State v. James Justin Mack Farrar

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 23, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1740-CR Cir. Ct. No. 2021CF341

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES JUSTIN MACK FARRAR,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Marathon County:
LAMONT K. JACOBSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. James Justin Mack Farrar appeals a judgment of
conviction for arson of a building of another, as a repeater. Farrar argues that the
No. 2022AP1740-CR

evidence presented at his jury trial was insufficient to support his conviction. We
reject this argument and affirm.

BACKGROUND

¶2 The arson charge against Farrar arose following a March 1, 2021 fire
at a residence rented by Farrar’s father on 10th Avenue in Wausau (hereinafter,
“the residence”). At the time of the fire, Farrar’s father was in the hospital, and
Farrar was living at the residence.

¶3 To convict Farrar of the arson charge, the State needed to prove four
elements beyond a reasonable doubt: (1) that Farrar intentionally damaged a
building by means of fire; (2) that the building belonged to another person; (3) that
Farrar damaged the building without the owner’s consent; and (4) that Farrar knew
that the building belonged to another person and knew that the other person did
not consent to the damage of the building. See WIS JI—CRIMINAL 1404 (2008);
WIS. STAT. § 943.02(1)(a) (2021-22).1 At trial, the only one of these elements that
Farrar disputed was the intent element. In particular, the defense conceded that
Farrar had caused the fire at the residence but argued that he did so “accidentally”
and did not intend to damage the residence. More specifically, defense counsel
asserted that the fire was the result of Farrar combining “heavy drinking and being
careless with cigarettes.”

¶4 The jury rejected the defense’s theory that Farrar set the fire
accidentally and found Farrar guilty of the arson charge. Farrar now appeals,

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP1740-CR

challenging the sufficiency of the evidence to support his conviction. Additional
facts are provided below.

DISCUSSION

¶5 Whether the evidence was sufficient to sustain a defendant’s
conviction is a question of law that we review independently. State v. Smith,
2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. When reviewing the
sufficiency of the evidence, we apply a “highly deferential” test. State v.
Kimbrough, 2001 WI App 138, ¶12, 246 Wis. 2d 648, 630 N.W.2d 752. We will
not reverse unless the evidence is so insufficient in probative value and force that,
as a matter of law, no reasonable fact finder could have found guilt beyond a
reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752
(1990). Stated differently, we must affirm “[i]f any possibility exists that the trier
of fact could have drawn the appropriate inferences from the evidence adduced at
trial to find the requisite guilt,” even if we believe the trier of fact should not have
found guilt based on the evidence before it. Id. This standard applies regardless
of whether the evidence presented at trial was direct or circumstantial. Id. “[A]
finding of guilt may rest upon evidence that is entirely circumstantial,” and
“circumstantial evidence is oftentimes stronger and more satisfactory than direct
evidence.” Id. at 501.

¶6 As noted above, the only disputed issue at Farrar’s jury trial was
whether Farrar intended to damage the residence by means of fire. On appeal,
however, Farrar asserts that the evidence was insufficient to establish both that he
started the fire and that he did so with intent to damage the home. We agree with
the State that having conceded at trial that he caused the fire at the residence,
Farrar cannot now argue that the evidence was insufficient to prove that he did so.

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No. 2022AP1740-CR

See State v. English-Lancaster, 2002 WI App 74, ¶18, 252 Wis. 2d 388, 642
N.W.2d 627 (“Judicial estoppel is an equitable rule applied at the discretion of the
court to prevent a party from adopting inconsistent positions in legal
proceedings.”). Accordingly, we confine our analysis to whether the evidence at
trial was sufficient to establish that Farrar intended to damage the residence by
means of fire.2

¶7 The jury was instructed that in order to find that Farrar had the
requisite intent, it needed to find that Farrar “had the mental purpose to damage
the building of another by means of fire or was aware that his conduct was
practically certain to cause damage to the building of another.” See WIS JI—
CRIMINAL 1404 (2008). The jury was also instructed that it could determine intent
“directly or indirectly from all the facts in evidence concerning this offense” and
that it could “consider any statements or conduct of the [d]efendant which indicate
state of mind.” See WIS JI—CRIMINAL 923A (2010).

