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State v. Rose

Court of Appeals of South Carolina

April 11, 2018

The State, Respondent,
v.
Paula Reed Rose, Appellant. Appellate Case No. 2015-002445

          Heard February 5, 2018

          Appeal From Greenville County R. Lawton McIntosh, Circuit Court Judge.

          Appellate Defenders Taylor Davis Gilliam and John Harrison Strom, both of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson and Assistant Attorney General Vann Henry Gunter, Jr., both of Columbia; and Solicitor William Walter Wilkins, III, of Greenville, all for Respondent.

          SHORT, J.

         Paula Reed Rose appeals her convictions of third-degree arson, filing a false police report, burning personal property to defraud an insurer, and making a false insurance claim to obtain benefits for fire loss, for which the trial court sentenced her to a cumulative term of five years' home incarceration with five years' probation. On appeal, Rose argues the trial court erred by (1) refusing to direct a verdict of acquittal on all charges when the State failed to present substantial circumstantial evidence of her guilt, (2) qualifying Investigator Benjamin Cannon as an expert in the origin and causes of fires, and (3) permitting the expert testimony of Investigator Charles Gonzalez regarding the use of his accelerant detection canine at the scene. We affirm.

         FACTS

         On the morning of July 27, 2012, Paula Rose called 911 to report a burglary. During the call, Rose stated three men were in her garage threatening her and demanding she open a gun safe. While on the phone with the 911 dispatcher, Rose heard a strange noise. She stepped out of her bedroom and realized a wicker couch on her back porch was on fire. The responding authorities found Rose outside worried about her pets who were still inside the home. Rose was covered in soot and wore jeans, a black shirt, and open-toed shoes. The firemen deduced there were two fires-one on the back porch and one on the front porch; however, the only active fire was in the rear of the home.

         Shortly after the responders extinguished the fire, Investigator Randy Morgan arrived. The only potential traces of the alleged burglars were some footprints and disposed latex gloves[1] near the front and back porches. Investigator Morgan testified nothing was stolen from the property, but both of the gates and the garage were found open.

         During Investigator Cannon's preliminary investigation, he found a red gas can on the front porch and a yellow gas can on the back porch. He noted "the aroma of gasoline on the front and prob[ably] kerosene or diesel-type on the back porch." Investigator Cannon subsequently called his colleague Investigator Gonzalez and his accelerant detection canine Misty to the scene. Misty alerted to multiple areas on the front and back porch.

         After taking Rose's statement, Investigator Morgan met with Investigators Cannon and Gonzalez to compare their findings. Based upon various oddities and inconsistencies, such as the location of the fires in relation to the alleged burglary; discrepancies between Rose's 911 call and victim statement; the superficial damage to the safe; the lack of stolen items; and Rose's calm, unaffected demeanor, all three investigators felt the case needed further investigation. Thereafter, they returned to the scene to further investigate the garage and interior of the home.

         Describing the damage to the safe, Investigator Cannon testified there were "a dozen or so marks" on the "upper right hand corner" and a few marks around the dial. Investigator Cannon explained the paint appeared chipped but there was no substantial damage to the safe. Looking for an item potentially used by the assailants to attempt to gain entry to the safe, the investigators found a small hatchet sitting on a shelf in the garage that appeared to be undisturbed. The investigators noted the hatchet had paint chips on the blade. While examining Rose's bedroom, Misty alerted to a pair of slippers.

         Before trial, Rose moved to exclude evidence of Misty's alerts and the testing results arising therefrom, arguing the use of a canine in this context was unreliable. Relying upon Florida v. Jardines, [2] the trial court ultimately denied Rose's motion, finding testimony regarding Misty's alerts would be admissible if the State established the proper foundation by showing the dog was properly certified through a recognized program. Rose renewed this objection at trial, and the trial court overruled the objection, later stating,

[A]t the end of the hours of preliminary testimony we had yesterday I don't feel the need to have any further [argument]. I know what I'm gonna hear . . . my ruling will be . . . that as long as the appropriate foundation is laid on the admission of the testimony about the . . . dog then [it will] be allowed . . . .

         At the close of the State's case, Rose moved for a directed verdict on all charges, arguing the State failed to present substantial circumstantial evidence of her guilt. Although the trial court noted its concern regarding the fraudulent insurance claim charge, the court ultimately denied Rose's motion as to all indictments. The jury found Rose guilty of all charges as indicted, and the trial court sentenced her to five years' home incarceration with five years' probation. This appeal followed.

         STANDARD ...


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