North Carolina Lawyers Weekly
A co-conspirator who lives with another defendant and engages in a plan to commit arson can qualify as “another person” for the purpose of establishing a required element of arson, the North Carolina Court of Appeals has unanimously ruled in a case of first impression.
In State v. Lance, the appeals court was faced with deciding the novel issue of whether an alleged arsonist has conspired to burn the dwelling house of “another” if their alleged co-conspirator is also their cohabitant. Under the facts of this case, the appeals court determined that they have.
“The elements of this offense and our existing precedent do not provide any exception for co-conspirators, nor do they require that the other person living in the home be unaware or uninvolved in the plan to burn the home,” Judge Richard Dietz wrote for the court.
In 2019, Sherry Lee Lance was convicted of second-degree arson, conspiracy to commit second-degree arson, and insurance fraud after burning down the house in Fletcher that she and her mother, Jonnie Turner, shared. Investigators had become suspicious after seeing few personal belongings in the house and learning that Lance filed a lost items claim against an insurance policy that she took out four months before the fire, and even more so when they found personal belongings in a storage unit that Lance had rented and moved items into the day before the fire. Several items recovered in the unit matched those that Lance listed on her loss inventory form.
Lance appealed her convictions, arguing that the state couldn’t prove an essential element of the charges—that she’d burned the dwelling house of another—because the only other inhabitant of the house was her mother, who allegedly conspired with her to burn it down.
The state’s appellate courts had never directly determined whether a co-conspirator qualifies as another person for the purposes of the arson statute, but the judges were persuaded by the court’s 1986 ruling in State v. Eubanks that a dwelling house is that of another if “someone other than the defendant lives there,” and the 1982 state Supreme Court decision in State v. Shaw establishing that “another person” can be defined as someone other than the defendant jointly occupying the “same dwelling unit.”
Those cases both involved defendant who lived with other people who weren’t involved in the arson plot, but we find nothing in those holdings required those third parties to be innocent or uninvolved in the arson, Dietz wrote.
Arson and daughter
Lance urged the court to follow its 1989 decision State v. Ward, which found that a conviction for common-law arson was inappropriate where the other inhabitant consented to or participated in a scheme to burn the home. But Dietz said that the Ward court reasoned that the other inhabitant had permanently abandoned the home and wasn’t in danger because he was living elsewhere when the arson occurred.
Conversely, Lance and Turner lived in the home together, and Turner could have been at risk because, even though she assisted with aspects of the conspiracy, there was no evidence that she knew when, how, or where in the home the fire would be set or how much of the house would be destroyed.
“Turner was a person living in that dwelling who could have been in the home at the time it was burned,” Dietz wrote, “and that is all that is required to satisfy this element of the arson offenses in this case.” Dietz also noted that recognizing an exception to the requirement for co-conspirators wouldn’t be consistent with the general purpose of criminalizing arson.
Assistant Attorney General Thomas Felling represented the state. Warren Hynson of Raleigh represented Lance.
Hynson did not immediately return a request for comment.
The 20-page decision is State v. Lance (Lawyers Weekly No. 011-090-21). The full text of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacher
