In Arson case, evidence of a previous fire was admitted to show a common plan or scheme in the burning of an occupied structure which was defendant’s house. Evidence from an anonymous informant was also admitted. Defendant was convicted of arson, a class 2 dangerous felony, and attempted fraudulent schemes and artifices, a class 3 felony. Conviction affirmed by the Arizona Court of Appeals.
Previous House Fire Was Evidence of Common Plan or Scheme
When defendant’s home was set on fire in 2009, she was charged with two felonies: arson of an occupied structure (class 2 dangerous felony) and attempted fraudulent schemes and artifices (class 3 felony).
To establish a common plan or scheme after evidentiary hearing, evidence of a set fire that destroyed defendant’s unoccupied trailer in 2007 was admitted. Ariz. R. Evid. 404(b) directs how evidence of other crimes, wrongs, or acts, should be handled:
Except as provided in Rule 404(c) evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
To be admissible, a prior bad act must be shown, by clear and convincing evidence, to have been committed by the defendant. As an aside, this is considered to be a lesser burden than proving guilt beyond a reasonable doubt.
In the arson case, the judge found the probative value of the 2007 trailer fire evidence “was not substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury.”
Evidence of Other Crimes, Wrongs, or Acts
The 2007 trailer fire was admissible as “other act evidence” and included the following:
- Defendant had filed an homeowner’s insurance claim to recover $45,000.00 for the loss of three “snow-cone vender carts” she claimed were stored inside the trailer. When notified of the $500 recovery limit for business property on residential premises, she withdrew that claim.
- The insurance adjuster testified that an accelerant was used in the 2007 trailer fire, but snow-cone carts were not found among the debris. Defendant had told the adjuster her food carts “must have been stolen before somebody put the place on fire.”
- An anonymous tipster notified the fire department that “a man named Michael Agra was going to burn a house down.” Police placed a tracking device on Agra’s car, followed him to defendant’s neighborhood on March 1, 2009, and observed a fire at defendant’s house when Agra got back to his car.
The court declined defendant’s motion to discover the informant’s identity.
Arson and Linking Two Residential Fires
While under oath in 2009, defendant stated only her hotdog cart was lost or destroyed in the 2007 trailer fire. Among other things, defendant said she had “moved ‘slush machines’ … stored in her backyard into her residence before the 2009 fire.”
Other relevant evidence included similar unverified claims by defendant of thefts prior to both fires:
- Defendant reported her washer and dryer stolen from the abandoned trailer just weeks before the 2007 fire. However, “remains of a washer were visible in the trailer after the fire.”
- A day after the 2009 fire, defendant reported a theft of $50,000 in jewelry and $4,000 cash. However, that claim was inconsistent with testimony from the investigating police officer.
- Defendant claimed a number of snow-cone carts remained in her backyard in the 2009 fire because she was unable to move them. However, a Phoenix Fire Department investigator testified that he “did not see any carts outside the house after the fire.”
The jury was instructed to use the 2007 trailer fire evidence to establish “motive, intent, knowledge, lack of mistake or accident, preparation and common plan/modus operandi.” The trailer fire was not offered to show defendant’s character for or propensity to commit the charged act. Arieva appealed her conviction.
On Appeal, defendant argued the trial court abused its discretion in denying her motion to disclose the informant’s identity and in admitting the 2007 trailer fire evidence. Arieva argued the state failed to carry its burden of proving by clear and convincing evidence that: 1) she was involved in the 2007 trailer fire or; 2) the trailer fire was part of a “common plan or scheme” of the charged crime.
The Court of Appeals affirmed the conviction. The state met its evidentiary burden with regard to the 2007 trailer fire. The evidence was admissible to show a common scheme or plan of which the charged crime of arson was a part. Citing State v. Ives, 187 Ariz. 102 (1996).
The appeals court discussed the policy of protecting an informant’s identity unless nondisclosure would deprive the defendant of a fair trial. Arieva’s constitutional right to confront witnesses did not entitle her to the tipster’s identity. Lastly, defendant failed to show this informant had evidence material to her “guilt or punishment” as required before disclosure of tipster’s identity is possible.
Arizona v. Arieva, 1 CA-CR 14-0557 (Ariz. Ct. App. Oct. 4, 2016)
For precise language, read the court’s original opinion. Legal citations omitted.
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