(Ga. L. 1924, p. 192, § 1; Code 1933, § 26-2208; Ga. L. 1949, p. 1118, § 2; Code 1933, § 26-1401, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1976, p. 1497, § 1; Ga. L. 1979, p. 935, § 1; Ga. L. 2004, p. 734, § 1.)
Editor's notes.- Ga. L. 2004, p. 734, § 4, not codified by the General Assembly, provides that the amendment to this Code section is not applicable to any offense committed prior to July 1, 2004, and that any such offense shall be punishable as provided by the statute in effect at the time the offense was committed.
JUDICIAL DECISIONSANALYSIS
In a case of arson, the corpus delicti consists of two fundamental facts: first, the burning of the house described in the indictment, and second, the fact that a criminal agency was the cause of the burning. Wade v. State, 195 Ga. 870, 25 S.E.2d 712 (1943); Reese v. State, 94 Ga. App. 387, 94 S.E.2d 741 (1956).
In a case of arson, the corpus delicti consists in the proof of three fundamental facts: (1) the burning of the house described in the indictment; (2) that a criminal agency was the cause of the burning; and (3) that the defendant was the criminal agency. Hurst v. State, 88 Ga. App. 798, 78 S.E.2d 80 (1953).
Proof of burning resulting from criminal agency.
- In a prosecution for arson, it is not only necessary that there be proof of a burning, but it must also be shown that the burning was the result of some criminal agency, for, when a house is consumed by fire and nothing appears but that fact, the law rather implies, that the fire was the result of the accident, or some providential cause, than of a criminal design. Underwood v. State, 51 Ga. App. 735, 181 S.E. 500 (1935).
Three things are necessary to sustain a conviction for arson: that the real property alleged in the indictment was in fact burned; that its cause was a criminal agency; and that the defendant was that criminal agency. Bragg v. State, 175 Ga. App. 640, 334 S.E.2d 184 (1985).
Crime of arson requires a knowing damage by fire or explosion intentionally caused. Burns v. State, 166 Ga. App. 766, 305 S.E.2d 398 (1983), cert. denied, 465 U.S. 1027, 104 S. Ct. 1286, 79 L. Ed. 2d 688 (1984).
Forseeability of danger to human life.
- Evidence clearly established the reasonable foreseeability of danger to human life, where the fire was set in a carpet plant which was occupied by several employees. Vineyard v. State, 195 Ga. App. 788, 395 S.E.2d 49 (1990).
Consent to act of burning.
- An act of burning is not criminal (i.e., consensual) if both the insurer and the insured have agreed or acquiesced in the act. However, if either or both do not consent to the act, the burning becomes an act of arson, for the nonconsenting party has been subjected to either a criminal tort or fraud. Burns v. State, 166 Ga. App. 766, 305 S.E.2d 398 (1983), cert. denied, 465 U.S. 1027, 104 S. Ct. 1286, 79 L. Ed. 2d 688 (1984).
Pursuant to O.C.G.A. § 16-7-60(a)(2), the state is only required to prove that either the owner or the holder of the security interest did not consent to the damage, and is not required to prove both parties did not consent. Hall v. State, 201 Ga. App. 133, 410 S.E.2d 448 (1991).
Pursuant to O.C.G.A. § 16-7-60(a)(3), the state is only required to prove that either the owner or the insurer of the property did not consent to the damage. Hall v. State, 201 Ga. App. 133, 410 S.E.2d 448 (1991).
Causing smoke damage constitutes arson in first degree if other elements of crime are present. Smith v. State, 140 Ga. App. 200, 230 S.E.2d 350 (1976).
Dwelling.
- Although the building involved in an arson prosecution was used for grocery store, dancehall and filling station, its one bedroom which was used as sleeping quarters for the employee who lost life as a result of the burning of the building was sufficient to constitute it a dwelling within the meaning of the statute. Wade v. State, 195 Ga. 870, 25 S.E.2d 712 (1943).
Occupancy and ownership.
