WPIC 80.02 Arson—First Degree—Elements

With this instruction, use WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 2.13 (Malice—Maliciously—Definition). Also use, as applicable, WPIC 2.08 (Dwelling—Definition), WPIC 88.01 (Building—Arson, Reckless Burning, and Malicious Mischief—Definition), WPIC 88.02 (Damages—Arson, Reckless Burning, and Malicious Mischief—Definition), and WPIC 10.01 (Intent—Intentionally—Definition).

Use bracketed material as applicable. The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (2). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For the related jury interrogatory, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (2), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

For a discussion of the phrase “this act” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.48.020.

The instruction must include language requiring the burning to be malicious so that a conviction cannot be based on innocent intentional destruction of property. State v. Spino, 61 Wn.2d 246, 377 P.2d 868 (1963).

The jury need not be unanimous as to which statutory method a defendant used in committing first degree arson under RCW 9A.48.020, so long as there is evidence to support each of the methods. State v. Flowers, 30 Wn.App. 718, 637 P.2d 1009 (1981).

The determination whether or not a fire was manifestly dangerous to human life is a question of fact that includes such considerations as the presence of occupants, combustibility, and proximity to other structures. State v. Young, 87 Wn.2d 129, 550 P.2d 1 (1976). Danger is measured by the potential for harm rather than by the harm done and may include the potential for harm to fire fighters responding to the fire. State v. Plewak, 46 Wn.App. 757, 732 P.2d 999 (1987).

Knowingly and maliciously setting fire to a dwelling constitutes first degree arson under RCW 9A.48.020. It cannot be second degree arson under RCW 9A.48.030 even though the second degree statute refers to a “building” and the definition of building includes a dwelling. (See WPIC 88.01 (Building—Arson, Reckless Burning, and Malicious Mischief—Definition)). State v. Lunstrum, 19 Wn.App. 597, 576 P.2d 453 (1978).

In a prosecution for first degree arson, the Court of Appeals held, on the facts of the case, that the crimes of second degree arson and first and second degree reckless burning were not lesser included offenses. State v. Hobart, 34 Wn.App. 187, 659 P.2d 557 (1983). Similarly, malicious mischief has been held not to be a lesser included offense of arson. State v. Simmons, 28 Wn.App. 243, 622 P.2d 866 (1980).