County District Court No. 13CR1167 Honorable Julie K. Field,
Cynthia H. Coffman, Attorney General, Brock J. Swanson,
Assistant Attorney General, Denver, Colorado, for
M. Mooney, Alternate Defense Counsel, Denver, Colorado, for
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.
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,
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
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.)
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.
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
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
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.
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 ...