Barnes v. State , 1993 Wyo. LEXIS 134 ( 1993 )

THOMAS, Justice,

concurring specially.

I agree that Barnes’ conviction and the judgment and sentence should be affirmed. I write to address the issue of the sufficiency of the evidence. I am sure the discussion of when a structure is deemed to be occupied will be useful in future instances. The entire statutory definition reads:

(v) “Occupied structure” means a structure or vehicle whether or not a person is actually present:

(A) Where any person lives or carries on business or other calling;

(B) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation;

(C) Which is used for overnight accommodation of persons; or

(D) In which a person may reasonably be expected to be present.

Wyo.Stat. § 6-l-104(a)(v) (1988).

The majority opinion focuses on subsection (D), but the other definitions, except for subsection (B), are pertinent and seem to fit the persuasive authority cited.

The statutory definition for the crime of which Barnes was convicted is:

(a) A person is guilty of first-degree arson if he maliciously starts a fire or causes an explosion with intent to destroy or damage an occupied structure.

Wyo.Stat. § 6-3-101(a) (1988).

The factual background included in the majority opinion notes that an accelerant had been used to start the fire in the house. The only conclusion to be drawn is that some person (in this instance, Barnes) was inside the house in order to start the fire. There is no need, therefore, to rely upon the house (structure) being occupied in law; it was occupied in fact by the arsonist at the time the fire was started. On that basis alone, I would reject the claim that the evidence of the crime of first-degree arson was insufficient because there was no evidence that the house was not an occupied structure.