GA Code § 16-7-61 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 7 - Damage to and Intrusion Upon Property|Article 3 - Arson and Explosives|§ 16-7-61. Arson in the Second Degree

  A person commits the offense of arson in the second degree as to any building, vehicle, railroad car, watercraft, aircraft, or other structure not included or described in Code Section 16-7-60 when, by means of fire or explosive, he or she knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage any building, vehicle, railroad car, watercraft, aircraft, or other structure of another without his or her consent or in which another has a security interest, including but not limited to a mortgage, a lien, or a conveyance to secure debt, without the consent of both.   A person also commits the offense of arson in the second degree as to any building, vehicle, railroad car, watercraft, aircraft, or other structure not included or described in Code Section 16-7-60 when, in the commission of a felony, by means of fire or explosive, he or she knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage any building, vehicle, railroad car, watercraft, aircraft, or other structure of another without his or her consent or in which another has a security interest, including but not limited to a mortgage, a lien, or a conveyance to secure debt, without the consent of both.   A person convicted of the offense of arson in the second degree shall be punished by a fine of not more than $25,000.00 or by imprisonment for not less than one nor more than ten years, or both.    (Ga. L. 1924, p. 192, § 2; Code 1933, § 26-2209; Ga. L. 1949, p. 1118, § 3; Code 1933, § 26-1402, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1976, p. 1497, § 2; Ga. L. 1979, p. 935, § 2; Ga. L. 1985, p. 149, § 16; Ga. L. 2004, p. 734, § 2.)   Editor's notes.   - Ga. L. 2004, p. 734, § 4, not codified by the General Assembly, provides that the amendment to this Code section is not applicable to any offense committed prior to July 1, 2004, and that any such offense shall be punishable as provided by the statute in effect at the time the offense was committed.   JUDICIAL DECISIONS   No variance in the indictment.    - Defendant's allegations that a fatal variance existed between the allegations of the indictment and the evidence at trial were rejected, as it was unnecessary to prove who had legal title to the property, lawful possession was proven to be in the victim, a sheriff's deputy corroborated the allegations in the indictment concerning the date, place, the property damaged, and that defendant was the agent that caused the burning. Wisham v. State, 262 Ga. App. 380, 585 S.E.2d 675 (2003).   Burning separate structures as one crime.    - When evidence establishes commission of only one incendiary act, only one crime was committed, even though two separate structures were burned. Altman v. State, 156 Ga. App. 185, 273 S.E.2d 923 (1980).   Apartment as protected structure.    - There was no dispute that the victim's apartment was a protected structure for purposes of O.C.G.A. §§ 16-7-60 and16-7-61. Alexander v. State, 263 Ga. 474, 435 S.E.2d 187 (1993).   Circumstantial evidence of both guilt and corpus delicti.    - Circumstances must generally be depended upon, not only to show the guilt of the accused, but to establish the corpus delicti of the crime of arson. Reese v. State, 94 Ga. App. 387, 94 S.E.2d 741 (1956).   Corpus delicti in arson.    - In a case of arson, the corpus delicti consists of two fundamental facts: first, the burning of the house described in the indictment, and second, the fact that a criminal agency was the cause of the burning. Reese v. State, 94 Ga. App. 387, 94 S.E.2d 741 (1956).   Arson and cruelty to animals as separate crimes.    - Defendant was properly convicted for arson in the second degree and cruelty to animals, where the essential elements of each of the crimes differed, and the state carried its burden of proving the distinct elements of each crime. Motes v. State, 189 Ga. App. 430, 375 S.E.2d 893 (1988).   Criminal damage as lesser included offense of arson.    - Trial court properly merged a conviction of criminal damage to property in the second degree, in violation of O.C.G.A. § 16-7-23(a)(1), into a conviction for arson in the second degree, in violation of O.C.G.A. § 16-7-61, as the arson was not a lesser included offense of the criminal damage offense pursuant to O.C.G.A. § 16-1-6(1); arson required the higher mentally culpable state of knowingly, rather than the criminal damage scienter requirement of intentionally, and arson required that the damage to the property have been caused by fire or explosive. Youmans v. State, 270 Ga. App. 832, 608 S.E.2d 300 (2004).   