¶8 Applying these standards, we agree with the State that the evidence
at trial was sufficient to support the jury’s determination that Farrar intended to

2
In his reply brief, Farrar concedes that his trial attorney told the jury that Farrar caused
the fire at the residence. Farrar argues, however, that “there is nothing in the record which
demonstrates [that he] acquiesced to this concession.” Farrar further contends that the law is
unresolved as to whether an attorney may “make the unilateral decision to concede an element of
an offense.” He therefore asserts that if we conclude the evidence was sufficient to show that he
intended to damage the residence by means of fire, we should remand this matter to the circuit
court “for an evidentiary hearing to develop the record as to whether [defense counsel’s
concession that Farrar started the fire] was made with the consent of … Farrar, or was a unilateral
strategic decision made by counsel.”

Farrar has not raised an ineffective assistance of trial counsel claim on appeal. In
addition, Farrar did not file a postconviction motion alleging that his trial attorney was ineffective
by conceding that Farrar caused the fire. Because no ineffective assistance claim is before us, we
will not remand for an evidentiary hearing regarding the propriety of trial counsel’s concession
that Farrar caused the fire.

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No. 2022AP1740-CR

damage the residence by means of fire. At trial, Farrar’s stepsister, Sarah,3
testified that Farrar’s father was hospitalized at the time of the fire and that Farrar
was living at the residence. Sarah testified that she went to the residence twice on
the day of the fire because Farrar needed money. Sarah knew that Farrar wanted
to take over the lease for the residence, but she did not want him to do so. She and
Farrar discussed this subject during her visits to the residence on the day of the
fire.

¶9 Sarah testified that she left the residence at about 6:30 p.m. on the
day of the fire, and police notified her of the fire between 9:30 and 10:00 p.m. She
then went back to the residence and spoke with Farrar, who initially told her that
“somebody broke into the house and set the fire[].” At another point, however,
Farrar stated: “[W]hat the fuck am I going to do? What the fuck did I do? Where
am I going to stay?” (Emphasis added.) Sarah also testified that Farrar “just kept
screaming the F-word.” She believed this behavior showed that Farrar “knew he
was in trouble.”

¶10 Officer Matthew Grover of the Wausau Police Department, who was
the first law enforcement officer to respond to the fire, testified that Farrar’s
behavior at the scene was abnormal for a fire victim. He explained that Farrar
“was initially motivated in getting back towards the house,” which was not typical.
He also testified that victims of fire loss are typically “very emotional, and usually
it’s because of property, personal belongings and things that they’re losing and
know that they aren’t able to recover as a result of the fire.” Farrar, however, did
not display “any concern about any property or anything like that in the house.”

3
We refer to Farrar’s stepsister using a pseudonym in order to protect her privacy.

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No. 2022AP1740-CR

¶11 Officer Benjamin Thumann of the Wausau Police Department
testified that he also spoke with Farrar at the scene of the fire. According to
Thumann, Farrar “made several comments about directing the fire crew to a
particular area of the residence” and told Thumann that he had “firefighter
experience.” Thumann also testified that Farrar provided inconsistent accounts of
his whereabouts prior to the fire. Farrar “initially stated that he had left the
residence for approximately ten minutes to go to the gas station” and that, upon his
return, “he observed smoke coming from the chimney.” Later, Farrar told
Thumann that “he had left the residence for the same amount of time,
approximately ten minutes, to catch his breath,” but he did not go to the gas
station. Farrar told Thumann that he needed to catch his breath because “he had
learned … information about his father and was upset about that and also had
gotten into some argument, a verbal argument, with his girlfriend.”

