#### STATE OF NORTH CAROLINA v. WILLIAM JONES, JR.

No. 8327SC461

(Filed 15 May 1984)

ON remand from the North Carolina Supreme Court by order filed 5 April 1984.

Attorney General Edmisten, by Robert L. Hillman, Assistant Attorney General, for the State.

Robert W. Clark, Assistant Public Defender, for the defendant appellant.

Defendant was indicted for first degree arson and was convicted of attempting to burn in violation of G.S. 14-67.

Before VAUGHN, Chief Judge, and Judges Hill and Johnson.

This case was first disposed of by this Court by an unpublished opinion filed 6 December 1983 which found no error in defendant’s trial.

The evidence showed that defendant and several others went to the bus station in Gastonia to “mess around with the whores.” Defendant told one female there that “We’ll burn you whores out.” About 12:30 a.m. defendant went to the Southern Hotel in Gastonia, where that female lived. He took bed sheets into a bathroom of the hotel and arranged them into three piles. He then set them on fire. We regarded the three piles of sheets as devices arranged for a particular purpose — to set fire to the hotel, which was occupied by a number of people. Since the defendant was not convicted of first degree arson but was convicted under G.S. 14-67, we felt that the fact that the building was occupied was not an element of the offense and could be considered as an aggravating factor. We agreed with the trial judge who found as an aggravating factor, under G.S. 15A-1340.4(a)(l)g that: “The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.”

We subsequently received the following order from the Supreme Court:

*515Upon consideration of the Defendant’s petition filed in this matter for a writ of certiorari to the North Carolina Court of Appeals to review its decision, the petition is allowed for the sole purpose of entering the following order:

> The case is remanded to the North Carolina Court of Appeals for further remand to the Superior Court, Gaston County, for resentencing without the application of the aggravating factor listed in G.S. 15A-1340.4(a)(l)g. By order of the Court in conference, this the 3rd day of April 1984.

This case is, therefore, remanded to the Superior Court in accordance with the foregoing order.

Remanded.