United States v. Jane Doe (r.s.w.)

Opinion by Judge SCHWARZER; Dissent by Judge Fletcher.

SCHWARZER, Senior District Judge:

R.S.W., a young Indian person on the Northern Cheyenne Indian Reservation, was found guilty of juvenile delinquency pursuant to 18 U.S.C. § 5032 after a bench trial in the district court for having committed arson in violation of 18 U.S.C. §§ 81 and 1153. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm but on a ground different from that relied on by the district court.

I.

On February 12, 1996, at approximately 10 a.m., a fire occurred at the Morning Star School in Lame Deer on the Northern Cheyenne Indian Reservation in Montana. It caused extensive damage to the building but no one was injured. R.S.W. at that time was twelve years old and in the seventh grade.

Prior to the fire, R.S.W. and a friend went into the girls restroom of the school. Two automatic paper towel dispensers, designed to dispense one paper towel sheet at a time, were located on a privacy partition inside the restroom. As the girls talked, R.S.W. began playing with a lighter she had with her. According to her testimony at trial, first she lit one corner of a paper towel from one of the dispensers. She let the towel burn for a few seconds, then blew out the flame and put the burned towel in the sink. She then returned to the paper towel dispenser and lit the left corner of another towel protruding from it. She let the flame burn for a second *634and blew it out. She then lit the right comer of the same towel in the dispenser, blew it out and followed her Mend out of the bathroom. The building subsequently caught fire and the school was evacuated. Investigation determined the fire originated in the girls restroom.

The district court found that R.S.W. “knew what she was doing when she lit the paper towel” and “knew the likely result of her conduct would damage the school.” It concluded that “the United States had proven beyond a reasonable doubt that the defendant intended to set fire to or burn the Lame Deer High School since she was aware that an unattended fire in a building can result in the building burning.” As a result, the district court found R.S.W. guilty and sentenced her to five years probation.

II.

The question presented by this appeal is what mens rea is required to be proved to establish a violation of the federal arson statute, 18 U.S.C. § 81.1 The district court did not address the issue directly but its finding implies that it assumed knowledge that burning the building down was a likely result of the act was an element of the offense. We review the district court’s construction or interpretation of a statute de novo. United States v. DeLaCorte, 113 F.3d 154, 155 (9th Cir.1997).

Section 81 makes it an offense to “willfully and maliciously set[ ] fire to or burn a building.” Prior interpretations of “willfully” are not necessarily binding or helpful, for as the Supreme Court has noted, “ ‘[wjillful,’ ... is a “word of many meanings,’ and ‘its constmction [is] often ... influenced by its context.’ ” Ratzlaf v. United States, 510 U.S. 135, 141, 114 S.Ct. 655, 659, 126 L.Ed.2d 615 (1994) (quoting Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943)). In analyzing the mens rea requirement of federal criminal statutes, courts “must follow Congress’ intent as to the required level of mental culpability for any particular offense.” United States v. Bailey, 444 U.S. 394, 406, 100 S.Ct. 624, 632, 62 L.Ed.2d 575 (1980).

The legislative history of § 81 is silent as to the intended meaning of “willfully and maliciously.” In the absence of any indication to the contrary, we must assume that when Congress adopted the common law definition of the crime of arson-the willful and malicious burning of a building-it intended to adopt the meaning that common law gave that phrase.2 Moskal v. United States, 498 U.S. 103, 116-17, 111 S.Ct. 461, 469-70, 112 L.Ed.2d 449 (1990) (where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the term must generally be given that meaning); United States v. Loera, 923 F.2d 725, 727-28 (9th Cir.1991) (“[t]he common-law meaning of a common-law term used in a federal criminal statute provides a source from which statutory precision may be derived”) (citation omitted); United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991) (“Because ‘assault’ is not defined in the statute, we have construed it to be equivalent to common law assault.”); United States v. Gullett, 75 F.3d 941, 947 (4th Cir.), cert. denied, — U.S. -, 117 S.Ct. 134, 136 L.Ed.2d 83 (1996) (“[I]f Congress uses a common-law term in a federal criminal statute without defining it, we must presume that Congress adopted the common-law definition of that term.”).

