In re Gabriel M.

• Decision Date: 07 March 2002
• Docket Number: No. 22,107.,22,107.
• Citation: 132 N.M. 124,2002 NMCA 47,45 P.3d 64
• Parties: In the Matter of GABRIEL M., Child-Appellant.
• Court: Court of Appeals of New Mexico

45 P.3d 64

132 N.M. 124

2002 NMCA 47

In the Matter of GABRIEL M., Child-Appellant.

No. 22,107.

Court of Appeals of New Mexico.

March 7, 2002.

Certiorari Denied April 22, 2002.

Phyllis H. Subin, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee State of New Mexico.

Certiorari Denied, No. 27,443, April 22, 2002.

OPINION

SUTIN, Judge.

{1} Gabriel M., a minor, was adjudicated a delinquent child based on the crimes of arson and intimidation of witnesses. We address the scope of the arson statute, NMSA 1978, § 30-17-5 (1970), and we address whether a juvenile can be adjudicated a delinquent child for violation of the intimidation of a witness statute, NMSA 1978, § 30-24-3 (1997), when an element of the intimidation offense requires a determination that the juvenile committed or possibly committed a felony offense. Given the circumstances here, we determine that Gabriel's actions are not covered by the arson statute and reverse that adjudication. Because of this reversal, we also reverse a restitution order. We affirm the adjudications for intimidation of witnesses.

BACKGROUND

{2} Gabriel worked after school at K-Mart where he set fire to a rack of clothing in the store. The clothing and nearby merchandise were damaged, but there was no damage to the building structure. Gabriel was seventeen years old at the time of the events set out in this opinion. One evening, after straightening his area to his boss's satisfaction, Gabriel began walking around the store and visiting with co-workers, something he had previously been forbidden to do. While walking around, he was flicking his lighter, which he often did to relieve boredom. There was testimony that earlier in the day, he had altered the lighter, making the flame larger. During his perambulations, Gabriel ran into a pair of sisters, Valerie and Giovanna, also employed with K-Mart. He stopped to talk with them for a while and then continued on, still playing with the lighter.

{3} While there was a difference in evidence as to how Gabriel got under a rack of clothing in the store, Gabriel admitted that he flicked the lighter while under the rack. The flame caught the clothing on fire and he tried to put the fire out with his hands. He then walked away without reporting the incident.

{4} Gabriel apparently did not put the fire out completely as it flared up and was then reported. A loss prevention manager attempted to control the fire with extinguishers, but the sprinkler head immediately above the rack was activated. By the time the fire department arrived, the fire was out. The clothing on the rack was destroyed and other nearby merchandise was damaged either by extinguisher foam or water from the sprinkler.

{5} While the fire was being extinguished, all the employees waited outside. At one point, Gabriel approached the sisters and told them that if he got in trouble, he would know who told. Both girls testified they did not know what to make of the statement at first. They testified, however, that during the initial investigation, they did not tell the investigators everything because Gabriel was in the same room and watching them. They were more forthcoming when Gabriel left the room.

{6} As the fire investigation proceeded, Gabriel became convinced he would be searched. Fearing he would be blamed if the lighter was found on him, Gabriel slipped it under a chair where he was sitting while waiting to be interviewed. At first Gabriel denied any involvement in the incident. Gradually, he admitted more and more, finally confessing he started the fire accidentally and tried to put it out.

{7} Following the investigation, Gabriel was charged with arson, tampering with evidence, and intimidating witnesses. After a bench trial, the court found that the State had proved the charges. The court determined Gabriel to be a delinquent child. See NMSA 1978, § 32A-2-3(B) (1996). The court ordered Gabriel to serve two years probation under the supervision of the juvenile authorities. The court also ordered Gabriel to pay restitution for the damaged goods. Gabriel now appeals all but the adjudication of tampering with evidence.

DISCUSSION

Arson

{8} Gabriel was charged with "maliciously [and] willfully starting a fire ... with the purpose of destroying or damaging... property of another." § 30-17-5(A). He makes two sufficiency of the evidence claims: (1) there was no evidence that he acted willfully or maliciously in starting the fire; and (2) damaging personal property of another is not included in the crime of arson. We base our decision on Gabriel's second claim.

