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Montee v. State

Supreme Court of Wyoming

June 17, 2013

NICHOLAS M. MONTEE, Appellant (Defendant),
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.

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.


[¶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?


[¶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 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.

[ΒΆ8] 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 ...

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