2021 Colorado Code
Title 18 - Criminal Code
Article 4 - Offenses Against Property
Part 1 - Arson
§ 18-4-102. First Degree Arson

1. A person who knowingly 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.
2. First degree arson is a class 3 felony.
3. A defendant convicted of committing first degree arson by the use of any explosive shall be sentenced by the court in accordance with the provisions of section 18-1.3-406.

History. Source: L. 71: R&RE, p. 426, § 1. C.R.S. 1963: § 40-4-102 . L. 77: (1) amended, p. 962, § 19, effective July 1. L. 86: (3) added, p. 777, § 8, effective July 1. L. 2002: (3) amended, p. 1515, § 196, effective October 1.

For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002.

Law reviews. For article, “Mens Rea and the Colorado Criminal Code”, see 52 U. Colo. L. Rev. 167 (1981).

Annotator's note. Since § 18-4-102 is similar to former § 40-3-1 , C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

At the common law, arson was a crime against the habitation, rather than against property rights. Lipschitz v. People, 25 Colo. 261 , 53 P. 1111 (1898).

At common law arson was crime against possession or occupancy, rather than ownership. People ex rel. VanMeveren v. District Court, 619 P.2d 494 (Colo. 1980).

Conviction of this offense not equal protection violation. Prosecution, conviction, and sentencing for a class 3 felony under this section, rather than for a class 4 felony under the third degree arson statute, § 18-4-104(1) , did not violate defendant's right to equal protection under the fourteenth amendment to the United States Constitution.People v. Calvaresi, 198 Colo. 321 , 600 P.2d 57 (1979).

First degree arson, by its very nature, occurs in a single criminal episode. People v. Welborne, 2018 COA 127 , 457 P.3d 71.

Unit of prosecution under this section allows for multiple convictions based on the number of buildings or occupied structures damaged or destroyed by a defendant. The gravamen of each offense is what is damaged, not the number of fires set. People v. Magana, 2020 COA 148 , __ P.3d __.

Criminal mischief involving damage to another's building or occupied structure is included in first degree arson involving burning the same building or occupied structure because, though the criminal mischief statute requires all the acts to occur in the course of a single criminal episode and the first degree arson statute does not, first degree arson, by its very nature, occurs in a single criminal episode. People v. Welborne, 2018 COA 127 , 457 P.3d 71.

Distinguished from third degree arson. The more serious first degree arson statute contains an element not contained in the less serious third degree arson statute: The requirement that the property damaged or destroyed be a “building or occupied structure of another”. People v. Calvaresi, 198 Colo. 321 , 600 P.2d 57 (1979).

Distinction not unreasonable. The general assembly's decision to provide a more serious penalty for intentionally burning a “building or occupied structure” than for intentionally burning “any property” is not arbitrary or unreasonable. People v. Calvaresi, 198 Colo. 321 , 600 P.2d 57 (1979).

Person may be guilty of arson although he is in possession of property. The legal title of property conveyed by deed of trust to secure a debt is in the trustee, and an indictment for conspiracy to commit arson properly alleges the ownership of such property in the trustee. The grantor in a deed of trust may be guilty of arson of the property although he is in possession and occupancy of the property, and has a right to redeem from the trust deed. Lipschitz v. People, 25 Colo. 261 , 53 P. 111 (1898).

Jury may infer lack of consent where defendant owed a large sum of money to the previous owner and defendant was still making payments to him; it is not necessary for the prosecution to show that the previous owner affirmatively did not consent. People v. Espinoza, 989 P.2d 178 (Colo. App. 1999).

Tenant may commit arson upon building owned by other. Where a tenant sets fire to a unit which he occupies, he also damages the property interests of the owner in that building; thus, he may be deemed to have committed first degree arson upon the building of another. People v. Brown, 44 Colo. App. 397, 622 P.2d 573 (1980).

The terms “burn” or “set fire to” require more than a mere scorching or discoloration. People v. LeFebre, 190 Colo. 307 , 546 P.2d 952 (1976).

However, it is not necessary that the entire “building” or “structure” be totally destroyed or materially injured as long as any part of the “building” or “structure”, regardless of its size, is burned or set afire. People v. LeFebre, 190 Colo. 307 , 546 P.2d 952 (1976).

Sheetrock ceiling and wooden joists were a part of “building” or “structure” for purposes of arson statute. People v. LeFebre, 190 Colo. 307 , 546 P.2d 952 (1976).

Where evidence indicated that it was possible for sheetrock to “burn”, defendant's claim of impossibility under this section must fail. People v. LeFebre, 190 Colo. 307 , 546 P.2d 952 (1976).

Proof of corpus delicti and intent. In prosecutions for arson, the rule as to proof of corpus delicti and intent is the same as in prosecutions for other crimes where direct evidence is relied on. Exclusion of every possible theory other than guilt is not required. Exclusion of every other rational hypothesis, which means reasonable hypothesis, is the test, and this jury was so instructed. Militello v. People, 95 Colo. 519 , 37 P.2d 527 (1934).

Variance in proof that dwelling was burned fatal. The property answering the description contained in the information was never burned, and the defendant cannot stand convicted of burning it. The defendant was never notified or informed of the fact that he was accused of burning a building other than the dwelling named in the information, and yet the trial court submitted the question to the jury, which found him guilty of an offense with which he was never charged, the nature of which was never disclosed to him. Skidmore v. People, 154 Colo. 363 , 390 P.2d 944 (1964).

Testimony showing motive admissible. Introduction of evidence that defendant's father was the major creditor and general manager of the club allegedly arsoned, that the club had been financially unsuccessful and had lost its lease, and that the club premises were insured, offered to show defendant's motive for setting the fire, was admissible when offered in combination with testimony concerning the close business association between the defendant and his father and defendant's desire to ensure the financial success of his father's investment in the club. People v. Calvaresi, 198 Colo. 321 , 600 P.2d 57 (1979).

Evidence that defendant raised his insurance coverage six months before the fire is properly admitted as tending to prove a motive on the part of the defendant to burn his store. People v. Elkhatib, 632 P.2d 275 (Colo. 1981).

Evidence of the underlying reasons for an insurance company's denial of coverage is not relevant in that it has no logical relation to any motive defendant may have had prior to the fire, nor is it probative of any elements of the crime charged. People v. Carlson, 677 P.2d 390 (Colo. App. 1983), aff'd, 712 P.2d 1018 (Colo. 1986).

Denial of fire loss claim. Testimony of insurer that defendant's claim for fire loss to her business had been denied because insurer believed it had a provable arson defense to claim failed to meet logical relevancy requirement of rule of evidence and therefore was not admissible as probative of mens rea element of arson charge since such testimony was directed toward insurer's opinion or belief and not toward defendant's motive. People v. Carlson, 712 P.2d 1018 (Colo. 1986).

Question of guilt for jury. It is the sole province of the jury, upon all of the testimony, to determine the precise question of guilt. Goldberger v. People, 45 Colo. 327 , 101 P. 407 (1909).

Applied in People v. Hinchman, 196 Colo. 526 , 589 P.2d 917 (1978); People in Interest of M.R.J., 633 P.2d 474 (Colo. 1981); People v. Moyer, 635 P.2d 553 (Colo. 1981); People v. Stoppel, 637 P.2d 384 (Colo. 1981).