Saturday, January 09, 2021

Failure to instruct on correct section of arson statute requires reversal

Rick Kittel and KU law student, Michael Raven, won in State v. Watt, No. 121,266 (Kan. App. December 18, 2020)(unpublished) reversing a Riley County conviction for arson. Mr. Watt was charged with arson under K.S.A. 2018 Supp. 21-5812(a)(1)(A) for burning down the family home without the permission of another person who had an interest in the home. Prior to trial and during evidence taking at trial, the state’s narrative was that Mr. Watt’s estranged wife was the person who had an interest in the home. But at the instructions conference, the state asked that the jury be instructed that Planet Home Lending, the mortgage holder on the property, was the person who had an interest in the home. Over defense counsel’s objection, the district court granted the state’s request. The jury found Mr. Watt guilty of arson based on an instruction asking it to find that Planet Home Lending was the person with an interest in the home.

On appeal, Mr. Watt argued that the evidence produced at trial was insufficient to sustain his conviction. This argument was based upon State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986), which held that a financial institution is a lienholder but cannot be the person with and “interest” in the mortgaged property.

Finding Houck to be the controlling law, the Court of Appeals reversed  the conviction. Although noting that Mr. Watt could have been properly convicted of arson under a different subsection of the arson statute proscribing the burning of a dwelling in which an insurer or lienholder has an interest, the Court of Appeals found the evidence insufficient to prove arson under the subsection actually charged and instructed upon:

Based on the trial evidence taken in the best light for the State, the only interest Planet Home had in the Watts’ residence was that of a mortgage holder. What the State proved was insufficient to support the jury verdict premised on criminal conduct violating K.S.A. 2018 Supp. 21-5812(a)(1)(A).

Moreover, the factual inappropriateness of the instruction cannot negate the insufficiency of the evidence to convict. That’s because the lack of evidence demonstrating that Planet Home had interest in the home covered under K.S.A. 2018 Supp. 21-5812(a)(1)(A) is precisely why the instruction was not factually appropriate. The same deficiency, therefore, caused two distinct defects – one was an instructional error, and the other was a lack of evidence of an element of the crime submitted for the jury’s consideration. On appeal, the State does not have the option to elect for which of those defects it should be held to account. The State bears responsibility for both of them, and Watt gets the benefit of the more favorable remedy.

[Update: the state did not file a PR and the mandate issued on January 27, 2021].