             2.     In Laramie County, Wyoming
             3.     The Defendant, NICHOLAS M MONTEE
             4.     Started a fire
             5.     With intent to destroy or damage any property to cause
                    collection of insurance for the loss.

(Emphasis in original.) The district court duly instructed the jury that it should find the
defendant guilty if “you find from your consideration of all the evidence that each of
these elements has been proved beyond a reasonable doubt,” but that it should find the
defendant not guilty if “on the other hand, you find from your consideration of all the
evidence that any of these elements has not been proved beyond a reasonable doubt.”



                                            5
[¶20] Mr. Montee claims on appeal that the State did not provide sufficient evidence to
support his conviction. He does not dispute the date or location of the fire, or that he may
have started it. He claims, however, that the State provided only circumstantial evidence
to establish intent, the fifth element of the crime of arson, and that such evidence was
insufficient to prove beyond a reasonable doubt that he acted with intent to destroy or
damage any property to cause collection of insurance for the loss.

[¶21] As an initial matter, we set aside Mr. Montee’s protest that the State relied solely
on circumstantial evidence to prove intent. As the district court instructed the jury in
Mr. Montee’s trial:

                        There are two types of evidence from which you may
              f i n d t h e t r u t h a s t o t h e f a c t s o f a c a s e – direct and
              circumstantial evidence. Direct evidence is the testimony of
              one who asserts actual knowledge of a fact, such as an
              eyewitness; circumstantial evidence is proof of a chain of
              facts and circumstances indicating whether the defendant is
              guilty or not guilty. The law makes no distinction between
              the weight to be given to either direct or circumstantial
              evidence. Nor is a greater degree of certainty required of
              circumstantial evidence than of direct evidence. You should
              weigh all the evidence in the case. After weighing all the
              evidence, if you are not convinced of the guilt of the
              defendant beyond a reasonable doubt, you must find him not
              guilty.

This jury instruction is consistent with a long line of decisions establishing that intent
may be proven by circumstantial evidence alone. E.g., Browning v. State, 2001 WY 93,
¶ 18, 32 P.3d 1061, 1068 (Wyo. 2001); Wentworth v. State, 975 P.2d 22, 26 (Wyo. 1999).
We have observed that intent “is rarely capable of establishment by direct evidence,” and
that “circumstantial evidence . . . most often is the only manner of proof available.”
Remmick v. State, 2012 WY 57, ¶ 26, 275 P.3d 467, 472 (Wyo. 2012), quoting Russell v.
State, 583 P.2d 690, 700 (Wyo. 1978). With specific regard to arson, we have observed
that, “While all the evidence against the appellant is circumstantial this is not unusual
because the very nature of the crime of arson ordinarily dictates that the evidence will be
circumstantial.” Vialpando v. State, 494 P.2d 939, 941 (Wyo. 1972). If the evidence was
sufficient, the State could rely solely on circumstantial evidence to prove Mr. Montee’s
intent.

[¶22] Turning to Mr. Montee’s claim that there was insufficient evidence to prove          his
intent, we believe the claim is readily disproved by the recitation of facts above.        To
recap, the State presented evidence of Mr. Montee’s financial difficulties and             his
frustration with the condition of the house. Mr. Montee purchased insurance for            the


                                                  6
home only sixteen days before the fire, and specifically asked the agent if the policy
covered fire. He filed a claim for the insurance proceeds on the day after the fire.
Detective Thomas and Mr. Baldwin both concluded that the fire was intentionally started
by Mr. Montee, and explained the bases for that conclusion in detail. Moreover,
Mr. Montee admitted during the interview that he turned on the stove and left the home,
knowing the house would burn down. This evidence is sufficient to allow a jury to
determine beyond a reasonable doubt that Mr. Montee started the fire with intent to
destroy or damage the home to cause collection of insurance for the loss.

[¶23] For the sake of completeness, we note that Mr. Montee testified at trial that he did
not start the fire intentionally. However, in analyzing a claim of sufficiency of the
evidence, we consider only the evidence favorable to the State and the reasonable
inferences that can be drawn from it. Guerrero, ¶ 14, 277 P.3d at 738-39. In addition, to
the extent his trial testimony conflicted with the admissions made in the taped interview,
it was the jury’s prerogative to determine which evidence was more credible. As we said
in a previous arson case, “Obviously there was a conflict in the evidence, but our rule is
that the credibility of witnesses, the weight of the evidence, and conflicts in the evidence
must be resolved by the finder of fact, the jury in this instance.” Aden v. State, 717 P.2d
326, 328 (Wyo. 1986).

[¶24] At the heart of Mr. Montee’s argument is an assertion that Detective Thomas’s
testimony conflicted with that of Mr. Baldwin. He characterizes that conflict in his brief:

              The prosecution’s first expert witness stated firmly that the
              “primary point of origin of the fire was on the cooking
              surface of the island in the kitchen.” The second expert
              stated, “The primary area of origin that is consistent with the
              damage and destruction done to this building is in the master
              bedroom closet on the west side of the building.” It is clear
              that there is no consensus as to where the fire was started.
              There is therefore doubt as to where Mr. Montee was
              supposed to have started the fire.

(Internal citations omitted.)

[¶25] Further, Mr. Montee contends, both expert witnesses testified that they adhered to
the NFPA921 Guide for Fire and Explosion Investigations. That source defines the term
“probable” as “more likely true than not,” and it defines the term “possible” as feasible
but not probable. It explains that if two or more hypotheses are equally likely, then the
level of certainty must be considered “possible.” Detective Thomas concluded that the
primary point of origin of the fire was the cooking surface of the kitchen island, with a
possible secondary point of origin in the master bedroom closet. Mr. Baldwin testified
that the primary place of origin was the master bedroom closet, and that the kitchen fire


                                             7
was either the result of the primary fire or a possible second place of origin. Mr. Montee
asserts that, because the experts presented two equally likely hypotheses about the origin
of the fire, the two hypotheses can only be considered possible, not probable. “If the fire
experts can only attribute a ‘possible’ likelihood as to where the fire started,” he posits,
the jury could not reasonably determine that “necessary fact to a greater degree, that of
beyond a reasonable doubt.”

[¶26] Mr. Montee’s argument is unpersuasive. The origin of the fire is not a “necessary
fact” because it is not one of the elements of the crime of second degree arson. In
Mr. Montee’s case, the State was required to prove that on or about the 13th day of
February, 2011, in Laramie County, Wyoming, the Defendant, Mr. Montee, started a fire
with intent to destroy or damage any property to cause collection of insurance for the
loss. It was not required to prove where the fire started. After considering the evidence,
the jury might have found that the fire started in the kitchen, in the bedroom closet, or in
both places. Aden, 717 P.2d at 328 (The jury determines “the credibility of witnesses, the
weight of the evidence, and conflicts in the evidence.”). Wherever the fire originated, the
evidence was sufficient for the jury to find that Mr. Montee started the fire with the
requisite intent.

[¶27] Affirmed.




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