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State v. Boone1/30/2004
contends the State would either have to provide non-hearsay evidence that the lease was for a year or less or provide a written lease agreement reflecting a lease for more than 1 year.
It is not incumbent upon the State to establish exactly what type of leasehold interest the "renter" or "tenant" has to satisfy the "any interest" used in our arson statute. This is true in this case where the issue of that interest is not contested by the defendant. All that is required is for the State to establish that the property damaged is a dwelling in which another person has any interest, and was damaged without the consent of the other person. The four principal types of leasehold estates are the estate for years, periodic tenancy, tenancy at will, and tenancy at sufferance. Key to understanding the arson statute is that there is no need to establish the exact nature of the interest of the other person if it is established that the other person had a leasehold interest in the dwelling. If such an interest is contested at trial, it may be incumbent upon the State to establish the nature of the leasehold interest. However, if the interest is not contested, and there is evidence that the other person is renting the property and occupied the dwelling, such an interest is sufficient under our arson statute.
In this case, the undisputed evidence was that Eads rented 1218 N. Jackson and that he resided at that home. See State v. Kimball, No. 60,434, unpublished opinion filed January 15, 1988 ("The evidence, disclosing that Courtney rented the property and was a tenant at the time of the fire, was sufficient to establish that interest in the property required by the arson statute. . . . The evidence was undisputed that Courtney rented the property, and thus had a leasehold interest."); State v. Johnson, 12 Kan. App. 2d 239, 240-43, 738 P.2d 872, rev. denied 242 Kan. 905 (1987) (evidence establishing only that the Patton and Davis law firm leased the building from the owners was sufficient to satisfy the "any interest" element in the arson statute). Thus, we conclude that the undisputed trial evidence was sufficient to satisfy the "any interest" element of aggravated arson.
(B) To establish that defendant aided and abetted aggravated arson, it must be established that defendant intentionally participated in, intentionally assisted, promoted, or reasonably foresaw the aggravated arson.
The defendant argues that there was insufficient evidence presented to establish his guilt of the underlying felony of aggravated arson and, therefore, his felony murder conviction predicated in part on that felony must be reversed.
The jury was given the following instructions on aiding and abetting:
"A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime".
"A person who intentionally aids, abets, advises, hires, counsels or procures another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable."
The defendant cites a civil case decided by the Ninth Circuit regarding proof by circumstantial evidence. Fegles Const. Co. v. McLaughlin Const. Co., 205 F.2d 637, 639 (9th Cir. 1953), holds that such evidence is
"subject to the rule that if the conclusion reached from the facts in the chain of circumstances is equally consonant wit
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