- Under the arson statute, an offense was committed whether the dwelling house was occupied, unoccupied, or vacant and whether the premises are the property of the defendant or of another. Tukes v. State, 125 Ga. App. 831, 189 S.E.2d 135 (1972); State v. Hovers, 148 Ga. App. 431, 251 S.E.2d 397 (1978); In re M.E.H., 180 Ga. App. 591, 349 S.E.2d 814 (1986).
Vacancy does not convert a building from a dwelling house to another type of structure for the purposes of an arson prosecution. Crawford v. GEICO, 771 F. Supp. 1230 (S.D. Ga. 1991).
Offense is committed whether or not the dwelling is occupied. Frost v. State, 200 Ga. App. 267, 407 S.E.2d 765, cert. denied, 200 Ga. App. 896, 407 S.E.2d 765 (1991).
Lawful occupancy by one in charge constitutes ownership as contemplated by statute, and the question of legal title is not involved. Tukes v. State, 125 Ga. App. 831, 189 S.E.2d 135 (1972); Rash v. State, 182 Ga. App. 655, 356 S.E.2d 719 (1987).
Notwithstanding that the indictment charged that the defendant damaged "the property of the . . . housing authority occupied by [named tenant]," the state was not required to introduce evidence that the building was indeed owned by the housing authority since lawful occupancy by the tenant constituted ownership as contemplated by the statute and the question of legal title was not involved. Stanford v. State, 236 Ga. App. 597, 512 S.E.2d 708 (1999).
Sufficiency of indictment.
- Indictment charging defendant with "unlawfully" damaging by means of fire her husband's occupied dwelling house without the consent of her husband or of the lien holder, was not fatally defective, where defendant was unquestionably aware that she was charged with a violation of O.C.G.A. § 16-7-60. Frost v. State, 200 Ga. App. 267, 407 S.E.2d 765, cert. denied, 200 Ga. App. 896, 407 S.E.2d 765 (1991).
With regard to defendant's conviction for first degree arson, insofar as the indictment charged defendant as such, it was fatally defective because the indictment failed to allege essential elements of arson in the first degree, namely that either the vehicle that was damaged was designed for use as a dwelling, or that it was insured against fire damage that was done without the consent of both the insurer and insured, or that it was done with the intent to prejudice the rights of a spouse or co-owner or under circumstances making it reasonably foreseeable that human life might be endangered. Therefore, even though the state's proof may have been sufficient to sustain a conviction of arson in the first degree in one or more ways, defendant's conviction was erroneous due to the fatal defect in the indictment. Shelnutt v. State, 289 Ga. App. 528, 657 S.E.2d 611 (2008), cert. denied, No. S08C0977, 2008 Ga. LEXIS 518 (Ga. 2008).
Criminal damage to property is included offense in arson in first degree.
- Anyone who commits first-degree arson necessarily has also committed criminal damage to property, provided that the property damaged belongs to another person. Since the criminal damage to property is established, however, by proof of the same conduct as first-degree arson, but requires proof of a less culpable mental state, it is an included crime in first-degree arson, and a defendant may not be convicted of both. Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978).
One who commits first-degree arson has also committed criminal damage to property when the property in question belongs to another, but while the latter crime is established by the same conduct as the former, it requires proof of a "less culpable mental state" under the Criminal Code. Bryant v. State, 188 Ga. App. 505, 373 S.E.2d 289 (1988).
When the evidence establishes without conflict that arson in the first degree occurred, and the defendant simply denies being the one who committed it, the crime of criminal damage to property merges with the crime of arson, and no charge on the lesser crime is required. Walker v. State, 193 Ga. App. 100, 386 S.E.2d 925 (1989).
Acquittal for crime of aggravated assault is not inconsistent with arson conviction. Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978).
Presumption of causation of fire.
- While on a trial for arson, if nothing appears but the mere fact that the house was consumed by fire, the presumption is that the fire was the result of accidental, or natural, or providential cause, the corpus delicti may be proved by circumstantial evidence, as well as by direct evidence. Wade v. State, 195 Ga. 870, 25 S.E.2d 712 (1943).
