dissenting. I agree with the majority that error occurred during the prosecution of Michael Lowry for arson, first-degree stalking, and eleven counts of violation of a protection order and that the case should be remanded for a new trial. I respectfully dissent, however, from the majority’s conclusion that the evidence was sufficient to support Lowry’s convictions for arson and first-degree stalking.
In arson cases, the State must overcome the common-law presumption against arson, which requires that the State must prove not only a burning, but also that the burning was by the willful act of some person criminally responsible for his acts and not by natural or accidental causes. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). In support of the claim that there was sufficient evidence to support the arson conviction, the majority cites to Bush v. State, 250 Ark. 224, 464 S.W.2d 792 (1971), in which the court noted that arson may be proved by circumstantial evidence and held that “there was adequate evidence” in that case “to show motive, threats, overt acts to carry out the threats, inadequate explanations of suspicious circumstances tending to show guilt, and unlikelihood of other possible causes of the conflagration, which serves to connect the circumstances and exclude any other reasonable hypothesis than the appellant’s guilt.” Bush, 250 Ark. at 229, 464 S.W.2d at 795. I note that in its description of Bush, the majority omits what I believe was the most salient fact in that case — that Bush was observed sprinkling gasoline on the floor of the burned residence immediately prior to the fire.
The majority concludes that, as in Bush, there was “motive, overt acts, threats, and inadequate explanation of suspicious sources” to show that Lowry committed arson. In considering the evidence, the majority states that Lowry had the motive to commit arson; that he had threatened to burn Lewellen’s residence; that he told Lewellen that he had considered burning his own property for the insurance proceeds; that Lowry’s residence had previously burned; and that Lowry’s truck and a person wearing Lowry’s boots were seen near the scene of the fire even though Lowry denied being there. The majority also notes the testimony of the fire chief that he could not determine how the fire started but that a gasoline fire makes a “whooshing” noise while an electrical fire makes a “popping” noise, and the majority notes Lewellen’s testimony that the fire roared and made a “whooshing” sound. But unremarked upon by the majority in its analysis of the sufficiency of the evidence was that there was no evidence, which was present in Bush, of “the unlikelihood of other possible causes of the conflagration, which serves to connect the circumstances and exclude any other reasonable hypothesis than the appellant’s guilt.”
This case involved the burning of two cars, not a house as in Bush. As noted by the majority, the fire chief testified that improperly installed electrical items may cause a fire, and he did not know that a CD player and speakers were installed in Kimberly Lewellen’s car on the day of the fire. And as noted by the majority, gasoline was leaking from both cars. No doubt, when the gasoline ignited, it made a “whooshing” sound. But how did the fire begin? Did the gasoline in Kimberly’s car ignite following an electrical fire in her car? The fire chief did not know how the fire started, and he testified that “[i]f there’s a secondary source of ignition around” an electrical short, “that’s usually what catches the second time.” And according to Lewellen, Kimberly’s car burned first and caused the second car to catch fire. Thus, there was no evidence that the ignition of the gasoline and hence Kimberly’s car was the result of a willful act, or at least, as the Bush court put it, there was no evidence showing the unlikelihood of other possible causes of the conflagration. Consequently, the evidence was insufficient to overcome the common-law presumption against arson, and Low-ry’s arson conviction should be reversed and dismissed.
Furthermore, I conclude that the evidence was insufficient to support the stalking conviction. The stalking statute provides in part that “[a] person commits stalking in the first degree if he purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury or placing that person in imminent fear of the death or serious bodily injury of his or her immediate family,” and further, that he “[d]oes so in contravention of an order of protection . . . protecting the same victim or victims. . . .” Ark. Code Ann. § 5-71-229(a)(l)(A) (Repl. 1997). In analyzing the sufficiency of the evidence to support the conviction, the majority notes that on the day before the protection order was entered, Lowry was involved in an altercation with Lewellen. That incident, however, occurred before the protection order was in effect, thus precluding its use in our analysis, as the stalking statute requires that the threat be made in contravention of a protection order. The majority also notes Lowry’s statements to Dustin Tuberville and Kimberly on the day before the fire and Lowry’s chasing of Dustin and Kimberly the day after the fire. My reading of the stalking statute is that it requires that the terroristic threat must be communicated to the victim of the crime, in this case, Sandra Lewellen, which did not happen in either instance relied upon by the majority.
Simply put, the majority does not point to any terroristic threats made to Lewellen that were made in contravention of a protection order. Given the absence of evidence, I would hold that the evidence was insufficient to support Lowry’s stalking conviction and dismiss this conviction as well.