On August 10, 2018, a three-judge appellate panel decided the Mercer County case of State v. Gerald Hill-White. The principal issue before the Court was whether the prosecution violated the rule against multiplicity when it charged the defendant with multiple counts of arson based on the number of victims endangered by one fire.
Judge Reisner wrote for the panel in relevant part as follows. In contrast to merger, the rule against multiplicity prohibits the State from charging a defendant with multiple counts of the same crime, when defendant’s alleged conduct would only support a conviction for one count of that crime. A defendant may not be tried for two identical criminal offenses in two separate counts based upon the same conduct. Thus, multiplicity occurs when a single offense is charged in several counts of an indictment.”
The bar against multiplicity relates to the Double Jeopardy principle prohibiting multiple punishments for the same offense. While multiplicity begins as a charging error, it can obviously result in a defendant being improperly convicted of multiple crimes, when he or she only committed one crime. Multiplicity may also implicate a defendant’s right to a fair trial, because trying a defendant for multiple counts of the same offense, when only one offense was committed, may prejudice the jury. A court may remedy multiplicity by setting aside all but one of the multiple convictions after the verdict, but the better approach is to address the issue before trial by dismissing the improperly duplicative counts of the indictment.
Because the arson statute does not distinguish between the type or degree of harm to the person, under the State’s interpretation, someone who set a fire for the purpose of slightly injuring five people could be punished more harshly than someone who set a fire for the purpose of killing one person. This anomalous result suggests that the State’s construction of the arson statute is contrary to the Legislature’s intent. It is one thing to punish a crime – such as theft, burglary, or arson – more harshly if people are endangered or hurt while the crime is being committed, and quite another thing to permit multiple charges and multiple punishments without differentiating among the degrees of harm caused to the victims. We conclude that the Legislature intended each act of fire-setting to be charged and punished as one crime, and intended that the injury or intended injury to each victim be charged and punished using the appropriate statutes governing assault or homicide.
The Court raises an interesting point about the potential for multiple counts to prejudice a jury. That issue presents tough trial strategy decisions. On the one hand, a request for a lesser-included charge may lead to a less serious conviction when a jury would otherwise convict of the more serious charge. On the other hand, it may lead to a conviction when a jury would otherwise be inclined to acquit if there only choice was between acquitting or convicting of the one charge at issue.