Every fire is presumed to be accidental or providential. Lockhart v. State, 76 Ga. App. 289, 45 S.E.2d 698 (1947).
Burden on state.
- It is incumbent upon the state in an arson prosecution to establish the corpus delicti. Wade v. State, 195 Ga. 870, 25 S.E.2d 712 (1943).
Burden is on the state to prove that a fire was of an incendiary origin and that the accused was the person who did the burning. Lockhart v. State, 76 Ga. App. 289, 45 S.E.2d 698 (1947).
Burden of proof.
- Every fire is presumed to be accidental or providential; the burden is on the state to prove that the fire was of an incendiary origin and that the accused did the burning. Bragg v. State, 175 Ga. App. 640, 334 S.E.2d 184 (1985).
When argument concerning arson's effect on insurance premiums is permissible.
- When the district attorney's closing argument deals in part with the effect of arson upon insurance premiums, the argument is permissible when the defendant is indicted under O.C.G.A. § 16-7-60(a)(3). Waters v. State, 174 Ga. App. 916, 331 S.E.2d 893 (1985).
Submission to jury of prior conviction not unconstitutional.
- Trial court properly sentenced a defendant as a recidivist for 20 years imprisonment, to serve 15 years, pursuant to O.C.G.A. § 17-10-7, as a result of defendant's arson conviction because defendant chose to proceed with a jury trial instead of pleading guilty, which would have involved only a three-year sentence, which was indicated by the trial judge during a pretrial hearing. Moore v. State, 283 Ga. App. 533, 642 S.E.2d 163 (2007).
Merger of counts following conviction.
- Because the first degree criminal damage to property was the equivalent of charging the defendant with one of the five methods for proving first degree arson, the trial court erred by failing to merge the two counts upon conviction. Williams v. State, 329 Ga. App. 706, 766 S.E.2d 474 (2014).
Sentencing error.
- With regard to a defendant's convictions for malice murder and other crimes, the trial court erred by not merging for sentencing the two first degree arson counts with the first degree arson committed by knowingly damaging by fire the dwelling house of one of the victims count and the count charging the defendant with first degree arson committed by knowingly damaging by fire the same structure on the same date under such circumstances that it was reasonably foreseeable that human life might be endangered. Although the evidence showed that the defendant set the victims' residence afire by setting multiple fires in succession throughout the house, the defendant's conduct constituted one act of arson, that of the burning of the residence, thus, there was only one crime of arson in the first degree, and the trial court erred in imposing two consecutive 20-year sentences for the single first degree offense. O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008).
Trial court's sentencing order was reversed insofar as the order imposed two sentences for the one crime of arson in the first degree because, although the jury convicted the defendant on two counts of arson in the first degree, one alleging that the structure burned was a dwelling house and one alleging that it was reasonably foreseeable that the fire might endanger human life, the evidence showed that only one continuous act of setting multiple fires in the same house; the trial court was directed to vacate the sentence the court imposed based on the second count of arson in the first degree. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).
Defendant properly sentenced as a recidivist.
- Trial court properly dismissed a defendant's petition to correct a void sentence, which challenged the imposition of a 60-year recidivist sentence imposed against the defendant for burglary and arson, in violation of O.C.G.A. §§ 16-7-1(a) and16-7-60(c), respectively, as the state gave notice of the state's intent to have the defendant sentenced as a recidivist under O.C.G.A. § 17-10-7(a) and (c) and no abuse of the trial court's discretion was shown. Marshall v. State, 294 Ga. App. 282, 668 S.E.2d 892 (2008).
