State v. Burton, COA12–354.

• Court: North Carolina Court of Appeals
• Writing for the Court: HUNTER
• Citation: State v. Burton, 735 S.E.2d 400 (N.C. App. 2012)
• Decision Date: 04 December 2012
• Docket Number: No. COA12–354.,COA12–354.
• Parties: STATE of North Carolina v. Michael Wayne BURTON.

735 S.E.2d 400

STATE of North Carolina

v.Michael Wayne BURTON.

No. COA12–354.

Court of Appeals of North Carolina.

Dec. 4, 2012.

Defendant appeals from order entered by Judge Paul G. Gessner on 28 September 2011 in Durham County Superior Court. Heard in the Court of Appeals 12 September 2012.

Attorney General Roy Cooper, by Assistant Attorney General Kathryn J. Thomas, for the State.

James W. Carter, for defendant-appellant.

HUNTER, ROBERT C., Judge.

Michael Wayne Burton (“defendant”) appeals from the trial court's order imposing a sentence of 67 to 90 months imprisonment following a jury verdict finding defendant guilty of first degree arson for setting fire to his former landlord's house. First, defendant argues the trial court erred by denying his motion to dismiss the charge for insufficient evidence. Second, defendant argues the trial court erred by denying his motion to continue when defendant's alibi witnesses failed to appear for trial, because denial of the motion: (1) denied defendant his right to present his defense; and (2) denied defendant of his right to effective assistance of counsel. Third, defendant argues he received ineffective assistance of counsel because his attorney: (1) failed to move for a mistrial after the jury heard inadmissible testimony that defendant threatened to set fire to the house owned by his former landlord; (2) failed to effectively prepare and present his alibi defense; and (3) failed to present alibi evidence he promised to deliver to the jury in his opening statement. After careful review, we find no error.

Background

Defendant was arrested and indicted for first degree arson for burning the house owned by his former landlord, Mr. Mark Campbell.¹ Defendant gave notice of an alibi defense and provided the names of two alibi witnesses. On 19 September 2011, defendant sought and was granted a continuance for his trial date to allow additional time for defendant to locate his alibi witnesses. The matter came on for a jury trial before Judge Paul Gessner during the 26 September 2011 Criminal Session of the Superior Court of Durham County. Defendant made another motion to continue the trial on the basis that his two alibi witnesses could not be located. The motion was denied.

The State's evidence tended to establish the following facts. In July 2009, Mark Campbell (“Mr. Campbell”) purchased a house located on Lancaster Street in Durham, North Carolina through a foreclosure sale. Mr. Campbell had the intent of renovating the house but defendant and Phillip Caldroney (“Mr. Caldroney”) were living in the house at the time of the foreclosure. Mr. Caldroney told Mr. Campbell that defendant owned the house before the foreclosure. After acquiring the house, Mr. Campbell offered for defendant and Mr. Caldroney to rent a second house he owned on North Roxboro Street, which they did.

After moving into the second house, defendant failed to make consistent rent payments to Mr. Campbell. Defendant, however, had allowed Julia Jones (“Ms. Jones”) to move into Mr. Campbell's house, and defendant collected rent from Ms. Jones. In December 2010, Mr. Campbell learned of this arrangement, confronted defendant, and told him he would have to move out of the house in January. Ms. Jones described defendant as being enraged and combative about having to move and stated that he would throw objects around the house. Ms. Jones testified that defendant blamed her for his eviction and that he believed there was a conspiracy between Ms. Jones and Mr. Caldroney to have him evicted.

In January 2011, Mr. Campbell helped defendant move his belongings out of the house over the course of a few days. While moving defendant's belongings, defendant told Mr. Campbell that he could not believe Mr. Campbell was “ ‘put[ting] him out[,]’ ” but he did not seem to blame Mr. Campbell. On 25 January 2011, the day of the fire, defendant had “one little pile” of belongings left in the house, and Mr. Campbell told defendant they could move those belongings the next day. That night, Ms. Jones locked her bedroom door and went to take a shower in the bathroom down the hall. While Ms. Jones was in the shower, Mr. Caldroney smelled something burning and saw smoke coming from Ms. Jones's bedroom. When Ms. Jones unlocked the door to her room, she and Mr. Caldroney saw her mattress and bedroom wall on fire. Realizing there was nothing they could do to extinguish the fire, Mr. Caldroney called 911, and they left the house.

