OPINION
Dеfendant appeals his convictions of negligent arson, aggravated burglary, dangerous use of an explosive and conspiracy. We (1) state the background; and discuss (2) the evidence as to negligent arson; (3) the claimed merger of the аggravated burglary with dangerous use of an explosive; (4) whether there should have been a directed verdict on the conspiracy charge; and (5) defendant’s alleged appearance before the jury in handcuffs.
BACKGROUND
Defendant, with others in Arkansas, discussed a plan to burn down a restaurant in New Mexico. Defendant, Rice and Draper drove to Hobbs, New Mexico, with the intention of setting fire to the K-Bob’s Restaurant in Hobbs. On the night of May 23, 1983, Draper and Rice climbed onto the roof of the restaurant while defendant waited in their car. Being unsuccessful in drilling holes in the roof, the two men poured a fuel (gasoline or diesel) down a stove vent pipe. The fuel was ignited by a pilot light. There was a small explosion and a burst of flames. They returned to Arkansas where they learned that they had not “adequately” destroyed the restaurant. They agreed to return and finish the job.
Rice made a bomb with dynamite. Defendant, Rice and Draper returned to Hobbs with the bomb. On the night of June 6, 1983, by use of a rope, the bоmb was lowered into the kitchen of the restaurant through a roof vent. The bomb failed to explode.
Defendant was charged, in seven counts, as follows:
Count 1 — conspiracy on May 23, 1983
Count 2 — aggravated burglary on May 23, 1983
Count 3 — negligent arson on May 23, 1983
Count 4 — conspiracy on June 6, 1983
Count 5 — aggravated burglary on June 6, 1983
Count 6 — possession of explosive or incendiary device on June 6, 1983
Count 7 — dangerous use of explosives on June 6, 1983
Defendant was convicted of Counts 1, 3, 5 and 7. Counts 2, 4 and 6 were not submitted to the jury but were dismissed by the trial court. Count 2 was dismissed on the basis that pouring fluid down a vent pipe was an insufficient entry for burglary. See State v. Tixier,
EVIDENCE AS TO NEGLIGENT ARSON
Defendant was charged with violating NMSA 1978, Section 30-17-5(B) (Repl. Pamp.1984), which provides: “Negligent arson consists of recklessly starting a fire or causing an explosion, whether on the person’s property or another’s, and thereby ... damaging or destroying a building ... of another.” NMSA 1978, UJI Crim. 17.03 (Reрl.Pamp.1982) defines “recklessly” as that a defendant “knew that his conduct created a substantial and foreseeable risk, that he disregarded that risk and that he was wholly indifferent to the consequences of his conduct and to the welfare and safеty of others.” Reckless conduct is included within the term “criminal negligence.” State v. Grubbs,
The evidence is that defendant’s conduct on May 23, 1983, was intentional arson in that defendant started a fire and caused an explosion “with the purpose of destrоying or damaging ... property of another ____” Section 30-17-5(A); see NMSA 1978, UJI Crim. 17.00 (Repl.Pamp. 1982). The conviction of negligent arson cannot stand because the evidence shows he did not commit that offense. Smith v. State,
The state seeks to avoid this result. It points оut that defendant did not object to the instruction on negligent arson. The state claims this failure to object waived any error in instructing on negligent arson. We are not concerned with the instruction but with the evidence. Defendant moved for a directеd verdict as to the negligent arson charge. That motion preserved the issue of the sufficiency of the evidence. State v. Davis,
The state asserts there is sufficient evidence to sustain the conviction of negligent arson. The state contends the evidence shows that the May 23, 1983, incident at K-Bob’s recklessly endangered two adjoining businesses and nearby homes. There are two answers to this claim. First, the state fails to identify any evidence of damage to the adjoining businesses or nearby homes. See the requirements for negligent arson stated in Section 30-17-5(B). Second, defendant was not charged with negligent arsоn as to the adjoining businesses or nearby homes. Defendant cannot be convicted of an offense that was not charged. State v. Villa,
Both parties seek an advisory opinion as to whether the state may now prosecute defendant under Section 30-17-5(A). Defendant has not been charged with a violation of Section 30-17-5(A). We do not give advisory opinions. Bell Telephone Laboratories, Inc. v. Bureau of Revenue,
CLAIMED MERGER OF AGGRAVATED BURGLARY AND DANGEROUS USE OF EXPLOSIVES
The aggravated burglary charged was an unauthorized entry with intent tо commit a felony while armed with a deadly weapon. NMSA 1978, § 30-16-4(A) (Repl.Pamp. 1984). The dangerous use of explosives charged was “placing any explosive with the intent ... to damage another’s property.” NMSA 1978, § 30-7-5.
The merger of offenses aspect of double jeopardy requires that one offense necessarily involves the other offense. “In determining whether one offense ‘necessarily involves’ another offense so that merger applies, the decisions have looked to the definitions of the crimes to see whether the elements are the same.” State v. Sandoval,
Defendant’s argument is that dangerous use of explosives is an offense necessarily included within the aggravated burglary offense. Defendant recognizes that for the explosives offense to be necessarily included, the burglary offense cannot be committed without also committing the explosives offense. State v. Kraul,
Defendant relies on State v. DeMary which states: “[T]he specific elemеnts ... must initially be construed in light of the evidence. The particular facts of each case must then be reviewed in light of the specific elements of each crime.”
We recognize that the DeMary approach has some similarity to the same transaction test repudiated in State v. Tanton. The same transaction test “is concerned with whether the offenses were committed at the same time, were part of a continuous criminal act and inspired by the same criminal intent.” Tanton,
A more detailed statement of the “necessarily included” rule is that an included offense is one which has some, but not all, of the elements of the greater оffense. The included offense does not have any element not included in the greater offense so that it is impossible to commit the greater offense without necessarily committing the included offense. State v. Garcia,
The facts of both offenses are almost identical. The unauthorized entry for burglary was the placing of the explosive in the restaurant, an element of the explosives charge. The intent for the burglary charge was the intent to commit the crime of dangerous use of explosives. This covered the intent to damage the property of another, an element of the explosives charge. Under the facts of this case, the aggravated burglary offense could not be committed without also committing the crime of dangerous use of explosives; the explosives offense does not have an element not included in the burglary offense. The explosives offense was an offense included within the aggravated burglary offense.
What follows from this holding? Defendant asserts that the sentence for the greater offense of aggravated burglary must be vacated. We disagree. The conviction for dangerous use of еxplosives was included within the aggravated burglary charge. The sentence to be vacated is the sentence imposed for the included offense because it was the included offense which merged with the greater offense of aggravаted burglary. State v. Quintana,
WHETHER THERE SHOULD HAVE BEEN A DIRECTED VERDICT ON THE CONSPIRACY CHARGE
The two conspiracy charges were Counts 1 and 4. Count 4 was dismissed because the evidence showed one continuing conspiracy. Defendant contends the trial court erred in denying his motion for a directed verdict as to the continuing conspiracy. His claim is based on the instruction to the jury.
The instruction informed the jury that the conspiracy was to commit aggravated burglary and arson on or about May 23, 1983. Because the underlying felonies were listed in the conjunctivе, defendant asserts the state was required to prove a conspiracy as to each of the underlying felonies. He asserts “the intended acts were in fact committed but that these acts constituted only an arson and not an aggravatеd burglary.” He claims that the state failed to make a prima facie case for submission of the conspiracy charge to the jury.
The argument proceeds on the assumption that the aggravated burglary in the conspiracy instruction was limitеd to the one attempted on May 23 and did not include the one completed on June 6. The May 23 aggravated burglary charge was dismissed on the basis that there had been no entry. The argument also proceeds on the assumption that the instructiоn required proof of conspiracy in connection with both, rather than either, underlying felonies. See Use Note to NMSA 1978, UJI Crim. 28.20 (Repl.Pamp.1982). We need not sort all of this out.
A conspiracy under NMSA 1978, Section 30-28-2 (Repl.Pamp.1984) is complete when the prоhibited agreement is reached. No overt act is required. State v. Davis,
ALLEGED APPEARANCE BEFORE THE JURY IN HANDCUFFS
Defendant moved for a mistrial on the basis that he was brought into the courtroom in front of the jury panel while wearing handcuffs. The mоtion was denied.
Defendant states: “The court acknowledged that the defendant had been observed by the jury in apparent custody but held that there was no showing that the defendant had, in fact, been prejudiced ____” We agree that the trial cоurt ruled there was no prejudice. We do not agree that the trial court acknowledged that defendant had been observed by the jury while wearing handcuffs. As to the facts of the incident, there is nothing. All we have is counsel’s claim, which is not evidence. State v. Foster,
The conviction and sentence for negligent arson are reversed. The sentence for dangerous use of explosives is reversed. The convictions and sentences for aggravated burglary and conspiracy are affirmed. The cause is remanded for an amended sentence in conformity with this opinion.
IT IS SO ORDERED.