¶12 Deputy Chief Jeremy Kopp of the Wausau Fire Department testified
that he was the “incident commander” for the fire at the residence. Kopp testified
that he spoke with Farrar at the scene of the fire, but Farrar’s statements
“throughout the first ten, twenty minutes, didn’t jibe, they weren’t consistent,
which drew [Kopp’s] attention to some concerns [he] might have with this fire.”
In particular, Kopp noted that Farrar “did talk about how he tried to get back in to
put the fire out, as well as to save some pets,” which was inconsistent with
Farrar’s earlier statement that he had discovered the fire when he returned from
“walking the pets.” Kopp also testified that he heard Farrar speaking loudly on the
phone “about watching his dad’s house and that, you know—there was some sort
of disagreement on who should have his dad’s things or the house if something
were to happen to his dad.”

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No. 2022AP1740-CR

¶13 Like Grover, Kopp testified that Farrar was not “acting like other
victims” of structure fires. He explained:

Typically when I arrive on a fire scene where someone is
losing personal belongings, they’re usually either
screaming, crying, upset, trying to explain to us what is
important to them, what needs to come out if there’s, you
know, people or pets left in the house, personal belongings
that might be important, those types of things, and those
never came up, it was more about him being a firefighter in
the past and how he tried to save it and what he did and
those type of things.

¶14 Kopp further testified that after the firefighters at the scene had
“knocked down” a fire in a bedroom on the main level of the residence, they
searched the house and discovered a second fire in the basement. Kopp testified
that the presence of two fires in the home, in different locations, caused him to
question whether the fires had been set intentionally because it is not common to
encounter two separate, unconnected fires at the scene of a structure fire. Kopp
therefore made the decision to call fire investigators.

¶15 Lieutenant Inspector Shahn Kariger of the Wausau Fire Department
testified as an expert regarding his investigation of the fire at the residence.
Kariger explained that the “cause of a fire” is “the action that [brings] together a
fuel, an oxygen and the ignition source.” He testified that an “ignition source” is
something that can be introduced to a fuel “to begin the combustion process.” He
explained that it is not uncommon for an investigator to be unable to determine the
ignition source for a fire because an ignition source may be burned or carried
away. Kariger further explained that the cause of a fire can be intentional or
accidental. He testified that the presence of “multiple fires”—that is, “two or
more fires in a particular fire scene that are not connected”—indicates that the
fires are the result of an intentional act.

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No. 2022AP1740-CR

¶16 Following his investigation, Kariger concluded that the fire in the
basement of the residence “occurred in that location” and was “not connected to
the first floor fire.” Although Kariger did not find any evidence of an accelerant
or an ignition source in the basement, he believed, to a reasonable degree of
scientific certainty, that the basement fire started within a pile of clothing and was
“the result of an intentional act.”

¶17 Similarly, Kariger testified that when investigating the fire in the
bedroom of the residence, he did not find any evidence of an accelerant or an
ignition source. Kariger nevertheless believed, to a reasonable degree of scientific
certainty, that the bedroom fire had originated underneath or at the edge of a bed
and was caused by an intentional act. Kariger further testified that there was
nothing connecting the bedroom fire with the basement fire and that the basement
fire did not occur directly underneath the bedroom fire. He explained that “having
two fires burning simultaneously in two different areas, two different floors, that
are not connected, it’s impossible to call those accidental.”

¶18 Detective Nathan Stetzer of the Wausau Police Department testified
that when he interviewed Farrar the day after the fire, Farrar told Stetzer about his
prior firefighting experience. During a subsequent interview, when Stetzer told
Farrar that the fire “was not caused naturally,” Farrar “shook his head in
agreement” and “agree[d] that this was an intentional fire.” Farrar also told
Stetzer that he “grew up playing with fire.”

¶19 Based on this evidence, the jury could reasonably find, beyond a
reasonable doubt, that Farrar intentionally set the fires at the residence. The jury
could properly rely on Kariger’s expert testimony that the two unconnected fires in
different areas of the residence were set intentionally and were not accidental. The

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No. 2022AP1740-CR

jury could also consider Farrar’s inconsistent statements at the scene and could
reasonably infer, based on those statements, that Farrar was not being entirely
truthful regarding the circumstances surrounding the fire. The jury could also
appropriately consider the testimony of multiple witnesses that Farrar was not
behaving like a typical fire victim and did not show any concern about any
property inside the house.

