People v. Strickler

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SUMMARY
January 6, 2022
2022COA1
No. 18CA2334,
People v. Strickler
— Criminal Law —
Sentencing — Mandatory Senten
ces for Violent Crimes —
Deadly Weapon
A division of the court of appeals c
onsiders whether fire meets
the definition of “deadly weapon” u
nder section 18-1-901(3)(e)(II),
C.R.S. 2021, and concludes that it
does.
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS
2022COA1
Court of Appeals No. 18CA2334
Mesa County District Court No. 17CR1144
Honorable Lance P. Timbreza, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joshua Alan Strickler,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE GROVE
Navarro and Pawar, JJ., concur
Announced January 6, 2022
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, Joshua Alan Strickler,
appeals his convictions for
attempted first degree extreme indiff
erence murder, attempted first
degree arson, and attempted crimin
al mischief. We affirm the
convictions for attempted first deg
ree extreme indifference murde
r
and attempted first degree arson,
and in doing so conclude that
Strickler was properly convicted of
a crime of violence because fire,
as Strickler used it, met the
statutory definition of “deadly weapon.
”
However, we remand with directio
ns to merge Strickler’s conviction
for attempted criminal mischief in
to his conviction for attempted
first degree arson.
I.
Background
¶ 2
After receiving a report of a struct
ure fire at the Lone Rose
Apartments, first responders enter
ed the building and noticed a
haze of smoke in the second floor h
allway. Firefighters pinpointed
one apartment as the source of t
he smoke, and, when forcing entry
through the deadbolted door saw
towels jammed into the spaces at
the top and bottom of the doorframe.
As the firefighters opened the
door, a large amount of smoke esc
aped.
¶ 3
The apartment was Strickler’s. It
was unoccupied when the
firefighters entered, but they obser
ved burners on the gas stovetop
2
that were lit and heaped with burn
ing clothes and what appeared to
be charcoal. Behind the stove, whi
ch was pulled away from the
wall, the firefighters found a smol
dering portable grill. The grill w
as
placed under the gas line that
connected the stove to the wall, and
materials in it were on fire.
¶ 4
Earlier that day, Strickler had called t
he police to report a
threat made by a man named Gary
Cox, who was staying in an
apartment in the same building wit
h his wife, Stefanie Reel.
1
Strickler reported that Cox had t
ried to kick in his apartment door,
and he showed the officer text mes
sages sent by Reel from around
the same time warning Strickler n
ot to answer his door because
“Gary” was “pisse[d].” The officer s
poke to Cox on the phone and
Reel in person. Reel did not deny s
ending the text messages, but
as
the officer recalled at trial, she clai
med that they were referring to “a
different Gary than Gary Cox.” The
officer did not take any further
action.
1
The apartment appears to have be
en leased to Reel. Cox admitted
that he was staying there but deni
ed being a “resident” because
Reel had a restraining order agains
t him.
3
¶ 5
According to the officer, Strickler b
ecame “upset” when he
learned that she “wasn’t making o
r wasn’t able to make an arrest
on the case,” and, as the officer p
repared to leave, Strickler said,
“I’ll do what I have to do then.” St
rickler set the fires in his
apartment a few hours after the off
icer left. He passed by another
tenant as he left the building, and
as he did so, he said, “[W]ell, let’s
see how this goes.”
¶ 6
Strickler called 911 to report the
smell of smoke at his
apartment nearly twenty minutes
after he left it with clothes
burning on the stove and a lit port
able grill placed directly under
the gas line. A fire investigator test
ified that the plastic portions
of
the gas line had melted from the h
eat, and that “the manner in
which [the portable grill] was place
d could have caused significant
damage — not only structurally to t
he building, but potential mass
loss of life for all involved — not
only the occupants of this buil
ding,
but responders called to the scene
, as well.”
¶ 7
Strickler was tried on charges of f
irst degree arson, attempted
first degree arson, attempted crimi
nal mischief, and two counts of
attempted extreme indifference mu
rder. One of the attempted
extreme indifference murder charg
es named Stefanie Reel as the
4
victim; the other named as victim
s “tenants or residents of the
Lone
Rose Apartments.” Both attempted
extreme indifference murder
charges were alleged to be crimes
of violence.
