State v. Hunt

Decision Date01 November 2016
Docket NumberNo. COA15–1289,COA15–1289
Parties STATE of North Carolina v. C.D. HUNT
CourtNorth Carolina Court of Appeals

Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.

Ward, Smith & Norris, P.A., by Kirby H. Smith, III, New Bern, for defendant-appellant.

BRYANT, Judge.

Where the language of the indictment was sufficient to charge defendant with burning certain buildings, the trial court properly exercised jurisdiction over the matter. Where defendant cannot establish plain error, his challenge that the trial court abandoned its gatekeeping function must fail. Likewise, where defendant cannot establish prejudice, his ineffective assistance of counsel claim must also fail. However, where the amount of restitution awarded was not supported by the evidence, we remand to the trial court for further proceedings.

On 6 January 2014, a Durham County grand jury indicted defendant C.D. Hunt on the charge of burning certain buildings, in violation of General Statutes, section 14–62. The matter came on for trial during the 23 March 2015 criminal session of Durham County Superior Court, the Honorable James Roberson, Judge presiding.

The evidence presented at trial tended to show that on 29 May 2013, Diane Stallworth, apartment complex property manager for Lynnhaven Apartments located in Durham, North Carolina, reported a break-in of apartment 7C. In addition to the Durham Police Department, Stallworth contacted the apartment resident, LaTresha Harwell, and requested that she return to the complex. At 1:00 p.m. that afternoon, Stallworth was in apartment 7C when defendant C.D. Hunt arrived. "[H]e came driving his vehicle. He came across the property, drove the vehicle right up into the front door of the apartment and came inside the apartment." Stallworth described defendant's mood as "angry or upset." Stallworth asked defendant to remove his car, a gray four-door Nissan, from the grass and take it back to the parking lot, but defendant refused to talk with her. Defendant was not a resident of the apartment complex, but was listed as the emergency contact for Harwell, and had been observed with Harwell on a near-daily basis. When Stallworth returned to the apartment complex office, she observed defendant drive his car to the parking lot in front of the office and begin throwing trash from his car onto the grass in front of the building. Stallworth asked defendant to stop and he replied.

He said somebody broke in to my apartment. All you care about is me throwing trash. ...
We continued to go back and forth. It was, "You got the right one", you know, and he kind of lunged at me like he was going to hit me, so I was like, "Come on. Hit me".
...
... It was not a friendly exchange of words.

Following this interaction, a law enforcement officer arrived in response to an apartment break-in report. While he was still there, Stallworth issued defendant a "trespassing letter" informing him he was not welcome back on the property. Early the next morning, on 30 May 2013, Stallworth received a call notifying her of a fire reported at the Lynnhaven Apartments complex office building.

After the fire was extinguished, Investigator Joel Gullie, with the Fire Prevention Bureau, Fire Marshal's Office, City of Durham Fire Department, arrived on the scene. He had been called to the scene by the battalion chief in command on the basis that the fire was "suspicious." Investigator Gullie testified that he was the lead investigator, and his observations led him to conclude that an accelerant had been used.

On 3 June 2014, the investigation of the fire was assigned to Durham Police Department Officer James Barr, Jr., who was working in the criminal investigation, homicide division. Stallworth provided Officer Barr with video surveillance recorded around the time of the fire which showed "a small lighter-colored four-door sedan," which had been parked in a dead end with no parking spaces, leaving the apartment complex at a high rate of speed just before an explosion was recorded. No other vehicles were recorded leaving the lot at that time. Officer Barr testified that during his conversation with Stallworth, she informed him that on the day of the break-in and trash-throwing incident, defendant was driving a charcoal-colored Nissan Altima. Officer Barr also reviewed the 9–1–1 call reporting the fire made by Delanem Makara. Officer Barr spoke with Makara, who informed him that she was outside of her apartment on the night of the fire. That night, she noticed a dark gray vehicle parked "all the way down at the end." "[S]he noticed the smell of gasoline; [t]hen, there was an explosion."

At trial, Makara read the handwritten statement she gave to a Durham Police Officer at 2:30 a.m. on 30 May 2013:

A. "About 2:30 a.m. May 30, I seen a gray or black car Nissan pulled in, went to the other end of the parking lot, and I did not see the car leave. Around 3:20, the fire happened", and my signature.
Q. And there is a notation off to the side in the margin?
A. Yes.
Q. And what does that say?
A. [Defendant] is the driver.
Q. There's an arrow there?
A. It's a Nissan.

