State v. Tew
| Decision Date | 17 May 1983 |
| Docket Number | No. 822SC782,822SC782 |
| Citation | 302 S.E.2d 633,62 N.C.App. 190 |
| Parties | STATE of North Carolina v. Melvin Grant TEW and Bonnie Tew. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. W. Dale Talbert, Raleigh, for the State.
Trimpi, Thompson & Nash by C. Everett Thompson, Elizabeth City, for defendants-appellants.
Though the evidence of record certainly points the finger of suspicion at the defendants, it is not sufficient, in our opinion, to justify their conviction of the offense charged, and the case against them must be dismissed. This is because the record, even when favorably viewed for the State, as our law requires on motions to dismiss [State v. Cummings, 301 N.C. 374, 271 S.E.2d 277 (1980) ], does not contain substantial evidence of every essential element of the crime charged. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).
The essential elements of the crime that the defendants were tried for, and that the State had the burden to prove, 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. The record is replete with evidence as to all these elements but one--the defendants' responsibility for the fire. As to that most important element, the evidence falls short of the standard that our law sets in matters of this kind.
The main reason that the evidence fell short, of course, was the State's inability to place either defendant at or near the scene of the crime at any time when the fire could have been started. When that time was, even approximately, the evidence does not show; but nothing about the fire would justify a finding that it could have been started more than an hour or two before it revealed itself. And that there was no evidence that either of the defendants had been near the place during the preceding day and a half or were otherwise connected with the fire in any way is fatal to the State's case. This is a void that proof of the other elements of the crime cannot fill. That there was a fire and that it was of incendiary origin does not prove or tend to prove that either of these defendants was the incendiary. State v. Needham, 235 N.C. 555, 71 S.E.2d 29 (1950). Nor was this missing element established by proof of motive. Though motive evidence in arson and other burning cases can be highly probative and persuasive when it supplements evidence of a criminal scheme, plan or act, when such essential evidence is lacking, as it is here, motive evidence has no probative value. State v. Needham, supra. Which is as it should be, since many more people have motives to commit crimes than ever commit them and innumerable people often have a motive to commit a crime that only one perpetrates.
The State's contention that this gap in the proof was bridged by evidence showing that only the defendants could have perpetrated the crime and that they did certain things from which their criminal scheme and act can be inferred, if supportable as a legal proposition, which is doubtful and no legal authorities close to the point were cited, is not supported by the record. The evidence that after the fire the street level doors and windows of the building were still secure and apparently had not been tampered with and that defendants had the only keys does not justify the inference that only the defendants could have entered the building--(and in view of the myriad unexplained criminal entries that occur in this country every year, it may not justify the inference that they were the only ones that could have entered at street level)--since the loft window was admittedly open and that possible entry place was not even investigated, much less eliminated, by the officers.
In contending that the defendants' criminal plan and act could be inferred from evidence that they "overinsured" the contents of the building by obtaining a $30,000 policy, the State's brief points not to testimony as to the value of the contents in either their damaged or undamaged state, but only to the irrelevant testimony of an insurance adjuster to the effect that the contents could be cleaned for between $3,000 and $5,000, smoke staining being the only damage done. Thus, the fact of "overinsurance," like other facts essential to the State's case, stands unproven.
The State's further contention that the defendants' criminality is inferable from the fact that, incompatible with their continued operation of the business, they removed many articles from the building before the fire likewise fell of its own weight. Instead of depleting the place of its contents or removing articles of considerable value that were needed at the business and not at home, evidence of which might have cast things in a different light, the only articles removed from "The Loft"...
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State v. Hunt
...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)......
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Yassoo Enterprises, Inc. v. North Carolina Joint Underwriting Ass'n, 8421SC486
...evidence falls short of the standards pronounced in Fowler-Barham Ford, supra. For this proposition, plaintiff relies on State v. Tew, 62 N.C.App. 190, 302 S.E.2d 633, rev. denied, 309 N.C. 464, 307 S.E.2d 370 (1983), a criminal case in which it was held that a criminal defendant may not be......
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State v. Hicks
...act, and not an accidental cause, according to the testimony of a State Bureau of Investigation arson investigator.”); Tew, 62 N.C.App. at 191, 302 S.E.2d at 634 (holding fire was “clearly of incendiary origin” where cigarettes with paper towels and matches at the end were found in the buil......
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