Cited in Keller v. State, 128 Ga. App. 129, 195 S.E.2d 767 (1973); Hall v. State, 130 Ga. App. 233, 202 S.E.2d 674 (1973); Griffin v. State, 133 Ga. App. 508, 211 S.E.2d 382 (1974); Powell v. State, 142 Ga. App. 641, 236 S.E.2d 779 (1977); Metts v. State, 162 Ga. App. 641, 291 S.E.2d 405 (1982); Howard v. State, 165 Ga. App. 184, 300 S.E.2d 194 (1983); Baxter v. State, 176 Ga. App. 154, 335 S.E.2d 607 (1985); Bryant v. State, 179 Ga. App. 653, 347 S.E.2d 301 (1986); Perez-Medina v. First Team Auction, Inc., 206 Ga. App. 719, 426 S.E.2d 397 (1992); Green v. State, 265 Ga. 263, 454 S.E.2d 466 (1995); Stanford v. Stewart, 274 Ga. 468, 554 S.E.2d 480 (2001).
Evidence
Arson can seldom be established by positive testimony. The character of the offense makes it necessarily dependent for conviction upon confessions and corroborating circumstances. The force to be given to the corroboration must be left to an upright and intelligent jury. Wade v. State, 195 Ga. 870, 25 S.E.2d 712 (1943).
Evidence of accused's motive is admissible.
- Evidence that the accused had a motive for setting a fire is admissible to aid in identifying the guilty incendiary or in showing that the fire was of criminal origin rather than of accidental origin. Lockhart v. State, 76 Ga. App. 289, 45 S.E.2d 698 (1947).
Testimony by state's expert witness.
- State's expert witness may be allowed to testify as to the expert's belief that the fire had been incendiary in origin. Blackburn v. State, 180 Ga. App. 436, 349 S.E.2d 286 (1986).
Accident defense rejected.
- Evidence that the defendant had threatened the victim's life more than once before the fire and had physically abused the victim along with the state's arson expert's testimony that the extent and type of the defendant's injuries made the defendant's accidental version of the fire impossible sufficed to support a finding that the defendant's striking of the match was intentional. Alexander v. State, 263 Ga. 474, 435 S.E.2d 187 (1993).
Film showing flammability of material.
- Trial court does not err in allowing a film showing the potential for the ignition of flammable material by a short circuiting cable as well as the effect of external heat upon an energized cable where, although the film is of tests that are wholly unrelated to the fire in question, one of the major issues in the case is whether the inception of the fire was the result of ignition of flammable material by a faulty entrance cable or whether the physical evidence indicates another starting point of the fire. Burns v. State, 166 Ga. App. 766, 305 S.E.2d 398 (1983), cert. denied, 465 U.S. 1027, 104 S. Ct. 1286, 79 L. Ed. 2d 688 (1984).
Stipulation of elements of arson.
- Defendant's acquiescence in an oral stipulation in open court, regarding the ownership and lack of consent to burning of a building, amounted to a conclusively binding admission on the required elements in an arson prosecution, even though the stipulation was not reduced to writing. Dryer v. State, 205 Ga. App. 671, 423 S.E.2d 297 (1992).
Sufficient evidence of intent to commit arson.
- Evidence that a defendant, who was under a restraining order, broke into the basement of a former spouse's home, bringing lighter fluid and several lighters, was sufficient to prove that the defendant was guilty of burglary with the intent to commit arson. Bubrick v. State, 293 Ga. App. 502, 667 S.E.2d 666 (2008).
Defendant's conviction for first degree arson was affirmed because O.C.G.A. § 16-7-60(a)(3) did not require that the fire be set with the intent to defraud the insurer. Here the evidence, including the defendant's statement to the fire investigators, clearly showed that the defendant poured gasoline and lighter fluid throughout the house and garage, and not just on the defendant's person. Barber v. State, 318 Ga. App. 240, 733 S.E.2d 525 (2012).
Evidence sufficient to show lack of consent to burning.
- Defendant's contention that the state did not prove that the burning of the building alleged in the first degree arson count was "accomplished without the consent of both the insurer and the insured . . ." is without merit where the evidence was sufficient to show that the insurer of the building did not consent to the building being burned. Blackburn v. State, 180 Ga. App. 436, 349 S.E.2d 286 (1986).
