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THE COURT OF APPEALS OF THE STATE OF ALASKA
LANCE HATHAWAY, )
) Court of Appeals No. A-5769
Appellant, ) Trial Court No. 4FA-S94-2380CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1495 - November 1, 1996]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Richard D.
Savell, Judge.
Appearances: J. John Franich, Assistant Public
Advocate, Fairbanks, and Brant G. McGee,
Public Advocate, Anchorage, for Appellant.
Cynthia M. Hora, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Lance Hathaway was convicted, following a jury trial, of
nine counts of arson in the first degree, a class A felony, and
eight counts of assault in the third degree, a class C felony. AS
11.46.400(a); AS 11.41.220(a). (EN1) Superior Court Judge Richard
D. Savell sentenced Hathaway to a composite sentence of twenty-five
years of imprisonment with eight years suspended. Judge Savell
placed Hathaway on probation for ten years following his release
from confinement. Hathaway appeals his convictions and sentence.
We affirm in part, reverse in part, and remand for further
proceedings.
Lance Hathaway lived with his girlfriend in an apartment
building in Fairbanks. The two-story apartment building had eleven
units. Hathaway and his girlfriend lived in apartment number 9,
which was on the second floor of the apartment building. On July
5, 1994, the landlord informed the girlfriend that Hathaway was not
to reside at the apartment and if there was any trouble, the
girlfriend would be evicted. On July 29, 1994, Hathaway returned
to the apartment. Sometime around 7:30 p.m. on that date, Hathaway
crumpled up some papers and threw them on top of his girlfriendþs
clothing, which was located in a laundry basket in their bedroom.
Hathaway lit the papers on fire and left the apartment. A short
time later, the apartment building burst into flames.
The nine residents and visitors in other apartments in
the building at the time had to be evacuated. Eight of them
testified to their fear at trial (the ninth was a three-year-old
child). The fire caused significant property damage, serious
enough that the building could not be lived in for several months.
The police suspected Hathaway of starting the fire from
the beginning. Hathaway admitted to the police that he had started
a fire, but said that he did not think that the small fire he had
started could have spread to the rest of the building. However,
investigation by the fire department ruled out the electrical and
heating systems as possible causes of the fire. The investigator
concluded that the fire had been deliberately set in the rear
bedroom of apartment #9 in a laundry basket.
A Fairbanks grand jury indicted Hathaway on nine counts
of arson in the first degree and eight counts of assault in
the third degree. A jury convicted Hathaway of these charges.
Hathaway contends on appeal that the state could not convict him of
nine counts of arson in the first degree. Hathaway points out that
he started but a single fire in the apartment and argues that the
state could only convict him of a single count of arson based upon
this evidence.
Alaska Statute 11.46.400 defines the crime of arson in
the following way:
Arson in the first degree. (a) A person
commits the crime of arson in the first degree
if the person intentionally damages any
property by starting a fire or causing an
explosion and by that act recklessly places
another person in danger of serious physical
injury. For purposes of this section,
"another person" includes but is not limited
to fire and police service personnel or other
public employees who respond to emergencies,
regardless of rank, functions, or duties being
performed.
AS 11.46.410 provides:
Arson in the second degree. (a) A person
commits the crime of arson in the second
degree if the person intentionally damages a
building by starting a fire or causing an
explosion.
Arson appears to be at its roots a property crime. Common law
arson is the malicious burning of the dwelling of another. Rollin
M. Perkins and Ronald N. Boyce, Criminal Law, page 273 (3d ed.
1982). In the Alaska Criminal Code the arson statutes are located
in Chapter 46 which contains offenses against property. In Machado
v. State, 797 P.2d 677, 687 (Alaska App. 1990), we discussed arson,
referring to it as a crime which þprohibits the intentional damage
of property.þ In Machado, the defendant assisted in placing a bomb
in his victimþs car. The bomb exploded, severely injuring the
victim and a bystander. The state convicted Machado of attempted
murder, arson in the first degree, and assault in the first degree.
Machado argued that convicting him of all these offenses was a
violation of double jeopardy because all the offenses arose from a
single act, the car bombing. In deciding that the state could
convict Machado of arson as well as the other charges, we stated:
We similarly conclude that Machado was
subject to separate punishment on the
conviction for arson. This count charged
Machado with intentionally damaging [the
victimþs] auto by causing an explosion and, by
that act, with recklessly placing another
person in danger of serious physical injury.
AS 11.46.400(a). The arson statute is
distinct in that it prohibits the intentional
damage of property, and therefore protects
different societal interests than the
attempted murder and assault statutes. We
conclude that Machadoþs conviction for arson
did not violate double jeopardy.
Id. (emphasis added). Against this background, it appears to us
that the legislature intended the crime of arson to criminalize
intentionally damaging property (or, in the case of second degree
arson, a building) by starting a fire or causing an explosion. The
state cites no legislative history from Alaska or arson cases from
jurisdictions with similar statutes that would support a contrary
interpretation of Alaskaþs first-degree arson statute.
