NOTE: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, 25 years, E-1. (Category 3)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, willfully and maliciously (burn) (set on fire), knowing that a human being was therein at the time, (the Post Theater) (__________).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused (burned) (set on fire) a certain structure, that is: (state the structure alleged);
(2) That the act was willful and malicious;
(3) That there was a human being in the structure at the time; and
(4) That the accused knew that there was a human being other than the accused (or (his) (her) confederates) in the structure at the time.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
An act is done “willfully” if done intentionally or on purpose.
An act is done “maliciously” if done deliberately for some mischievous purpose and without legal justification or excuse. The malice required for this offense does not have to amount to ill will or hostility. It is sufficient if a person deliberately and without legal justification or excuse burns or sets fire to the structure.
A “structure” is any structure, other than an “inhabited dwelling,” movable or immovable, such as a theater, house of worship, boat, trailer, tent, auditorium, or any other sort of shelter or building, whether public or private.
(Knowledge that a human being is inside the structure may be proved by circumstantial evidence. For example, evidence that a store or theatre was set on fire during hours of business may be circumstantial evidence from which you may infer that the person who set the fire knew a human being was inside the structure. The drawing of this inference is not required.)
There is no requirement that the accused specifically intend to set fire to or burn the structure alleged in the specification. To satisfy the first and second elements of this offense, the accused need only willfully and maliciously start the fire that resulted in the burning or charring of the structure alleged.
(Proof that the structure was destroyed or seriously damaged is not required to establish the offense. It is sufficient if any part of the structure is burned or charred. A mere scorching or discoloration caused by heat is not sufficient.)
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.
e. REFERENCES: US v. Acevedo-Velez, 17 MJ 1 (CMA 1983); US v. Caldwell, 17 MJ 8 (CMA 1983); US v. DeSha, 23 MJ 66 (CMA 1986); US v. Banta, 26 MJ 109 (CMA 1988); US v. Crutcher, 49 MJ 236 (CAAF 1998).