State v. Durant

• Decision Date: 15 November 1983
• Docket Number: No. 18051,18051
• Citation: 674 P.2d 638
• Parties: STATE of Utah, Plaintiff and Respondent, v. Michael George DURANT, Defendant and Appellant.
• Court: Utah Supreme Court

Page 638

674 P.2d 638

STATE of Utah, Plaintiff and Respondent, v. Michael George DURANT, Defendant and Appellant.

No. 18051.

Supreme Court of Utah.

Nov. 15, 1983.

Nancy Bergeson, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

In this case the defendant appeals from a conviction of aggravated arson, a second degree felony. In a statement to the police, the defendant admitted setting a house on fire, but claimed that he was acting under the direction of the owner of the house. In his appeal the defendant claims that under U.C.A., 1953, § 76-6-103 the owner could not have been convicted of aggravated arson for setting fire to his own home. Therefore, the defendant argues that he should not have been convicted of aggravated arson because he was acting as the owner's agent. We disagree and affirm the conviction.

The defendant's argument depends upon his assertion that an owner who sets fire to his own house cannot be convicted of aggravated arson. The statute reads as follows:

Aggravated arson.--(1) A person is guilty of aggravated arson if by means of fire or explosives he intentionally and unlawfully damages:

(a) A habitable structure; or

(b) Any structure or vehicle when any person not a participant in the offense is in the structure or vehicle.

(2) Aggravated arson is a felony of the second degree.

U.C.A., 1953, § 76-6-103 (1978 edition). The defendant points out that at common law it was not unlawful to burn one's own dwelling. See, e.g., 5 Am.Jur.2d Arson § 23 (1962); Annot., 17 A.L.R. 1168 (1922). The provisions of the Utah Criminal Code, however, supersede the common law. U.C.A., 1953, § 76-1-105 (1978 edition). The statute regarding aggravated arson is one of three sections that deal with arson. The previous section defines arson:

(1) A person is guilty of arson, if, under circumstances not amounting to aggravated arson, by means of fire or explosives, he unlawfully and intentionally damages:

(a) Any property with intention of defrauding an insurer; or

(b) The property of another.

(2) A violation of subsection (a) is a felony of the third degree. A violation of subsection (b) is a felony of the third degree if the damage caused exceeds $5,000 value; a class A misdemeanor if the damage exceeds $1,000 but is not more than $5,000 value; a class B misdemeanor if the damage caused exceeds $250 but is not more than $1,000; any other violation is a class C misdemeanor.

U.C.A., 1953, § 76-6-102 (1978 edition). Reckless burning is also defined:

(1) A person is guilty of reckless burning if he:

(a) Recklessly starts a fire or causes an explosion which endangers human life; or

(b) Having started a fire, whether recklessly or not, and knowing that it is spreading and will endanger the life or property of another, either fails to take reasonable measures to put out or control the fire or fails to give a prompt fire alarm; or

(c) Damages the property of another by reckless use of fire or causing an explosion.

(2) A violation of subsections (a) and (b) is a class A misdemeanor. A violation of subsection (c) is a class A misdemeanor if damage to property exceeds $1,000 value; a class B misdemeanor if the damage to property exceeds $500 value; and a class C misdemeanor if the damage to property exceeds $50 value. Any other violation under subsection (c) shall constitute an infraction.

U.C.A., 1953, § 76-6-104 (1978 edition). Both the arson and reckless burning statutes distinguish "the property of another" from other types of property. The aggravated arson statute makes no reference to ownership of property in proscribing damage by fire to "a habitable structure" or "any structure or vehicle" when it is occupied. Nevertheless, the defendant contends that the statute should be construed as if it read "the habitable structure of another." The defendant points to the word "unlawfully" in the statute and argues that the arson statute, § 76-6-102, defines what conduct is unlawful. Thus, the defendant incorporates the provisions of § 76-6-102, Arson, into § 76-6-103, Aggravated Arson, claiming that aggravated arson is simply arson, i.e., damage with the intent to defraud or to damage the property of another, when the property is habitable or occupied. The defendant cites no case law or legislative history to support this construction of the statute. Neither does the defendant explain why "unlawfully" in the arson statute should be internally defined, but the same word in the aggravated arson statute should be defined by the provisions of the arson statute. The defendant's only justification for this construction is that it preserves the common law concept of arson. However, a review of the statutes which preceded the current code indicates that our legislature did not intend to exclude the burning of one's own property from the statutes.