When the firemen arrived, one of them asked Ms. Jones to move her car away from the house. As she was moving her car, Ms. Jones saw someone in the bushes directly in front of her. She turned on the car's high-beam headlights, saw defendant stand up, look at her, turn away, and leave. Ms. Jones immediately got out of her car, ran back toward the house, and told a fireman that she had seen defendant in the bushes.

The investigation into the fire did not determine its cause, but an officer with the fire department concluded the fire started near Ms. Jones's bed at a point underneath the bedroom window. No accelerants were found.

Two days after the fire, Ms. Jones was interviewed by an investigator with the Durham Police Department, Kristi Roberts (“Investigator Roberts”). Ms. Jones explained to Investigator Roberts that she believed defendant had followed through on a threat he had made to her. When asked at trial to clarify what she meant by that statement, Ms. Jones stated:

I thought he was going to do bodily harm. I thought that once I park at night, he was going to try to attack me when I left my car. I thought he would try to do something in the house. It's just—but I—I didn't know, but I knew it was going to be something.Investigator Roberts testified that when she interviewed Mr. Caldroney he stated that defendant had threatened to set the North Roxboro Street house on fire. Defendant objected and moved to strike this testimony. The motion was granted, and the trial court instructed the jury that the testimony could only be used for corroboration of previous testimony.

At the conclusion of the State's evidence, defendant moved for the trial court to dismiss the case for insufficient evidence. The motion was denied. Defendant declined to present any evidence. The jury found defendant guilty of first degree arson, and defendant gave notice of appeal in open court.

Discussion

I. Motion to Dismiss

Defendant first argues the trial court erred by denying his motion to dismiss the charge for insufficient evidence. We disagree.

We review the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). A motion to dismiss for insufficient evidence is properly denied if there is “ ‘substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied,531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). All evidence, both competent and incompetent, and any reasonable inferences drawn therefrom, must be considered in the light most favorable to the State. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995). Additionally, circumstantial evidence may be sufficient to withstand a motion to dismiss when “ ‘a reasonable inference of defendant's guilt may be drawn from the circumstances.’ ” Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quoting Barnes, 334 N.C. at 75, 430 S.E.2d at 919). If so, it is the jury's duty to determine if the defendant is actually guilty. Id.

Defendant contends that the State's evidence created no more than a suspicion that he started the fire and was therefore insufficient to survive his motion to dismiss. In support of his argument, defendant cites our Supreme Court's decision in State v. Blizzard, 280 N.C. 11, 16, 184 S.E.2d 851, 854 (1971). The defendant in Blizzard was charged with the malicious burning of a dwelling house, and the State's evidence established the following circumstantial evidence: before the fire, a car similar to the defendant's was seen parked on the road approximately one and one-quarter miles from the scene of the fire, id. at 15, 184 S.E.2d at 853; a police officer reported that a smell of gasoline was noticeable during the fire, id. at 14, 184 S.E.2d at 853; after the fire, the defendant's footprints were found approximately 60 feet from the house, id. at 15, 184 S.E.2d at 853; and, ten days after the fire, a search of the defendant's car led to the discovery of a plastic gasoline jug, id. at 15, 184 S.E.2d at 854. In response, the defendant offered evidence to explain the presence of his car and footprints. Id. Additionally, the State's witnesses established that the defendant regularly bought a jug of gasoline, but that many people did so for its use in yard equipment. Id. at 16, 184 S.E.2d at 854. The Blizzard Court concluded that while the defendant's evidence did not contradict the State's evidence, it provided an explanation for the presence of his car, his footprints, and the gasoline jug, and thus rebutted the inference of his guilt. Id. The Court held that the State's evidence raised merely a suspicion of guilt and could not survive his motion to dismiss. Id. at 16–17, 184 S.E.2d at 854–55.

Here, we conclude the State's evidence did not merely establish a suspicion of defendant's guilt but established a reasonable inference of guilt sufficient to survive his motion to dismiss. See Fritsch, 351 N.C. at 379, 526 S.E.2d at 455. Defendant points to minor inconsistencies in Ms. Jones's...