¶ 8
The jury acquitted Strickler of first
degree arson and of
attempting to murder Stefanie Reel
specifically. It found Strickler
guilty of the other count of attem
pted extreme indifference murder,
attempted first degree arson, and a
ttempted criminal mischief.
II.
Analysis
¶ 9
Strickler contends that (1) he w
as improperly convicted of a
crime of violence because fire does
not meet the statutory definition
of “deadly weapon”; (2) the trial co
urt improperly admitted evidence
about the disappearance of fire ext
inguishers and damage to exit
signs in the building during the
weeks before the fire; and (3)
attempted criminal mischief is a le
sser included offense of
attempted first degree arson. We
address each issue in turn.
A.
Fire as a “Deadly Weapon”
¶ 10
Strickler contends that fire does
not meet the statutory
definition of deadly weapon, and t
hat he therefore should not have
been subject to the crime of violen
ce sentence enhancer. We
disagree.
5
1.
Applicable Law
¶ 11
We review sufficiency of the evidence
claims de novo to
determine “whether the relevant evi
dence, both direct and
circumstantial, when viewed as a
whole and in the light most
favorable to the prosecution, is sub
stantial and sufficient to support
a conclusion by a reasonable mind
that the defendant is guilty of
the charge beyond a reasonable d
oubt.”
People v. Donald
, 2020 CO
24, ¶ 25 (citation omitted). We ma
y not reweigh the evidence or
substitute our judgment for that
of the jury,
People v. Rivas
, 77
P.3d 882, 891 (Colo. App. 2003),
and we must “give the prosecution
the benefit of every reasonable inf
erence which might be fairly
drawn from the evidence,”
People v
. Perez
,
2016 CO 12, ¶ 25
(citation omitted).
¶ 12
As relevant here, attempted first
degree murder is subject to a
crime of violence sentence enhance
ment if the defendant “[u]sed, or
possessed and threatened the use
of, a deadly weapon.” § 18-1.
3-
406(2)(a)(I)(A), C.R.S. 2021. “Dea
dly weapon” is defined as “[a]
knife, bludgeon, or any other wea
pon, device, instrument, material,
or substance, whether animate o
r inanimate, that, in the manner it
6
is used or intended to be used, is
capable of producing death or
serious bodily injury.” § 18-1-901(
3)(e)(II), C.R.S. 2021.
2.
Analysis
¶ 13
The prosecution charged Strickle
r with a crime of violence
sentence enhancer in connection w
ith both attempted extreme
indifference murder charges. Co
unt 4 of the “Amended Complaint
and Information” alleged that St
rickler “unlawfully used, or
possessed and threatened the use
of, a deadly weapon, namely: f
ire,
a dangerous or deadly weapon, d
uring the commission of,
attempted commission of, conspir
acy to commit, or the immediate
flight from the offense of Attempte
d Murder – Extreme Indifference.
”
Consistent with the statutory defin
ition, the trial court instructed
the jury that “[a] ‘deadly weapon’ m
eans a knife, bludgeon, or any
other weapon, device, instrument,
material, or substance, whether
animate or inanimate, that, in
the manner it is used or intended t
o
be used, is capable of producing de
ath or serious bodily injury.” On
the verdict form for Count 4, the
jury found that Strickler “use[d],
or possess[ed] and threaten[ed] the
use of, a deadly weapon.”
¶ 14
Citing
People v. Ross
,
831 P.2d 1
310, 1313
(Colo. 1992),
abrogated by Montez v. People,
201
2 CO 6
, which analyzed an
7
earlier but similar version of secti
on 18-1-901(3)(e), Strickler
contends that our supreme court
has declared that “only a discrete
list of ‘objects’ can be deadly weap
ons.” Thus, he argues, because
fire is not an “object,” it does not
fall within the statutory definition
of “deadly weapon.”
2
¶ 15
The People respond that another
division of this court has
already rejected an argument simil
ar to the one that Strickler raises
here.
See People v. Magana
,
2020
COA 148
(
cert. granted
May 24,
2021). But
Magana
addressed a
different issue: whether fire can be
the basis for a crime of violence s
entence enhancement for first
degree arson even though it is also a
n element of first degree arson.