Evidence sustained defendant's conviction of attempt to commit arson in the first degree, where defendant was seen pouring or shaking gasoline on a house and surrounding hedge bushes, with a gasoline can in defendant's possession, and with a lighter in defendant's hand. Tucker v. State, 182 Ga. App. 625, 356 S.E.2d 559 (1987).
When the record showed that the defendant told his girlfriend during an argument that he was going to burn down their residence, and he poured gasoline on the front porch and a rug near the front door, such evidence was more than sufficient to support the defendant's conviction of attempted arson in the first degree. Dodson v. State, 257 Ga. App. 344, 571 S.E.2d 403 (2002).
Evidence supported the defendant's convictions for malice murder, attempted arson, and related charges since: (1) the victim was found encased in concrete in a cattle trough on a farm the defendant used for hunting; (2) the victim was killed by a .22 caliber bullet wound to the head and multiple stab wounds and the police executing a search warrant found a .22 caliber rifle and ammunition consistent with those used to kill the victim at the defendant's home; (3) the defendant's mailbox was painted with the same type of paint used on the cattle trough, and similar paint was found at the defendant's home; (4) the defendant purchased 10 80-pound bags of concrete and a cattle trough, like the one in which the victim was found; and (5) there was a heavy smell of kerosene and a candle burned down to the stub under the victim's sofa, indicating that someone had unsuccessfully attempted to set the house on fire. Fortson v. State, 277 Ga. 164, 587 S.E.2d 39 (2003), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Evidence was sufficient to support defendant's conviction of criminal attempt to commit arson, even though defendant testified that defendant poured the gasoline on the floor to as an experiment to get rid of insects, where a victim testified that defendant poured gasoline on the floor after getting angry with defendant's spouse, a neighbor testified that the victim and the victim's parent smelled like gasoline, the police chief testified that the odor of gasoline was so strong that the chief called the fire department, and the defendant testified that defendant overreacted when defendant heard the defendant's spouse and child laughing and that defendant told them that they thought that defendant was wrong about burning the house down. Waller v. State, 267 Ga. App. 608, 600 S.E.2d 706 (2004).
Conspiracy to commit arson.
- Conspiracy to commit arson, without more, does not naturally, necessarily, and probably result in the murder of one co-conspirator by another; thus, defendant was improperly convicted of murder because although defendant was guilty of conspiracy to commit arson, the subsequent murder of one co-conspirator by another to keep the murdered co-conspirator quiet was not reasonably foreseen as a necessary, probable consequence of the arson conspiracy. Everritt v. State, 277 Ga. 457, 588 S.E.2d 691 (2003).
Evidence sufficient to sustain conviction.
- See Parker v. State, 181 Ga. App. 590, 353 S.E.2d 83 (1987); Rash v. State, 182 Ga. App. 655, 356 S.E.2d 719 (1987); Brown v. State, 195 Ga. App. 532, 394 S.E.2d 378 (1990); Frost v. State, 200 Ga. App. 267, 407 S.E.2d 765, cert. denied, 200 Ga. App. 896, 407 S.E.2d 765 (1991); Collins v. State, 201 Ga. App. 433, 411 S.E.2d 341 (1991); Stephens v. State, 214 Ga. App. 183, 447 S.E.2d 26 (1994); Steidl v. State, 215 Ga. App. 17, 449 S.E.2d 644 (1994); Grover v. State, 215 Ga. App. 907, 452 S.E.2d 586 (1994); Lawrence v. State, 265 Ga. 65, 453 S.E.2d 733 (1995); Moak v. State, 222 Ga. App. 36, 473 S.E.2d 576 (1996); Morrow v. State, 230 Ga. App. 137, 495 S.E.2d 609 (1998); Cannon v. State, 230 Ga. App. 440, 496 S.E.2d 330 (1998); Kent v. Brown, 238 Ga. App. 607, 518 S.E.2d 737 (1999); White v. State, 238 Ga. App. 367, 519 S.E.2d 13 (1999); Allen v. State, 245 Ga. App. 884, 539 S.E.2d 211 (2000).
