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Are matches considered incendiary devices?

Question as originally presented: Can you score OV2 15 points if the defendant set a building on fire? He used matches and sticks/twigs to intentionally start the fire.

Relevant to your question, 15 points should be scored under OV 2 when “the offender possessed or used an incendiary device, an explosive device, or a fully automatic weapon.” MCL 777.32(1)(b). The issue is whether matches can be considered an incendiary device. OV 2 states that incendiary device “includes gasoline or any other flammable substance, a blowtorch, fire bomb, Molotov cocktail, or other similar device.” MCL 777.32(3)(d). However, no case has specifically addressed this issue. A match head is coated with flammable chemicals that are ignited when the match is struck against a rough surface. These chemicals could arguably be considered “flammable substances” as provided in the definition of incendiary device; or the match itself could be considered a “similar device” to the devices listed in the definition of incendiary device because a match is lit and then has a flame similar to a blowtorch, which also must be lit to be flaming. On the other hand, a match has a much smaller flame and is arguably less dangerous than a blowtorch, fire bomb, or Molotov cocktail. Gasoline or any other flammable substance could be construed to refer only to fire accelerants, which is what was typically used in cases scoring OV 1 and OV 2 for incendiary devices. Two unpublished, and therefore nonbinding, decisions have mentioned matches in the context of assessing points for an incendiary device. In People v Sindone, unpublished per curiam opinion of the Court of Appeals, issued April 11, 2019 (Docket No. 340328), p 6, the Court considered scoring OV 1 and OV 2 where the defendant admitted to starting a fire by lighting a candle and placing it near a mattress. The Court noted that the evidence at trial did not establish what was used to light the candle, but that the candle “falls within the category of ‘other similar device’ because it is similar to a Molotov cocktail and fire bomb–both of which require an individual to set them on fire before being used to start a fire elsewhere.” Id. This same logic could be applied to a match to argue it falls within the definition of incendiary device. The Court also stated: “Even if a candle is not an incendiary device, there is sufficient evidence that defendant lit the candle with an incendiary device such as matches or a lighter.” Id. This statement suggests the Court was presuming matches meet the definition of an incendiary device, but the Court did not analyze the issue further. However, a different Court of Appeals panel suggested that it does not consider matches to fall within the definition of incendiary device (as used in the guidelines that preceded the current statutory sentencing guidelines). In People v Williams, unpublished per curiam opinion of the Court of Appeals, issued September 9, 1997 (Docket No. 187416), p 3, the Court considered whether the defendant possessed an incendiary device, which was at that time defined as “gasoline or other flammable substances, blow torches, fire bombs, Molotov cocktails, etc.,” where the defendant used a butane lighter; the Court upheld the scoring for use of an incendiary device, stating that “[a]lthough there was not definitive evidence that the fire was started by a butane lighter rather than by matches, we cannot say that the court’s finding that defendant used an incendiary device was wholly unsupported or materially false.” Id. (emphasis added). Thus, it appears that if the evidence would have shown the defendant merely used matches, the Court would have concluded the scoring was improper. Ultimately, you present an unresolved legal question that the court will have to decide.

Tags: OV 01 OV 02 OV 20

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