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HATHAWAY v. STATE11/1/1996
Lance Hathaway was convicted, following a jury trial, of nine counts of arson in the first degree, a class A felony, and eight counts of assault in the third degree, a class C felony. AS 11.46.400(a); AS 11.41.220(a). Superior Court Judge Richard D. Savell sentenced Hathaway to a composite sentence of twenty-five years of imprisonment with eight years suspended. Judge Savell placed Hathaway on probation for ten years following his release from confinement. Hathaway appeals his convictions and sentence. We affirm in part, reverse in part, and remand for further proceedings.
Lance Hathaway lived with his girlfriend in an apartment building in Fairbanks. The two-story apartment building had eleven units. Hathaway and his girlfriend lived in apartment number 9, which was on the second floor of the apartment building. On July 5, 1994, the landlord informed the girlfriend that Hathaway was not to reside at the apartment and if there was any trouble, the girlfriend would be evicted. On July 29, 1994, Hathaway returned to the apartment. Sometime around 7:30 p.m. on that date, Hathaway crumpled up some papers and threw them on top of his girlfriend's clothing, which was located in a laundry basket in their bedroom. Hathaway lit the papers on fire and left the apartment. A short time later, the apartment building burst into flames.
The nine residents and visitors in other apartments in the building at the time had to be evacuated. Eight of them testified to their fear at trial (the ninth was a three-year-old child). The fire caused significant property damage, serious enough that the building could not be lived in for several months.
The police suspected Hathaway of starting the fire from the beginning. Hathaway admitted to the police that he had started a fire, but said that he did not think that the small fire he had started could have spread to the rest of the building. However, investigation by the fire department ruled out the electrical and heating systems as possible causes of the fire. The investigator concluded that the fire had been deliberately set in the rear bedroom of apartment # 9 in a laundry basket.
A Fairbanks grand jury indicted Hathaway on nine counts of arson in the first degree and eight counts of assault in the third degree. A jury convicted Hathaway of these charges. Hathaway contends on appeal that the state could not convict him of nine counts of arson in the first degree. Hathaway points out that he started but a single fire in the apartment and argues that the state could only convict him of a single count of arson based upon this evidence.
Alaska Statute 11.46.400 defines the crime of arson in the following way:
Arson in the first degree. (a) A person commits the crime of arson in the first degree if the person intentionally damages any property by starting a fire or causing an explosion and by that act recklessly places another person in danger of serious physical injury. For purposes of this section, "another person" includes but is not limited to fire and police service personnel or other public employees who respond to emergencies, regardless of rank, functions, or duties being performed.
AS 11.46.410 provides:
Arson in the second degree. (a) A person commits the crime of arson in the second degree if the person intentionally damages a building by starting a fire or causing an explosion.
Arson appears to be at its roots a property crime. Common law arson is the malicious burning of the dwelling of another. Rollin M. Perkins and Ronald N. Boyce, Criminal
Law, page 273 (3d ed. 1982). In the Alaska Criminal Code the arson statutes are located in Chapter 4
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