*635At common law, “[a]rson is a crime of general, rather than specific intent and the requirement that the defendant act ‘wilfully and maliciously’ does not mean that the defendant must have an actual subjective purpose that the act he does intentionally shall produce either (1) setting a fire or burning of the structure or (2) damage to or destruction of said structure.” Dean v. State, 668 P.2d 639, 643 (Wyo.1983); State v. Scott, 118 Ariz. 383, 576 P.2d 1383, 1385 (1978); see also State v. O’Farrell, 355 A.2d 396, 398 (Me.1976); State v. Bell, 113 Ariz. 279, 551 P.2d 548, 550 (1976); United States v. Acevedo-Velez, 17 M.J. 1, 2 (C.M.A.1983); 6A C.J.S. Arson § 6, 223 (1975).3 “To be a willful act, the setting of the fire must be a conscious, intentional act done knowingly and according to a purpose, as distinguished from a fire that was started by accident or defendant’s involuntary act.” 5 Am.Jur.2d Arson and Related Offenses § 7 (1995); see also Isaac v. State, 645 So.2d 903, 908 (Miss.1994) (citing Curtis’ Treatise on the Law of Arson); Dean, 668 P.2d at 642; Linehan v. State, 442 So.2d 244, 247 (Fla.Dist.Ct.App.1983); Scott, 576 P.2d at 1385; State v. Nelson, 17 Wash.App. 66, 561 P.2d 1093, 1096 (1977). “ ‘Maliciously’ means that state of mind which actuates conduct injurious to others without lawful reason, cause or excuse.” Dean, 668 P.2d at 643; Scott, 576 P.2d at 1385; see also 5 Am.Jur.2d Arson and Related Offenses § 7 (1995) (an act “done with a design to do an intentional wrongful act ... toward the public, without any legal justification, excuse or claim of right”).4

At common law, therefore, arson did not require proof of an intent to burn down a building, or of knowledge this would be the probable consequence of the defendant’s act. The elements of willfulness and maliciousness are established by proof that the defendant set the fire intentionally and without justification or lawful excuse.5 Every state jurisdiction with an arson statute containing the generic terms “willfully and maliciously” has so interpreted the statute.6 *636Those jurisdictions not following the common law definition either have eliminated “willfully and maliciously” from their statutes7 or have amended their statutes to include a different definition of that phrase.8 Given the uniform construction at common law of the “willful and malicious” element, and the absence of evidence to the contrary, we must assume that Congress knew how the common law defined that phrase and intended to adopt that definition in enacting § 81.

We are aware of only one federal appellate decision that has addressed the mens rea requirement under § 81. In United States v. M.W., 890 F.2d 239 (10th Cir.1989), the court affirmed a conviction, holding that a finding that the defendant was “consciously aware that his conduct would result in setting fire to or burning the school building ... established knowing conduct and was, therefore, sufficient to support [the conviction]” under § 81. Id. at 241.9 While we agree with the result reached by the court, we disagree with its reasoning. The court did not address the common law definition of the crime and instead made reference to the Model Penal Code analysis of mens rea. We respectfully reject its analysis which implies a higher mens rea requirement than exists at common law.10

III.

We turn then to the facts. The district court’s findings of fact are reviewed for clear error. United States v. Kohli, 110 F.3d 1475, 1476 (9th Cir.1997). Evidence is sufficient to support a conviction unless, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 n. 2 (9th Cir.1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), modified, 127 F.3d 1200 (9th Cir.1997). The same test applies to both jury and bench trials. United States v. Mayberry, 913 F.2d 719, 721 (9th Cir.1990).

The district court found that R.S.W. set fire to the paper towel intentionally: “she knew what she was doing when she lit the paper towel.” This evidence-R.S.W.’s own testimony-is undisputed. There is no suggestion that the fire started as a result of accident or negligence. The finding is not clearly erroneous.

The court went on to find that R.S.W. knew the likely result of her conduct would damage the school. Given that common law arson is a general intent crime, that finding is surplusage. Even if the district court acted under an erroneous assumption with respect to the requisite mens rea, its undisputed findings establish that R.S.W. intentionally, and without justification, set fire to a paper towel in a dispenser attached to a partition in the building. Those findings suffice to support the conviction.

“Normally a judgment will not be reversed where a proper result is reached on the basis of a wrong reason, provided that the defendant suffered no prejudice.” United States v. Castillo-Felix, 539 F.2d 9, 13 (9th Cir.1976).11 Even if the district court *637applied a higher mens rea standard than required, R.S.W. suffered no prejudice from its application because the correct standard-general intent-is less stringent, and the lower standard is encompassed within the higher.12 Applying the correct standard, the district court’s relevant findings of fact support R.S.W.’s conviction under § 81.

AFFIRMED.

. The statute provides:

Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or bums, or attempts to set fire to or burn any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, shall be fined under this tide or imprisoned not more than five years, or both.
If the building be a dwelling or if the life of any person be placed in jeopardy, he shall be imprisoned for not more than 25 years, fined the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both.

18 U.S.C. § 81 (West Supp.1997).

. See Curtis' Treatise on the Law of Arson § 57 (1936) ("The common law definition of arson-the willful and malicious burning of the property of another-imports two mental elements: willfulness and malice.”).

