Arson

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

R.C. 2909.02 -- Aggravated arson.
R.C. 2909.03 -- Arson.
R.C. 2909.01 -- "Occupied structure" defined.
 
State v. Wolf, 176 Ohio App. 3d 165, 2008-Ohio-1483 – (1) Defendant poured gasoline throughout his trailer, set fire to it, and was injured when he opened a garage door allowing oxygen to reach vapors causing an explosion. The aggravated arson statute requires proof he created a substantial risk of serious physical harm to someone other than himself. This was not established. The fire was extinguished in a minute or less without injuries or exposure of firefighters to high temperatures. A firefighter testified vapors might permeate clothing and ignite if exposed to heat or flame but there was no testimony that risk was presented here. (2) Restitution order in favor of the responding fire departments was improper as they were not "victims" of the surviving arson conviction.
 
State v. Beeghley, Wayne App. No. 02CA0023, 2003-Ohio-1287 -- State failed to prove damage to structure was in excess of $500, thus elevating the offense from an M-1 to an F-4. Court mistakenly overruled Rule 29 motion on the basis that the property itself was worth more than $500. Proper measure of value in accordance with R.C. 2909.11(B)(2) and (3) did not establish felony offense. Fire marshall estimated cost of damage at $300. Owner said damaged property was still worth the $28,500 he had paid for it.
 
State v. Cox, Adams App. No. 02CA751, 2003-Ohio-1935 -- Applying State v. Rance, 85 Ohio St. 3d 632, 1999-Ohio-291, involuntary manslaughter and aggravated arson do not merge.
 
State v. Wills (1997), 120 Ohio App. 3d 320, 330-331 -- Court rejects sufficiency argument premised on the design flaws of Molotov cocktail made from a "break resistant" two liter soft drink bottle and an easily extinguished paper towel wick.
 
Michigan v. Tyler (1978), 436 U.S. 499 -- Generally the warrants requirement of the Fourth Amendment applies to arson investigations. However, firemen may enter a burning building without a warrant and for a reasonable time after extinguishing the blaze may seize items in plain view and investigate the causes of the fire. Reentry a short time later, when visibility has improved, may not require a warrant, but reentry on subsequent days, absent consent, requires a warrant. Compare State v. Grant (1993), 67 Ohio St. 3d 465, 470-471.
 
Michigan v. Clifford (1984), 464 U.S. 287 -- Where a reasonable privacy interest remains in premises damaged by fire, the warrants requirement of the Fourth Amendment applies. Absent consent or exigent circumstances, an administrative search warrant is sufficient if the primary purpose of the investigation is to determine the cause and origin of the fire. If the search is a part of a criminal investigation, a criminal warrant is required. (Four justices concur in opinion, fifth in judgment.)
 
State v. Coomer (1984), 20 Ohio App. 3d 264 -- No search warrant is required for arson investigation conducted before firefighters cleared the scene.
 
State v. Chapas (1983), 13 Ohio App. 3d 340 -- Arson statute held not to be unconstitutionally vague or overbroad.
 
State v. Regan (1988), 51 Ohio App. 3d 214 -- For purposes of the arson statute, a wife's car is "the property of another." Husband may be convicted of arson for burning it.
 
State v. Bock (1984), 16 Ohio App. 3d 146 -- Fact that valuable property was removed from premises before they were set afire to does not render structure unoccupied.
 
State v. Risner (1991), 73 Ohio App. 3d 19 -- In a difficult to follow opinion, court finds no fault where the defendant was charged as a complicitor in an arson, and the court instructed the jury on conspiracy, though conspiracy had not been alleged in the indictment. Part of the problem is trial counsel failed to object.
 
State v. Koontz (1979), 65 Ohio App. 2d 264 -- Court finds amendment of indictment before trial from allegation that the defendant was the principal to the arson for hire subdivision did not change the nature or identity of the offense.
 
State v. Saah (1990), 67 Ohio App. 3d 86, 98 -- Arson of another's property and arson with intent to defraud are not allied offenses of similar import.
 
State v. Willey (1981), 5 Ohio App. 3d 86 -- Aggravated arson premised on damage to occupied structure and involuntary manslaughter based on deaths of occupants do not merge.
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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