Clay County District Court File No. 14-CR-11-4063 Smith, Judge
Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and Brian J. Melton, Clay County Attorney, Heidi M.F. Davies, Assistant County Attorney, Moorhead, Minnesota (for respondent)
Eric J. Nelson, Christina Zauhar, Halberg Criminal Defense, Bloomington, Minnesota (for appellant)
Considered and decided by Smith, Presiding Judge; Schellhas, Judge; and Bjorkman, Judge.
In less than two weeks, six fires occurred on appellant's property, eventually destroying her house and barn. Appellant was suspected of setting the fires herself and attempting to implicate a former lover. Appellant was subsequently charged with three counts of first-degree arson, in violation of Minn. Stat. § 609.561, subds. 1, 3(a) (2010). A jury found appellant guilty of all three counts, and appellant was subsequently sentenced. On appeal, appellant challenges whether the evidence was sufficient to support the jury's verdict. Appellant also asserts that she received ineffective assistance of counsel and requests that we remand for a new trial. We affirm.
Appellant Tara Andvik (appellant) and her husband (Mr. Andvik) married in 2003 and have two minor children together. They later bought the Andvik family homestead from Mr. Andvik's grandmother. Before the fires occurred, the couple's only financial debt was their mortgage. They paid their monthly mortgage payments and credit card bills in full.
Appellant became interested in hunting, and specifically bow hunting, in 2009. Because Mr. Andvik was already a hunting enthusiast, the couple discussed becoming professional hunters. Appellant utilized a public social media page to promote hunting, but the page also garnered attention from—and threats to appellant by—anti-hunting activists.
In 2010, a television show focused on hunting requested viewer submissions, prompting Mr. Andvik and appellant to submit a hunting video. Appellant later contacted K.B., a Wisconsin resident who edits and produces hunting television shows. She initially contacted him about a video-editing question, after which the two of them maintained regular contact. In January 2011, Mr. Andvik and appellant met K.B. at a trade show. K.B. introduced the Andviks to T.G. and J.G. for the purpose of persuading television hosts T.G. and J.G. to feature the Andviks on their television program.
Appellant and K.B. Affair
Appellant and K.B. kept in frequent contact, including several telephone calls daily, as well as texting and e-mailing. They eventually began an extramarital affair. J.G. assisted appellant and K.B. by paying for hotel visits, so that K.B. could avoid detection by his wife. Even so, appellant and K.B.'s group of friends knew that the two were in love and planned to marry. Mr. Andvik, however, was not aware of the affair. In May 2011, appellant chose an engagement ring, and in June 2011, K.B. purchased it, proposed to appellant, and appellant accepted. K.B. and his wife began divorce proceedings and, because K.B. would have difficulty accessing funds until his divorce was completed, J.G. agreed to buy K.B. and appellant a house. Those plans fell through, however, in late July 2011 because J.G. and K.B. learned that appellant, despite claiming otherwise, had not filed for divorce from Mr. Andvik. K.B. and appellant briefly reconciled, but three days later appellant lied to him about an additional matter, prompting K.B. to end the romantic relationship a final time.
Soon thereafter, appellant petitioned for a harassment restraining order (HRO) against K.B. Although she was never K.B.'s employee, in her petition appellant portrayed K.B. as an employer who was sexually harassing her. The district court granted her petition on August 3, 2011, but after receiving the HRO, appellant continued to call K.B.'s home and cellular telephones "nonstop." On August 19, K.B. was granted an HRO against appellant, after which she called him 64 times over the next five days.On October 7, 2011, appellant posted K.B.'s HRO on her social media page.
October 7 Grass Fire
On the evening of October 7, 2011, Mr. Andvik took the children to a local football game. Appellant stayed at home. During the football game's halftime, Mr. Andvik received a phone call from his mother reporting a fire on the Andvik property. The fire was a large grass fire, with flames 20 to 30 feet high. He left the football game immediately and called appellant, who said she was outside in search of raccoons.
Law enforcement officials questioned appellant about whether she had been doing anything near the grass that would have caused the fire. She responded that she had been bow hunting beaver and that a person "can't start a fire with a bow." The comment struck the questioning officer as "kind of strange" but not "too out of the ordinary." The fire was not classified as suspicious because there had been several recent grass fires in the area. Accordingly, no cause-and-origin investigation was completed. The fire department extinguished the fire at approximately midnight.
October 8 Grass Fire
Hours after extinguishing the October 7 grass fire, the fire department was dispatched to the Andvik property. Mr. Andvik heard the family's dog whining at approximately 5:00 a.m. When he checked on the dog, he observed a grass fire on the property. Although appellant was in the couple's bed when Mr. Andvik went to bed, she was in their daughter's room when Mr. Andvik noticed the fire.
After the fire department arrived, appellant remarked to a law enforcement official, "Don't you think it's strange there's a second fire here when there had been one just the night before?" The law enforcement official responded that he did not think the second fire was suspicious because sometimes fires rekindle. However, the grass fire from October 7 and the grass fire from October 8 did not join, and the wind would have needed to blow exactly opposite from the direction it was blowing for embers from the first fire to have caused the second fire.
October 12 Deck Fire
On the night of October 12, appellant and Mr. Andvik went to bed together. During the night, Mr. Andvik awoke and heard the dog stirring. When he checked on the dog, he observed that the deck was on fire. When Mr. Andvik searched for appellant, he found her coming out of their son's bedroom. Although the fire department was dispatched, Mr. Andvik's use of a garden hose was largely successful in extinguishing the fire. Appellant assisted Mr. Andvik by filling containers of water to douse the flames. When Mr. Andvik was asked if appellant seemed "surprised or upset" that the deck was on fire, Mr. Andvik replied, "Surprised, yes."
The fire department contacted the state fire marshal to investigate the deck fire because the origin appeared man-made. When Mr. Andvik and appellant were told that the fire marshal would investigate, appellant responded, "About f---ing time. This is the third fire." One firefighter testified that, as the fire ...