. The dissent agrees that arson at common law is a general intent crime and that willfulness is established by proof that the defendant set the fire intentionally. Dissent at 638-39. While the dissent concedes specific intent is not required, it inexplicably propounds a standard indistinguishable from specific intent, i.e., requiring an intent to bum down the building. Further, it never explains-much less cites authority explaining-just what additional proof is required under the common law to establish the elements of arson. Dissent at 639-40.

. "An intentional act creating an obvious fire hazard to the dwelling of another, done without justification ... might well be characterized as ‘wilful’ ... and would certainly be malicious, but as the law has developed it is a mistake to assume that the phrase ‘willful and malicious,' when found in the definition of common-law arson, adds some distinct requirement not included in the word ‘malicious’ alone.” Rollin M. Perkins and Ronald N. Boyce, Criminal Law 275 (3d ed.1982); see also John Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L.Rev. 295, 323 (1986).

. We agree with the dissent that an arson conviction based on the burning of a building caused by ' a smoldering cigarette butt tossed into a trash can or by lighted candles placed too close to the drapes should probably be set aside on a Rule 29 motion or on appeal on the ground that it was accidental or that the initial fire was set with justification or legal excuse. Dissent at 639. But those hypothetical are distinguishable from the present case which is more analogous to intentionally setting fire' to the drapes and then walking away in the (erroneous) belief that the fire had been blown out. While one can argue that that is a close case for the trier of fact, on that evidence the trier of fact would be entitled to return a verdict of guilty.

. Florida, Michigan, Mississippi, Nevada, New Mexico, Oklahoma, South Carolina, Vermont, the Virgin Islands, and West Virginia all have statutes employing the terms "willfully and maliciously.” California has arson statutes with two different mens rea: "willfully and maliciously” and recklessly. Although a minority of California Courts of Appeal have concluded that the legislature intended to change the common law mens rea of “willfully and maliciously” to specific intent by criminalizing “reckless arson” as a lesser offense, the majority view supports maintaining the common law’s general intent mens rea for the higher offense. Compare In re Stonewall F., 208 Cal.App.3d 1054, 256 Cal.Rptr. 578, 580 (1989), with People v. Bolden, 44 Cal.App.4th 707, 52 Cal.Rptr.2d 485, 490-91 (1996); compare Cal.Penal Code § 451 (West Supp.1998) (willfully and maliciously), with Cal.Penal Code § 452 (West 1988) (recklessly). Thus, certain California cases applying these arson statutes, such as the dissent's only cited case authority. People v. Fabris, 31 Cal.App.4th 685, 37 Cal.Rptr.2d 667, 672 (1995), are inapposite to our determination of the common law meaning of "willful and malicious.”

. See, e.g., Commentary to Ky.Rev.Stat. Ann. § 513.020 (Banks-Baldwin 1997).

. For example, Maryland's arson statute contains the terms ''willfully and maliciously" but has been amended to include its own definition of maliciously, which requires specific intent. Md. Code Ann. Art. 27 § 5(c) (1997).

. The district court cited in its conclusions of law the M.W. court's statement that § 81 "includes acts done with the knowledge that burning of a building is the practically certain result____” M.W., 890 F.2d at 241.

. The dissent also implicitly rejects M.W.’s reliance on the Model Penal Code by turning to the common law in its analysis. Furthermore, the dissent mistakenly asserts that this opinion "creates a split” with the Tenth Circuit: M.W. did not purport to set forth a bottom line standard for mens rea in arson and its holding does not prevent courts in the Tenth Circuit from.finding a defendant such as R.S.W. guilty under §81.

. See Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir.1994) (in reviewing denial of habeas petition, “[w]e may affirm on any ground supported by the record, even if it differs from the reasoning of the district court"); United States v. Lehman, 792 F.2d 899, 901 (9th Cir.1986) (appellate panel "may affirm ... on any ground supported by record”); United States v. Click, 807 F.2d 847, 850 n. 5 (9th Cir.1986) ("It is proper for an appellate court to affirm a correct decision of a *637lower court even when that decision is based on an inappropriate ground.”); see also Helvering v. Gowran, 302 U.S. 238, 245-47, 58 S.Ct. 154, 158, 82 L.Ed. 224 (1937) ("In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”).

. This is not a case where .as the result of the trial court's application of the wrong standard, the conviction was not supported by evidence required under the correct standard. Reference to the wrong standard here merely led the court to make surplus findings, in addition to those required for the conviction. Cf. Wilson v. United States, 250 F.2d 312, 324-25 (9th Cir.1958) (reversing conviction at bench trial when district judge applied erroneous standard of law and correct standard would require findings not made by the district court).