Judge Reisner continued: The court also reasoned that, because the Delaware statute was phrased in terms of a fire creating the danger of harm, as opposed to actual harm, to one or more persons, permitting multiple charges of arson based on setting one fire could lead to absurd results. The logical extension of the State’s argument is that, in allowing multiple counts of arson for multiple intended victims, there could be some absurd outcomes. Suppose, for example, that a defendant sets a fire in a closet next to a crowded banquet hall with 500 patrons, a fire alarm sounds, all file out quietly and uneventfully, and the defendant is captured and charged. May the State charge the defendant with 500 counts of arson? There is nothing in the Delaware Code to indicate that the General Assembly intended 500 charges of arson in that situation, rather than one count to reflect the inherently dangerous nature of the offense of arson.
The fact that the Delaware first degree arson provision focuses on the intended harm to third parties, not the actual harm, demonstrates the vulnerability of the State’s argument. It may not be so easy to identify all those to whom a defendant intended harm, or those whose presence is a reasonable possibility.
The court reasoned that the State had other “ways to seek additional punishment” for persons who start fires intending to harm multiple victims. Furthermore, should an arsonist cause actual harm or death, substantive charges based on that harm are available.” The court noted that Handy had been charged and convicted of attempted murder, in addition to arson.
As in Handy, Craig, and Lewis, in this case, the State could have charged defendant with one count of arson and multiple counts of attempted murder. However, the State instead improperly multiplied the one act of arson into an indictment charging twelve counts of arson, and defendant was improperly convicted of eleven counts of arson instead of only one count. As a result, we reverse all but one of the arson counts, and we vacate the sentences imposed as to those reversed convictions. We affirm defendant’s conviction of one count of second-degree arson.
Double jeopardy and mandatory merger considerations will almost certainly prevent the State from bringing the defendant back to trial to answer for the overlooked attempted murder and aggravated assault charges. It is surprising that the State did not see this issue as a problem when they were preparing the case for trial.