Brenda McGowan (McGowan) appeals from her conviction for arson, a Class B felony.
McGowan presents two issues for our review, which we restate as follows:
The facts most favorable to the judgment reveal that on May 2, 1994, McGowan was evicted by court order from Tivoli Square Apartments for non-payment of rent. The following afternoon, Selena Harris (Harris) was cleaning apartments in the building when McGowan told her to "get out of there... because she was going to set it on fire." Record at 218. Around the same time, Margaret Lemon (Lemon), a carpet vendor, arrived at the complex to meet with property manager Karen Lee (Lee) and apartment manager Carmen Rowley (Rowley). Lemon observed McGowan talking on a pay phone near the leasing office. McGowan was swearing loudly into the phone and yelling, "I'm going to kill Carmen and I'm going to kill Karen." Record at 339. After McGowan hung up the phone, she walked past the office and announced that she had set fire to her apartment. A few moments later, the three women saw smoke pouring from the building.
Rowley then ran to the burning building to warn the residents. McGowan unsuccessfully attempted to block her entrance before fleeing the scene. While Rowley was searching the building for a maintenance worker whom she believed remained inside, she was overcome by smoke. Rowley was rescued by police and treated at the hospital.
Fire investigators later determined that the blaze started in McGowan's apartment. Burn patterns indicated that a flammable liquid had been poured onto the floor inside the entryway of the apartment and then ignited. Property damage was estimated at $25,000. McGowan was subsequently apprehended and charged by information with Class A felony arson. Following a jury trial, McGowan was found guilty, but mentally ill, of Class B felony arson.
Upon appeal, McGowan contends that the trial court erred in accepting the jury's verdict because she was charged with Class A arson and, pursuant to her successful objection, no final instructions or verdict forms had been provided for Class B felony arson.
The elements of both Class A felony arson and Class B felony arson are set forth in I.C. 35-43-1-1 (Burns Code Ed. Repl.1994), which provides in relevant part:
The trial court read a preliminary instruction which quoted the statute and specified the elements that the state was required to prove in order to convict McGowan of either class of felony arson.
At the conclusion of evidence, the trial court read the final instructions to the jury and provided them with a copy of both the final and the preliminary instructions. The jury was told to consider the preliminary instructions in reaching its verdict. The jury was also instructed that it could find the defendant guilty if "the State has proven beyond a reasonable doubt the material allegations of the charge against the defendant, or of any offense included thereunder". Record at 64. McGowan objected to the language in the latter instruction informing the jury that they could find her guilty of a lesser included offense. The trial court overruled this objection.
The jury received three verdict forms, providing them with the choice of returning the following verdicts: guilty of Class A felony arson, not guilty, or guilty of Class A felony arson but mentally ill at the time of the offense. During deliberations, the jury sent a message to the trial judge inquiring whether they had the option of finding McGowan guilty of Class B felony arson. The trial judge responded as follows: "Please re-read your instructions and continue to deliberate." Record at 50.
The jury then returned a verdict finding McGowan guilty but mentally ill of Class B felony arson by crossing out "A" on the verdict form and writing in "B". Record at 96. Upon appeal, McGowan contends that her due process rights were violated because she was convicted of a crime for which she was not charged. We disagree.
A criminal defendant is entitled to clear notice of the charges against him. Ind. Const. art. 1, sec. 13; Wright v. State (1995) Ind., 658 N.E.2d 563, 564. When a defendant is convicted of a lesser included offense which was not separately charged by the State, we look to whether the accused was placed upon fair notice as to the crime against which he must defend. Meriweather v. State (1995) Ind.App., 659 N.E.2d 133, 137-38, trans. denied. Indiana law recognizes two distinct categories of lesser included offenses: those which are "inherently included" in the greater offense and those which are "included as charged." Id. at 138. The lesser offense is "included as charged" if the factual allegations in the charging instrument satisfy all of the statutory elements necessary for conviction of the lesser offense. Wright, supra at 567. Whether a defendant may be properly convicted of an "included as charged" offense depends on the wording of the charging instrument. Id. at 569; Meriweather, supra.
