United States v. Marks

DECISION

HOLTE, Judge:

A military judge, sitting alone, found the appellant guilty, contrary to his pleas, of *655aggravated arson, a violation of Article 126, U.C.M.J., 10 U.S.C. § 926. The adjudged and approved sentence consists of a bad conduct discharge, confinement for one year and one day, forfeiture of $200.00 per month for seven months and reduction to airman basic.

The appellant’s court-martial resulted from a fire in the USAF Regional Hospital, Maxwell Air Force Base, Alabama, in the early hours of 22 August 1986. The appellant was on duty in the hospital emergency room at 0528 hours when the fire alarm sounded. He proceeded to the source of the fire, which was in the vicinity of several canvas litters which were stacked in a upright position under the stairwell. The fire had been extinguished by the appellant and other hospital personnel by the time firefighters arrived on the scene. Investigation revealed that a fire from one of the litters had caused a burning of the paint on the adjacent wall under the stairwell and of a large board affixed to the wall with heavy bolts, to which the litters were attached. The fire had caused the spread of a smoky haze throughout portions of the hospital resulting in a number of patients being evacuated from the wards.

For reasons not fully developed in the record the appellant attracted the suspicion of investigators. When he was initially questioned on 25 September 1986 he denied any knowledge of the fire’s origin. However, on 1 October 1986, he acknowledged responsibility and executed a sworn statement following an appropriate advisement of rights. Article 31, U.C.M.J., 10 U.S.C. § 831; United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). The appellant, who did not subsequently testify on the merits at trial, stated to investigators that he had passed the litters at 0515 hours, 22 August 1986, while on a break from his scheduled place of duty in the emergency room. Having heard that the canvas portions of the litters were flame resistant, he decided to test the validity of this information. He held the flame of a lighter to the canvas material on one of the litters. According to his statement, “It appeared as if nothing happened.” The appellant proceeded to his place of duty and responded to the fire alarm “approxpmately] 20 min[utes] later.” The evidence produced at trial reflects that the fire alarm actually sounded 13 minutes later, at 0528 hours.

Appellate defense counsel maintains that the evidence is insufficient to establish the offense of arson, which requires proof of more than a negligent or accidental burning of a structure. M.C.M., Part IV, paragraph 52(c) (1984). Arson is premised upon a willful and malicious burning. Id. Proof of arson may rest on circumstantial evidence. United States v. Huxhold, 20 M.J. 990 (N.M.C.M.R.1985). On appeal the appellant argues there was insufficient evidence to establish that he entertained the requisite willfulness and maliciousness necessary for a conviction of aggravated arson. We view the evidence differently and affirm.

Before we evaluate the evidence in this case it is necessary to state the common understanding of the critical words “willful and malicious.” The word “willful” is defined in Black’s Law Dictionary, Fifth Edition (1979), as follows: “proceeding from a conscious motion of will; voluntary. Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary”.

The word “malicious” is defined in Black’s Law Dictionary, supra, as follows: “Characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse.”

DA Pam 27-9, Military Judges’ Bench-book, Para. 3-99 (May 1982, Change 1, 15 February 1985) has defined these two terms in simpler form. In setting out the elements of the offense of aggravated arson this publication states, “An act is done ‘willfully’ if done intentionally or on purpose”. It further states, “An act is done ‘maliciously’ if done deliberately and without justification or excuse. The malice required for this offense does not have to amount to ill will or hostility. It is sufficient if a person deliberately and without *656justification or excuse burns or sets fire to the dwelling of another”.

The evidence is uncontroverted that the appellant took his lighter and held the flame to the canvas part on one of the litters. Such act on his part cannot be said to be accidental nor can it be said to be a negligent act on his part. Therefore we conclude that such act was deliberate and intentional. The fact that the appellant’s act of holding the flame of the lighter to the canvas was deliberate and intentional and without justification or excuse makes such act malicious within the definition of that term as it applies to the law of arson.

The record is void as to the combustible qualities of the canvas. We conclude that such evidence is not essential to the resolution of this issue before us. A fire erupting from a material that the flame of a lighter has been put in contact with certainly is a natural foreseeable consequence of such act. It is well established that an individual is responsible for the foreseeable consequences of his deliberate acts. Webster’s Third New International Dictionary (1967) defines the term “fire resistance” as the degree of resistance of material to fire measured in terms of time of withstanding a standard test fire. It matters not that the canvas did not instantly erupt into flame. Such delayed combustion could have resulted from the way in which the litters were folded or could have been caused by a retardant applied to the litters to make them fire resistant, which is what the appellant thought was the case. In the event that the litters were in fact fire resistant, delayed combustion would be the natural result of such canvas coming into contact with a fire. We conclude this from the above quoted definition of the term fire resistance.

The fact that the appellant had no intent to cause harm to anyone or to damage any equipment is of no consequence as the crime of arson is a general intent rather than a specific intent crime. United States v. Acevedo-Velez, 17 M.J. 1 (C.M.A.1983). The law of arson clearly states that the arson must be predicated upon a deliberate act of setting a fire, notwithstanding the lack of a specific intent to bum a structure. United States v. Acevedo-Velez, supra. Further, the element of willfulness is satisfied when one “knowingly starts a fire without lawful excuse and for some mischievous purpose.....” United States v. Caldwell, 17 M.J. 8 (C.M.A.1983). For the reasons stated above we conclude that there is sufficient evidence, both direct and circumstantial, to sustain the conviction of the appellant.

The issues personally asserted by the appellant are found to be without merit. Accordingly, the findings of guilty and sentence are

AFFIRMED.

Chief Judge HODGSON, Senior Judge FORAY, Judges MICHALSKI and BLOMMERS concur.