State v. Oxendine, 92

• Decision Date: 27 January 1982
• Docket Number: No. 92,92
• Citation: 305 N.C. 126,286 S.E.2d 546
• Court: North Carolina Supreme Court
• Parties: , 28 A.L.R.4th 473 STATE of North Carolina v. Ronnie Ray OXENDINE.

Page 546

286 S.E.2d 546

305 N.C. 126, 28 A.L.R.4th 473

STATE of North Carolina v. Ronnie Ray OXENDINE.

No. 92.

Supreme Court of North Carolina.

Jan. 27, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Thomas B. Wood and Robert G. Webb, Raleigh, for the State.

Asst. Appellate Defender Malcolm R. Hunter, Jr., Raleigh, for defendant-appellant.

COPELAND, Justice.

Defendant argues five assignments of error which he believes require either a reversal of his arson conviction or a new trial. We disagree and affirm.

Defendant first contends that the trial court erred in overruling his motion to dismiss the arson charge. It is well established that a successful arson prosecution requires proof that defendant maliciously and willfully burned the dwelling house of another. State v. White, 288 N.C. 44, 215 S.E.2d 557 (1975); State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974). In the instant case, defendant challenges the sufficiency of the State's evidence upon the "burning" element of the offense. He complains that the evidence adduced against him was too meager to convince a rational trier of fact that he actually burned the structure of an inhabited dwelling. Under the circumstances of this case, defendant's position is indefensible.

The law is clear that some portion of the dwelling 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. Mitchell, 27 N.C. 350, 353 (1845); State v. Sandy, 25 N.C. 570, 574 (1843); see Annot., "Burning as element of offense of arson," 1 A.L.R. 1163, 1166 (1919). The accepted legal definition of "burning," for purposes of an arson case, is best stated in State v. Hall, 93 N.C. 571, 573 (1885):

The crime of arson is consummated by the burning of any, the smallest part of the house, and it is burned within the common law definition of the offense when it is charred, that is, when the wood is reduced to coal and its identity changed, but not when merely scorched or discolored by heat.

Applying these principles to the case at bar, we hold that the State's evidence was sufficient to authorize a reasonable conclusion that the building in question had been burned.

Miss Locklear, owner of the dwelling, testified that, after hearing her son exclaim "Fire!", she went into the bedroom "where the fire was at" and saw fire and smoke coming out of it. She said that the house was still "burning, slowly" when the fire truck arrived. [By this time, Miss Locklear and four of her neighbors had essentially doused the blaze.] Miss Locklear further stated that, during the fire, the "current had burned loose" in the house. ¹ Myrtle E. Blanton testified that she drove by the Locklear house on 9 December 1980 and saw "a fire and a lot of smoke." Mrs. Blanton then commented to defendant, who was riding with her on the way to the bus station, "your Aunt's house is on fire, everything she owns is burning up." ² From the testimony of these two witnesses alone, one could reasonably infer that the fire inside the house was substantial enough to cause at least some charring of the structure, since the fire was accompanied by a great deal of smoke, was visible from the outside (the highway) and was responsible for the loosening of electrical wiring in the building. See State v. Hall, supra, 93 N.C. at 573. See also State v. Mitchell, supra, 27 N.C. at 353 ("fire set to combustible materials will naturally consume them").

Nevertheless, the State's case upon this essential element was further strengthened by the testimony of Officer William Halstead who described the subsequent condition of the residence as follows: "the curtains were burned and there were dark or burned patches over the wall; the wallpaper was burned and there was a heavy odor of kerosene. Smoke was throughout the house.... [T]he main house was or had been on fire." 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. ³ 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. Compare State v. Kelso, 617 S.W.2d 591, 594 (Mo.App.1981), where the Court, in dictum, recognized that, although the mere scorching or discoloration of wallpaper on a wall did not constitute arson, arson would certainly occur if the fire spread to the wooden structure no matter how small the damage.

Considering all of the foregoing evidence in the light most favorable to the State with the benefit of every reasonable inference, it was sufficient to permit the jury to find that defendant burned (charred) parts of his Aunt's house to the necessary degree. Contrary to defendant's position, the State's witnesses were not required to use the specific legal term "charred" in describing the structural damage caused by the unlawful fire. In commonly understood language, the witnesses testified that the house had been on fire and that parts of it had been burned. In his inculpatory statement to the police, even defendant described the progress of the fire, which he "had started on the front of the house," in terms of how well it was burning. In fact, the sufficiency of the burning element of the offense was never contested at any time during the trial of this case. Defendant relied entirely on an alibi defense. Thus, the real question here was not whether Miss Locklear's house was unlawfully burned, but whether defendant unlawfully set that fire.

Next, defendant contends that the trial court should have instructed upon the lesser included offense of attempted arson. A trial judge is required to instruct upon a lesser included offense, even absent a special request therefor, if there is some evidence in the record which supports the less serious criminal charge. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); see, e.g., State v. Green, 298 N.C. 793, 259 S.E.2d 904 (1979). It necessarily follows then that the judge is not obligated to give such an instruction if the record is devoid of evidence which might convince a rational trier of fact that defendant was at most guilty of the less grievous offense. State v. Wright, 304 N.C. 349, 283 S.E.2d 502 (1981); State v. Gadsden, 300 N.C. 345, 266 S.E.2d 665 (1980). Such is the case here. We have already determined, supra, that the State's evidence that parts of the dwelling's structure were burned to the requisite legal degree was essentially uncontradicted. The crime of arson was, therefore, plainly consummated. That being so, the evidence in the instant case could not be reasonably interpreted as also showing the commission of a mere attempted arson. State v. Moore, 300 N.C. 694, 700, 268 S.E.2d 196, 201 (1980). In sum, once the jury believed beyond a reasonable doubt that defendant maliciously and willfully perpetrated these unlawful incendiary deeds, it could only properly return a verdict of guilty of arson.

Defendant also argues that the trial court's final charge to the jury was deficient in two other respects: (1) the omission of a legal definition of burning (as it is stated in State v. Hall, supra, 93 N.C. 571) and (2) the absence of a direct admonishment that the burning of personal property within the dwelling did not constitute arson. We hold that defendant was not entitled upon this record to additional instructions absent specific and timely requests therefor.

First, we find that Judge Small correctly delineated the elements of arson in his charge to the jury, see infra. In fact, he repeated almost verbatim the patterned instructions for the offense. See N.C.P.I.--Crim. 215.10 (1981). Nevertheless, defendant now maintains that the judge should have told the jury sua sponte that there must be a partial burning or slight charring of some portion of the building and that a mere scorching or discoloration thereof would not suffice as arson. See N.C.P.I., supra, at note 1. To the contrary, we believe that a trial court is not obligated ex mero motu to make this distinction for the jury where, as here, no serious question concerning the nature of the damage caused by the fire is ever raised during trial. See id. We must again emphasize that defendant relied on an alibi defense and did not challenge the State's evidence that an arson had been committed. More particularly, the testimony concerning smoke damage to the paint on various walls in the dwelling did not, as defendant seems to believe, negate the occurrence of at least some burning or charring of the building. ⁴ Such testimony cannot be reasonably deemed as anything more than a description ofadditional damage caused by the fire since other independent and uncontroverted evidence showed that the house itself had been burned, including several patches on one wall and some wallpaper, to the extent that certain electrical wiring in the structure was loosened. There being no affirmative evidentiary conflict regarding the legal application of the term "burned" to the facts of this case, we hold that the judge did not have to explain its meaning absent a request, to the jury, as it is a plain, simple word commonly understood by people of average intelligence. State v....