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People v. Welborne

Court of Appeals of Colorado, Fifth Division

August 10, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Christopher Wesley Welborne, Defendant-Appellant.

         Larimer County District Court No. 13CR1167 Honorable Julie K. Field, Judge

          Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant


          NAVARRO, JUDGE

         ¶ 1 Defendant, Christopher Wesley Welborne, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree arson, criminal mischief, theft, and attempted theft. We affirm. In doing so, we hold - for the first time in a reported decision - that criminal mischief is not an included offense of first degree arson. See infra Part V.

         I. Factual and Procedural History

         ¶ 2 The prosecution alleged that Welborne and his mother, Kellie Lawson, set fire to the house in which they lived and then filed false insurance claims based on the fire. Welborne and Lawson were tried together, and the prosecution presented evidence of the following.

         ¶ 3 Welborne rented a house with Lawson, his then girlfriend J.K., and other family members. In April 2012, Welborne and Lawson purchased renters insurance and automobile insurance policies. The renters insurance covered losses up to $350, 000. The insurance agent had never seen a renters policy with such high coverage.

         ¶ 4 In August 2012, the insurance company notified Welborne and Lawson that it did not plan to renew the renters policy upon expiration in October 2012 because an adjustor had seen a large snake on the premises, contrary to a policy provision. The insurance agent was also suspicious of Welborne and Lawson due to the agent's past interactions with them, [1] and the agent asked a company underwriter if the company could cancel their policy before the expiration date. The agent told the underwriter he feared that, if the company did not cancel the policy, the "house is going to burn down." But the policy remained in place.

         ¶ 5 On August 27, 2012, the house in which Welborne and Lawson lived was set on fire. On that day, the occupants went on a picnic shortly before the fire started. Multiple sources of ignition were found, and all accidental causes were eliminated. Experts concluded that someone intentionally started the fire with an open-flame source that was removed from the scene when the fire started.

         ¶ 6 Before the day of the fire, Lawson said multiple times in front of many people that she wished the house would burn down so the family could start again. J.K. observed Lawson searching the Internet to learn methods by which a fire could start in a home without someone being there.

         ¶ 7 Welborne used "pyroman876" as an online username and as part of his e-mail address, and he chose faces created out of flames for his profile picture on Facebook. J.K. heard Welborne agree that burning down the house would be a good idea, and she heard him talking with Lawson about how a fire could be started by placing a scarf soaked in rubbing alcohol on an over-wattage bulb in a lamp. J.K. was so concerned about those statements that she discussed them with her mother. Her mother told J.K.'s sister about those concerns; after the fire, the sister advised authorities that the fire had been set intentionally.

         ¶ 8 Shortly after the fire, Welborne and Lawson filed an insurance claim based on allegedly destroyed personal items. They created a 140-page list of over 2800 items, seeking reimbursement for $443, 626. An inventory of the house, however, revealed only 816 items, valued at $102, 358. For example, although Welborne claimed that the fire had destroyed an electric wheelchair, fire investigators found the chair in a neighbor's garage. And investigators could not find some allegedly burned computers; their remnants should have been in the house.

         ¶ 9 J.K. was with Welborne when he completed the insurance claim. She saw him list items that he had never possessed or that had not been lost, including a laptop that he had actually taken to the picnic. When she questioned him, he said that he deserved a new laptop.

         ¶ 10 After living with Welborne in a hotel for a few months, J.K. moved to California. He visited her. She advised him that, if he wished to salvage their relationship, he must list his lies to her. On this list, Welborne admitted that he and his mother had set the fire. He also admitted that earlier insurance claims had been fraudulent. He then burned the list, telling J.K. that he would not let her use it as evidence against him.

         ¶ 11 Welborne claimed that the house had many electrical problems, but J.K. and the homeowner said they were aware only of a problem with a dimmer switch. Investigators eliminated the electrical system as the cause of the fire.

         ¶ 12 Lawson also denied starting the fire. She volunteered that she had spilled rubbing alcohol on her bedroom carpet, used rags to clean it up, and thrown the rags in a corner by a lamp. The lamp had a 200-watt bulb, far exceeding the recommended maximum of 60 watts. But investigators eliminated the alcohol-soaked rags thrown on the base of the lamp as the fire's cause.

         ¶ 13 The fire caused $285, 224 of damage to the house. Before ultimately denying their claim, the insurance company paid Welborne and Lawson $72, 468 for temporary living expenses and for some of the allegedly lost personal items.

         ¶ 14 The jury convicted Welborne and Lawson as charged. The trial court sentenced Welborne to six years in prison for arson, six years for criminal mischief, six years for attempted theft, and eight years for theft - all to be served concurrently. He directly appeals the judgment. (Lawson is not a party to this appeal.)

         II. Earlier Insurance Claims

         ¶ 15 Welborne contends that the trial court erred by admitting evidence of his earlier insurance claims to the same company. He is mistaken.

         A. Relevant Factual and Procedural History

         ¶ 16 Around August 2011, Welborne and Lawson purchased insurance policies for multiple vehicles and a renters insurance policy. Around December 2011, Welborne and Lawson filed an insurance claim alleging that many items had been stolen from their house. Police, however, could not find any signs of forced entry or any other evidence of a burglary. Welborne and Lawson could not provide receipts or other proof to support some claims. Lawson repeatedly increased the alleged value of the items taken each time she talked to the insurance agent. Still, the insurance company paid them approximately $30, 000. Welborne told J.K. that the items had not been stolen and that he and Lawson had committed insurance fraud.

         ¶ 17 Later, the family's van was found crashed in a field with the keys in the ignition. Welborne and Lawson claimed that the van had been stolen, and they filed an insurance claim. According to the investigating officer, the van was worth $2324. Lawson asserted that the value should be increased because of recent work on the van, but she could not provide proof of such work. Yet, the insurance company paid them approximately $6000. Welborne told J.K. that the van had not been stolen and that he and Lawson had crashed it so they could get a new one.

         ¶ 18 In July 2012, Lawson asserted that the house had been burglarized again and the burglar had stolen a samurai sword. J.K., however, had never seen a sword in the house. Once again, police did not find signs of forced entry or other evidence of a burglary. The insurance agent advised Lawson that the insurance company would look hard at another questionable claim. Welborne and Lawson ultimately dropped this claim.

         ¶ 19 The prosecutor moved to admit evidence of these prior insurance claims under CRE 404(b) and as res gestae evidence. The prosecutor argued that this evidence showed motive or intent, lack of accident or mistake, and common plan and preparation. The trial court agreed and admitted the evidence at trial, with limiting instructions.

         B. Standard of Review

         ¶ 20 A trial court has "substantial discretion when deciding whether to admit evidence of other acts." People v. Jones, 2013 CO 59, ¶ 11 (citation omitted). We will not disturb the court's ruling unless it is manifestly arbitrary, unreasonable, or unfair. People v. Rath, 44 P.3d ...

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