Under Utah's earliest statutes, as under the common law, arson was a crime against possession rather than ownership of property.

To constitute arson it is not necessary that a person other than the accused should have had ownership in the building set on fire. It is sufficient that at the time of the burning another person was rightfully in possession of, or was actually occupying such building or any part thereof.

Compiled Laws of Utah, § 119-40-8253 (1917). Arson was defined as "the wilful and malicious burning of a building with intent to destroy it." Compiled Laws of Utah § 119-40-8248 (1917). "Maliciously burning in the night time an inhabited building in which there is, at the time, some human being, is arson in the first degree; all other kinds of arson are of the second degree." Compiled Laws of Utah, § 119-40-8254 (1917). Thus, even when the Utah statute closely followed the common law, ownership of the property was a secondary consideration. The primary concern was for danger to human life.

In 1931, the Utah legislature enacted new statutes that classified arson as first, second and third degree arson according to the likelihood of danger to human life. Rather than attempt a general definition of when and under what circumstances lives might be endangered by burning structures, this statutory scheme distinguished the three degrees of the offense by specifying the particular property burned. First degree arson was the willful and malicious burning of a dwelling or any other building "that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another." U.C.A., 1943, § 103-6-1 (emphasis added). Second degree arson was even more explicit in penalizing the willful and malicious burning of "any church, meetinghouse, courthouse, school, jail or other public building, or any public bridge" as well as "any barn, stable, garage or other building, whether the property of himself or of another, not a parcel of a dwelling house; or any shop, storehouse, warehouse, factory, mill or other building, whether the property of himself or another." U.C.A., 1943, § 103-6-2 (emphasis added). Section 103-6-3, third degree arson, dealt with the willful and malicious burning of various structures not considered to be buildings, crops in storage or in the field, piles of fuel or building materials, and various types of vehicles. The application of this statute, however, is specifically limited to property worth $25 or more that is the property of another. In summary, it is apparent that the most severe penalty was intended to reach those who burned structures likely to be occupied, regardless of ownership or actual occupancy, while the least severe penalty was imposed for damage to various kinds of personal property belonging to another.

This scheme was used in the Model Arson Law proposed by the National Board of Fire Underwriters in 1953. See Model Penal Code § 220.1 comment 1 at n. 15 (1980). However, a system of classification by type of property has a number of weaknesses.

For example, the burning of an empty, isolated dwelling could lead to a 20-year sentence, while setting fire to a crowded church, theater, or jail was a lesser offense with a 10-year maximum. The destruction of a dam, factory, or public service facility was regarded as less serious than destruction of a private garage on the grounds of a suburban home. It also makes little sense to treat the burning of miscellaneous personal property, whether out of malice or to defraud insurers, as a special category of crime apart from the risks associated with burning. To destroy a valuable painting or manuscript by burning it in a hearth or furnace cannot be distinguished criminologically from any other method of property destruction. Moreover, the treatment of attempt as the same two-year felony no matter what the nature of the crime attempted seriously undercuts the grading scheme.

Id. at 8-9. In 1973, the Utah legislature revised the Criminal Code. By referring explicitly to "habitable structures" and the actual presence of a person, the current arson statutes preserve the classification of the offense according to degree of danger to human life while eliminating many of the inconsistencies associated with the previous method. The most severe penalty is still intended to reach those who burn structures likely to be occupied, regardless of ownership or actual occupancy. The absence of the words "property of another" from the aggravated arson statute is entirely consistent with the legislature's earlier treatment of the offense. There is no reason to assume that the omission of those words was inadvertent. Neither is there any necessity for contriving a definition of "unlawfully" in order to superimpose common law notions on the plain words of the statute. A fire poses unique hazards. As a means of destruction, it is difficult to control and may quickly spread to nearby buildings or fields. Firemen and policemen are endangered. Neighbors and...