BATT v. STATE, 111 Nev. 1127 (1995)

901 P.2d 664

No. 24907Supreme Court of Nevada.
August 24, 1995

Appeal from Second Judicial District Court, Washoe County, Mark Handelsman, Judge.

Robison, Belaustegui, Robb and Sharp, Reno, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, Charles B. Woodman, Deputy District Attorney, Washoe County, for Respondent.

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OPINION
By the Court, SPRINGER, J.:

This is an appeal from judgments of conviction entered against

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appellant Randall Batt, on jury verdicts, for two felonies and one gross misdemeanor, namely: third-degree arson, a felony (NRS 205.020); destruction of timber by fire caused by gross negligence, a felony (NRS 475.040 and NRS 193.155); and conspiracy to possess or use fireworks, a gross misdemeanor (NRS 199.480).

We reverse Batt’s conviction for third-degree arson. Batt cannot be convicted of this crime unless the evidence were to show that he “willfully and maliciously” caused “the burning of . . . [a]ny timber, forest . . . or other flammable material not his own.” NRS 205.020. There is insufficient evidence in this case for the jury to have concluded that Batt caused the fire in question and absolutely no evidence that Batt acted “willfully and maliciously” in any regard.

We reverse Batt’s conviction under NRS 475.040 for causing a forest fire by “gross negligence,” because, as a matter of law, Batt’s conduct does not constitute gross negligence.

We affirm the gross misdemeanor conviction for conspiracy to possess or use fireworks because Batt did not argue in this appeal for reversal of this conviction.

The prosecution of this case arose out of a disastrous fire that was accidentally set by Batt’s female companion, Elizabeth Whitington, who caused the fire when she set off a firework on Peavine Mountain.

Batt and Whitington decided to go on an outing together on Batt’s motorcycle. Whitington carried with her a backpack containing sandwiches, drinks and a firework device. Whitington became annoyed because she thought that Batt was going too fast. Batt stopped the motorcycle, and Whitington dismounted. Whitington decided (quite wrongly) that the place where the couple stopped was a safe place for her to ignite her firework. At a point some thirty to thirty-five feet away from where Batt was standing with his motorcycle, Whitington lit the firework with a cigarette lighter. As she was doing this, according to the testimony of both Batt and Whitington, Batt protested, saying to Whitington that this was not the time or place for her to ignite her firework. As Batt put it, Whitington was “stubborn” and went ahead anyway to carry out her decision to light the firework.[1]

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THIRD-DEGREE ARSON
On the facts of this case, to be guilty of third-degree arson, under NRS 205.020, Batt must have “willfully and maliciously set fire to or burn[ed] or cause[d] to be burned . . . [a]ny timber, forest, shrubbery, crops, grass [or] vegetation.” Although it is plain that it was Batt’s companion Whitington who, “on her own” lit the firework and negligently caused the timber “to be burned,” the charges in the arson indictment do not distinguish between Whitington and Batt and accuse them both “in joint participation” of “willfully, unlawfully and maliciously caus[ing] to be burned the property of another.” As discussed in the margin, the State did not charge Batt with aiding or abetting Whitington or with counseling, encouraging, commanding or inducing, or otherwise procuring Whitington to commit a criminal act. The State charges Batt with being a joint perpetrator,[2]
charging joint “participation” with Whitington in the actus reus of this crime. The State charged Batt with being what at common law would be a principal in the first degree and what is described in NRS 195.020 as the person who “directly commits the act constituting the offense.” The State charged that Bat himself (in “joint participation” with Whitington) “did willfully, unlawfully, and maliciously cause to be burned the property of another.” There is no evidence that Batt himself burned anything or “caused” anything to be burned; and, even if there were some proof that would causally connect Batt’s conduct with this forest fire, there is absolutely nothing to suggest that he intended to burn the forest or that he did anything that even remotely suggests malice or willfulness on his part. Apparently, Batt “just stood there” as Whitington lit the firework. At the very worst, Batt condoned Whitington’s negligence. This is a far-cry, indeed, from “willfully and maliciously” burning the forest. Absent the

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required malice and willfulness, Batt cannot be convicted of arson; so we reverse that conviction.[3]

“CAUSING” FIRE BY “GROSS NEGLIGENCE”
Batt stands convicted of NRS 475.040.[4] To be guilty of this crime Batt must have lit a fire or set a fire in a manner that was grossly negligent. There is no evidence that Batt set off the damaging firework either by himself or “jointly” with Whitington. Whitington’s uncontradicted testimony makes it clear that she was the one that did the deed. At the most, the prosecutor argued only a “conspiracy to possess” and that “Mr. Batt knew that . . . they would light off the fire cracker.” Although there is no direct evidence that Batt knew that Whitington was going to light the fire cracker, even if there were, this would not be sufficient to support a finding that Batt had committed gross negligence jointly with Whitington when she set off the firework. In other words, Batt could have known or suspected that at some juncture, at some time or place, during their motorcycle ride Whitington was going to set off the firework in her possession; but his knowledge would not necessarily mean that he knew that she was going to set off the firework at that particular hazardous time and place. Even if the jury had

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accepted the prosecutor’s argument as being true, this would not have justified a finding of Batt’s gross negligence under the particular circumstances of this case.

Whitington is the one who set the fire and, quite possibly, set the fire “with gross negligence.”[5] Whitington’s negligence or gross negligence cannot be imputed to Batt, however. Batt cannot be held criminally liable vicariously for Whitington’s gross negligence in setting the forest on fire.[6]

Because there is no evidence that Batt conducted himself in a manner that falls within the definition of “gross negligence,” his conviction for violation of NRS 475.040 is reversed.

STEFFEN, C.J., and YOUNG, SHEARING and ROSE, JJ., concur.

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