COA affirms arson conviction, rejects mistrial, evidence arguments

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A man convicted of setting fire to his sister’s property failed to convince the Court of Appeals of Indiana that the trial court erred in denying his request for a mistrial or in admitting “silent witness” evidence.

On June 19, 2022, Kenneth Kirby III’s sister Lindsey called 911 around 2 p.m. to report that her brother was breaking into her home and threatening to burn it down. She called back a short time later to report that her house was “smoking.”

The Evansville fire Department responded to the reports, and when District Chief Eric Eifert arrived, there was a “well-developed” fire in the backyard. Eifert also observed that a small garage in the yard was consumed in flames and was causing fire damage to the house, a neighboring business and power lines.

Evansville Police Department officer Allison Farmer was dispatched to investigate the report against Kirby. Meanwhile, EPD Det. Joseph Mayer determined that the fire was a result of human action and that the ignition fuel was gasoline.

Kirby was arrested at his brother Brandon’s house later that afternoon.

After the fire was out, Lindsey invited Det. Christopher Jones and Mayer into her home to show them a video from her backyard surveillance camera. The video showed two white men, one shirtless, wearing blue jean shorts and white shoes, and carrying a red container in his hand. The man went into the garage with the container and left without it, and as he was leaving smoke and flames began to come out of the garage.

The detectives asked Lindsey for a copy of the video, but she said she had a previous engagement and needed to leave. They arranged for her to call them later that day, but she never did, nor did she answer their calls. They later obtained a search warrant to seize the DVR, but it was gone when they arrived and was never found.

The evening of the fire, Brandon’s wife, Amber, consented to a search of their home. Law enforcement found a pair of blue jean shorts that matched the shirtless man in the video and white shoes that had a gasoline smell coming from them. Lab testing confirmed gasoline on the shoes.

The state then charged Kirby with Level 4 felony arson and Class B misdemeanor criminal mischief and alleged he was a habitual offender.

At the jury trial in October 2022, the Vanderburgh County prosecutor questioned officer Farmer about Kirby appearing in a police database for people who have had any sort of citation. Kirby’s counsel moved for a mistrial, claiming the state had implied Kirby had a criminal record.

The Vanderburgh Circuit Court granted the motion for mistrial and set a new date for the jury trial.

Before the new trial began, Kirby filed a motion to dismiss the arson charge as well as a motion to suppress evidence regarding the shoes that were found. The trial court denied both motions.

Then at the second trial, because the state never located the DVR from Lindsey’s house, Jones and Mayer testified as to their observations from the video. Kirby objected to the detectives’ testimony, but the trial court overruled him.

The jury found Kirby guilty Level 4 felony arson, and he subsequently admitted to being a habitual offender. He was then sentenced to a total of 17 years in the Department of Correction.

Kirby brought three issues to the appellate court for consideration. First, he argued the trial court erred in denying his motion to dismiss.

Rejecting that argument, COA Judge Elizabeth Tavitas wrote, “In denying the motion to dismiss … the trial court implicitly found that the prosecutor did not intend to cause a mistrial, and we see no reason to disagree.”

The second issue Kirby raised was whether the trial court abused its discretion by admitting testimony regarding the substance of the surveillance camera video that was not offered into evidence. The appellate court found the silent witness theory applies.

“Here, the detectives testified regarding their observations from a video that was a silent witness to the arson,” Tavitas wrote. “We find no practical difference between admitting the video itself and admitting the video’s substance indirectly through this testimony.

“… We are persuaded that the State laid a sufficient foundation for the detectives to testify regarding their observations from the video,” Tavitas added.

Lastly, Kirby argued there was insufficient evidence to support his conviction. The appellate court rejected that argument, as well.

“The evidence against Kirby … did not consist solely of hearsay evidence, and the jury could have reasonably inferred that the shirtless man who set fire to the garage was Kirby,” Tavitas concluded.

Judges L. Mark Bailey and Dana Kenworthy concurred in the case of Kenneth R. Kirby, III v. State of Indiana, 22A-CR-2917.

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