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State v. Dixon6/3/2005
es the position that any question about the offense is moot and not properly before the court. The defendant points out, however, that aggravated arson was a predicate offense for burglary and felony murder. Thus, Dixon contends, the jury's failing to convict him of aggravated arson ought to be examined relative to the burglary and felony murder convictions.
Dixon was charged with felony murder for the deaths of Dana and Gabriel Hudson. The jury was instructed that the State had introduced evidence on alternative underlying felonies--aggravated arson and burglary. The jury was instructed with regard to the second charge of burglary that the State was required to prove that Dixon knowingly entered a dwelling without authority with the intent to commit theft, aggravated arson, criminal damage to property, or some combination of the three. He was convicted of the second burglary.
Arson is " nowingly, by means of fire or explosive: . . . amaging any building . . . which is a dwelling in which another person has any interest without the consent of such other person." K.S.A. 2004 Supp. 21-3718(a)(1)(A). Aggravated arson is arson "committed upon a building . . . in which there is a human being." K.S.A. 21-3719. The jury was instructed on aggravated arson as follows in accordance with PIK Crim. 3d 59.22:
"To establish this charge, each of the following claims must be proved:
1. That Mr. Dixon intentionally damaged a building or property in which another person had an interest, and that Mr. Dixon did so by means of fire or explosion;
2. That Mr. Dixon did so without the consent of Eastgate Plaza, Inc.;
3. That at the time there was a human being in the building or property;
4. That the fire or explosion resulted in a substantial risk of bodily harm; and
5. That this act occurred on or about the 29th day of July, 2001, in Lyon County, Kansas."
Dixon maintains that the correct interpretation of the statutes and pattern instruction is that an accidental fire or explosion ignited as a result of intentional property damage is not aggravated arson because there was no intent to cause a fire or explosion. In other words, he contends that the required intent is the intent to use fire or explosion to damage property. He cites State v. Walker, 21 Kan. App. 2d 950, 910 P.2d 868 (1996), as suggesting the same construction.
Walker was convicted of attempted aggravated arson resulting in substantial risk of bodily harm for pouring gasoline on the ground in front of the apartment where McCoy, who earlier had poured gasoline on Walker, lived. Walker did not ignite the gasoline and testified that he never intended to do so, but merely wanted to force McCoy to smell gasoline. The Court of Appeals concluded that the legislature had not intended for the arson statute to be interpreted literally. 21 Kan. App. 2d at 954. It reasoned as follows:
"The literal interpretation of the statute would mean that if one pours gasoline on another person's shrubs in front of their house and the shrubs are damaged, he or she has damaged another's property with an explosive, gasoline. Pursuant to [the statute], the person would be guilty of arson. Similarly, if one throws an unlit stick of dynamite through the window of a building, he or she has committed arson. This is true even though the dynamite would not have exploded because the fuse was not lit.
"The question for the jury to decide was whether Walker intended to ignite the gasoline and damage the building by fire or explosion, not whether he intended damage by the pouring of gasoline around the building.
" e believe the unmist
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