Evidence sufficient to sustain convictions of arson in the first degree and two counts of aggravated battery. Rhodes v. State, 187 Ga. App. 218, 370 S.E.2d 219 (1988).
Evidence was legally sufficient to support defendant's conviction for arson, as the evidence showed not only that defendant, who was romantically linked to the victim, killed the victim and fled from the victim's house after committing the act, but also that defendant intentionally set fire to the victim's house and burned it down. Parker v. State, 277 Ga. 439, 588 S.E.2d 683 (2003).
Evidence was sufficient to support defendant's conviction for arson, felony murder, and aggravated assault resulting from a fire set at a residence occupied by defendant's sister-in-law, the sister-in-law's four children, and the sister-in-law's 12-year-old sibling where: (1) defendant confronted defendant's sister-in-law at the sister-in-law's home, alleging that the sister-in-law had stolen items from defendant's mobile home; (2) a physical altercation ensued between defendant and the sister-in-law; (3) defendant retrieved a gasoline can from defendant's car, poured gasoline onto the back door of the sister-in-law's home, and ignited it; and (4) the sister-in-law's three-year-old child died from the injuries sustained in the fire. Tarvin v. State, 277 Ga. 509, 591 S.E.2d 777 (2004).
Because defendant admitted that while the defendant's children were sleeping and to scare a love interest defendant used a cigarette lighter to set fire to the bedding on the corner of one child's bed, causing a fire in a trailer that killed three children, the evidence was sufficient to enable a rational trier of fact to find that defendant was, beyond a reasonable doubt, guilty of three counts of malice murder, three counts of felony murder, and two counts of arson in the first degree; thus, the trial court did not err by denying defendant's motion for a directed verdict of acquittal pursuant to O.C.G.A. § 17-9-1(a). Riley v. State, 278 Ga. 677, 604 S.E.2d 488 (2004).
Denial of defendant's motions for a directed verdict and judgment notwithstanding the verdict was proper as the evidence established the essential elements of attempted arson and aggravated assault; the evidence showed that defendant poured gasoline near two ignition sources (a light bulb and hot water heater) in the crawlspace of an estranged love interest's house and then told the estranged love interest's adult children to light the water heater's pilot flame. McGraw v. State, 276 Ga. App. 607, 624 S.E.2d 232 (2005).
Because the fire occurred in the early morning hours, there was sufficient evidence under O.C.G.A. § 16-7-60(a)(5) that it was reasonably foreseeable that a human life was endangered to convict the defendant of first degree arson; people were sometimes on or near the premises after hours, and there was testimony that the fire presented a danger to nearby residents, the public, and firefighters. Pless v. State, 277 Ga. App. 415, 626 S.E.2d 613 (2006).
Malice murder and attempted arson convictions were upheld as: (1) the evidence presented showed that an attempted arson was inextricably linked to the victim's murder, and the jury was authorized to find beyond a reasonable doubt that the defendant was guilty; (2) the admission of two handwritten documents that defendant had penned was proper as their prejudicial impact did not outweigh their probative value; and (3) the trial court did not abuse the court's discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence. Fortson v. State, 280 Ga. 376, 628 S.E.2d 104 (2006).
When the facts demonstrated that the defendant threatened to burn down a restaurant and then proceeded to pour gasoline onto the restaurant's tables and carpet in front of numerous eyewitnesses, such was sufficient evidence to allow a rational jury to convict defendant of attempt to commit arson and terroristic threats; moreover, the defendant's act of damaging the tables and carpet by pouring gasoline on them was sufficient to support a conviction of first-degree criminal damage to property. Robinson v. State, 288 Ga. App. 219, 653 S.E.2d 810 (2007).