Following the close of the State's evidence, defendant proffered the testimony of his grandmother, also a Durham resident, who testified in substance that defendant stayed with her the evening of 29–30 May 2013 and that he did not leave.

Q. And how do you know that he didn't leave?
A. Because I've been sleeping on my sofa, and that's between my living room and my side door ... so anybody come in the house and go out the house, I would know about it.

Following the close of all of the evidence, the jury returned a guilty verdict against defendant for burning certain buildings. The trial court entered judgment in accordance with the jury verdict and sentenced defendant to an active term of 16 to 29 months, then suspended the sentence and imposed supervised probation for a period of 36 months. Defendant was ordered to pay $5,000 in restitution to Lynnhaven Apartments. Defendant appeals.

_________________________

On appeal, defendant raises the following issues: whether (I) the indictment against defendant was fatally defective; (II) the trial court committed plain error by admitting testimonial evidence regarding how the fire started; (III) defendant had ineffective assistance of counsel; and (IV) the trial court erred in ordering restitution.

I

Defendant argues the trial court lacked jurisdiction to try him for a violation of General Statutes, section 14–62 where the indictment charging him was fatally defective. Defendant contends that the indictment charging a violation of section 14–62 failed to contain an essential element that defendant "wantonly" set fire to burn, and therefore, the indictment is fatally defective. We disagree.

"On appeal, we review the sufficiency of an indictment de novo ."

State v. McKoy , 196 N.C.App. 650, 652, 675 S.E.2d 406, 409 (2009) (citation omitted).

"An indictment is sufficient if it charges all essential elements of the offense with sufficient particularity to apprise the defendant of the specific accusations against him and (1) will enable him to prepare his defense and (2) will protect him against another prosecution for that same offense." State v. Bowden , 272 N.C. 481, 483, 158 S.E.2d 493, 495 (1968) ; see also N.C.G.S §§ 15–153 ("Bill or warrant not quashed for informality") and 15A–924(a)(5) (2015) ("Contents of pleadings...."). "The general rule in this State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words." State v. Simpson , 235 N.C.App. 398, 400–01, 763 S.E.2d 1, 3 (2014) (quoting State v. Greer , 238 N.C. 325, 328, 77 S.E.2d 917, 920 (1953) ). "A facially invalid indictment deprives the trial court of jurisdiction to enter judgment in a criminal case." State v. Haddock , 191 N.C.App. 474, 476, 664 S.E.2d 339, 342 (2008) (citing State v. Call , 353 N.C. 400, 429, 545 S.E.2d 190, 208 (2001) ). But "[t]he trial court need not subject the indictment to hyper technical scrutiny with respect to form." Simpson , 235 N.C.App. at 400, 763 S.E.2d at 3 (citation and quotation marks omitted).

Pursuant to North Carolina General Statutes, section 14–62, "[i]f any person shall wantonly and willfully set fire to or burn ... any ... warehouse, office, shop ... [or other specified building] whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, he shall be punished as a Class F felon." N.C. Gen. Stat. § 14–62 (2015).

"Willfulness" means the wrongful doing of an act without justification or excuse. State v. Arnold , 264 N.C. 348, 141 S.E.2d 473 (1965) ; State v. Williams , 284 N.C. 67, 199 S.E.2d 409 (1973). "Wantonness" means the doing of an act in conscious and intentional disregard of and indifference to the rights and safety of others. Hinson v. Dawson , 244 N.C. 23, 92 S.E.2d 393 (1956). "The attempt to draw a sharp line between a ‘willful’ act and a ‘wanton’ act ... would be futile. The elements of each are substantially the same." State v. Williams , supra , 284 N.C. at 73, 199 S.E.2d at 412.

State v. Oxendine , 64 N.C.App. 559, 561, 307 S.E.2d 583, 584–85 (1983) ; see also State v. Tew , 62 N.C.App. 190, 193, 302 S.E.2d 633, 635 (1983) ("The essential elements of the crime ... are that: (1) The building was used in trade; (2) a fire occurred in it; (3) the fire was of incendiary origin; and (4) the defendants unlawfully and wilfully started or were responsible for it. G.S. 14–62.").

In the instant case, the indictment alleged that "defendant ... unlawfully, willfully and feloniously did set fire to, burn, cause to be burned and aid the burning of an office and utility building located at 917 Wadesboro Street, Durham, North Carolina 27703." Defendant asserts that while the indictment alleges he acted "will...

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