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State v. Bollinger

Supreme Court of Kansas

June 26, 2015

STATE OF KANSAS, Appellee,
v.
BRENT BOLLINGER, Appellant

Page 1004

[Copyrighted Material Omitted]

Page 1005

Appeal from Bourbon District Court; MARK WARD, judge.

SYLLABUS

BY THE COURT

1. By amending the arson statute in 1969, the legislature intended to expand the types of property interests subject to protection.

2. It is an essential element of the crime of arson that a party other than the defendant have an interest in the property damaged by fire.

3. The State is not required to establish the exact nature of " any interest" in order to satisfy the statutory requirement for arson. The State is required only to establish that the damaged property is a dwelling in which a person other than the defendant has an interest and that the property was damaged without the consent of the other person.

4. A spouse has a sufficient, cognizable legal interest in a shared residence to satisfy the requirement of the arson statute that a person other than the defendant has an interest in property. This interest is derived from a variety of sources, including statutory inchoate rights and permissive leaseholds.

5. The arson statute does not require that a defendant have actual knowledge of someone else's interest in the property.

6. It is difficult for a challenger to succeed in persuading a court that a statute is facially unconstitutional. Such challenges are disfavored, because they may rest on speculation, may be contrary to the fundamental principle of judicial restraint, and may threaten to undermine the democratic process. It is easier for a challenger to succeed in persuading a court that a statute is unconstitutional as applied to that particular challenger.

7. When discussing the evidence presented at trial, a prosecutor may ask a jury to draw reasonable inferences from the evidence.

8. A party must make a specific contemporaneous objection to the admission of evidence or testimony at trial; otherwise, the issue of the admission of that evidence or testimony is not preserved for appeal.

9. A continuing objection does not operate prospectively to preserve review of unspecified future testimony.

Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, argued the cause, and Melanie S. Morgan, Morgan Pilate LLC, of Kansas City, Missouri, was with him on the brief for appellant.

Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

OPINION

Page 1006

ROSEN, J.

Brent Allan Bollinger appeals from his convictions by a jury of felony murder, aggravated arson, and aggravated child endangerment. We find no error in the proceedings below and affirm the convictions.

The defendant Brent Bollinger (Bollinger) married the victim, Brenna Stewart Bollinger (Brenna), in March 2009. They lived together at 2166 Grand Road, Fort Scott, in a house that Bollinger bought in August 2008. Brenna had a son from a previous relationship who was 3 years old at the time and whom Bollinger adopted. The couple subsequently had a son together, Bryson, who was born in September 2009.

During the short duration of the marriage, the couple experienced considerable trouble in their relationship. Brenna filed for divorce in June 2010, but she subsequently reconciled with Bollinger. Despite the reconciliation, however, Bollinger and Brenna continued to drift apart.

In mid-October 2011, the marital relationship grew significantly more contentious. On Saturday, October 8, in anticipation of seeking a divorce, Brenna went to a bank to withdraw money to pay for a lawyer. Bollinger encountered her at the bank, and the two quarreled about the money. That same day, while Brenna was away from the house, Bollinger broke furniture that Brenna's grandmother had given her, smashed a television set with his fist, and took some of Brenna's clothing out of the house and burned it in the backyard. A friend later overheard a telephone conversation in which Brenna shouted at Bollinger, " I don't care, Brent, just burn the damn house, burn the race car, I don't care, I don't care anymore."

On Tuesday, October 11, Brenna informed Bollinger that she intended to obtain a divorce. The next day, she filed for divorce and obtained temporary ex parte orders, which included a provision for her continued residency at the house while she sought alternate living quarters. She did not have process served on Bollinger; instead, she told him that he should pick the papers up because she wanted to avoid an ordeal for the children.

The following evening, Thursday, October 13, 2011, a fire occurred at the house. The couple's older son was away from the house, spending the night with Brenna's mother. The other son, Bryson, was in the home, as was Brenna. Bollinger arrived at the house at around 10 p.m., shortly before the fire

Page 1007

began. Brenna was in an upstairs bedroom on her cell phone, but Bollinger interrupted the conversation when he entered the room and said, " What the fuck are you doing, bitch?" Brenna screamed and the phone went dead.

Gasoline was used as an accelerant in the fire. Bollinger would later testify that Brenna and he were alone in Bryson's bedroom when the fire began and he could not remember how the fire started.

Bollinger called 911 on a cell phone and, in a short and difficult-to-understand conversation, reported that his house was burning and his son was inside. He gave the dispatcher what sounded like a different address--2166 Maple Road--from that of the home, and he did not mention that Brenna was in the house. He subsequently drove to his grandmother's house with Bryson and, about 7 minutes later, called 911 from her land line. In that call, he correctly identified the address of the house and informed the dispatcher that his wife was in the house and she had no way of getting out.

Emergency personnel arrived at the burning house and found Bollinger standing in the yard, severely burned, especially on his upper torso. He screamed that Brenna was still in the house. He explained to emergency workers that the fire started after he lit a cigarette, igniting gasoline that had spilled on his shirt while he was cutting firewood. He told emergency workers that he was responsible for the fire. Bollinger's pockets contained the couple's two wedding rings, Brenna's driver's license, and some loose change.

Fire personnel entering the house were unable to reach Brenna before she died. An autopsy revealed that she was still breathing after the fire began. Injuries on her neck were consistent with strangulation. Bollinger was hospitalized for approximately 7 weeks following the fire and received a ...


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