Appeal from Circuit Court, Malheur County. Jeff D. Dorroh, Judge. No. 1910-C.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Fort, Judge. Schwab, Chief Judge. Thornton, Judge, dissenting.
Defendant was convicted of first degree arson. ORS 164.325. He appeals, asserting as his sole assignment of error the failure of the trial court to grant his motion for a directed verdict of acquittal. Specifically he urges the state failed to prove that the fire he set endangered "protected property" within the meaning of ORS 164.325 and ORS 164.305 (1).
On the evening of August 26, 1972, Ontario Police Officer Don Howes parked his Chevrolet pickup and Kit camper in Ray's Food Fair parking lot. He was conducting a stakeout of the vehicle while sitting in an unmarked police car across the street. The camper contained a stove, refrigerator, heater and sleeping accommodations for four. At 11 p.m. Howes observed a 1969 jeep arrive and park side by side next to the camper, a few feet apart. Shortly after 11 p.m., Howes saw a person wearing clothes similar to those the defendant Perez was wearing during the course of the trial. The defendant matched the officer's description of the man he saw. Howes testified this person began looking into cars which were parked in the lot.
Howes maintained the stakeout until 2:20 a.m. At that time Howes saw the defendant walk down in front of Ray's Food Fair back of the camper. He came out from behind the pickup, walked to the driver's door of the jeep and stood there for two minutes. The defendant was looking into the window of the jeep, and Howes could see an orange light inside of it. At that time the defendant walked away. Howes first saw a
very dull light, then flames. Howes proceeded to arrest the defendant half a block from where the vehicle was parked.
A newspaper and one paper match were recovered from the jeep. The match had been found behind the driver's seat in the jeep. The defendant had dropped a matchbook onto the pavement and Howes picked it up. The fire was soon extinguished and caused only $25 to $30 damage to the front seat and arm rest.
"(1) A person commits the crime of arson in the first degree if, by starting a fire or causing an ...