Opinion
Rehearing Denied Sept. 23, 1975.
Page 334
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy State's Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Forrest W. Lewis, Deputy State Public Defender, Denver, for defendant-appellant.
COYTE, Judge.
Defendant appeals his conviction under s 18--4--102, C.R.S.1973, of first degree arson. We affirm.
On May 30, 1974, at 8 P.M., defendant Abeyta was observed hurrying from the duplex apartment that he and his wife rented. Shortly thereafter, a neighbor saw smoke coming from the apartment and called the fire department. Firemen found dense smoke and at least seven places where fires had been started. The fire was principally located in a bed in the converted dining room. Other locations included a waste paper basket, the living room couch, and the kitchen floor. Some of these fires had already extinguished themselves. A white water-based paint had been poured on some of the fire locations. A half-full, 4 1/2 ounce can of lighter fluid was found, and there was evidence that it had been used to start the fire on the couch. Pages torn from a telephone book had been used to start the fires at other locations. Damage to the apartment was heavy. When Abeyta returned five hours later, he was arrested and charged with arson. After a jury was impanelled, a mistrial was declared and no objection was made thereto by the defendant. After the second trial, defendant was convicted of first degree arson and this appeal followed.
Defendant first contends that, because there was no valid reason for the court to grant the mistrial, his re-trial constituted double jeopardy in violation of his Fifth Amendment rights. We disagree. The first trial was declared a mistrial after one of the already impanelled jurors had conversed for approximately 10 minutes with an acquaintance, a sheriff's deputy, who told the juror that defendant was his brother and some of the details of the case. Under these circumstances, the declaration of mistrial was a proper exercise of the trial judge's discretion.
Once a jury has been impanelled, a defendant's rights are violated if a Valid trial does not proceed. Krutka v. Spinuzzi, 153 Colo. 115, 384 P.2d 928. Invalidity may be caused by any indication of personal interest of the jurors which prejudices the proceedings. Brown v. People, 132 Colo. 561, 291 P.2d 680; See also s 18--1--301(2)(b)(III), C.R.S.1973. The interest of the State may be prejudiced as well as that of the defendant, and, in such a case, a mistrial may be declared over the objection of the defendant. Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901.
Here, the juror admitted there was conversation between her and the deputy sheriff, and there is substantial evidence that this conversation could have prejudiced the State. Additionally, defendant did not raise his objection to the granting of the motion for a mistrial until this appeal. As stated in Ballensky v. People, 116 Colo. 34, 178 P.2d 433, "Former jeopardy' is a personal privilege which a defendant may take advantage of or waive as he pleases and his waiver may be implied from his conduct.' We find no abuse of discretion by the trial court in declaring the mistrial.
Defendant also alleges that he was entitled to instructions on fourth degree arson and criminal mischief, both as a means of presenting his theory of the case and as lesser included offenses. We disagree.
A defendant is entitled to an instruction on his theory of the case if there is any evidence to support the theory. People v. Rivera, Colo., 525 P.2d 431. However, the 'evidence' cannot be mere imagination or 'wishful thinking' of the defendant. Sterling v. People, 151 Colo. 127, 376 P.2d 676, Cert. denied, 373 U.S. 944, 83 S.Ct. 1554, 10 L.Ed.2d 699. Although defendant did not introduce any evidence, he contends that he intended to burn only his own possessions. However, a person is presumed to intend the logical consequences of his unlawful voluntary acts. Keller v. People, 153 Colo. 590, 387 P.2d 421. It can be expected that fires set inside a building will spread throughout and burn that building. Thus, there was no error in refusing to give any instructions on defendant's theory of the case.
A defendant is entitled to an instruction on a lesser included offense when evidence puts certain elements of the greater offense in issue so that the defendant could possibly be found not guilty of the greater offense but guilty of the lesser. People v. Futamata, 140 Colo. 233, 343 P.2d 1058.
First degree arson is defined in s 18--4--102, C.R.S.1973, as follows:
'A person who intentionally sets fire to, burns, causes to be burned, or by the use of any explosive damages or destroys, or causes to be damaged or destroyed, any building or occupied structure of another without his consent, commits first degree arson.'
Fourth degree arson is defined in s 18--4--105(1), C.R.S.1973, as follows:
'A person who starts or maintains a fire or causes an explosion, on his own property or that of another, and by so doing places another in danger of death or serious bodily injury or places any building or occupied structure of another in danger of damage commits fourth degree arson.'
Criminal mischief is defined in s 18--4--501, C.R.S.1973, as follows:
'Any person who intentionally damages the real or personal property of one or more other persons in the course of a single criminal episode commits a class 2 misdemeanor where the aggregate damage to the real or personal property is less than one hundred dollars. Where the aggregate damage to the real or personal porperty is one hundred dollars or more, he commits a class 4 felony.'
Thus, by the statutory test of People v. Rivera, supra, the latter two above defined crimes are lesser included offenses of first degree arson because the essential elements of the latter are necessarily proven if the elements of the first are present. However, it was not error for the court to refuse to instruct on said lesser included offenses in this case. There is no evidence in the record but that the fires were intentionally set by defendant and that they did burn parts of the deplex. Hence, there is no evidence in the record which would justify the jury in finding defendant not guilty of the first degree arson but guilty of either of the other charges. Where there is no rational basis in the evidence to justify giving a requested instruction, it need not be given. People v. Futamata,supra; Rumley v. People, 149 Colo. 132, 368 P.2d 197; s 18--1--408(6), C.R.S.1973.
Judgment affirmed.
ENOCH and BERMAN, JJ., concur.