Arson. MCM, pt. IV, 2; UCMJ art. 126

Arson. MCM, pt. IV, 2; UCMJ art. 126

Arson. MCM, pt. IV, 2; UCMJ art. 126

Elements

  1. test1 137 (Side 137)Aggravated arson.
    1. Inhabited dwelling. (a) That the accused burned or set on fire an inhabited dwelling; (b) That this dwelling belonged to a certain person and was of a certain value; and (c) That the act was willful and malicious.
    2. Structure. (a) That the accused burned or set on fire a certain structure; (b) That the act was willful and malicious; (c) That there was a human being in the structure at the time; (d) That the accused knew that there was a human being in the structure at the time; and (e) That this structure belonged to a certain person and was of a certain value.
  2. Simple arson.
    1. That the accused burned or set fire to certain property of another;
    2. That the property was of a certain value; and
    3. That the act was willful and malicious.

Mens Rea

  1. All degrees of arson require proof of willfulness and maliciousness; that is, not merely negligence or accident. MCM, pt. IV, 52c. Specific intent is not an element of aggravated or simple arson. United States v. Acevedo-Velez , 17 M.J. 1 (C.M.A. 1983) (intent requirement for aggravated arson met where accused set fire to a coat where there was a great possibility the building would catch on fire even though accused did not intend to burn the building); see United States v. Marks , 29 M.J. 1 (C.M.A. 1989); United States v. Banta , 26 M.J. 109 (C.M.A. 1988) (voluntary intoxication is not a defense); United States v. Acevedo-Velez , 17 M.J. 1 (C.M.A. 1983); United States v. Caldwell , 17 M.J. 8 (C.M.A. 1983).
  2. In the offense of aggravated arson by setting fire to an inhabited dwelling, the accused’s knowledge of the type or purpose of structure is not required. United States v. Duke , 37 C.M.R. 80 (C.M.A. 1966) (intoxication no defense). Accused properly convicted of aggravated arson for burning his own residence that he intended to abandon and from which his family had moved . United States v. Dasha , 23 M.J. 66 (C.M.A. 1986).
  3. Intentionally starting a fire and negligently failing to ensure it is extinguished is arson. United States v. Crutcher , 49 M.J. 236 (C.A.A.F. 1998) (accused made some effort to put out the fire he had started).

test1 037 (Side 37)Actual burning or charring of alleged property or structure is required, and merescorching or discoloration is insufficient. MCM, pt. IV, 52c(2)(c); United States v. Littrell , 46 C.M.R. 628 (A.B.R. 1972) (burning of desk within building insufficient to prove aggravated arson; affirmed lesser included offense of attempted aggravated arson).

Disorderly conduct as lesser included offense. United States v. Evans , 10 M.J. 829(A.C.M.R. 1981) (accused could be convicted of disorderly conduct as a lesser included offense of arson where specification alleged that accused was disorderly in quarters by setting fire to commode seat in latrine of his billets room and proof reasonably established all elements of disorderly conduct).

Simple arson is a lesser included offense of attempted aggravated arson. UnitedStates v. Dorion , 17 M.J. 1064 (A.F.C.M.R. 1984).

Burning with intent to defraud is a violation of UCMJ art. 134. See generally UnitedStates v. Banta , supra at H.2.a.; United States v. Fuller , 25 C.M.R. 405 (C.M.A 1958); United States v. Snearley , 35 C.M.R. 434 (C.M.A. 1965); United States v. Colyon , 35 M.R. 870 (A.F.C.M.R. 1965).