Allied offenses and multiple victims
Last week I interrupted the Bacchanalian fest that was my birthday to talk about allied offenses, in the context of a 1st District case which had held that a defendant could be convicted of eight counts of aggravated vehicular homicide for an accident which killed four people. Over a biting dissent, the court ruled that four counts under recklessness and four counts under driving drunk hadn't merged.
A different permutation on this scenario emerged in the 8th District case last week of State v. Fields, where the defendant had sought to settle a score with his wife by setting their furniture on fire. (Yeah, I know; doesn't make much sense to me, either. Guess he showed her, huh?) Unfortunately, the couple lived in a four-apartment building, and the resultant blaze spread to the other three units as well. Fields pled no contest to four counts of aggravated arson, and was sentenced to three years on each, to run consecutively. He appealed, arguing that the offenses were committed with the same animus -- that is, he was only trying to set one fire -- and thus the counts should have merged.
The appellate court agreed. Citing a solitary case -- a Supreme Court decision from 1988 involving the merger of a kidnapping and rape count -- the panel held that the crimes "were not committed with separate animus" toward the other three victims, and should've merged. What was most surprising about this is that the state had conceded in its brief that this was the appropriate result.
The reason that's surprising is that the result is almost assuredly wrong. In fact, this same court has dealt with this same situation on numerous occasions. Five years ago, in State v. Garcia, the defendant had been convicted of setting her home on fire to collect the insurance proceeds; her two children died in the blaze. The court upheld the trial court's denial of merger of the three counts of aggravated arson -- one count for each of the children, and one count for the occupied structure. The court came to an identical result in a similar situation in another case that same year, State v. Poelking.
The reason for those results is simple: as the court explained in Garcia, the multiple arson counts aren't allied offenses of similar import because
when an offense is defined in terms of conduct towards another, then there is a dissimilar import for each person affected by the conduct.
That only makes sense. The logical basis for the concept of allied offenses is that a defendant shouldn't be punished twice for the same harm. If the restraint of a rape victim isn't any greater than that normally necessary to complete the crime, then the defendant should not be convicted of both kidnapping and rape: the harm was the same. If a defendant drives drunk and kills four people, as in Hundley, he shouldn't be convicted of eight counts of homicide just because he violated two separate subsections of the same statute: there's still only four dead people.
But if a defendant sets fire to one apartment and three others catch fire, there's no more problem in imposing punishment four counts of arson than there would be if he were convicted of two counts of murder when he fired at one person and wound up killing two. There was only one intent, but the law is well within its rights to impose multiple punishments for multiple harms.
Don't tell the prosecutor's office that, though.