dissenting:
I agree with the majority's holding that it was appropriate for the trial court to respond to the jury's question in this case. I further agree with the majority's conclusion that firefighters fall within the meaning of "persons" under the fourth degree arson statute. However, I disagree with the majority's construction of Colorado's fourth degree arson statute as not applying the mens rea requirement to the element of placing another in danger of death or serious bodily injury. In my view, the majority misconstrues the pertinent statutory provisions and misapplies our precedent. I would hold that the pertinent statutory provisions require that we apply the mens rea requirement to the endangerment element in this case. Consequently, I would reverse the judgment of the court of appeals. Accordingly, I respectfully dissent.
I.
The fourth degree arson statute in effect at the time of the offense in this case provides as follows:
Fourth degree arson. (1) A person who knowingly or recklessly starts or maintains a fire or causes an explosion, on his own property or that of another, and by so doing places another in danger of death or serious bodily injury or places any building or occupied structure of another in danger of damage commits fourth degree arson.
(2) Fourth degree arson is a class 4 felony if a person is thus endangered.
(3) Fourth degree arson is a class 2 misdemeanor if only property is thus endangered and the value of the property is one hundred dollars or more.
(4) Fourth degree arson is a class 3 misdemeanor if only property is thus endangered and the value of such property is less than one hundred dollars.
§ 18-4-105, 6 C.R.S. (1999) (emphasis added). Under the majority's construction of this statute, "the mens rea requirement of the fourth degree arson statute, knowingly or recklessly, does not apply to the statute's endangerment provisions." Maj. op. at 1285.
Directing the interpretation of mens rea requirements throughout the criminal code, section 18-1-503(4), 6 C.R.S. (1999), provides that the mens rea applies to every element unless the contrary is clearly expressed. The statute reads:
When a statute defining an offense pre-seribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears.
§ 18-1-508(4). Although the majority cites section 18-1-503(4), it does not apply the mandate of section 18-1-503(4).
As interpreted by the majority, this provision instructs us to "determine whether the General Assembly intended by its 1977 amendment to apply the mens rea requirement to the endangerment provisions of the fourth degree arson statute." Maj. op. at 1286. As the majority observes, in 1977 the General Assembly added the eriminal intent requirement to the previous version of the fourth degree arson statute. See id. at 1286. Six years earlier, the General Assembly enacted section 18-1-508(4), directing how the mens rea provisions of the forth degree arson statute, and the rest of the criminal code, should be interpreted. See ch. 121, see. 1, § 40-1-603(4), 1971 Colo. Sess. Laws 888, 404.
The direction of section 18-1-508(4) makes our inquiry significantly different than the majority indicates. Our proper inquiry is whether an intent to limit the application of the mens rea requirement clearly appears in the statute. Absent a clear intent to limit in the fourth degree arson statute, it is our obligation to deem the mental state to apply to every element of the offense.
The majority observes that the Model Penal Code contains recommended language for clearly expressing intent to apply a mens rea requirement to all elements of an offense. See maj. op. at 1287 (citing Model Penal Code § 2.02(2)(a) (1999)). Had the General Assembly followed this recommendation, it *1290would have expressed a clear intent to apply "knowingly or recklessly" to the endangerment element of the fourth degree arson statute. However, the issue is not whether the statute expresses a clear intent to apply the mens rea requirement to all the elements of the offense, but rather, whether the statute as written expresses a clear intent to limit the application of the mens rea requirement. The selection by the legislature of ambiguous language hardly expresses such an intent, thus requiring us to. follow section 18-1-503(4) and deem the mens rea to apply to every element.
As currently written, the fourth degree arson statute does not indicate a clear intent to limit the mens rea requirement to the first element of the offense. The subject of the sentence, "[al person," is the same for the verbs "starts or maintains" and "places." Separated by the conjunctive phrase "and by so doing," all of these verbs may reasonably be interpreted as modified by the adverbs "knowingly" and "recklessly." On the other hand, the result reached by the majority is ultimately dependent on viewing the conjunctive phrase "and by so doing" as expressing a clear intent to limit -the adverbs "knowingly" and "recklessly" to the first set of verbs. See maj. op. at 1286. I do not view either interpretation of the effect of "and by so doing" as particularly compelling. This ambiguity in the wording of the fourth degree arson statute hardly constitutes the clear intent required by section 18-1-508(4) to limit the application of the mens rea requirement.
