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Breaking Legal Developments

09-24-2001

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

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Ohio Appellate Court Upholds Aggravated Arson Conviction
  2. Louisiana Supreme Court Permits Action for Power Surge Damage


(1) OHIO APPELLATE COURT UPHOLDS AGGRAVATED ARSON CONVICTION

In State v. Marcum, No. 2001CA00041, the Fifth Appellate District of Ohio, reviewed the defendant's attempted aggravated arson conviction. Due to the acts of vandalism and violence, the victim Copp hired a private detective and installed a surveillance camera and an alarm system. The incident which gave rise to this conviction occurred on September 19, 2000. On that morning appellant awoke at about 4:30 A.M. and took a shower. After the shower, Copp heard her dog barking and heard a "scratching" noise. Copp opened her bathroom window and yelled at whoever might be there. Copp then went downstairs and noticed that the outside lights were not illuminated. Realizing that the lights should be illuminated, she hit the panic button on her alarm system. The alarm admitted a loud sound and automatically dialed the police.

When the police arrived they found that plants and glass were strewed around the front porch. The surveillance tape was retrieved and showed to the police officers. As the police officers and Copp spoke, they smelled gasoline or kerosene. One of the officers and Copp followed the odor to her back French doors which opened onto her deck. The officer discovered that the area outside the doors of the deck was covered in a liquid that was subsequently found to be kerosene. The kerosene was spread over her wood deck, the back of her house, over a gas grill which was connected to the house by a natural gas pipe line and over a wood bench that was part of the deck. Further, the bulbs in the floodlights that would have illuminated the area had been unscrewed. When asked by the officers who she thought might have done this, Copp identified appellant.

Some of the officers went to appellant's home which was about a mile away. One of the officers looked in a garage window. That officer saw a mask and gloves sitting on a car in the garage. The officer could smell kerosene. When an officer approached the house, appellant's mother let them inside and consented to a search of the house. Appellant was found in the garage. Appellant smelled of kerosene and kerosene was later found to be on his shorts and shoes. A can containing kerosene was found in the garage. A trail of what appeared to be kerosene led from appellant's car to the can in the garage. Further, the floor mat in appellant's car had kerosene on it. The gloves and mask were recovered and also contained kerosene.

The surveillance tape from that night was played for the jury. The tape showed someone unscrewing the outdoor lights and taking a scarecrow. The tape also showed that man smashing the plants in the front of the house. Copp identified the person committing those acts as appellant. Further, Copp's sister testified that at around 1:00 a. m. on September 19, 2000, appellant called her and said there would be a death in the family on October 3. October 3rd is Copp's birthday.

On January 12, 2001, the jury returned a verdict of guilty to the offense of attempt to commit aggravated arson as charged in the indictment. A sentencing hearing was conducted January 16, 2001. By Judgment Entry filed January 24, 2001, appellant was found guilty and sentence was imposed. The trial court sentenced appellant to a stated term of incarceration of seven years. The appellant challenged his conviction claiming he did not carry out enough acts to constitute an attempt.

In order to find appellant guilty of attempted aggravated arson, the jury had to find that appellant took a substantial step towards his plan to knowingly cause a substantial risk of serious physical harm to Copp by means of fire or explosion. Viewing the evidence in a light most favorable to the prosecution, the court found a rational jury could have found that appellant's actions constituted a substantial step, strongly corroborative of his purpose to commit aggravated arson. Therefore, the court found there was sufficient evidence to support his conviction.

During the night and/or early morning hours of September 19, 2000, appellant attempted to conceal his identity and unscrewed floodlights which illuminated Copp's back deck and yard. Appellant concedes that he spread kerosene, a flammable accelerant, on the back of Copp's home, in the track outside of Copp's back doors, upon the wooden deck of Copp's home, and across a gas grill that was attached to the home via an active natural gas pipe. Copp testified that she occasionally used the grill and that the natural gas line was connected and working. Appellant was drawn to appellant's activity when she heard a "scratching" noise.

The court found appellant's conduct to be a substantial step toward the commission of arson and corroborative of appellant's intent to create a substantial risk of serious physical injury to Copp by fire or explosion. The spreading of the kerosene over the gas grill and natural gas line is especially corroborative of appellant's criminal intent to commit aggravated arson. Evidence showed that an explosion could have been caused if the kerosene had been ignited on the gas grill. In conclusion, the court found that the evidence adduced at trial was sufficient to support appellant's conviction for attempted aggravated arson.


(2) LOUISIANA SUPREME COURT PERMITS ACTION FOR POWER SURGE DAMAGE

In Cleco Corporation v. Leonard Johnson, (pdf viewer needed) No. 2001-CC-0175, (Sept. 18, 2001) the Supreme Court of Louisiana reviewed an action for direct physical damages sustained by a utility company customers to their electrical equipment caused by a power surge when a truck hit a utility pole. The trial court found such an action could not be brought.

A truck hit a utility pole owned by Cleco a electric utility company. The impact caused a mechanical wire to break and a conductor support snapped causing a voltage surge. This caused electrical appliances of the customers to be damaged. Cleco brought and action after paying for the damage. The trial court found there could be no cause of action for the customers damages only damage to the utility pole itself.

The Louisiana Supreme disagreed and reversed finding it is foreseeable that damage to electrical lines could cause the damage to the customers' electrical equipment.

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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