¶20 In addition, based on various witnesses’ testimony about Farrar’s
prior firefighting experience, the jury could reasonably infer that Farrar was
knowledgeable about fire safety and, thus, would have been unlikely to start the
fires accidentally. Furthermore, Farrar’s own admission that he “grew up playing
with fire” also supported an inference that he intentionally set the fires. The jury
could also reasonably interpret Farrar’s statement at the scene—“What the fuck
did I do?”—as evidence of consciousness of guilt. Moreover, the jury could
consider Farrar’s agreement with Stetzer that the fires were started intentionally,
which was inconsistent with Farrar’s defense at trial that he had accidentally
started the fires.

¶21 Finally, the jury could consider the evidence showing that, shortly
before the fires, Farrar had a dispute with Sarah about his plan to take over his
father’s lease of the residence. The jury could reasonably infer that this dispute
provided a motive for Farrar to set the fires.

¶22 The evidence summarized above, and reasonable inferences from
that evidence, supported the jury’s determination that Farrar intentionally damaged
the residence by means of fire—either because he had the mental purpose to
damage the residence or because he was aware that his conduct was practically
certain to do so. See WIS JI—CRIMINAL 1404 (2008). Although Farrar cites some

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No. 2022AP1740-CR

evidence that may have supported a contrary finding, “when faced with a record of
historical facts which supports more than one inference, an appellate court must
accept and follow the inference drawn by the trier of fact unless the evidence on
which that inference is based is incredible as a matter of law.” Poellinger, 153
Wis. 2d at 506-07. None of the evidence discussed above is incredible as a matter
of law.

¶23 Farrar cites three cases in support of his claim that the evidence at
trial was insufficient to support his conviction: Gerke v. State, 151 Wis. 495,
139 N.W. 404 (1913); Bruno v. State, 171 Wis. 490, 177 N.W. 610 (1920); and
State v. Kitowski, 44 Wis. 2d 259, 170 N.W.2d 703 (1969). None of these cases
compels a conclusion that the evidence was insufficient to support the jury’s
verdict.

¶24 In Gerke and Bruno, our supreme court reversed the defendants’
respective convictions for arson based on insufficiency of the evidence. See
Gerke, 151 Wis. at 503; Bruno, 171 Wis. at 497. In each of those cases, however,
the evidence clearly showed that someone had intentionally set fire to a building,
and the disputed issue was whether the defendant was that person. See Gerke, 151
Wis. at 499 (stating that witnesses found a pile of kindling saturated by kerosene
at the location of the fire); Bruno, 171 Wis. at 491 (stating that the fire was
“evidently of an incendiary nature from the manner of its burning and the odor of
kerosene detected by those who first reached it”). Here, in contrast, Farrar
conceded at trial that he had started the fires at the residence, and the disputed
issue was whether he did so intentionally or accidentally. Because Gerke and
Bruno addressed the sufficiency of the evidence regarding the identity of the
arsonist, not the sufficiency of the evidence as to whether the fires were set

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No. 2022AP1740-CR

intentionally, those cases are not dispositive of whether the evidence here was
sufficient to prove that Farrar intentionally set the fires at the residence.

¶25 In Kitowski, another arson case, our supreme court concluded the
evidence was sufficient for the jury to find both that the fire in question was
intentionally set and that the defendant was the person who set the fire. Kitowski,
44 Wis. 2d at 261, 264. Farrar argues that like the defendant in Kitowski, he can
be placed at the scene of the fire, but unlike that defendant, he never expressed any
intent to burn the building. We disagree with Farrar’s suggestion that an
expression of intent was required for the jury to find that he intentionally set the
fires at the residence. As explained above, the evidence introduced at trial, while
circumstantial, was sufficient to support a reasonable inference that Farrar started
the fires with the intent to damage the residence.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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