Similar transaction evidence admitted in arson trial.    - Similar transaction evidence was properly admitted in the defendant's trial for arson, O.C.G.A. § 16-7-61(a), under circumstances in which the defendant was accused of setting fire to a car belonging to the girlfriend of the defendant's former boyfriend; the state presented evidence of two prior incidents showing acts of property damage committed by the defendant following an argument with a former boyfriend or those close to a former boyfriend. The prior incidents were sufficiently similar to the crime charged to show the defendant's course of conduct or bent of mind to react violently when upset with men with whom the defendant had been intimate. Cherry v. State, 299 Ga. App. 194, 682 S.E.2d 150 (2009).   Circumstantial evidence sufficient to convict.    - Jury was authorized to find the defendant guilty of arson even though the evidence was circumstantial as the proven facts were consistent with the hypothesis of guilt and excluded every other reasonable hypothesis other than the defendant's guilt as the defendant's burning of three trucks using gasoline at a truck-driving school where the defendant failed truck-driving courses, the defendant's presence at a nearby gas station around the time of the fire, and the defendant's admission that the defendant burned the trucks because an instructor "burned" the defendant, meant the defendant's arson convictions were supportable as a matter of law. Denson v. State, 259 Ga. App. 342, 577 S.E.2d 29 (2003).    Evidence presented at the defendant's trial for second degree arson, O.C.G.A. § 16-7-61(a), was sufficient to allow the jury to infer that the defendant was the person who set fire to a car belonging to the new girlfriend of the defendant's former boyfriend; the evidence showed that the defendant had a history of expressing anger by damaging or destroying property, that the defendant had made numerous threats against the boyfriend and the girlfriend in the 12-hour period immediately prior to the arson, that the defendant was seen running from the scene shortly after the fire began, that a car similar to the defendant's was then seen driving away from the girlfriend's home, and that no other person was observed near the scene at or near the time the girlfriend's car began to burn. Cherry v. State, 299 Ga. App. 194, 682 S.E.2d 150 (2009).    Evidence held sufficient to prove the essential elements of arson in the second degree. Patterson v. State, 202 Ga. App. 440, 414 S.E.2d 895 (1992); Stephens v. State, 214 Ga. App. 183, 447 S.E.2d 26 (1994).    Evidence was sufficient to support conviction for arson because: (1) one of the defendants placed dozens of calls from the decedent's cell phone as the defendants traveled from Tampa to Atlanta in the decedent's pickup truck; (2) the truck was destroyed in a fire that was started through the use of an accelerant near an apartment complex where the defendants were staying with relatives; (3) the decedent's body was found in the bed of the truck; (4) the decedent had been dead for days before the fire; (5) personal belongings of the decedent were found in the possession of the defendants; and (6) the defendants gave statements to the police. Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011).    Evidence, including defendant's confession, which was corroborated by the victim's boyfriend, who testified to seeing the defendant in the backyard of the victim's home immediately before the boyfriend and the victim became aware that the victim's van was ablaze, was sufficient to support the defendant's conviction for second degree arson. Crawford v. State, 318 Ga. App. 270, 732 S.E.2d 794 (2012).    Cited in Shelnutt v. State, 289 Ga. App. 528, 657 S.E.2d 611 (2008).   RESEARCH REFERENCES   Am. Jur. 2d.   - 5 Am. Jur. 2d, Arson and Related Offenses, § 1 et seq. 31A Am. Jur. 2d, Explosions and Explosives, §§ 169 et seq., 191.   ALR.    - Ownership of property as affecting criminal liability for burning thereof, 17 A.L.R. 1168.   Burning of building by mortgagor as burning property of another so as to constitute arson, 76 A.L.R.2d 524.