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EXECUTIVE SUMMARY: This
weekly newsletter covers:
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Ohio Court Finds Aggravated Arson and Arson Not Duplicative
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Indiana Court Upholds Possession of a Bomb Charge
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Massachusetts Court Overturns Arson Conviction
(1)
OHIO COURT FINDS AGGRAVATED ARSON AND ARSON NOT DUPLICATIVE
In Ohio v. Bechstein, No. 16-2000-14, (Mar. 23, 2001), the Ohio Court of Appeals reviewed the defendant's plea to aggravated arson and arson. She contended on appeal those violations were duplicative and should have been only one charge. On June 20, 2000, through plea negotiations, Appellant entered into an agreement whereby she pled guilty to aggravated arson, a felony of the second degree, and arson, a felony of the fourth degree. The matter was then referred to the Adult Parole Authority for a pre-sentence investigation report. At the conclusion of the sentencing hearing held on September 8, 2000, the trial court sentenced Appellant to consecutive terms of four years for aggravated arson and twelve months for arson. Appellant argues that her convictions violate R.C. 2941.25 because aggravated arson and arson are allied offenses of similar import. The court disagreed. In order to determine whether two separately charged offenses are of similar import, the statutory elements of the offenses must be compared in the abstract. If the elements of the crimes "correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import." "If the elements do not so correspond, the offenses are of dissimilar import and the court's inquiry ends the multiple convictions are permitted." Appellant herein was convicted of aggravated arson pursuant to R.C. 2909.02(A)(2) and arson pursuant to R.C. 2909.03(A)(2). Aggravated arson, in R.C. 2909.09(A)(2), is defined as the following: "[n]o person, by means of fire or explosion, shall knowingly * * * [c]ause physical harm to any occupied structure * * * ." Arson, in R.C. 2909.03(A)(2) is defined as the following: "[n]o person, by means of fire or explosion, shall knowingly * * * [c]ause, or create a substantial risk of, physical harm to any property of himself or another, with purpose to defraud * * *." Comparing the elements of the crimes, the court found that they did not correspond to such a degree that the commission on one offense will necessarily result in the commission of the other. Aggravated arson requires that the harm actually occurred and that it occurred to an occupied structure, which may be owned by any person. On the other hand, the arson charge requires either a substantial risk of harm or actual harm to any property belonging to the offender and that it is committed with purpose to defraud. Although both of these offenses involve a single fire and harm to property, the court found that those offenses did not constitute allied offenses of similar import since the thrust of the aggravated arson charge herein is harm to an occupied structure, while the thrust of the arson charge herein is a fraud perpetrated against the insurance carrier. Accordingly, Appellant's second assignment of error was overruled.
(2)
INDIANA COURT UPHOLDS POSSESSION OF A BOMB CHARGE
In Austill v. State, No. 87A01-0009-CR-296, (Mar. 20, 2001), the Indiana Court of Appeals reviewed the defendant's conviction for possession of a bomb. The Vanderburgh County Sheriff's Department executed a search warrant at the home of Austill's parents. During the execution of the search warrant, the officers searched inside two vehicles on the property and discovered firearms, ammunition, two electric blasting caps, wire, and a battery operated detonation switch. Austill was present and admitted that the items inside the vehicles belonged to him. On appeal, Austill argued that, as a matter of law, a push button type, battery operated switch, connected by two (2) wires to two (2) electric blasting caps, did not constitute a bomb. Specifically, Austill contended that because he was not in possession of all the components necessary to constitute an explosive device, namely gunpowder or dynamite, the trial court erred by denying his motion to dismiss his charge for possession of a bomb. "Bomb," however, was not defined under the 1998 legislation. When construing statutes, the court gives words and phrases their plain, ordinary, and usual meaning unless some contrary purpose is clearly shown. Although the general rule is that court's strictly construe penal statutes against the State, the court will not construe them so narrowly as to exclude cases fairly covered. In common understanding, a "bomb" is a projectile or other device carrying an explosive charge fused to detonate under certain conditions (as upon impact or through a timing contrivance) and that is hurled (as by a mortar), dropped (as from an aircraft), or merely set into position at a given point (as dynamite) with varying effects (as concussion, or fire-flinging, or the release of gases) depending upon the type used. A "blasting cap" is an explosive device, carrying an explosive charge, containing a small quantity of some explosive, designed to release destructive force and used to detonate another explosive. Thus, the court found that the blasting caps, together with two connector wires and a battery operated detonating switch, was sufficient evidence to charge Austill with possession of a bomb, under Ind. Code § 35-47-5-8(2). Consequently, the trial court properly denied Austill's Motion to Dismiss.
(3)
MASSACHUSETTS COURT OVERTURNS ARSON CONVICTION
In Commonwealth. v. O'Neil, 99-P-592 (Mar. 16, 2001), the Massachusetts Court of Appeals reviewed joint venturer's arson convictions. The arson was culmination of an effort to exact vengeance for the beating of the defendant's son. According to the Commonwealth's evidence, two days after the beating, Michael, Rosinski, Steven, and several others (including Deborah O'Neil, according to Rosinski's testimony) inflamed by alcohol and drugs, drove to a triple-decker apartment building occupied in part by the victim's family. Members of the group first issued physical challenges to the occupants, then threw stones at the windows. When no one emerged, unspecified members of the group proceeded to obtain a milk jug full of gasoline, which Michael and Rosinski used to set fire to the building's porch and stairs. Everyone involved then fled. Less than two months later, Michael and Rosinski were indicted for the arson as youthful offenders. The same grand jury also indicted Steven and Deborah O'Neil. Six months prior to trial, Deborah moved for disclosure of any and all information regarding "promises, inducements, or rewards of any kind or nature made directly or indirectly to any Commonwealth witness." Two weeks before trial, on March 9, 1998, the Commonwealth responded with a document entitled "Commonwealth's Notice of Promises Rewards [or] Inducements" (Notice), signed for the Commonwealth by Assistant District Attorney Milton E. Cranney, Jr., who was the prosecutor at Deborah's trial. Deborah was prejudicially deprived of effective assistance at trial. Her trial counsel was provided with an invaluable means to subvert the testimony of the sole eyewitness against her -- the "Commonwealth's Notice of Promises Rewards [or] Inducements" -- but only vaguely alluded to it in her opening and then permitted herself to be stymied in her effort to utilize it as evidence or in cross-examination. Nor did she use it in summation, even though it had finally surfaced for record purposes. It is long-and well established that evidence tending to show a witness's bias, prejudice, or motive to lie is so significant that it is not considered a mere collateral matter but is deemed exculpatory evidence that may be established by extrinsic proof as well as by impeachment through cross-examination. The Notice, stating Rosinski's anticipation of pleading guilty and receiving leniency (probation), despite being the actual arsonist, immediately after setting forth his expected testimony implicating Deborah O'Neil as the instigator and facilitator of the arson, provided defense counsel with the capstone of any impeachment of Rosinski. If there might be any tactical or strategic reason why defense counsel would have failed to make every effort to bring the Notice to the attention of the jury, so that they, as the sole triers of fact and credibility, could draw from it appropriately adverse inferences about the reliability of Rosinski as a witness, the court was unable to discern it. Her conviction was reversed.
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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