Id.
at ¶ 60. The division did not co
nsider the scope of the definition
of “deadly weapon” under section
18-1-901(3)(e)(II).
¶ 16
Nonetheless, we reject Strickler’s c
ontention because we do
not read
Ross
as limiting the defin
ition of “deadly weapon” to
“objects.” True, the weapon in qu
estion in
Ross
— a fist — was
an
“object.”
831 P.2d at 1312
. And t
he court noted that it had
2
As Strickler correctly points out,
fire is not a per se deadly
weapon.
See
§ 18-1-901(3)(e)(I), C
.R.S. 2021.
8
previously interpreted “[a]ny other
weapon, device, instrument,
material, or substance” broadly,
“to include
any
object or device.”
Id.
at 1313;
see Bowers v. People
,
617 P.2d 560, 563
(Colo. 1980)
(holding that items other than thos
e specifically enumerated in the
statute can be deadly weapons);
Pe
ople v. Bramlett
, 193 Colo. 205,
209,
573 P.2d 94, 96
(1977) (“[T]he
statutory definition of ‘deadly
weapon’ includes any object . .
. .”). But neither
Ross
nor any of the
cases that it relied on had occasio
n to consider whether the means
of committing the crime
must
be an “object,” as that phrase is
commonly understood, in order to
qualify as a deadly weapon. That
is, while our supreme court has hel
d that using an “object” to
commit the crime may be sufficient
to satisfy the “deadly weapon”
sentence enhancer, it has not held t
hat it is necessary for a
defendant to have used an “object” f
or the definition of “deadly
weapon” to apply.
¶ 17
In fact,
Ross
’s survey of the “plain
meaning of the words
‘weapon, device, instrument, mater
ial, [and] substance’” suggests
just the opposite.
831 P.2d at 1
313 & n.2. Relying on the
dictionary to shed light on each of
these terms, the court in
Ross
defined “weapon” as “an instrum
ent of offensive or defensive
9
combat, . . . something . . . used in
destroying, defeating, or
physically injuring an enemy.”
I
d.
(quoting
Webster’s Third New
International Dictionary
2589 (196
9)). Metaphysical questions about
the meaning of “object” aside, fire f
alls within the scope of this
definition of “weapon.” It has been
used in war for millennia.
See,
e.g.
,
W. Hays Parks,
Means a
nd Methods of Warfare
,
38 Geo. Wash.
Int’l L. Rev. 511, 512 (2006) (“Use
of fire as a weapon has been
traced back to the ninth century B
.C.”). And it can be used to
destroy, defeat, or physically inju
re others.
¶ 18
Nor would our conclusion change
if, as Strickler argues,
Ross
in fact decided that only “objects
” can be deadly weapons. Indeed,
one of
Ross
’s definitions of “substa
nce” — “matter of definite or
known chemical composition,”
831 P.2
d at 1313
n.2 (quoting
Webster’s Third New Internat
ional Dictionary
2279 (1969)) — applie
s
directly to Strickler’s description
of fire: “a chemical chain reaction
producing heat and light.” Em
ploying similar reasoning, other stat
e
courts construing statutes similar t
o section 18-1-901(3)(e)(II) have
rejected arguments that fire is not
a tangible thing, thus effectively
classifying it as an “object.”
See, e
.g.
,
Taylor v. State
, 735 S.W.2d
930, 948-49 (Tex. App. 1987) (“[W]e
conclude that fire is not
10
intangible combustion . . . but includ
es the tangible aspects of the
combustion, light and heat, as well
as its effects.”),
abrogated on
other grounds by Gaines v. Stat
e
,
761 S.W.2d 2
(Tex. Crim. App.
1988);
see also Mims v. Stat
e
,
335 S.W.3d 247, 250
(Tex. App. 2006)
(holding that fire is a “thing” becau
se “[i]t undeniably has an
objective existence or reality”);
St
ate v. Idlebird
, 896 S.W.2d 656,
665 (Mo. Ct. App. 1995) (noting
that fire’s “tangible aspects,
including heat and light . . .
arguably bring it within the term
‘substance’” as used in the Missou
ri statute defining “dangerous
instrument”),
overruled on other gr
ounds by State v. Williams,
No.