A lesser offense is "inherently included" if it may be established by proof of the same material elements or less than all the material elements defining the greater offense, or if the only distinguishing feature is a lesser degree of culpability. Wright,
A verdict returned under a similar set of circumstances was upheld by our Supreme Court in Davenport v. State (1989) Ind., 536 N.E.2d 263, reh'g denied. Davenport was charged with conspiracy to commit Class B felony robbery, and no instructions were given to the jury concerning any lesser offenses. The trial court did, however, read an instruction mirroring the language of the statute, which provided that robbery was a Class C felony but was elevated to Class B status if committed while armed with a deadly weapon. Id. at 265-66. During deliberations, the jury sent the trial judge a note inquiring as to whether they had the option of convicting the defendant for the Class C felony and if they could alter the verdict form to reflect the change. Id. at 266. The court responded with a note stating, "The jury is the finder of the law and the evidence." Id. The jury then found the defendant guilty of conspiracy to commit robbery, a Class C felony.
In affirming the conviction, the court determined that the lesser offense was inherently included in the greater offense:
McGowan received fair notice of the charges against her and was not misled in her defense. It was within the purview of the jury to convict McGowan of the lesser offense.
McGowan additionally contends that the evidence was insufficient to establish that she committed the arson because none of the State's witnesses testified that they had seen her set the fire or had seen her in possession of accelerant. Arson is almost always subject to proof solely by circumstantial evidence. Barton v. State (1986) Ind., 490 N.E.2d 317, 318, reh'g denied. In reviewing the sufficiency of circumstantial evidence leading to a conviction, we use the same scope of review as when the evidence is direct. Galbraith v. State (1984) Ind.App., 468 N.E.2d 575, 577, trans. denied. This court will neither reweigh the evidence nor assess the credibility of the witnesses, but will consider only the probative evidence and reasonable inferences supporting the verdict. We will affirm the conviction if there is substantial evidence of probative value from which the trier of fact might reasonably infer guilt beyond a reasonable doubt. Garbison v. State (1988) Ind., 528 N.E.2d 1126; Linder v. State (1985) Ind., 485 N.E.2d 73, 78.
In this case, the evidence focused on four circumstantial elements of guilt—presence at the scene, conduct before and after the fire, proof that the fire was intentionally set, and motive. Shortly before the fire, McGowan made a telephone call in which she indicated that she was angry with apartment personnel because they had evicted her. McGowan was at the apartment complex when the fire started, but fled before firefighters arrived. Expert testimony revealed that an accelerant had been poured and ignited inside the entrance of McGowan's apartment. Although standing alone, evidence of motive, presence, or opportunity is insufficient to prove guilt, Barton, supra, 490 N.E.2d at 318, here the evidence, taken together, was sufficient to link McGowan with the eruption of the blaze. See Galbraith, supra, 468 N.E.2d at 577.
In addition, however, there was direct evidence supporting McGowan's conviction. On the day of the blaze, McGowan admitted to a number of witnesses that she was either going to set the building on fire or had already done so. Now, she contends that these admissions lack probative value because "it was evident that the defendant was not mentally sound on the day in question." Brief of Appellant at 9. In reaching its verdict of guilty but mentally ill, the jury considered both evidence of McGowan's incriminating statements as well as her testimony that she was suffering from mental illness and on medication at the time of the fire. McGowan is asking us to reweigh the evidence, which we cannot and will not do.
The judgment is affirmed.
KIRSCH and GARRARD, JJ., concur.
"To convict the defendant, the State must prove each of the following elements:
If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.
If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of arson, a Class B felony.
If the State further proved beyond a reasonable doubt the offense resulted in serious bodily injury to Carmen Rowley, you should find the defendant guilty of arson, a Class A felony." Record at 80.