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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Nebraska Court Reverses Felony Arson Conviction


In State v. Arellano, No. S-00-1305 (Nov. 30, 2001), the Nebraska Supreme Court reviewed the defendant's felony arson conviction. The defendant challenged the conviction claiming the state did not prove the damage was in excess of $100.00 making the arson fire a felony.

Sometime between 4:30 and 4:45 a.m. on August 1, 2000, Matthew Ault's 1987 Chevrolet Beretta caught fire. Deputy State Fire Marshal, Charles Hoffman, determined that the fire was started by the use of an ignitable liquid that was poured on the vehicle. A book of matches and three burnt matches were later found at the scene. The book of matches advertised a Conoco cafe and motel. Also, a red gas can was found near the scene.

Two police officers testified that at around 4:40 a.m. on August 1, 2000, they observed Arellano outside a Conoco gas station and convenience store located a few blocks from the scene of the fire. The officers observed that Arellano had a red object or container near him. The clerk who was working at the Conoco store on the morning of August 1 testified that Arellano came into the store and that she gave him two books of matches that advertised the Conoco cafe and motel.

At approximately 7 a.m. the same day, two other officers encountered Arellano and observed that hair on Arellano's fingers was either cut short or burned. The officers also observed that Arellano's socks were wet and smelled of gasoline or petroleum. Arellano was then arrested.

Arellano was charged with third degree arson. The information listed the charge as a Class IV felony and stated that the fire caused damages over $100.

At trial, Ault testified that he had just purchased the vehicle and that he was still making payments on it. He stated that he thought he paid $2,250 for the vehicle. He testified that when he observed the fire, the front and back bumpers of the vehicle were burning the most, and that a tire blew out on the vehicle. When asked to describe the damages to the vehicle, he stated that "[t]he front bumper, all up under the engine, wiring burnt, front bumper burnt, back bumper burnt . . . all the wiring throughout . . . the car." Ault testified that he did not have insurance and that at the time of trial, the vehicle was inoperable.

Hoffman testified that the fire damage patterns were on the exterior of the vehicle and that there was no damage on the interior of the passenger compartment. There was no direct testimony that the amount of damages to the vehicle was $100 or more.

A Class IV felony carries a maximum penalty of 5 years' imprisonment, while a Class I misdemeanor carries a maximum penalty of not more than 1 year's imprisonment. See Neb. Rev. Stat. 28-105 and 28-106 (Cum. Supp. 2000). Under 28-504, the amount of damages involved in the crime affects the severity of the punishment. Although the amount of damages is not an element of arson, the State must prove by evidence beyond a reasonable doubt the amount of damages to the property that was damaged by arson in order to prove that the arson was a Class IV felony. See, generally, State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

In this case, evidence showed that specific parts of Ault's vehicle were burned, that the vehicle was currently inoperable, and that Ault paid $2,250 for the vehicle. Although the evidence makes it appear likely that the damages to the vehicle were over $100, no evidence was given regarding the dollar amount of damages to the vehicle. The State failed to provide evidence such as the cost to repair the vehicle or the diminution in value of the vehicle due to the fire. A crucial fact that distinguishes a crime punishable for one year's imprisonment from a crime punishable by five years imprisonment cannot rest on guesswork or speculation. The matter was reversed for resentencing as a misdemeanor.

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), (e-mail), Follow us on Twitter at @firesandrain.

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