State v. Jones

• Decision Date: 30 January 1985
• Docket Number: No. 16347,16347
• Citation: 329 S.E.2d 65,174 W.Va. 700
• Parties: STATE of West Virginia v. Verlon G. JONES.
• Court: West Virginia Supreme Court

Page 65

329 S.E.2d 65

174 W.Va. 700

STATE of West Virginia v. Verlon G. JONES.

No. 16347.

Supreme Court of Appeals of

West Virginia.

Jan. 30, 1985.

Decided April 11, 1985.

Syllabus by the Court

1. The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, W.Va., 295 S.E.2d 902 (1982).

2. Arson in the third degree, W.Va.Code, 61-3-3 [1957], is a lesser included offense of arson in the first degree, W.Va.Code, 61-3-1 [1935]; thus, where a criminal defendant, an inmate of a county jail, admitted at trial that he started a fire in his cell block, and the evidence at trial was in conflict as to whether he intended to burn the jail within the meaning of this State's arson in the first degree statute, W.Va.Code, 61-3-1 [1935], or intended to burn the personal property of a fellow-inmate within the meaning of this State's arson in the third degree statute, W.Va.Code, 61-3-3 [1957], the defendant, indicted for arson in the first degree, was entitled to an instruction upon arson in the third degree, as a lesser included offense under the indictment.

Martin V. Saffer, Marlinton, Robert P. Martin, Charleston, for appellant.

Catherine McMullen and John Ernest Shank, Asst. Attys. Gen., Charleston, for appellee.

McHUGH, Justice:

This case is before this Court upon an appeal by the petitioner, Verlon G. Jones, from his conviction in the Circuit Court of Pocahontas County, West Virginia, of the felony offense of arson in the first degree. W.Va.Code, 61-3-1 [1935]. In addition, the petitioner appeals from his sentence by that court to confinement in the penitentiary for life. That sentence was imposed under this State's habitual criminal statute, W.Va.Code, 61-11-18 [1943]. This Court has before it the petition, all matters of record and the briefs and argument of counsel.

I

On November 25, 1982, a fire occurred in two cells of the Pocahontas County Jail. The fire was part of a disturbance at the jail during which two inmates, the petitioner and Paulmer Atkinson, refused to enter their cells to be "locked down for the night." The petitioner admits that he started the fire. ¹

After the fire began, the petitioner and Atkinson were removed from the scene. The record indicates that, ultimately, the fire was a "hot," "flaming" fire which produced "thick" and "massive" smoke. It was extinguished by a local fire department.

As a result of the fire, various mattresses, blankets, magazines and articles of clothing were destroyed. Furthermore, although the area of the jail involved in the fire was principally constructed of steel, the jail sustained smoke damage and damage to light fixtures. Paint upon the walls of the cells had "peeled off and burned." Moreover, the record indicates that certain metal bunk beds, later found to be warped, may have been warped as a result of the fire.

In March 1983 the petitioner was indicted for arson in the first degree. W.Va.Code, 61-3-1 [1935]. ² At trial, in June 1983, the State asserted that the petitioner started the fire to protest living conditions at the jail and, accordingly, intended a burning of the jail within the meaning of W.Va.Code, 61-3-1 [1935]. The petitioner, however, asserted that he never intended to burn the jail. Rather, the petitioner asserted that he merely desired to burn the personal property of Terry Schoolcraft, a fellow-inmate with whom the petitioner and Atkinson had a dispute. ³ The circuit court instructed the jury that they could return a verdict of guilty of arson in the first degree, guilty of arson in the fourth degree (attempt) ⁴ or not guilty. The jury found the petitioner guilty of arson in the first degree.

On August 10, 1983, the State, pursuant to this State's habitual criminal statute, W.Va.Code, 61-11-18 [1943], ⁵ filed an amended information with the Circuit Court of Pocahontas County which alleged that the petitioner was the same individual who, in 1983, had been convicted of arson in the first degree and who, in 1971 and 1976, had been convicted and sentenced upon felony offenses of breaking and entering. A trial was conducted upon that information, and the jury returned the following verdict: "We the jury find the defendant, Verlon G. Jones, to be the same person three times previously convicted of a felony as set forth in the information filed in this case." The petitioner was sentenced to confinement in the penitentiary for life.

In June 1984 we granted the petitioner's appeal to this Court.

II

As a result of the petitioner's assertion that he merely desired to burn the personal property of fellow-inmate Schoolcraft, the petitioner contends, inter alia, that the circuit court committed error in not instructing the jury upon arson in the third degree, W.Va.Code, 61-3-3 [1957], as a lesser included offense under the indictment. ^{6 6} We thus consider the question of whether arson in the third degree is a lesser included offense of arson in the first degree. W.Va.Code, 61-3-3 [1957], provides:

Any person who wilfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any personal property of any class or character, (such property being of the value of not less than fifty dollars and the property of another person), shall be guilty of arson in the third degree and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than three years.

This Court in State v. Louk, W.Va., 285 S.E.2d 432 (1981), held in syllabus point 1:

The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.

See also syl. pt. 5, State v. Vance, W.Va., 285 S.E.2d 437 (1981).

In State v. Neider, W.Va., 295 S.E.2d 902 (1982), we applied the above test of Louk and determined that larceny is a lesser included offense of robbery. 295 S.E.2d at 908. In discussing in Neider the determination of lesser included offenses, we stated:

The question whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense.

....

The second inquiry is a factual one which involves a determination by the trial court if there is evidence which would tend to prove such lesser included offense.

295 S.E.2d at 904, 905.

Applying the above principles to the case before this Court, we conclude, for the reasons stated below, that arson in the third degree is a lesser included offense of arson in the first degree. Furthermore, upon a careful examination of the evidence submitted during the petitioner's arson trial, we are of the opinion that the petitioner was entitled to an instruction upon arson in the third degree as a lesser included offense under the indictment.

In State v. Gibson, 42 Or.App. 575, 600 P.2d 962 (1979), the Court of Appeals of Oregon considered a statute which provided that arson in the first degree consisted of the intentional damage by fire or explosion of the "protected property" of another. "Protected property" referred to any "structure, place or thing customarily occupied by people." The court also considered a statute which provided that arson in the second degree consisted of the intentional damage by fire or explosion of "any building of another that is not protected property."

The defendant in State v. Gibson was convicted of arson in the first degree. However, after reviewing the evidence, the Court of Appeals determined that the trial court committed error in not instructing the jury upon arson in the second degree, "as a lesser included offense." The defendant was awarded a new trial. The Court of Appeals stated: "Every element of arson in the second degree is included in the statutory definition of arson in the first degree except for the element of 'protected property.' The resolution of the question raised by that distinction is a question of fact." 600 P.2d at 964.

But cf. Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982).

In this State, the offenses of first, second ⁷ and third degree arson are set forth in separate statutes, and the degree of arson is determined by the type of property involved. Arson in the first degree involves "any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another...." W.Va.Code, 61-3-1 [1935]. Arson in the second degree involves "any building or structure of any class or character, whether the property of himself or of another, not included or prescribed in the preceding section [ W.Va.Code, 61-3-1 [1935]]...." W.Va.Code, 61-3-2 [1935]. Arson in the third degree involves "any personal property of any class or character, (such property being of the value of not less than fifty dollars and the property of another person)...." W.Va.Code, 61-3-3 [1957].

However, except for the penalties to be imposed and the distinctions as to type of property involved, the above arson statutes are identical. The first, second and third degree arson statutes each apply to "[a]ny person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or...