EL CAJON, Calif.—A Ramona gas station owner was convicted of burning his Mount Woodson home for the insurance money, but jurors were hopelessly deadlocked on whether he was guilty of murder in the death of an employee he sent to start the blaze.
"Accordingly as to count one, I will now declare a mistrial," said San Diego Superior Court Judge Herbert Exarhos.
James Kurtenbach, 49, was charged with second-degree murder in the Oct. 31, 2008, death of Joseph Nesheiwat. Jurors told the judge that they were unable to reach agreement on that count, but they convicted Kurtenbach of conspiracy to commit arson and arson, arson causing great bodily injury, concealing an event affecting an insurance claim and vandalism.
"I think we pretty much almost determined all those counts on the first and second day," said juror Ginger Schwendler.
Kurtenbach, who had been free on $2.1 million bail during the trial, was immediately remanded to custody after the verdict was read. He faces more than 12 years in prison when he is sentenced on Dec. 8, prosecutors said.
Jurors told the judge that they had voted on the murder charge at least eight times and were hopelessly deadlocked on that count. They said their last vote was 7-5 in favor of conviction.
"There was three people that was kind of on the fence and one gentleman said he's not going to change no matter what," said Vickie Gildersleeve. "And so that's the one we said, if he's not going to change, there's nothing we can do."
Deputy District Attorney Fiona Khalil said she would consult with her superiors about retrying Kurtenbach on the second degree murder charge, but the defendant's attorney, Paul Pfingst, said he was expecting the district attorney's office to refile the charges. He said the history of murder prosecution in the county is usually to retry a case once.
During their deliberations, jurors asked for read-back of testimony from Kurtenbach's son, Justin, and a detective regarding a handwritten note seized from the defendant's Poway home.
In her closing argument last Wednesday, Khalil said Kurtenbach went to the vacant home with the 24-year-old victim days before the fire, spreading gasoline throughout the 3,500-square-foot structure.
In the early-morning hours of Oct. 31, 2008, Kurtenbach sent Nesheiwat back into the home to ignite the gas vapors, causing a huge explosion that left him with second- and third-degree burns over 85 percent of his body, Khalil said.
Nesheiwat's body was found just outside of the Mount Woodson home.
Khalil said the financial burdens were adding up for Kurtenbach when he decided to burn down the Mount Woodson residence, which he had twice tried to sell after getting divorced, remarried and buying another house in Poway. He owed more than $39,000 in taxes on the Mount Woodson home and $16,000 in property taxes on his Poway residence at the time of the deadly fire, the prosecutor said.
She said the defendant settled a lawsuit in Nebraska for $200,000 and increased his insurance coverage on the residence just before the fire.
She said the defendant not only recruited Nesheiwat, but also his brother, John, to drive the victim to the scene the night of the blaze, telling them the job would be easy.
The prosecutor said Kurtenbach frequently loaned Joseph Nesheiwat money and had recently fronted him more than $10,000 to help the victim get custody of his child.
John Nesheiwat testified that Kurtenbach promised him and his brother money and motorcycles if they torched the Mount Woodson home.
The witness said he was supposed to drive his brother to the house, let him out, then drive a short distance away and await his return. He said he expected his sibling to simply light some papers on fire and come running out.
Instead, as he waited in his car, he heard an explosion that shook his Nissan sedan. The blast damaged a neighboring house and sent debris into the street. The Kurtenbach house, which had an estimated replacement value of $915,000, was destroyed.
"I thought he was dead,'' Nesheiwat testified, referring to his brother. "From what I heard and what I saw, there was no way humanly possible that he could survive.''
He said he tried in vain to reach his brother by cell phone before driving home and praying over rosary beads in his driveway.
Kurtenbach called later to tell him of his brother's death, he said. Kurtenbach paid for the funeral and "told me to keep my mouth shut,'' John Nesheiwat said.
He testified he initially lied to investigators, but got sick of not telling the truth and fingered Kurtenbach. He was given immunity from prosecution for his role in the arson in exchange for his testimony.
Pfingst said in his closing argument that Joseph Nesheiwat committed the arson out of misguided loyalty to Kurtenbach and caused his own death, and that his brother was a pathological liar.
He denied his client was in financial trouble, saying the defendant was not behind on house payments, and even paid $1.1 million as a down-payment on his Poway home in 2006. He also said Kurtenbach was prepaying the mortgage on his Poway residence.
The insurance policy increased, he said, because Kurtenbach changed carriers after the Witch Creek Fire, which burned near the property a year earlier.
Though she believes Kurtenbach should get life for her son's death, Terry Sellers -- who drove from Winchester every day during the trial -- thanked the jurors and said justice had been done.
"My son can rest in peace now and maybe we can all heal, because this has been a rough two years," she said. "It hasn't been easy and I feel bad for even Jim's wife and baby because he ruined his life as he ruined ours."