Sufficient evidence supported the defendant's first degree arson conviction under O.C.G.A. § 16-7-60; the defendant had set fire to the spouse's belongings before, the defendant confessed to an inmate that the defendant had set fire to the spouse's master bedroom, and the fire expert testified that the fire had been set intentionally and had originated in the master bedroom. Fields v. State, 281 Ga. App. 733, 637 S.E.2d 136 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Sufficient evidence supported the defendant's convictions of malice murder and first-degree arson since: the defendant, who owed money to the victim for a house and who had delayed paying the money, was supposed to meet the victim at a bank to pay the victim on the day the victim's body was discovered in the victim's burned mobile home; a medical examiner testified that the victim had died by strangulation; the defendant had been seen at the mobile home twice that day and appeared agitated; there was fire-related activity in the defendant's home; the defendant had completed firefighting classes for work that included training in delayed-ignition devices constructed from household items; there was similar transaction evidence about a fire in the defendant's home and the defendant's use of the insurance proceeds from that fire to pay debts; and the defendant's claim that the defendant had been with the defendant's spouse at the time of the fire could be readily explained by the possibility of the use of a delayed-ignition device. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718 (2007).
Sufficient evidence was presented to support a finding of felony murder based on arson in the first degree as O.C.G.A. § 16-7-60(a) did not require that a defendant personally set the fire or possess ignitable materials and the defendant knowingly damaged property by adding tires to the fire; additionally, based on the defendant's statements at the scene, the defendant was aware that human life might be endangered under § 16-7-60(a)(5) because the defendant indicated that the defendant knew someone was inside the building. Vega v. State, 285 Ga. 32, 673 S.E.2d 223 (2009).
Convictions of arson, O.C.G.A. § 16-7-60(a), and stalking, O.C.G.A. § 16-5-90, were proper because the circumstantial evidence presented at trial included a kerosene-soaked, partially burned mailing label addressed to the defendant found at the scene of a fire at the victim's home; the jury was entitled to infer from this evidence that the defendant left a virtual "calling card." The state also presented evidence of the defendant's escalating obsession with the victim and the threatening phone calls the defendant made to the victim shortly before the fire. Ransom v. State, 297 Ga. App. 902, 678 S.E.2d 574 (2009).
Trial court did not err in convicting the defendant of first degree arson in violation of O.C.G.A. § 16-7-60(a)(5) because there was evidence that the defendant intended to damage an apartment and that it was reasonably foreseeable that human life would be endangered as a result of the fire when the defendant ripped out the smoke detector and poured alcohol on the items the defendant put in the oven; an arson investigator testified that it was "absolutely" foreseeable that the fire could have endangered human life, and the evidence was that there was visible smoke damage on the walls, which was sufficient to constitute "damage" under § 16-7-60. Ursulita v. State, 307 Ga. App. 735, 706 S.E.2d 123 (2011).
Evidence was sufficient to support convictions for arson because: (1) one of the defendants placed dozens of calls from the decedent's cell phone as the defendants traveled from Tampa to Atlanta in the decedent's pickup truck; (2) the truck was destroyed in a fire that was started through the use of an accelerant near an apartment complex where the defendants were staying with relatives; (3) the decedent's body was found in the bed of the truck; (4) the decedent had been dead for days before the fire; (5) personal belongings of the decedent were found in the possession of the defendants; and (6) the defendants gave statements to the police. Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011).
Evidence was sufficient to convict the defendant of first degree arson, because a rational jury could have found that the defendant knew the victim's house would catch fire when the defendant set the victim's van, parked only six feet from the victims' house, on fire. Crawford v. State, 318 Ga. App. 270, 732 S.E.2d 794 (2012).
Evidence that fire investigators found that the fire had two points of origin and that a kitchen drawer, which contained a large box of matches, had been opened before the fire, and the circumstantial evidence that whoever stole the victim's coins had to enter the residence, insofar as the coins were kept in the victim's bedroom, authorized a jury to infer that the fire was set intentionally. Blevins v. State, 291 Ga. 814, 733 S.E.2d 744 (2012).
