State v. Norris
| Decision Date | 16 August 2005 |
| Docket Number | No. COA04-574.,COA04-574. |
| Citation | 617 S.E.2d 298 |
| Parties | STATE of North Carolina v. Nathan Norwood NORRIS, Jr. |
| Court | North Carolina Supreme Court |
Nora Henry Hargrove, Wilmington, for defendant-appellant.
Nathan Norwood Norris, Jr. ("defendant"), appeals his conviction for first-degree arson. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error, but we remand the case for resentencing.
The State's evidence presented at trial tends to show the following: On 29 January 2003, defendant's wife, Jessica Wood ("Jessica") told defendant that she no longer loved him and that she wanted to separate and move in with her mother, Peggy Wood ("Peggy"). That evening, defendant drove Jessica to Peggy's residence. Defendant and Jessica argued during the drive. As Jessica was exiting defendant's automobile, defendant told her, "If I was you, I'd sleep light tonight."
At approximately 1:30 a.m. the next morning, Peggy awoke to the sound of an "explosion" outside her residence. Peggy observed flames through her bedroom window and evacuated all occupants from the residence. Robeson County Sheriff's Department Investigator Rory McKeithan ("Investigator McKeithan"), an arson investigator, responded to a call regarding a fire at Peggy's residence. Upon arriving at the scene, Investigator McKeithan parked his automobile approximately fifty yards from the residence. As he approached the residence, Investigator McKeithan smelled a "strong odor of what appeared to be gasoline." The odor intensified as Investigator McKeithan neared the residence.
Investigator McKeithan interviewed Jessica and Peggy inside Peggy's residence. During the interview, Peggy's telephone rang. Peggy answered the telephone and told Investigator McKeithan that it was defendant calling. Investigator McKeithan spoke to defendant on the telephone and explained that he needed to interview defendant about the fire. Defendant told Investigator McKeithan that he could not have been at the residence that evening because he had been drinking all day, had passed out, and had awoken just before making the telephone call.
After Investigator McKeithan finished gathering evidence, he returned to the Robeson County Sheriff's Office. Defendant was brought in for questioning, and, after advising him of his rights, Investigator McKeithan interviewed defendant. Defendant's statement to Investigator McKeithan contains the following pertinent narration:
On the way back to Lumberton, Jessica told me that she did not love me any more and that she did not want to be with me any more. I asked how she could want to end this marriage when we had been together for four years. Jessica looked as if she didn't care.
. . . .
I took Jessica back to her mother's house. . . . When we arrived at Peggy's house, I called Jessica a bitch. I also told Jessica on the way . . . that she better sleep light tonight. I then laughed and said that she was just not worth it.
. . . .
When I arrived in St. Pauls, I went to the Amoco Gas Station on Highway 20 and purchased four dollars worth of gas for my van. I had a plastic 20 ounce Coca-Cola bottle in my van. I filled the bottle half full of gasoline. I put the bottle in the van.
I then drove to Peggy's house and parked the van on a dirt road beside her house. I got the bottle of gas from the van and walked to Peggy's house. I went to the side of Peggy's house and poured the gasoline on the side of her home. I then took a lighter and set the gas on fire. The fire flamed up and I got scared and ran.
As I ran away, I looked back and saw flames. Then the flames looked as if they had died down. I was scared. I got back in my van and drove back to Lumberton.
. . . .
I told the police officer that I did not know what was going on. I was trying to play stupid. I told the officer that I had been drinking all day and that I had passed out. Then the police returned and picked me up.
On 5 May 2003, defendant was indicted for the first-degree arson of Peggy's residence. Defendant's trial began the week of 30 September 2003. The State presented testimony from Jessica, Peggy, and Investigator McKeithan, who read defendant's statement into evidence. Defendant presented no evidence. On 3 October 2003, the jury found defendant guilty of first-degree arson. The trial court subsequently found as an aggravating factor that, during the commission of the offense, 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. As mitigating factors, the trial court found that defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer prior to arrest, that defendant had a support system in the community, and that defendant had a positive employment history or was gainfully employed. After concluding that the aggravating and mitigating factors balanced one another out, the trial court sentenced defendant to fifty-one to seventy-one months imprisonment, a term within the presumptive range. Defendant appeals.
As an initial matter, we note that defendant's brief does not contain arguments supporting each of the original assignments of error on appeal. Pursuant to N.C.R.App. P. 28(b)(6) (2005), the omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.
The issues on appeal are whether the trial court erred: (I) by denying defendant's motion to dismiss; (II) by denying defendant's request for a jury instruction on attempted arson; and (III) in sentencing defendant.
Defendant first argues that the trial court erred by denying his motion to dismiss the charge of first-degree arson. Defendant asserts that the State failed to produce sufficient evidence tending to show that the residence was burned. We disagree.
In ruling on a motion to dismiss, "the trial court must determine whether there is substantial evidence of each element of the offense charged. . . ." State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). "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). The trial court must consider the evidence in the light most favorable to the State, granting the State the benefit of every reasonable inference. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Arson is a common law crime, and has been defined as "the willful and malicious burning of the dwelling house of another person." State v. Eubanks, 83 N.C.App. 338, 339, 349 S.E.2d 884, 885 (1986). Where the building is occupied at the time of the burning, the offense is first-degree arson. N.C. Gen.Stat. § 14-58 (2003). Similarly, where the building is a "mobile home or manufactured-type house or recreational trailer home which is the dwelling house of another and which is occupied at the time of the burning, the same shall constitute the crime of arson in the first degree." N.C. Gen.Stat. § 14-58.2 (2003).
[S]ome portion of the [building] itself, in contrast to its mere contents, must be burned to constitute arson; however, the least burning of any part of the building, no matter how small, is sufficient, and it is not necessary that the building be consumed or materially damaged by the fire.
State v. Oxendine, 305 N.C. 126, 129, 286 S.E.2d 546, 548 (1982). In order for a building to be "burned" within the definition of arson, the building must be "`charred, that is, when the wood is reduced to coal and its identity changed, but not when merely scorched or discolored by heat.'" Id. (quoting State v. Hall, 93 N.C. 571, 573 (1885)).
In Oxendine, the defendant argued that the State produced insufficient evidence to show he burned the structure, rather than the interior, of a residence. On appeal, our Supreme Court noted that evidence was introduced at trial tending to show that the fire was accompanied by a large amount of smoke, was visible from the highway, and was responsible for the loosening of the building's electrical wiring. 305 N.C. at 130, 286 S.E.2d at 548. The Court concluded that from this evidence alone, "one could reasonably infer that the fire inside the house was substantial enough to cause at least some charring of the structure[.]" Id. (emphasis in original). The Court noted that the State's case was "further strengthened" by testimony that the curtains of the building were burned, that dark or burned patches appeared on the wall, that the wallpaper was burned, that there was a heavy odor of kerosene in the area, and that smoke was present throughout the building. Id. The Court concluded that
Surely, this evidence plainly showed that the dwelling itself, and not merely something in it (the curtains), had been burned. It is difficult to perceive how dark, burned patches could appear on a wall absent the prior incidence of at least minor charring of that wall's substantive material. Defendant's additional argument that the presence of burnt wallpaper in the dwelling had no rational tendency to indicate the charring of the building's structure simply defies good sense and logic. Wallpaper affixed to an interior wall is unquestionably a part of the dwelling's framework. If the wallpaper is burning, it would perforce suggest that the house is also burning. Hence, we hold that where, as here, the evidence discloses that the wallpaper in a dwelling has been burned, it competently substantiates the charring element of arson.
To continue reading
Request your trial