2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 17 - Fire
Section 30-17-5 - Arson and negligent arson.
A. Arson consists of a person maliciously or willfully starting a fire or causing an explosion with the purpose of destroying or damaging:
(1) a building, occupied structure or property of another person;
(2) a bridge, utility line, fence or sign; or
(3) any property, whether the person's own property or the property of another person, to collect insurance for the loss.
B. Whoever commits arson when the damage is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.
C. Whoever commits arson when the damage is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.
D. Whoever commits arson when the damage is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.
E. Whoever commits arson when the damage is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.
F. Whoever commits arson when the damage is over twenty thousand dollars ($20,000) is guilty of a second degree felony.
G. Negligent arson consists of a person recklessly starting a fire or causing an explosion, whether on the person's property or the property of another person, and thereby directly:
(1) causing the death or bodily injury of another person; or
(2) damaging or destroying a building or occupied structure of another person.
H. Whoever commits negligent arson is guilty of a fourth degree felony.
I. As used in this section, "occupied structure" includes a boat, trailer, car, airplane, structure or place adapted for the transportation or storage of property, for overnight accommodations of persons or for carrying on business therein, whether or not a person is actually present.
History: 1953 Comp., § 40A-17-5, enacted by Laws 1970, ch. 39, § 1; 2006, ch. 29, § 16.
ANNOTATIONSCross references. — For provisions covering the lighting, leaving or failure to extinguish fires on state lands, see 19-6-1, 19-6-2 NMSA 1978.
Repeals and reenactments. — Laws 1970, ch. 39, § 1, repealed 40A-17-5, 1953 Comp., and enacted a new section.
The 2006 amendment, effective July 1, 2006, in Subsection B (former Paragraph (1) of Subsection A), increased the damage amount from $100 or less to $250 or less and changed the crime from a misdemeanor to a petty misdemeanor; in Subsection C (former Paragraph (2) of Subsection A), increased the damage from more than $250 but not more than $1,000 to more than $250 but not more than $500 and changed the crime from a fourth degree felony to a misdemeanor; deleted the former provision in Subsection D (former Paragraph (3) of Subsection A) that whoever commits arson when the value of the property is more than $1,000 is guilty of a fourth degree felony; provided in Subsection D that if the damage is more than $500 but not more than $2,500, the crime is a fourth degree felony; added Subsection E to provide that if the damage is more than $2,500 but not more than $20,000, the crime is a third degree felony; and added Subsection F to provide that if the damage is more than $20,000, the crime is a second degree felony.
Conduct constituting intentional arson could not be construed as negligent arson. State v. Jacobs, 1985-NMCA-054, 102 N.M. 801, 701 P.2d 400.
Words "property of another" include those things that are either structures, fixtures, or appurtenances to real property, but does not include personal property. In re Gabriel M., 2002-NMCA-047, 132 N.M. 124, 45 P.3d 64, cert. denied, 132 N.M. 193, 46 P.3d 100.
Sufficient evidence to support defendant's conviction for arson. — Where defendant was convicted of first-degree murder, conspiracy to commit first-degree murder, arson, and tampering with evidence due to his involvement in the murder of a man, and where defendant claimed that the State did not provide sufficient evidence that he burned the property of another or that the burning was malicious, claiming that the evidence established that defendant and his coconspirators burned the body of the victim in a coconspirator's vehicle who consented to setting the vehicle on fire, there was sufficient evidence to support the jury's verdict where evidence was also presented to the jury that the vehicle belonged to the victim or the victim's girlfriend and that defendant intentionally set the vehicle on fire while the victim was inside the vehicle. State v. Chavez, 2021-NMSC-017.
Negligent arson not lesser included offense of malicious arson. — Where defendant had not been formally charged with negligent arson, and that offense was not a lesser included offense of malicious arson, of which he was charged, defendant's conviction of negligent arson was subject to reversal. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174, cert. quashed, 103 N.M. 344, 707 P.2d 552.
