Washington Conviction Overturned Because Court Denied Second Degree Offense Instruction

When a Washington criminal defendant is charged with an offense with different degrees, the jury may generally find him or her guilty of any inferior degree rather than the degree charged.  RCW 10.61.003.  A defendant recently successfully challenged his first degree conviction after the court denied his request for a jury instruction for the second degree offense.

According to the appeals court’s opinion, witnesses heard gunshots and saw the defendant leave a burning trailer.  He was arrested that night.

The defendant does not speak English, so a lieutenant served as an interpreter during his interview. The defendant admitted to setting the fire and firing shots in the ground.  He said he had gone to the location to kill someone he thought was threatening him.  He said he had been to the trailer three times and it had always been empty, so he thought it was abandoned.

The state charged the defendant with one count each of first degree arson and unlawful discharge of a firearm.

The defendant sought a second degree arson instruction, but the court denied it.  The defendant was convicted of the charges and sentenced to 36 months.

The defendant appealed, arguing the court erred when it denied his request for a second degree arson instruction.  An inferior degree offense instruction is appropriate if the defendant has been charged with an offense divided into degrees, the statutes for both offenses proscribe only one offense, and there is evidence the defendant only committed the inferior offense.

At issue in this case was whether there was evidence the defendant only committed second degree arson.  The appeals court considered whether the jury could have concluded that the prosecution proved only that the defendant committed the second degree offense.

A conviction of first degree arson requires a showing that the defendant caused a fire that was “manifestly dangerous to any human life” or “damage[d] a dwelling.” The defendant argued that neither element applied to the fire.  A second degree arson conviction, however, only requires the state to prove the defendant “knowingly and maliciously caused a fire . . . which damages a building . . .”  RCW 9A.48.030.  The definition of building includes vehicles and structures used for lodging or business.  RCW 9A.04.110.

The defendant argued that the fifth-wheel trailer was not a “dwelling” under the statute.  A dwelling is a “building or structure . . . used or ordinarily used . . . for lodging . . .” RCW 9A.04.110.  The defendant’s statements in his interview suggested the trailer was abandoned.  When he went to the trailer three times, no one was there and the items inside were “scattered.” There was no evidence anyone was treating the trailer as an abode or spending nights there. There was also no evidence anyone intended to come back to the trailer. A reasonable jury, therefore, could have found that the trailer was not a “dwelling” as required by the statute for a first degree arson conviction.

Evidence regarding whether the fire had been “manifestly dangerous . . .” was conflicting.  A firefighter testified that the trailer was somewhat separated from the other trailers. It only took a few minutes to put out the fire after the police cleared the scene. There was no evidence anyone was evacuated. The appeals court found a reasonable jury could find that the fire did not meet this element.

The appeals court found the trial court erred when it denied the defendant’s request for the second degree arson instruction. It reversed the conviction and remanded the case.

If you have been arrested or charged with a crime, you need a knowledgeable Washington criminal defense attorney fighting for you.  Call (206) 622-6562 to schedule a consultation with Blair & Kim, PLLC.

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