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Charlotte NC Attorneys at Law
Rosensteel Fleishman

Arson

Arson is a serious crime which is punished at the felony level and for which you can spend years in prison. If you have been charged with arson, an experienced defense attorney can help determine how the law applies to your case and potentially negotiate with a prosecutor for a dismissal or reduced charge. Call Mr. Rosensteel so that he can determine the best course of action for you.

Arson is a common law crime and is separated into two degrees, first degree arson and second degree arson. First degree arson is the malicious burning of another’s dwelling house that is occupied at the time of the burning. Second degree arson is the malicious burning of another’s dwelling house that is unoccupied at the time of the burning.

 

First Degree Arson

To show that a person has committed first degree arson, the following elements must be evidenced:

  • the defendant burned a structure.
  • this structure was a dwelling house.
  • this structure was the dwelling house of someone other than the defendant.
  • this structure was occupied when the defendant burned it, that is, that some person was physically present in the structure at that time.
  • the defendant did so maliciously, that is, that he intentionally and without justification or excuse burned the structure or burned another structure, and that as a proximate result of his act, the fire spread to the dwelling house structure.

 

A person who commits first degree arson is guilty of a Class D felony. North Carolina law provides that anyone who commits a Class D felony must receive a sentence ranging from 38 to 160 months, depending on prior convictions. Anyone who has committed a Class D felony must be sentenced to active jail time.

 

Second Degree Arson

To show that a person has committed second degree arson, the following elements must be evidenced:

  • the defendant burned a structure.
  • this structure was a dwelling house.
  • this structure was the dwelling house of someone other than the defendant.
  • the defendant did so maliciously, that is, that he intentionally and without justification or excuse burned the structure or burned another structure, and that as a proximate result of his act, the fire spread to the dwelling house structure.

 

A person who commits second degree arson is guilty of a Class G felony. A Class G felony is punishable by a sentence ranging from eight to 31 months, depending on prior convictions. A person with no prior convictions may receive an intermediate punishment, but a court is permitted to sentence anyone who has committed a Class G felony to active jail time.

 

Dwelling House

A dwelling house is defined as a house that is inhabited, meaning that someone lives there. Inhabitation can be permanent, temporary or seasonal and does not require actual occupation. However, if the house is under construction and no one has moved in yet, between tenants or abandoned, it is not inhabited and therefore not a dwelling house. Under North Carolina law, a dwelling house includes mobile homes, manufactured-type houses and recreational trailers.

For the purposes of arson, a dwelling house includes outbuildings within the curtilage of the dwelling house. The curtilage is the grounds around the dwelling house which is commonly used with the dwelling house, such as a house’s yard. The curtilage can be enclosed or unenclosed.

 

Burning

To prove the element of burning, a partial burning or even the slightest charring is sufficient evidence. However, North Carolina courts have held that a “mere discoloration” is not sufficient evidence of a burning. A “burning” of a dwelling house is also distinct from “setting fire to” a dwelling house, and the two terms have different meaning in the context of the crime of arson.

 

Dwelling House of Another

This element is shown when the dwelling house is inhabited by anyone other than the defendant, even if the dwelling house is also inhabited by the defendant. So if a single unit dwelling house is occupied by the defendant and the defendant’s spouse, children or roommates, the defendant commits arson when he burns that house.

A single-unit dwelling house can be solely owned by the defendant but still be the dwelling house of another. For example, if the defendant is a landlord and rents the house to a tenant, the landlord can commit arson by burning that house. However, if the tenant burns the house, he does not commit arson unless another person lives there in addition to him. In addition, if one spouse exclusively occupies a house and the other spouse burns the house, the spouse that burns the house commits arson even if the title to the house is only in his name. But if the spouse who exclusively occupies the house burns the house, that spouse does not commit arson when he burns the house.

If the dwelling house is a multi-unit dwelling, the defendant can commit arson by burning his own apartment so long as there is at least one other unit in the building that is inhabited by someone else, even if the fire does not spread to any unit other than the defendant’s. If there is no other inhabited unit in the building and the defendant’s unit is inhabited by only himself, however, the defendant does not commit arson when he burns his unit.

 

Maliciously

The crime of arson requires that a person act maliciously, which means that the defendant either intentionally and without justification or excuse burned the dwelling itself, or that the defendant intentionally and without justification or excuse burned another structure or place that was not the dwelling itself but created an unreasonable danger of fire to the dwelling. North Carolina courts have explained that the malicious element of the crime of arson does not require an “intent or animus” against either the dwelling or the owner of the dwelling.

 

If you have been charged with arson, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.