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State v. Bondurant3/20/1998
t a rational trier of fact could have found the essential elements of arson beyond a reasonable doubt. Jackson, 443 U.S. 307, 99 S. Ct. 2781; Duncan, 698 S.W.2d 63; Tenn. R. App. P. 13(e). Specifically, the circumstantial evidence was sufficient for the jury to find the defendant caused his brother Pete to set the fire. On the evening after the fire, Denise went to meet the defendant at the Pulaski Rubber Company. He asked if she knew about the fire and suggested she drive by the victim's house. Later that night, Denise returned to the Pulaski Rubber Company to meet the defendant. Pete was there, and in the presence of the defendant, he told Denise how the fire was started in the front bedroom with a candle. When the three of them drove by the house, the defendant stated that the victim had "gotten what was coming to him for stealing from Matthew."
The defendant's normal shift was from 3 p.m. to 11 p.m., and the fire was called in at 11:47 p.m. From the defendant's account, he had already left work by this
time, gone to the Western Lounge, and walked out into the parking lot to drive home when he saw the flames from the victim's house. Instead of going to the house, the defendant went home because he had been drinking beer and did not want to risk being arrested for drunk driving .
The verdict is further supported by the defendant's previous actions in covering up the murder: cutting up the body, pouring Drano in the bathtub to remove any hair or blood, cutting out the carpet where the murder occurred, burning the body, and having Denise call and report the victim off from work. Accordingly, as to the arson conviction, we find that the evidence supports the jury's verdict and that the verdict is not contrary to the weight of the evidence.
In a related issue, the defendant contends that his arson conviction should be reversed because the indictment charged more than one offense of arson and the trial court failed to require the prosecution to elect the particular offense of arson upon which it would rely for conviction. We find that this issue is without merit.
The indictment in this case closely tracked the language of Tennessee Code Annotated section 39-3-202(1982):
That Pat Bondurant on or about the 22nd day of October, 1986, in Giles County, Tennessee and before the finding of this indictment, did unlawfully, willfully, and feloniously set fire to, or burn, cause to be burned, or aided, counseled or procured the burning of a house or outhouse, or any building, or any other structure, to-wit: the residence of William Ronnie Gaines, the property of Mrs. Raymond Fry.
Also in accordance with the statute, the trial court instructed the jury that they could only convict the defendant of arson if they found that he "set fire to, burned, caused to be burned, or aided, counseled, or procured the burning of the alleged property."
The doctrine of election requires the state to elect which set of facts it wishes to rely upon when it has charged a defendant with one offense but there is evidence of multiple, similar offenses. State v. John D. Bain, Sr., No. 03C01-9311-CR-00384 (Tenn. Crim. App., Knoxville, August 21, 1995). This doctrine has been applied to crimes of a sexual nature where there have been several separate incidents of sexual assault. In Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), the supreme court held that in such cases it is the duty of the trial court to require the state to make an election at the close of its case-in-chief as to the specific offenses it wishes to rely on for conviction. Id. at 804. In Burlison, the court set forth three fundamental reasons for requiring the state to make an election
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