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HATHAWAY v. STATE11/1/1996
nclude the nature of personal, property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes.
Id. at 312.
Arson in the first degree requires proof that (1) the defendant started a fire or caused an explosion with the intent to damage any property, (2) that the fire or explosion damaged the property, and (3) that the defendant in doing so recklessly placed another person in danger of serious physical injury. AS 11.46.400(a). Assault in the third degree requires proof that (1) the defendant recklessly placed another person in fear of imminent serious physical injury, and (2) did so by means of a dangerous instrument. AS 11.41.220(a)(1)(A).
As we have previously pointed out, arson is by origin a property crime. Arson in the first degree is an aggravated offense where the defendant recklessly places another person in danger of physical injury. Mossberg v. State, 733 P.2d 273, 275 (Alaska App. 1987); Machado v. State, 797 P.2d 677, 687 (Alaska App. 1990). Where the crime committed goes beyond placing another person in danger of physical injury but actually results in injury to that person, courts in this state have concluded that double jeopardy does not prevent a separate conviction for that additional injury. Jacinth v. State, 593 P.2d 263, 266-67 (Alaska 1979) (defendant could be convicted for both arson and manslaughter); Machado v. State, 797 P.2d 677, 686-87 (Alaska App. 1990) (defendant could be convicted of attempted murder, assault in first degree, and arson in the first degree). We accordingly conclude that Hathaway's conviction for arson did not preclude his conviction for assault.
Hathaway next contends that the double jeopardy clause of the Alaska Constitution prohibits multiple assault convictions for eight separate victims. He contends that a single act of setting a fire should not result in eight separate convictions for the eight separate people the state showed had been placed in fear of imminent physical injury by his acts. Hathaway recognizes that his argument is foreclosed by State v. Dunlop, 721 P.2d 604, 609 (Alaska 1986), where the supreme court stated:
When several deaths or injuries occur in the course of a single incident, the offense prohibited by the statute has been violated several times over. The identity of the victim represents different conduct — it represents conduct directed at that victim.
Instead of focusing on the accused's intent we must look at the consequences. Where an act of violence injures multiple victims, there are as many punishable offenses as there are victims.
(Footnote omitted) (emphasis in original). Hathaway argues that Dunlop was incorrectly decided. However, we are bound by Dunlop. State v. Fremgen, 889 P.2d 1083, 1085 (Alaska App. 1995) ("as a lower court within the state court system, we are bound by the decisions of the Supreme Court of Alaska"). We accordingly conclude that Hathaway's convictions for arson in the first degree must merge into a single count. We affirm his eight convictions for assault in the third degree. Since we have modified Hathaway's convictions, the superior court on remand must resentence Hathaway. It is therefore premature for us to consider whether Hathaway's sentence is excessive.
REMANDED.
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