WD 60855,
2003 WL 1906460
, at *
11 (Mo. Ct. App. Apr. 22, 2003)
(unpublished opinion),
aff’d
, 126 S
.W.3d 377, 384 (Mo. 2004).
¶ 19
Thus, fire qualifies as a deadly we
apon under at least two of
the categories listed in section 18-
1-901(3)(e)(II). And because there
was ample evidence presented to sup
port a finding that Strickler’s
use of fire rendered it capable of p
roducing death or serious bodily
injury, we conclude that the evide
nce was sufficient to support his
conviction for the crime of violence
sentence enhancer.
B.
Evidence of Missing Fire Extinguis
hers and Damaged Exit
Signs
11
¶ 20
Strickler contends that the t
rial court improperly allowed the
lead detective to testify about the
unexplained disappearance of f
ire
suppression and detection equipm
ent and damage to exit signs that
occurred at some time before Strick
ler set fire to his apartment.
3
We perceive no basis for reversal.
1.
Standard of Review and Preservatio
n
¶ 21
We review a trial court’s evidentia
ry ruling for an abuse of
discretion.
People v. Stewart
,
55 P.3d 107, 122, 125
(Colo. 2002).
A trial court abuses its discretion w
hen its ruling is manifestly
arbitrary, unreasonable, or unfai
r, or when it misinterprets or
misapplies the law.
People v. Wi
lliams
,
2019 COA 32, ¶ 21
.
¶ 22
The parties disagree about prese
rvation, but we conclude that
Strickler’s motion in limine, in
which he argued that the court
should exclude evidence of the mis
sing and damaged equipment,
was sufficient to preserve the issu
e for our review. We therefore
review his contention for harmless
error and will disregard any
3
On appeal, Strickler does not con
tend that this alleged error had
any effect on his attempted arson
and criminal mischief
convictions. Thus, because his ar
gument focuses solely on the
effect of the evidence on the attem
pted murder charges, we conside
r
his claims of prejudice only with
respect to that conviction.
12
error only if we can say with f
air assurance that, in light of the
entire trial record, the error did not
substantially influence the
verdict or impair the trial’s fairnes
s.
See
Stewart
,
55 P.3d at 124
.
2.
Additional Background
¶ 23
At the preliminary hearing, the lea
d detective testified, “I was
informed by the property manager .
. . that over the weeks leading
up to the arson there have been m
ysterious disappearances of fire
extinguisher, fire – or smoke detect
ors, and a disabling of the fire
exit emergency signs on the buildi
ng.” On cross-examination,
however, he admitted that he had
no evidence that Strickler was
responsible for these events; durin
g his interviews with tenants,
they denied seeing Strickler tampe
r with them; and missing fire
extinguishers and smoke detecto
rs were not found in Strickler’s
apartment.
¶ 24
After the preliminary hearing, Stric
kler moved in limine to
exclude evidence about the missin
g fire extinguishers, smoke
detectors, and damaged emergen
cy exit signs as irrelevant and
prejudicial, pointing out that “there
is no evidence at all that Mr.
Strickler was responsible for rem
oving fire alarms, removing fire
extinguishers, or dismantling exit s
igns.” In response, the People
13
argued that the evidence was rele
vant “because the removal of the
fire extinguishers, fire alarms and
disabling of the exit signs makes
it more probable than not that [S
trickler] planned to set fire to the
building.” The People conceded t
hat “the alarms and extinguishers
were never found in [Strickler’s] p
ossession,” but asserted that “the
evidence present[ed] at trial will sh
ow that the devices were remove
d
from the building within two w
eeks of [Strickler’s] attempt[] to set
fire to the building.”
¶ 25
The trial court, without an evidenti
ary hearing, denied the
motion in limine as to the stateme
nts, and ruled:
This information is relevant as to w
hether or
not [Strickler] planned to do what
he is alleged
to have done. It certainly goes to hi
s state of
mind and the planning put in to t
he fires. The
court does not find the evidence’s p
robative
value to be outweighed by the dang
er of unfair
prejudice. This is particularly s
o when the
court gives the evidence i[t]s maxi
mum
probative value and minimum prej
udicial
value. The weight the jury gives t
he evidence
will be left to the jury.
