State v. Wright, 121

• Decision Date: 27 January 1981
• Docket Number: No. 121,121
• Citation: 273 S.E.2d 699,302 N.C. 122
• Parties: STATE of North Carolina v. Carlie Danny WRIGHT.
• Court: North Carolina Supreme Court

Page 699

273 S.E.2d 699

302 N.C. 122

STATE of North Carolina v. Carlie Danny WRIGHT.

No. 121.

Supreme Court of North Carolina.

Jan. 27, 1981.

T. Yates Dobson, Jr., Smithfield, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. John C. Daniel, Jr. and Thomas B. Wood, Raleigh, for the State.

COPELAND, Justice.

Defendant raises eight assignments of error on appeal. We have carefully examined each of defendant's assignments and find no error which would entitle defendant to a new trial. For the reasons stated below, we affirm the trial court's judgment sentencing defendant to life imprisonment.

By his first and second assignments of error, defendant contends that the Trial Court erred in allowing State's witness Olivia Herd to testify that upon discovering the fire in Ms. Mayo's apartment, she immediately exclaimed to Hiram Byrd, the driver of the car in which she was riding, as follows: "That boy (defendant) just set that girl's house on fire." Defendant argues that this testimony was inadmissible as hearsay and as a statement of conclusion prejudicial to defendant.

We find Ms. Herd's testimony admissible under three well established legal theories. Since the statement accusing defendant of the arson was an exclamation in response to the surprising discovery of the fire, made without time for reflection or fabrication, it is admissible as a spontaneous declaration, despite its hearsay nature. State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978); 1 Stansbury's North Carolina Evidence § 164 (Brandis rev. 1973). The statement was also uttered so close in time to the events surrounding the burning that it can be admitted under the res gestae exception to the hearsay rule. State v. Chapman, supra; State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Hunt, 289 N.C. 403, 222 S.E.2d 234 (1976). In addition, defendant waived his objection to Ms. Herd's testimony when he failed to object to similar statements made by State's witness Hiram Byrd. Mr. Byrd was allowed to testify, without objection, that immediately after Ms. Herd saw the fire, she exclaimed, "Lord, Peggy's house is on fire. I bet that boy (defendant) set her house on fire." Whenever evidence is admitted over objection and the same or similar evidence is theretofore or thereafter admitted without objection, the objection is deemed waived. State v. Henley, 296 N.C. 547, 251 S.E.2d 463 (1979); State v. Chapman, supra; State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). Mr. Byrd's testimony was certainly of the same import as Ms. Herd's, therefore defendant's objection was waived. Furthermore, we find that any possible prejudice to defendant from Ms. Herd's conclusory statement about matters not within her personal knowledge was cured by her testimony on cross-examination to the effect that she did not actually observe defendant on the premises of Ms. Mayo's apartment on the day of the fire and that she knew nothing of how the fire was started or who started it. Defendant's assignments of error are without merit and overruled.

Under assignments of error numbered 3, 4, 6 and 7, defendant argues that the trial court erred in denying his motions to dismiss made at the end of the State's evidence and at the end of all the evidence, and in denying his motions to set aside the verdict and to grant a new trial. It is defendant's contention that the circumstantial evidence presented by the State was insufficient to sustain a verdict finding defendant guilty of arson.

The State concedes that the evidence presented which tended to establish defendant's guilt was all circumstantial. However, the rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both. State v. McKnight, 279 N.C. 148, 181 S.E.2d 415 (1971); State v. Ewing, 227 N.C. 535, 42 S.E.2d 676 (1947); 2 Stansbury's North Carolina Evidence § 210 (Brandis rev. 1973). The evidence is sufficient to sustain a guilty verdict if substantial evidence was presented on every element of the offense charged. "Substantial evidence" is defined as that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). In ruling upon defendant's motions challenging the sufficiency of the evidence, the trial court is required to interpret the evidence in the light most favorable to the State, drawing all reasonable inferences therefrom in the State's favor. State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980); State v. Powell, supra.

Considered in the light most favorable to the State, the evidence in this case shows that defendant had a motive to harm Ms. Mayo, in that he was angry over her decision to terminate their relationship, and that he had an opportunity to commit the crime since he knew that Ms. Mayo was not at home on the evening of 15 September 1976. Testimony from several witnesses indicates that defendant was in the immediate vicinity of the apartment building just moments prior to the discovery of the fire, and that he was driving away from the area at a high rate of speed. Further evidence showed that the fire was started by igniting rags which had been piled on the living room sofa and on the bed. Two law enforcement officers testified that they stopped defendant a few hours after the fire, driving a car matching the description given by several witnesses as the automobile in the apartment area just prior to the fire. Upon approaching the car, the officers observed a bale of rags and a propane torch on the floor board. After considering this evidence as a whole, we find that there was substantial evidence presented of defendant's guilt on each essential element of arson, i. e., the malicious and willful burning of the dwelling house of another person. State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976); State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974). The determination of defendant's guilt or innocence was therefore a question to be answered by the jury, and the trial court acted properly in refusing to grant defendant's motions. Assignments of error 3, 4, 6, and 7 are overruled.

By his fifth assignment of error, defendant alleges that the trial judge erred in his instructions to the jury by failing to properly explain the law pertinent to the case and by expressing an opinion as to defendant's guilt, in violation of G.S. 15A-1232. Specifically, defendant quotes the following passage from the instructions as constituting an expression of opinion: "... that Carlie Wright intended to commit arson, that...