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State v. Mlnarik

Court of Appeals of Minnesota

October 15, 2013

State of Minnesota, Respondent,
v.
Steven Gary Mlnarik, Appellant.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CR-11-16281.

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, III, Assistant County Attorney, Minneapolis, Minnesota (for respondent).

David W. Merchant, Chief Appellate Public Defender, Lydia Maria Villalva Lijo, Assistant Public Defender, St. Paul, Minnesota (for appellant).

Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

PETERSON, Judge.

In this appeal from his conviction of first-degree arson, appellant argues that (1) the circumstantial evidence was insufficient to support the conviction; and (2) the prosecutor committed misconduct by (a) arguing during closing that appellant was " like all criminal defendants" who think they are smart enough to get away with a crime, and (b) misstating the burden of proof during rebuttal. We affirm.

FACTS

On November 4, 2009, Mound police officers and firefighters were called to a fire at a home owned by appellant Steven Gary Mlnarik. Appellant lived on the lower level and rented the upper level to a tenant. Mound Deputy Fire Marshal Anthony Myers arrived at the scene as the fire was being extinguished. Myers spoke with appellant, who said that he had been working in the basement trying to remove an electrical outlet. Appellant said that the saw he was using hit a wire and caused an arc and shut off. Appellant said that the saw was plugged into the outlet that he was attempting to remove. Appellant went out to the garage to check the circuit breaker, saw that it had been tripped, and turned it back on. When appellant returned to the house, he saw heavy smoke and fire around the outlet and went to a neighbor's house to call 911.

Myers examined the basement area where appellant said that he saw the fire and found very little damage near the outlet where appellant said he had been working, which was inconsistent with appellant's explanation about how the fire started. The damage was much greater in the floor trusses and ceiling beams above the outlet. Myers spoke with appellant a second time. This time, appellant said that he had plugged a fluorescent light into the outlet and the saw into an extension cord. He said that the light had gone out, he was uncertain whether the saw had gone out, and he did not recall seeing an arc.

Deputy State Fire Marshal Ron Rahman investigated the fire. He was told that the fire had been in the basement and that it "was high up by the floor joists for the main level, the sub floor, and then the main laminated support beam or brace through the middle of the residence, " and his observations were consistent with that report. He determined that the fire did not originate in the area near the outlet and that it originated " just above the laminated support beam and in between floor joists in the basement level just underneath the sub floor of the main level." Rahman determined that the ignition source for the fire was "an open flame device, " such as a match or a lighter and that the fire was " incendiary or intentionally set."

Appellant told Rahman that he was working in the basement with a sawzall attempting to separate a metal outlet box from the wall stud. Appellant said that he put up a plastic tarp to protect the rest of the basement from dust and that he was using a fluorescent light to provide illumination. Appellant said that as soon as he began working, the saw and the light went out. Appellant went to the garage to check the circuit breaker, saw that it had been tripped, turned it back on, and returned to the house. As appellant entered the basement, he saw smoke and a fire a few inches from the floor.

Appellant's homeowner's-insurance carrier hired Mark Bishop, a fire explosion investigator, to investigate the fire. Bishop determined that appellant's story that the fire started near the outlet was inconsistent with the fire damage. Bishop explained that a fire spreads upward and outward from the point of origin and that there was no damage to the studs near the outlet. Bishop testified that if the fire had started near the outlet, the nearby studs would have been charred, if not destroyed, but they were not damaged. The fire damage that Bishop saw was five feet above the outlet and four and one-half feet over from it. Bishop ruled out potential accidental causes o f the fire and, with the assistance of an electrical engineer, ruled out potential electrical causes. Bishop determined that the fire was intentionally set and testified that it is very easy to start a fire without leaving behind evidence of an accelerant. Bishop testified:

Crumpled newspaper works wonderfully and of course by the time it's burned and the fire departments come through and put water on it, you're not going to find it . . . . So it's generally it's called readily available combustibles. Newspaper, toilet tissue, note paper . . . . ...

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