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Md. court distinguishes playing with matches, attempted arson

‘To allow a finding of involvement on these facts would allow a conviction for attempted first-degree arson every time that a person intentionally drops a still-burning cigarette butt on a sidewalk that happens to be feet away from a building where there are nearby leaves,’ Court of Special Appeals Judge Alexander Wright Jr. wrote in overturning a Salisbury boy’s sentence for attempted arson. (File photo)

‘To allow a finding of involvement on these facts would allow a conviction for attempted first-degree arson every time that a person intentionally drops a still-burning cigarette butt on a sidewalk that happens to be feet away from a building where there are nearby leaves,’ Court of Special Appeals Judge Alexander Wright Jr. wrote in overturning a Salisbury boy’s sentence for attempted arson. (File photo)

Saying the boy was essentially just playing with matches, a Maryland appeals court has overturned a finding that the youngster was involved in attempted arson in a Salisbury neighborhood.

The boy – identified in court papers as David P. – lacked the “specific intent to willfully and maliciously set fire” to a person’s home, as required to prove attempted arson, the Court of Special Appeals said in its reported 3-0 decision. Rather, he merely lit two matches and dropped them on the house’s front stoop, which was made of brick and thus flame-retardant, the intermediate appellate court added.

“Where he laid the matches supports the conclusion that David was a juvenile playing with matches, not that he lit the match intending to start a fire,” Judge Alexander Wright Jr. wrote for the court.

“If an adult struck a match and threw it into an empty brick fireplace, we would not say that person was building a fire,” Wright added. “Rather, to show intent to build a fire, we would understand that the person must first gather logs and sticks, arrange them, and only then, strike and lay the match. The mere striking and laying of a match on a nonflammable surface alone does not show intent to start a fire.”

Nuzhat Nada had reported David’s behavior to the police after he had dropped the two matches on her stoop on Walnut Street on the night of March 21, 2016.

Nada testified at trial that she made no attempt to extinguish the matches but watched to ensure the flames were not blown by the wind into nearby dry leaves that could ignite. A flammable wicker doormat was also nearby, according to the appellate court’s opinion.

The Wicomico County Circuit Court, acting as a juvenile court, found David involved in attempted arson and he was sent to an out-of-state facility for detention.

On appeal, David’s counsel argued that the boy lacked the specific intent to set Nada’s house ablaze.

In response, the state said a fire would have ensued had the wind blown the lit matches toward the leaves and basket – an argument the appellate court dismissed as too speculative for a crime that requires willfulness.

The state’s “theory of the case requires an external, uncontrollable, factor to intervene in order for the crime to reach fruition and therefore, undercuts the finding of specific intent,” Wright wrote. “To allow a finding of involvement on these facts would allow a conviction for attempted first-degree arson every time that a person intentionally drops a still-burning cigarette butt on a sidewalk that happens to be feet away from a building where there are nearby leaves. This position completely ignores the requirement of intending to cause harm or acting purposefully or knowingly, and it expands the bounds of arson far beyond its original constraints.”

Assistant Maryland Public Defender Wyatt A. Feeler represented David on appeal. The state was represented by Assistant Maryland Attorney General Virginia S. Hovermill.

Judges Christopher B. Kehoe and Melanie Shaw Geter joined Wright’s opinion in In Re: David P., No. 1039 September Term 2016.


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