¶ 26
In his opening statement, the pros
ecutor told the jury to
expect testimony from the property
manager that “in the weeks
leading up to [the fire], he had noti
ced that fire extinguishers had
started to go missing in the comple
x,” and that on the date of the
14
fire, “he noticed . . . that the
exit signs had been tampered with.”
He conceded, however, that “other
residents” of the apartments
would testify “that they never saw f
ire extinguishers in the
complex.”
¶ 27
The evidence presented to the ju
ry on this issue differed
substantially from the prelimina
ry hearing. Although the lead
detective again testified for the pr
osecution, he did not mention
missing or damaged fire protection
equipment during his direct
examination, and during defense c
ounsel’s cross-examination, he
admitted that he had “no evidenc
e that Mr. Strickler had done
anything with any of the fire extinguish
ers, exit signs, fire alarms,
et cetera.”
¶ 28
The property manager also testifie
d about the fire safety
equipment. When asked whethe
r he “notice[d] anything out of the
ordinary with regards to the exit si
gns” on the second floor, he
responded that “[t]hey were broken
. The fire department . . .
pointed out that they were broken,
and they were just kind of
dangling there.” He did not sugges
t that Strickler had damaged the
signs, but he explained that the da
mage must have been recent
because “[t]hey were dangling so m
uch that it would have been
15
something that I would have notic
ed, or a tenant would have
noticed and probably said somethi
ng — because they were hanging
pretty low.” When asked about t
he fire extinguishers, however, the
property manager said that he “di
dn’t notice anything about them,”
and denied that he had “had any is
sue with fire extinguishers going
missing” in the weeks leading up t
o the fire. In response to
questions by the jury, the property
manager described the locations
of the exit signs, clarified that the
building had failed an inspection
shortly before the fire because the
fire extinguishers were past their
expiration dates, and confirmed th
at “as far as [he] kn[e]w,” none of
the fire extinguishers were missin
g on the date of the fire.
¶ 29
The prosecutor also briefly address
ed the issue with the fire
investigator, who had noted that
when he entered the building, he
saw “a fire extinguisher box or ho
using with an extinguisher
missing.” As the investigator expl
ained, however, that did not
cause him concern at the time
“because typically we would think
16
someone was there to help — gra
b the extinguisher and try to
help.”
4
3.
Analysis
¶ 30
Strickler argues that evidence of t
he missing and damaged fire
safety equipment was improperly a
dmitted. He suggests that the
appropriate framework for the admissi
bility of this evidence is either
CRE 404(b) or res gestae. Under ei
ther theory, Strickler argues, t
he
evidence was inadmissible becaus
e the prosecution did not offer
any evidence that linked him to the
damage to or disappearance of
the equipment.
¶ 31
The People disagree with both St
rickler’s proposed framework
and his res gestae and CRE 404(b)
analysis. They first argue that
the evidence was “directly relevant
” to the question whether “he
acted with reckless disregard to t
he safety of other tenants.”
According to the People, “[t]he circ
umstances and timing of the
damage to the exit signs in particul
ar raised the inference Strickler
caused this damage around the t
ime that he set the fire and left
the
4
The investigator did add that t
here was no evidence that anyone
had used a fire extinguisher in St
rickler’s apartment, but the
prosecutor did not follow up on t
hat comment or refer to it again.
17
complex.” In the alternative, the
People argue that the evidence was
admissible as res gestae and unde
r CRE 404(b).
¶ 32
We conclude that we need not cons
ider the merits of
Strickler’s arguments because, eve
n if the evidence was improperly
admitted, any error was harmles
s. At the threshold, evidence that
fire extinguishers or smoke detecto
rs had in fact gone missing was
extraordinarily thin. Damage to o
r theft of smoke detectors was
never mentioned at trial,
5
and, as di
scussed above, the property
manager denied that any of the
fire extinguishers had disappeared.
While the fire investigator noted that
there was an empty fire
extinguisher box in the second floo
r hallway, he also testified that
its absence was unsurprising und
er the circumstances.
