A recent Kansas Supreme Court ruling showed some of the evidentiary issues faced in the trial of arson cases. The case was State v. Bollinger, (No. 110,945) and it was decided this month.
The facts of Bollinger are tragic. The defendant was involved in a marital separation and divorce drama with his spouse. The dispute escalated in intensity and bitterness. One night, a fire occurred at the residence of the parties, and the defendant claimed he could not remember how it began. The defendant’s spouse perished in the fire, and Bollinger was charged with felony murder and arson.
In Kansas, arson is defined under K.S.A. 2014 Supp. 21-5812(a)(1)(A). This statute defines arson as “[k]nowingly, by means of fire or explosive damaging any building or property which . . . [i]s a dwelling in which another person has any interest without the consent of such other person; . . . .” Subsection (b)(1) defines aggravated arson as arson “[c]ommitted upon a building or property in which there is a human being.”
The defendant later claimed to have set the fire, but explained that it had not been intentional.
Thus, according to the statute, the other party must have an “interest” in the building for this element of the offense to be complete. At trial, the defendant reasoned that since his spouse did not have an “interest” in the building, then he could not be convicted of arson. Bollinger contended on appeal that the State failed to produce evidence proving that his deceased wife had “any interest” in the house, an essential element of the crime of arson.
The common-law requirement that the property being burned must belong to another person was predicated on the assumption that one always has the legal right to destroy one’s own property in any manner that one chooses. As the Missouri Court of Appeals has explained, this element was necessary; otherwise, “a farmer could never rid his land of an old building by burning it without being guilty of arson, nor could landowners allow old houses to be burned for fire department training.” State v. Maxson, 755 S.W.2d 277, 281 (Mo. App. 1988).
The question then became: what type of interest qualifies as an “interest” for arson purposes? Bollinger argued that the house that he allegedly on fire was solely his own property and that the State failed to prove that his wife had an interest in the house. Because he brought the house into the marriage with him and had never transferred ownership to his wife, he claimed that the essential element of an “interest of another” is lacking.
The Court was not convinced by this argument. It held that a spouse holds rights in the property of the other spouse just by being in the marital relationship. It cited the probate code of Kansas to support this reasoning. She was also staying in the residence at the time as a tenant, and a tenant also has a sufficient, cognizable interest in property to satisfy the statutory requirement for “interest” for arson purposes.
Beyond this, under Kansas marital law, she acquired an inchoate interest in the property just by filing for divorce before her death. In other words, she would have been entitled to something had she not died. The Court was able to conclude that she did indeed have a sufficient interest in the property for Bollinger’s conviction to be sustained. Furthermore, Bollinger was not required to have received any actual notice of these inchoate property interests.
Bollinger also tried to challenge the constitutionality of the arson statute. He argued that the “any interest” statutory element of arson is unconstitutionally vague because interests may be so attenuated as to be impossible to determine. By using the phrase “any interest,” Bollinger argued, the statute creates the possibility of a statutory interpretation that would preclude almost any burning of property. There was some case law about a mortgage holder not being able to satisfy the “interest” element of arson, and Bollinger was relying on this precedent. The Court rejected this reasoning, however.
It is clear from this case that the “interest” component in the arson statute is a relatively low threshold for the State to meet. Apparently it may be found even in inchoate interests; that is, interests that may not yet have fully vested. The Court did find that the victim had a “lease” interest as well as interests under marital law, but it is not entirely clear which type of interest was more relied on in the Court’s decision.