State v. Clark

369 S.E.2d 607, 90 N.C. App. 489, 1988 N.C. App. LEXIS 632
CourtCourt of Appeals of North Carolina
DecidedJune 21, 1988
DocketNo. 8725SC1069
StatusPublished
Cited by2 cases

This text of 369 S.E.2d 607 (State v. Clark) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 369 S.E.2d 607, 90 N.C. App. 489, 1988 N.C. App. LEXIS 632 (N.C. Ct. App. 1988).

Opinion

WELLS, Judge.

Defendant Clark’s Appeal

In his first argument and by assignments of error 75-79, defendant contends that the trial court erred by questioning defendants’ witness Edwards in a manner which suggested the court’s opinion as to the witness’ credibility. We disagree.

While receiving testimony on Edwards’ training and experience in the area of fire investigation, the following exchange occurred:

Court: Let me stop you there. I thought that I heard you say the Merchant Marines that you were in.
A: Yes, the United States Navy Merchant Marine operated ....
COURT: Is that not located in New York, Long Island and King Point, New York.
A: Yes, King Point, New York in 1945 they had two. One at Pass Christian, Mississippi and the other one in California and they were operated under the United States Naval Reserve and we were sworn Officers of the United States Naval Reserve.
Court: You were in the United States Navy then?
A: We were, yes, in the Navy Reserve but on active duty.
COURT: This was in 1945 during the war?
A: Yes.
COURT: You were not in the Navy or were you in the Navy.
A: We were in the Navy, sworn in the Naval Reserve.

Defendant argues that the trial court’s manner of questioning cast doubt on the reliability of Edwards’ background and training thereby impeaching his credibility. He contends that such amounts to an expression of opinion in violation of G.S. § ISA-1222 entitled “Expression of opinion prohibited.” However, it is [494]*494well-settled that a trial court may question a witness for the purpose of clarifying the witness’ testimony. State v. Whittington, 318 N.C. 114, 347 S.E. 2d 403 (1986); State v. Jackson, 306 N.C. 642, 295 S.E. 2d 383 (1982). Whether a judge’s question or comments before the jury has the probable effect of being prejudicial should be weighed against the evidence produced and the conduct of the entire trial. State v. Brady, 299 N.C. 547, 264 S.E. 2d 66 (1980).

The determination of a witness’ qualification as an expert is a question of fact to be decided by the trial court. State v. King, 287 N.C. 645, 215 S.E. 2d 540, death sentence vacated, 428 U.S. 903, 96 S.Ct. 3208, 49 L.Ed. 2d 1209 (1976). Judge Seay’s questioning related to Edwards’ expertise and comprised a part of the trial court’s ascertainment of his qualifications as an expert witness. Moreover, Edwards’ testimony generated some confusion regarding the various locations of his training. The trial court’s questions wére fairly designed to clarify this testimony. Whit-tington, supra; Jackson, supra; Brady, supra. These assignments of error are overruled.

Claiming insufficiency of the evidence, defendant contends by his third argument that the trial court erred in denying defendant Clark’s motions to dismiss and in allowing the case to go to the jury. Specifically, defendant argues that the State failed to make its case under G.S. § 14-62 entitled “Burning of churches and certain other buildings.”

On a motion to dismiss made pursuant to G.S. § 15-173 and G.S. § 15A-1227, the trial court is required to determine whether, when viewed in the light most favorable to the State, there exists substantial evidence of each element of the offense charged and of the defendant’s being the perpetrator of the crime. State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). When the State’s case rests entirely upon circumstantial evidence, as it does here, the facts adduced must be so connected or related as to directly implicate the defendant and leave open no other reasonable hypothesis. State v. Needham, 235 N.C. 555, 70 S.E. 2d 505 (1952). “However, the rule for determining the sufficiency of the evidence is the same whether the evidence is completely circumstantial, completely direct or both.” State v. Wright, 302 N.C. 122, 273 S.E. 2d 699 [495]*495(1981). Our review of the evidence and all reasonable inferences there derived, in the light most favorable to the State, indicate that the State’s evidence against defendant was sufficient to take the case to the jury.

G.S. § 14-62 requires a showing of four elements: “(1) the building was used for trade; (2) a fire occurred in it; (3) the fire was of incendiary origin; and (4) the defendant unlawfully and willfully started or [was] responsible for it.” 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). Defendant primarily contends that the State failed to present substantial evidence that defendant actually perpetrated the crime and did so intentionally. We disagree.

Defendant first argues that the evidence was insufficient to convince the trier of fact beyond a reasonable doubt that Clark burned the store. The evidence viewed in the light most favorable to the State tended to show the following: Clark had been handling and had access to kerosene the day of the fire; the fire was believed to have been ignited by a petroleum product and he was one of the last persons in the store before the fire; he closed the store much earlier than usual; unlike all other times Clark had closed, he failed to lock the front door which activated the alarm system; he hurriedly left the store after closing; smoke was seen seeping out under the soda machine just as defendants were leaving; and the fire was deliberately set.

While the evidence is entirely circumstantial, we believe it to be sufficiently substantial to connect defendant with the burning of the store. Accord, State v. Caron, 288 N.C. 467, 219 S.E. 2d 68 (1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed. 2d 794 (1976). [Sufficient evidence where fire was of incendiary origin; defendant was in shop shortly before fire; 30 minutes later defendant was seen with ashes and soot on his face and clothes for which defendant had no explanation]; State v. Sheetz, 46 N.C. App. 641, 265 S.E. 2d 914 (1980). [Evidence sufficient where defendant florist was sole owner of shop burned and stood to collect insurance proceeds; the fire occurred within five minutes after defendant closed his shop; defendant exited out back door after allowing employee out front door; the fire was not caused by an electrical malfunction; there existed evidence that defendant was heavily in debt]. Accordingly, defendant’s argument is overruled.

[496]*496Defendant next contends that under our Supreme Court’s decision in State v. Brackett, 306 N.C. 138, 291 S.E. 2d 660 (1982), the State failed to adduce sufficient evidence of defendant’s wantonness and willfulness as required by G.S. § 14-62. We are unpersuaded.

The Brackett court’s definition of wanton and willful provides that for a burning of a dwelling to be criminal the burning must have been done intentionally, “. . . without legal excuse or justification, and with the knowledge that the act will endanger the rights or safety of others or with reasonable grounds to believe that the rights or safety of others may be endangered.”

In Brackett,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Rhyne
571 S.E.2d 879 (Court of Appeals of North Carolina, 2002)
State v. Woods
427 S.E.2d 145 (Court of Appeals of North Carolina, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
369 S.E.2d 607, 90 N.C. App. 489, 1988 N.C. App. LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-ncctapp-1988.