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State v. Dixon6/3/2005
akable intent of the legislature was that the term 'explosive' was to be interpreted as 'explosion' and that the use of the word 'explosive' was an error in terminology. [Citation omitted.]" 21 Kan. App. 2d at 953-55.
The problem identified in Walker, the term "explosive," has been remedied in the pattern instruction and was avoided in the present case by use of the pattern instruction. See PIK Crim. 3d 59.22. The facts in Walker paralleled the illustration of an unlit stick of dynamite causing property damage by being thrown through a window. But in the present case, the property damage at issue is not comparable to the broken window but rather to the total destruction of a dwelling by the dynamite's exploding when it landed in a blazing fire. In the first instance, there was an explosive but no fire or explosion; in the second, there was a fire and explosion resulting from the ignition of an explosive. Nonetheless, Dixon would have the court apply the lesson from Walker to the facts of the present case to conclude that he could not have been found guilty of aggravated arson because he did not ignite the gas released from the broken supply pipe, nor did he ever intend to ignite it.
Examination of the statutory language does not support Dixon's construction. The legislature defined arson in pertinent part as knowingly, by means of fire or explosive, damaging property. "Knowingly" is an adverb that modifies the verb "damaging," and the phrase "by means of fire or explosive" is set off by punctuation, making it an independent phrase that could be placed elsewhere in the definition. For example: Arson is knowingly damaging any building or property, which is a dwelling in which another person has any interest, by means of fire or explosive without the consent of such other person. If the legislature had intended to require the specific intent to use fire or explosive in order to damage property, it could have expressed that intent by defining arson as knowingly using fire or explosive to damage property.
This court has long held that an accused need not be prosecuted for or convicted of the underlying felony in order to be convicted of felony murder under K.S.A. 21-3401(b). State v. Beach, 275 Kan. 603, 617, 67 P.3d 121 (2003); State v. Wise, 237 Kan. 117, 123, 697 P.2d 1295 (1985). In such a case, however, a challenge to the felony-murder conviction may be made on the sufficiency of the evidence to support it. In Beach, the court framed the issue and concluded as follows:
"The question in this case . . . is whether after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We conclude that the jury rationally could have found Beach participated in the underlying felony of aggravated robbery. That the jury acquitted Beach of aggravated robbery independent of the felony murder does not impair our conclusion." 275 Kan. at 622.
Here, we conclude that the jury rationally could have found beyond a reasonable doubt that Dixon committed aggravated arson. Thus, aggravated arson could have supported his felony murder and burglary convictions.
2. WERE INSTRUCTIONS ON LESSER INCLUDED OFFENSES OF FELONY MURDER REQUIRED?
The defendant requested instructions on reckless second-degree murder and reckless involuntary manslaughter as lesser included offenses of felony murder. The trial court declined to so instruct on the ground that the evidence of the underlying felonies was neither weak nor inconclusive.
"A trial court should only instruct on a lesser included offense of felony
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