The legislative history of Alaskaþs Criminal Code shows
that Alaskaþs arson statutes were derived from Model Penal Code 
220.111. Alaska Criminal Code Revision Commission Report to the
Ninth Legislature, Alaska Criminal Code Revision Preliminary
Report, at 7, 12 (1976); Alaska Dept. of Law, Criminal Law Manual,
at 6-15 (1985). The commentary to the Model Penal Code is
consistent with our decision that the legislature intended to treat
arson as fundamentally a property crime. (EN2) Model Penal Code
and Commentaries,  220.1 at 21-22 (1962).
In the instant case, the state only charged Hathaway with
setting one fire and damaging one piece of property: the apartment
building. Each count of arson was differentiated only by the fact
that each count listed a separate victim who had been placed in
danger of serious physical injury. We agree with Hathaway that
merely listing a separate victim in each count of the indictment
was not sufficient to support separate convictions for arson. We
accordingly conclude that the state could only convict Hathaway of
one count of arson in the first degree. (EN3)
Hathaway next contends that the double jeopardy clause of
the Alaska Constitution prohibits the state from convicting him for
both arson and assault. In Whitton v. State, 479 P.2d 302 (Alaska
1970), the Alaska Supreme Court set out the test for determining
whether a single act that violates two statutes constitutes more
than one offense under the double jeopardy clause of the Alaska
Constitution.
The trial judge would first compare the
different statutes in question, as they apply
to the facts of the case to determine whether
there were involved differences in intent or
conduct. He would then judge any such
differences he found in light of the basic
interests of society to be vindicated
or protected, and decide whether those
differences were substantial or significant
enough to warrant multiple punishments. The
social interests to be considered would
include the nature of personal, property or
other rights sought to be protected, and the
broad objectives of criminal law such as
punishment of the criminal for his crime,
rehabilitation of the criminal, and the
prevention of future crimes.
Id. at 312.
Arson in the first degree requires proof that (1) the
defendant started a fire or caused an explosion with the intent to
damage any property, (2) that the fire or explosion damaged the
property, and (3) that the defendant in doing so recklessly placed
another person in danger of serious physical injury. AS
11.46.400(a). Assault in the third degree requires proof that (1)
the defendant recklessly placed another person in fear of imminent
serious physical injury, and (2) did so by means of a dangerous
instrument. AS 11.41.220(a)(1)(A).
As we have previously pointed out, arson is by origin a
property crime. Arson in the first degree is an aggravated offense
where the defendant recklessly places another person in danger of
physical injury. Mossberg v. State, 733 P.2d 273, 275 (Alaska App.
1987); Machado v. State, 797 P.2d 677, 687 (Alaska App. 1990).
Where the crime committed goes beyond placing another person in
danger of physical injury but actually results in injury to that
person, courts in this state have concluded that double jeopardy
does not prevent a separate conviction for that additional injury.
Jacinth v. State, 593 P.2d 263, 266-67 (Alaska 1979) (defendant
could be convicted for both arson and manslaughter); Machado v.
State, 790 P.2d 677, 686-87 (Alaska App. 1990) (defendant could be
convicted of attempted murder, assault in first degree, and arson
in the first degree). We accordingly conclude that Hathaway's
conviction for arson did not preclude his convictions for assault.
Hathaway next contends that the double jeopardy clause of
the Alaska Constitution prohibits multiple assault convictions for
eight separate victims. He contends that a single act of setting
a fire should not result in eight separate convictions for the
eight separate people the state showed had been placed in fear of
imminent physical injury by his acts. Hathaway recognizes that his
argument is foreclosed by State v. Dunlop, 721 P.2d 604, 609
(Alaska 1986), where the supreme court stated:
When several deaths or injuries occur in the
course of a single incident, the offense
prohibited by the statute has been violated several times over. The
identity of the victim represents different conduct þ it represents
conduct directed at that victim.
Instead of focusing on the accused's intent we must look at
the consequences. Where an act of violence injures multiple
victims, there are as many punishable offenses as there are
victims.
(Footnote omitted) (emphasis in original). Hathaway argues that Dunlop was incorrectly
decided. However, we are bound by Dunlop. State v. Fremgen, 889 P.2d 1083, 1085 (Alaska
App. 1995) ("as a lower court within the state court system, we are bound by the decisions of
the Supreme Court of Alaska"). We accordingly conclude that Hathaway's convictions for arson
in the first degree must merge into a single count. We affirm his eight convictions for assault
in the third degree. Since we have modified Hathaway's convictions, the superior court on
remand must resentence Hathaway. It is therefore premature for us to consider whether
Hathawayþs sentence is excessive.
REMANDED.
ENDNOTES:
1. Hathaway was also convicted of the class A misdemeanor offense
of driving while intoxicated. Hathaway has not appealed this
conviction.
2. Moreover, a contrary interpretation of this statute would
arguably convert first-degree arson into a specialized form of
assault, requiring the offense to merge with separate assault
charges. Cf. People v. Perez, 569 N.Y.S.2d 72, 73 (A.D. 1 Dept.
1991) (interpreting New York first-degree arson statute, which
requires proof of actual injury, to allow a separate count for each
victim of the arson).
3. In this case, the state charged Hathaway with intentionally
damaging only one piece of property: the apartment building. This
would only allow the state to convict Hathaway of a single count of
arson in the first degree. However, we specifically do not decide
whether the state could have charged Hathaway with several counts
of arson by charging that he intentionally damaged several separate
apartments.