{9} Gabriel contends that damage to or destruction of personal property does not fall within the statutory definition of arson. The State argues that this issue was not raised below. It contends Gabriel, in his closing, only argued the evidence was insufficient with regard to his state of mind and did not argue that the evidence was insufficient to establish the element of property. Gabriel argues the question is fundamental and, therefore, need not be preserved below. See State v. Stein, 1999-NMCA-065, ¶ 9, 127 N.M. 362, 981 P.2d 295

. We agree. Because it concerns the sufficiency of the evidence with regard to one of the elements of the crime, the issue is fundamental and can be raised for the first time on appeal. Rule 12-216(B)(2) NMRA 2002.

{10} Arson is defined as "maliciously or willfully starting a fire or causing an explosion with the purpose of destroying or damaging any building, occupied structure or property of another, or bridge, utility line, fence or sign." § 30-17-5(A). The statute further defines occupied structure as including "a boat, trailer, car, airplane, structure or place adapted for the transportation or storage of property or for overnight accommodations of persons or for carrying on business therein." § 30-17-5(C). The question is whether the phrase "or property of another" includes personal property, such as that damaged or destroyed here. We review questions of statutory interpretation de novo. In re Ruben D., 2001-NMCA-006, ¶ 7, 130 N.M. 110, 18 P.3d 1063.

{11} In interpreting the meaning of a statute, we seek to ascertain the intent of the Legislature. See State v. Bybee, 109 N.M. 44, 44-45, 781 P.2d 316, 316-17 (Ct.App.1989)

. If the meaning of the words is unambiguous, we must give effect to that language and no further interpretation is necessary. Ruben D., 2001-NMCA-006, ¶ 7, 130 N.M. 110, 18 P.3d 1063. If, however, the meaning of the words is ambiguous, then we must engage in interpretation of that language to determine the purpose intended by the Legislature.

{12} "A statute is ambiguous when it can be understood by reasonably well-informed persons in two or more different senses." State v. Elmquist, 114 N.M. 551, 552, 844 P.2d 131, 132 (Ct.App.1992). Here, the two parties present two different, yet reasonable, views of the language. Therefore, we believe the statute is ambiguous and requires interpretation.

{13} "In ascertaining legislative intent, [we] look to the language used but may also consider the history and background of the statute." Bybee, 109 N.M. at 45,781 P.2d at 317. "At common law, arson is the wilful and malicious burning of the dwelling house of another." 3 Charles E. Torcia, Wharton's Criminal Law § 334 at 324 (15th ed.1995). "[I]t is an offense against the security of habitation or occupancy, rather than against ownership or property." Id. § 334 at 325.

{14} This common law definition of arson has, over the years, been modified by statute, but the concept has remained the same. In New Mexico, the crime was first defined by statute in 1927. Three different sections described the malicious and willful burning of three different kinds of property: (1) a dwelling house or outbuildings, NMSA 1929, § 35-1401 (1927); (2) barns, factories, shops, churches and bridges, NMSA 1929, § 35-1402 (1927); and (3) certain personal property like boats, vehicles, grain, timber, etc., NMSA 1929, § 35-1403 (1927). Then in 1963, as part of the complete re-write of the Criminal Code, arson was defined as the "intentional damaging by any explosive substance or setting fire to any bridge, aircraft, watercraft, vehicle, pipeline, utility line, communication line or structure, railway structure, private or public building, dwelling or other structure." NMSA 1953, § 40A-17-5 (1963). This Court held that statute unconstitutional because it did not require willful or malicious behavior, but rather criminalized what could be completely innocent burning. State v. Dennis, 80 N.M. 262, 264-65, 454 P.2d 276, 278-79 (Ct.App.1969). The next year, the Legislature rewrote the arson statute to what it is today. See NMSA 1953, § 40A-17-5 (1970), repealed by NMSA 1978, § 30-17-5 (1970).

{15} We compare the earlier versions of the arson statute with the current version to help determine legislative intent. See State v. Gonzales, 78 N.M. 218, 219, 430 P.2d 376, 377 (1967)

. In the revisions that our Legislature has made to the arson statute, the property that falls within its ambit has been in the nature of structures for dwelling, working, or congregating, or for transportation. The current version limits the property to buildings, occupied structures, property of another, fences, bridges, and signs. § 30-17-5(A). Occupied structure is further defined to include boats, trailers, cars, airplanes, structures, or places "adapted for the transportation or storage of property or for overnight accommodations of persons or for carrying on business therein." § 30-17-5(C). In the different versions of the statute our Legislature has indicated no intent to include any personal property. "Property of another" is intended as a broad inclusionary phrase to include property not specifically described but considered an...