Evidence that the defendant had money problems, had a drug problem, had removed valuable and irreplaceable items from the home, and made sure the family and pets were out of the home at the time of the fire, authorized the jury to conclude that the defendant knowingly damaged the house, which was mortgaged and insured, by means of fire and supported a conviction for first degree arson. Graf v. State, 327 Ga. App. 598, 760 S.E.2d 613 (2014).
Evidence was sufficient to convict the defendant of first-degree arson because there was sufficient evidence to support the jury's conclusion that it was reasonably foreseeable that human life might be endangered by setting fire to a car containing additional tires, which were classified as accelerants, in a heavily wooded area near homes. Clary v. State, 344 Ga. App. 710, 812 S.E.2d 31 (2018).
Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because sufficient evidence supported the defendant's convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant's admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199, 818 S.E.2d 268 (2018).
Jury was authorized to find that the defendant was a party to the crimes of attempted murder and first degree arson based on evidence that the defendant and an accomplice intended to rob the victim and then kill the victim to avoid detection and hitting the victim with a machete and setting fire to the victim's residence were done in execution of that purpose. Lonon v. State, 348 Ga. App. 527, 823 S.E.2d 842 (2019).
Evidence insufficient to sustain conviction.
- Conviction of first degree arson, O.C.G.A. § 16-7-60(a)(2), was not supported by sufficient evidence since there was no showing that a truck allegedly burned by the defendant was designed for use as a dwelling, and there was no showing of a lack of consent to the burning by the lienholder on the truck or by the joint owner, the defendant's spouse; neither the spouse's insurance claim form stating that the spouse did not procure the loss, nor an insurance payment to the lienholder showed the required lack of consent, and there was no evidence in the entirely circumstantial case from which a jury could have excluded the very reasonable alternate hypothesis that the lien holder consented to the fire so as to recover the insurance proceeds for payment on a loan owed by a financially-troubled debtor, the defendant. Prater v. State, 279 Ga. App. 527, 631 S.E.2d 746 (2006).
Jury Instructions
Jury must act on probabilities, not impossibilities.
- The mere possibility that the fire was occasioned by spontaneous combustion or by some other cause innocent of criminal intent does not demand an acquittal, for the jury must act on probabilities, not impossibilities. Lockhart v. State, 76 Ga. App. 289, 45 S.E.2d 698 (1947).
Charge on attempted first-degree arson was authorized since the jury would have been authorized from the evidence to conclude that defendant intended to set fire to a house and that defendant set fire to clothing as a substantial step toward the commission of that crime. Plemons v. State, 194 Ga. App. 554, 390 S.E.2d 916 (1990).
Charge on third-degree arson not warranted.
- When the evidence indicated that five fires were intentionally set, that at least three of the fires damaged a dwelling house, and that one of the fires may have only damaged personal property, and there was no evidence to support a finding that defendant set only a personal property fire, it was not error for a trial court to refuse to charge on third-degree arson. Plunkett v. State, 244 Ga. App. 504, 535 S.E.2d 852 (2000).
Charge on criminal damage to property not warranted.
- State's evidence, including defendant's confession, established all the elements of arson in the first-degree and defendant did not present any evidence raising criminal damage to property as a lesser-included offense in a case where defendant set a fire in a trailer home. Accordingly, the trial court did not err in refusing to give defendant's requested jury charge on criminal damage to property as a lesser-included offense of arson, even assuming that defendant requested such an instruction at trial. Tumlin v. State, 264 Ga. App. 565, 591 S.E.2d 448 (2003).
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Arson and Related Offenses, § 1 et seq. 31A Am. Jur. 2d, Explosions and Explosives, §§ 169 et seq., 191.
C.J.S.- 6A C.J.S., Arson, § 1 et seq.
ALR.
- Ownership of property as affecting criminal liability for burning thereof, 17 A.L.R. 1168.
Vacancy or nonoccupancy of building as affecting its character as "dwelling" as regards arson, 44 A.L.R.2d 1456.
Burning of building by mortgagor as burning property of another so as to constitute arson, 76 A.L.R.2d 524.