Instigation vs. Co-Perpetration in Arson Liability

The appellate court reviewed a conviction where the defendant was found guilty of arson and instigation to arson, with the defendant appealing for acquittal of the instigation charge and conviction for aiding and abetting instead. The court overturned the prior ruling's finding of a true concurrence between instigation and co-perpetration, reasoning that under the prevailing theory of participation as contributing to the unlawful act, a less intensive form of participation is subsumed by a more intensive one when both relate to the same criminal outcome. Therefore, an individual who first instigates and subsequently acts as a co-perpetrator is to be held liable solely as a co-perpetrator, although the extent of their initial involvement must be considered when determining the sentence.