The language and structure of the instruction given to the jury in this case repeated the statutory language.1 Specifically, the instruction included the conjunctive phrase "and by doing so," similar to that relied on by the majority as a clear expression of the mens rea requirement. Ironically, the jury found this language ambiguous and asked whether the mens rea applied to all the elements.
In further support of its conclusion that "knowingly or recklessly" does not apply to the endangerment element of fourth degree arson, the majority relies on the interpretation proffered in People v. Owens, 670 P.2d 1233, 1238 (Colo.1983). See maj. op. at 1286. For several reasons I believe that the majority's reliance on Owens is misplaced.
The resolution of the issue in Owens required an analysis of the mens rea requirement in the fourth degree arson statute. See Owens, 670 P.2d at 1238. However, we did not decide in Owens whether the mens rea requirement applied to the endangerment element of fourth degree arson. See id. Instead the issue before us was whether the incendiary device statute, section 18-12-109(4), 6 C.R.S. (1999), violated equal protection by punishing more severely conduct that was also punished by the arson statutes. See Owens, 670 P.2d at 1238. In holding that the incendiary provisions did not violate equal protection, we distinguished the two statutes, in part, by noting the mens rea requirements. See id.
Further, the mens rea analysis in Owens relied on People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975). See Owens, 670 P.2d at 1238. The decision precedes the amendments imposing the mens rea requirement of "knowingly or recklessly" and does not support an analysis of whether the mens rea applies to the endangerment element of the fourth degree arson. Thus, to any extent that Owens can be read as addressing the mens rea requirement of the current fourth degree arson statute, I would disapprove of the case.
Finally, I observe that the consequence of the interpretation given to the fourth degree arson statute by the majority is to create a broad statute covering seemingly innocent behavior. For example, any person starting a fire in her fireplace, without perceiving a risk of danger to person or property, would *1291nonetheless be criminally liable for a class four felony if the fire endangered any person.2
As I interpret the statute, however, knowingly starting a fire would come under the prohibition of the fourth degree arson statute only if the actor was aware that starting or maintaining the fire "was practically certain to cause" danger to life or property.3 Similarly, recklessly starting a fire would come under the prohibitions of the fourth degree arson statute only if the actor "consciously disregards a substantial and unjustifiable risk that" the fire would endanger life or property.4
IL
In conclusion, the plain language of the fourth degree arson statute does not evidence a clear intent to limit the mens rea requirement of "knowingly or recklessly." Absent such a clear intent, we must construe the mens rea requirement as applying to all elements of the offense, including the endangerment element of this offense in particular. Therefore, I respectfully dissent.
Justice COATS does not participate.All offenses defined in this code in which the mental culpability requirement is expressed as "knowingly" ... are declared to be general intent crimes.... A person acts "knowingly" . with respect to a result of his conduct, when he is aware that his conduct is practical» ly certain to cause the result.
A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
. Instruction No. 12, as submitted to the jury at trial, read:
The elements of the crime of fourth degree arson are:
1. That the defendant,
2. in the state of Colorado, at or about the date and place charged,
3. knowingly or recklessly, started or maintained a fire,
4. on his own property or that of another, and
5. by doing so places another person in danger of death or serious bodily injury.
. Copeland argues in his petition for rehearing that the majority's interpretation renders the statute unconstitutionally vague and overbroad. He also claims that the interpretation causes an equal protection problem. In a footnote added when the petition for rehearing was denied, the majority declines to consider how any constitutional concerns might affect their interpretation of the statute because Copeland raised those concerns for the first time in the petition for rehearing. See maj. op. at 1288 n. 6. While I would grant the petition for rehearing, I do not reach any constitutional issues because my interpretation of the statute does not give rise to the possible constitutional problems Copeland now addresses.
. Section 18-1-501(6) 6 C.R.S. (1999), defines the mental state of "knowingly" as:
. With regard to recklessly, section 18-1-501(8) provides: