A man who set fire to a government building to destroy evidence of pornography constituting parole violations will have one of his arson convictions vacated after the Indiana Court of Appeals used recent caselaw to find a double jeopardy violation.
During a routine search of Jason Morales’ home, Travis Carter, Morales’ parole officer, found a hidden flash drive and evidence of a pornographic file on Morales’ laptop. The terms of Morales’ probation prohibited him from viewing porn, so when Carter took the laptop, Morales told his girlfriend he was “gonna burn the parole office up.”
True to his word, Morales broke into the Vigo County Community Corrections building with a pry bar and used an accelerant to ignite several fires in the parole offices. About 60 people were inside at the time, but no one was hurt.
Morales was identified on security footage, and he was eventually convicted of Level 2 felony burglary and two counts of Level 4 felony arson and was found to be a habitual offender. He received a 36-year sentence.
On appeal in Jason E. Morales v. State of Indiana, 20A-CR-913, Morales unsuccessfully challenged the Vigo Superior Court’s rejection of his “reasonable theory of evidence” jury instruction, which he claimed was mandatory under Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012). The Court of Appeals disagreed.
“Morales’s argument, planted entirely in Hampton’s soil, cannot bloom,” Judge Leanna Weissmann wrote. “… Morales’s statement to his girlfriend that he would burn the parole office was direct evidence of the actus reus. … Hampton does not apply because the actus reus evidence was not solely circumstantial.”
Morales also did not convince the appellate court that his burglary and arson convictions violated common law double jeopardy protections. Following the new double jeopardy analysis under Wadle v. State, 151 N.E.3d 227 (Ind. 2020), the panel determined that the arson statute does not permit multiple punishments and that arson is not a lesser included offense of burglary with intent to commit arson.
“Neither is arson a lesser included offense of burglary under the other subsections of the lesser included offense statute,” Weissmann wrote. “No attempted crime was charged, and the differences between Level 4 felony arson and Level 2 felony burglary vary in more ways than just level of harm or culpability. …
“… Although we reject Morales’s common law claim, we sua sponte address a different double jeopardy issue: whether his convictions for two counts of arson for setting the same fires violate the statutory prohibition on substantive double jeopardy,” Weissmann continued. “The arson convictions differed in only one respect. One was based on arson ‘under circumstances that endanger life’ under Indiana Code § 35-43- 1-1(a)(2), and the other was based on arson damaging the property of Vigo County with a pecuniary loss of at least $5,000.00 under Indiana Code § 35-43- 1-1(a)(3).”
The court’s analysis of that double-jeopardy question followed Wadle’s sister opinion, Powell v. State, 151 NE.3d 256 (Ind. 2020). Powell addresses “whether ‘the same act may be twice punished’ as ‘two counts of the same offense.’”
“Morales set a series of fires within the parole offices during a thirty-minute period immediately after burglarizing the building in the middle of the night. Those fires simultaneously damaged the building and endangered human life,” Weissmann wrote for the panel. “He was charged and convicted of arson under Indiana Code § 35-43-1-1(a)(2) and -(3). Our Supreme Court in (Matthews v. State, 849 N.E.2d 578 (Ind. 2006)) determined multiple arsons charged under those subsections constitute one transaction. 849 N.E.2d at 587. The facts of this case, as charged and as proven, establish that the two arson counts are a single offense.
“We therefore conclude Morales impermissibly was convicted of two counts of arson for setting fires with multiple consequences already encompassed in each individual count. … We reverse the trial court’s judgment in part and remand with instructions to the trial court to vacate one of the arson convictions,” the panel concluded.
In a separate concurring opinion, Judge Robert Altice pointed to his prior concurrences in two double jeopardy cases: Shepherd v. State, 155 N.E.3d 1227 (Ind. Ct. App. 2020), and Rowland v. State, 155 N.E.3d 637 (Ind. Ct. App. 2020). Those cases “merely stated” that Wadle left common law double jeopardy principles standing, rather than engaging in an analysis on that issue.
“The subsequent line of cases, which all held otherwise, thoroughly analyzed the issue. I am persuaded by these cases, particularly the detailed analysis in (Jones v. State), 159 N.E.3d at 61-62. Therefore, I now fully concur in the case at hand,” Altice wrote.