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Breaking Legal Developments

03-25-2002

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. State Of Washington Affirms Attempted Arson Conviction


(1) STATE OF WASHINGTON AFFIRMS ATTEMPTED ARSON CONVICTION

In State v. Gebreselassie, No. 27373-01-II, the Court of Appeals of Washington reviewed the defendant's attempted arson conviction. On January 23, 2001, Gebreselassie told Green Hill staff member, Shawn Johnson that he was going to burn down the IMU and that he did not care who would be harmed. On January 24, 2001, staff members investigated the cause of a fire alarm in the IMU. Staff members smelled smoke, and as they walked by each room, the odor intensified as they approached Gebreselassie's room. Staff members searched Gebreselassie's room and questioned him about the statements he had made the previous day about burning down the IMU. Gebreselasie confirmed that he made the statements. Staff member Shawn Johnson then warned Gebreselassie of the possible consequences of such actions, and Gebreselassie responded that he did not care. When searching Gebreselassie's room, staff members found burned pieces of apple in his room and a burned match outside his door.

Staff members then moved Gebreselassie to another room. Sometime later, the alarm sounded again. This time, the staff smelled an even stronger odor of smoke. Staff members then checked the surveillance camera but could not see what Gebreselassie was doing. Staff members went to Gebreselassie's room and watched as he stuffed sheets and blankets into the toilet. Staff searched Gebreselassie's room and found burned pieces of paper and four or five burned matches wrapped in the sheets that had been stuffed in the toilet. The juvenile court found Gebreselassie guilty of one count of attempted arson. Gebreselassie appealed the adjudication.

Gebreselassie contends he did not intend to start a fire but was simply smoking cigarettes. Another Green Hill resident testified he supplied Gebreselassie with matches, and they smoked together. This testimony was countered by Green Hill staff members. One staff member testified that on January 23, 2001, Gebreselassie said he planned to burn down the IMU. Another staff member testified that after the incidents, Gebreselassie confirmed he made the statement and added, 'I stand by my statement.' Report of Proceedings at 11. Additionally, two days after the incidents, Gebreselassie admitted to the program manager at Green Hill that he tried to make a fire and added, 'There's nothing you can do because I'm leaving in April.' Report of Proceedings at 32. Further, three staff members testified that the smoke did not smell like tobacco, that they found no evidence of cigarettes, and cigarette smoke does not activate the fire alarms.

Here, there was conflicting evidence. The trial court found the State's witnesses credible. We defer to its finding on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).

Gebreselassie also contended that no rational trier of fact could have concluded from the evidence that he took a substantial step toward causing a fire in a building. Staff members testified they smelled smoke in the IMU, found burned matches, a burned apple, as well as burned paper in Gebreselassie's room on two occasions. A 'substantial step' does not need to be an overt act but merely behavior strongly corroborative of the defendant's criminal purpose. State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995). If the evidence clearly shows a defendant's plan to commit a crime, slight acts done in furtherance of that plan constitute an attempt. State v. Price, 103 Wn. App. 845, 852, 14 P.3d 841, review denied, 143 Wn.2d 1014 (2001). Drawing all reasonable inferences from the evidence in favor of the State, the matches and burned paper combined with Gebreselassie's statements that he planned to burn down the IMU are sufficient to support the court's conclusion that he took a substantial step toward starting a fire in a building.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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