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Grocer draws 7 1/2 year sentence

Burlingame store's Tom Calkins is convicted of one charge of arson

Former Burlingame Grocery owner Tom Calkins, a gentle man who few thought capable of destroying his popular specialty market, is facing a mandatory 7 1/2 years in state prison for setting it ablaze.

A Multnomah County Circuit Court jury convicted Calkins on Wednesday of setting the Sept. 18, 2001, fire and endangering Portland firefighters. He remains free until his July 15 sentencing, despite prosecutors' concerns that he will leave town.

Chez Jose co-owner Tom Midrano, whose restaurant was next to the store, said it was a sad outcome for a man 'who had everything going for him, a good business, his family. I don't know what would make someone do something like that.'

'It was a very difficult case,' Assistant District Attorney Eric Bergstrom said Thursday. 'I don't think anyone's happy. It was devastating to his family, but this put a lot of people in danger and ruined a couple of businesses. He's being held accountable.'

Calkins' defense attorney, Wayne Mackeson, said the defense team plans to appeal. The jurors' decision, he said, 'just comes down to the tape. I do not think Mr. Calkins burned down his store.'

Calkins also faces a civil trial after filing a lawsuit against his insurance company, Grocers Insurance Group, which is seeking to void its estimated $750,000 insurance policy with him. Andy Lauersdorf, an attorney at Bullivant Houser Bailey PC, said the trial, which has been on hold during the criminal proceedings, is scheduled to begin Aug. 21.

The Calkins case was a cliffhanger from the beginning when firefighters discovered a videotape of a person who resembled Calkins inside the store before the fire to the end.

Calkins was charged with two counts of first-degree arson but found guilty of only one charge setting the fire and endangering firefighters.

Jury foreman Brian Currier announced the first verdict at4:30 p.m. Wednesday but stumbled over the wording and said 'not guilty.' Gasps were heard from Calkins' family members. Currier then clarified his words, saying they had a guilty verdict on one charge of arson, and were stuck on a 9-to-3 vote on the second charge endangering the grocery's nearby apartment tenants.

The courtroom became silent. Calkins, who has been working as a cab driver, brought both hands to his face and bowed his head when the verdict was read. His wife, Jackie, did the same and then started to cry.

The jurors returned to deliberations but recessed at 7 p.m. Wednesday without a decision. A stricken Calkins left the court shortly after, leaning on his two brothers. Other family members encircled him, including his two college-age sons, Mark and Mike, who had sat behind their father each of the 10 days in court.

One of Calkins' relatives stretched out his arm and yelled: 'No comment, no comment.'

Jury deadlocks 9-3

On Thursday morning when jurors returned without reaching a decision, Judge Nan Waller declared a mistrial on the second arson charge. Juror Richard Post said the 12-member jury could not break the 9-to-3 deadlock in favor of convicting Calkins. Legal statutes require that at least 10 jurors vote to convict or acquit.

'If you're a person who won't hurt a fly, you're not going to vote guilty,' Post said of one of his fellow jurors.

Inspector Rick McGraw, a fire investigator who testified and sat in court every day, said it was 'a long, hard road' getting to the verdict.

McGraw did not relish the victory, however. 'Mr. Calkins is a good man who had a weak moment,' he said.

Former Burlingame cashier Trenton Robb said he was 'sorry it happened.' He never thought Calkins capable of arson, he said, but theorized that the store owner did it 'for money.'

Calkins had pleaded not guilty to the two counts of first-degree arson when he was arraigned last October. He said he was 'never desperate to sell the store.'

The prosecution's case against Calkins hinged on a seven-minute video surveillance tape of a person who resembled Calkins entering and exiting the store just minutes before flames burst out. Jurors also focused on how Calkins' alibi crumbled under cross-examination and on the testimony of a key witness, store neighbor Mark Hollis, who said he had spotted Calkins watching his store at about 11 p.m. the night of the fire, nearly the same time it erupted into flames.

During the two-week trial, the prosecution and defense teams called about 50 witnesses to the stand, including 30 neighbors and former Burlingame employees and video and arson experts. The witnesses even included City Commissioner Randy Leonard, one of the first Engine 10 firefighters to respond to the fire.

Experts testifying for both the defense and prosecution were able to pinpoint exactly where the fire started in the grocery's break room but not the tool used to start it.

Police and fire investigators, however, said as soon as they viewed the security tape, found Sept. 19, 2001, inside a torched video recorder in the store's office, they knew it was arson. They also believed it was Calkins.

About 10 of Burlingame Grocery's employees, building owner Vince Chimienti and the two owners of Chez Jose restaurant next door said they thought the man on the video was Calkins.

'Everyone had to overcome their own disinclination to believe it was Mr. Calkins,' Bergstrom said during the trial. 'Nobody wanted to believe it was Mr. Calkins. One person even said it made them sick to think it was Mr. Calkins.'

Contradictory statements

The 60-year-old Southwest Portland resident hurt his case when he took the stand. Calkins appeared gruff at times, contradicted his own statements and said he couldn't remember more than 20 times.

Questioned about earlier statements that he had talked to a representative of the store's alarm company the night of the fire, Calkins said, 'I never said I talked to the alarm company.'

But when challenged by Bergstrom, he added, 'I could've said I got a call from the alarm company. I don't know.'

Jackie Calkins testified last week that she had taken the alarm company's call about an intruder alarm in the store but could not find her husband in the house. He said during testimony he was either at the neighbors' house or in his driveway.

'I'm not exactly sure of my location that night,' Calkins testified. He also said he didn't recall repeated cell-phone calls to his wife the night of the fire.

'This is a person who knew exactly where he was on 9-11,' Bergstrom said in his closing statements.

Calkins' other attorney, Pat Birmingham, countered that police and fire investigators made Calkins a suspect from the start. No one took into account other suspects, entrances to the store or the fire's cause, he said.

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