Sufficient evidence to support arson conviction. — Where defendant was charged with arson, breaking and entering and violating an order of protection, and where the state presented evidence that defendant had broken into the victim's house through her window on prior occasions, similar to the way the arsonist did on the night of the fire, that defendant's blood was found on a pair of pliers and pruning shears found near the victim's broken window on the night of the fire, tools which the victim did not recognize or notice when she had her window secured earlier that morning, and that defendant had a motive to burn the victim's house down, jealousy following a breakup, there was sufficient evidence for a rational juror to find that defendant broke into the victim's house and set it on fire. State v. Pamphille, 2021-NMCA-002, cert. denied.
Merger with crime of dangerous use of explosives. — The crime of dangerous use of explosives merges into a conviction for arson. State v. Rodriguez, 1992-NMCA-035, 113 N.M. 767, 833 P.2d 244, cert. denied, 113 N.M. 636, 830 P.2d 553.
Destruction or damage of automobile by fire or explosion. — Section 64-9-6 D, 1953 Comp. (now repealed but similar to 66-3-506 NMSA 1978), was a general statute directed to destroying or damaging an automobile, whereas this section is a specific statute directed to destroying or damaging an automobile by fire or explosion, and is the applicable statute to charge one with arson of an automobile having a value in excess of $1,000. State v. Martinez, 1978-NMCA-069, 91 N.M. 804, 581 P.2d 1299.
Merger of arson with crime of aggravated assault. — Conviction of arson requires proof of intent to damage property; conviction of aggravated assault requires proof of use of a deadly weapon to assault or strike at another. Convictions of arson and aggravated assault do not merge because they require proof of different facts and theories. State v. Rodriguez, 1992-NMCA-035, 113 N.M. 767, 833 P.2d 244, cert. denied, 113 N.M. 636, 830 P.2d 553.
Conviction of accessory where principal unknown. — Circumstantial evidence that defendant aided and abetted arsonist, who was unknown, was sufficient to sustain conviction of defendant under this section. State v. Atwood, 1971-NMCA-171, 83 N.M. 416, 492 P.2d 1279, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).
Aiding and abetting shown. — Evidence that defendant borrowed a water bottle when one was already at his business, purchased dynamite, fuse and caps for a friend "ready for them," caused these items to be left outside a motel room in Roswell where "the party would pick it up," and was at the motel an hour later (after the material was left outside the motel room door) was sufficient to establish that he aided and abetted the arson at his place of business two hours after he was observed at the motel. State v. Atwood, 1971-NMCA-171, 83 N.M. 416, 492 P.2d 1279, cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972).
Conspiracy to damage and burn insured business. — For a conspiracy to burn an insured business after making it appear to have been burglarized and vandalized, defendant could be prosecuted under both this section and 30-15-3 NMSA 1978, but only a single penalty could be validly imposed. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Where conspiracy to burglarize and vandalize an insured business prior to proposed arson was directed to acts not covered hereunder, this section did not function as a special provision prohibiting the prosecution of defendant under 30-15-3 NMSA 1978, for the aspect of the conspiracy directed toward the burglary and vandalism. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Conspiracy to commit arson outside state. — In a prosecution for conspiracy to burn defendant's own grain elevator in another state, it was necessary to prove that such burning was arson in the sister state. State v. Henneman, 1936-NMSC-021, 40 N.M. 166, 56 P.2d 1130.
Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 5 Am. Jur. 2d Arson and Related Offenses § 1 et seq.
Criminal responsibility of one cooperating in offense of arson which he is incapable of committing personally, 5 A.L.R. 783, 74 A.L.R. 1110, 131 A.L.R. 1322.
Ownership of property as affecting criminal liability for burning thereof, 17 A.L.R. 1168.
Evidence: admissibility, in prosecution for criminal burning of property, or for maintaining fire hazard, of evidence of other fires, 87 A.L.R.2d 891.
Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.
What constitutes "burning" to justify charge of arson, 28 A.L.R.4th 482.
Pyromania and the criminal law, 51 A.L.R.4th 1243.
6A C.J.S. Arson §§ 1 to 22.
