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Keats v. State2/13/2003
is "knowingly and unlawfully damaging an occupied structure . . .." Ariz. Rev. Stat. Ann. § 13-1704 (West 2001). In construing the word "unlawfully" and its statutory definition--"contrary to law or, where the context so requires, not permitted by law"--the Arizona Court of Appeals emphasized the dangers of fire:
"A fire poses unique hazards. As a means of destruction, it is difficult to control and may quickly spread to nearby buildings or fields. Firemen and policemen are endangered. Neighbors and passers-by, fearing that a structure is occupied, may attempt hazardous rescue efforts." State v. Newfield, 161 Ariz. 470, 778 P.2d 1366, 1369 (1989) (quoting State v. Durant, 674 P.2d 638, 641 (Utah 1983)).
[ ] The point of this detour into Arizona law has been to show that there is little difference between the concept of "unlawfully" (contrary to law or not permitted by law) and "maliciously" (without legal justification or excuse). Beyond that, the use of these terms in conjunction with the burning of an occupied structure, rather than the burning of the property of another, suggests that the goal of the first-degree arson statutes in both cases is to protect all members of the public who might be harmed, not just the owner of the property or some other identified individual. In turn, this suggests that in a prosecution for first-degree arson, the State does not have to prove that the malice or the malicious act was directed toward another. *fn7
[ ] Earlier in this opinion, we noted that we do not construe statutes that we have not first found to be ambiguous. If a statute is not ambiguous, we simply "abide by its plain meaning." Union Pacific R.R., 2002 WY 165, 7, 57 P.3d at 1205-06; DeLoge, 2002 WY 155, 8, 55 P.3d at 1237; Nelson, 2002 WY 99, 6, 49 P.3d at 188; Jones, 2002 WY 35, 10, 41 P.3d at 1252. In that regard, we must ask whether the word "maliciously" is ambiguous as it appears in Wyo. Stat. Ann. § 6-3-101(a). Despite the lengthy analysis through which we have just gone, we conclude that the answer is "no." In enacting statutes, the legislature is presumed to have acted with full knowledge of the existing law. In re Estate of Fosler, 13 P.3d 686, 688 (Wyo. 2000); Almada v. State, 994 P.2d 299, 306 (Wyo. 1999). In the present context, that means that in 1982 when the legislature adopted Wyo. Stat. Ann. § 6-3-101(a) as part of the new criminal code, it was aware of the definition of malice that this Court has been applying since at least 1924. That definition has always contained the alternative theories of actual hostility or ill will and the doing of an act without legal justification or excuse, the latter alternative not requiring the direction of ill will toward any particular person. The legislature's use of the word "maliciously" in a statute designed to protect any person who may be endangered as a result of an arson comports with that definition. The fact that the pattern jury instructions, in not distinguishing between the alternate theories, may have created questions for juries, does not make the statute ambiguous.
[ ] We conclude that the district court did not err in refusing the appellant's proposed jury instruction defining the term "maliciously." In fact, the jury instruction as given may have been prejudicial to the State in that it appears to require the State to prove both that the appellant acted with ill will and hostility and that he acted without legal justification or excuse. The jury instruction does not distinguish between actual malice and implied malice. The facts of the instant case bear out the need for such distinction. The appellant may not have felt actual hostility or ill will toward his roommate or toward the police officers who respo
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