¶ 33
With respect to the exit signs, there
was uncontradicted
testimony that they had been dam
aged, but there was no evidence
presented that Strickler had tam
pered with them. The issue was
mentioned only briefly and went en
tirely unaddressed in closing
argument.
5
In fact, more than one witness r
ealized that there was a fire in t
he
building only when alarms started
sounding.
18
¶ 34
In reviewing for harmless error, w
e examine a number of
factors, including the importance
of the witness’s testimony to the
prosecution’s case, whether the t
estimony was cumulative, and the
overall strength of the prosecution’
s case.
Blecha v. People
, 962
P.2d 931, 942 (Colo. 1998). The si
ngle most important factor in
harmless error inquiry is whether t
he case was “close.”
People v.
Casias
,
2012 COA 117, ¶ 69
. To a
ssess the “closeness” of this case,
we consider not only whether the
other evidence was sufficient to
convict but also whether it was su
fficiently powerful in relation to
the evidence of missing and damag
ed equipment to give fair
assurance that that evidence did n
ot substantially sway the jury to
its verdict.
See
id.
(citing
Unit
ed States v. Ince
,
21 F.3d 576, 584
(4th Cir. 1994)).
¶ 35
The evidence of Strickler’s actions
and intent in this case was
not close; it strongly demonstrated
that he acted “[u]nder
circumstances evidencing an attit
ude of universal malice
manifesting an extreme indifferenc
e to the value of human life
generally,” and “knowingly engage[
d] in conduct which create[d] a
grave risk of death to a person, o
r persons, other than himself.”
§ 18-3-102(1)(d), C.R.S. 2021. Aft
er an altercation with others in
19
the building, he made implied threat
s directed toward one or more
residents when speaking to a police
officer. Several hours later,
Strickler set two fires in his apa
rtment — one of which was left
smoldering under an active gas line
located behind a stove that had
been pulled away from the wall —
before leaving the building. On
his way out, he stuffed towels or cl
othing into the edges of the
doorframe, thus ensuring that smo
ke from the fires would not be
immediately apparent. And rather
than immediately reporting t
he
fire, Strickler rode away on his bik
e and called 911 only after twent
y
minutes had passed.
¶ 36
The importance and persuasiven
ess of the evidence
surrounding the allegedly missing
and damaged equipment paled in
comparison to the overwhelming p
roof of Strickler’s actions and
intent. As noted above, the eviden
ce challenged on appeal went
unmentioned in closing argument,
and defense counsel elicited
testimony from several witnesses hi
ghlighting the fact that no one
had seen Strickler damage the sign
s or remove any fire
extinguishers. Moreover, the jury
acquitted Strickler of the
attempted murder of Reel and of f
irst degree arson.
Cf. People v.
Delgado-Elizarras
,
131 P.3d 1110,
1112-13
(Colo. App. 2005)
20
(holding that any error in the admi
ssion of other act evidence was
harmless where the evidence of
the defendant’s guilt was
overwhelming and the defendant’s
acquittal on a greater charge and
conviction on only the lesser offenses
“demonstrate that the jury
based its verdicts on evidence of
[the] defendant’s conduct at the
scene, and not on any conclusions
regarding [the] defendant’s
propensity to engage in criminal co
nduct”). Accordingly, he has not
demonstrated that he was so preju
diced by the admission of that
evidence as to justify reversal.
C.
Attempted Criminal Mischief as a
Lesser Included Offense
¶ 37
Finally, Strickler contends that at
tempted criminal mischief is
a lesser included offense of attem
pted first degree arson, and that
the trial court therefore erred by f
ailing to merge the conviction f
or
attempted criminal mischief into h
is conviction for attempted fir
st
degree arson.
See
People v. Welbor
ne
,
2018 COA 127, ¶ 22
. The
People concede this point. We agre
e and thus vacate Strickler’s
conviction for attempted criminal
mischief.
See id.
at ¶ 26.
III.
Conclusion
¶ 38
We vacate Strickler’s conviction for
attempted criminal
mischief, and we remand the case
to the trial court to merge the
21
attempted criminal mischief convic
tion into the attempted first
degree arson conviction, and to c
orrect the mittimus accordingly.
In all other respects, the judgment
is affirmed.
JUDGE NAVARRO and JUDGE PAW
AR concur.