State v. Davis

356 S.E.2d 607, 86 N.C. App. 25, 1987 N.C. App. LEXIS 2667

• Court: Court of Appeals of North Carolina
• Decided: June 2, 1987
• Docket: 8610SC1202
• Status: Published

Opinions

PARKER, Judge.

Defendant’s primary contention on this appeal is that the evidence presented by the State was insufficient to convince a rational trier of fact of defendant’s guilt beyond a reasonable doubt and that his motion to dismiss the charges against him should, therefore, have been granted. The well-established test to be applied in ruling on a defendant’s motion to dismiss is whether the State has produced substantial evidence of each and every element of the offense charged or a lesser included offense, and substantial evidence that the defendant committed the offense. State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). The evidence is to be viewed in the light most favorable to the State, giving the State the benefit of every reasonable inference which can be drawn from the evidence. State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971).

When so viewed, the evidence presented at trial tended to show that on the date of the alleged offense, 25 May 1985, defendant was employed as a security guard at the N.C. Museum of Art. On that date, which was a Saturday, defendant came on duty at 3:30 p.m. The museum was open on Saturday, and was to be closed on Sunday and Monday for a holiday. At around 3:55 p.m., security guard Jeanette Stewart discovered that a toilet in the women’s rest room on the entry level was continuously flushing. The water was just “going around, going down the drain,” and was not overflowing onto the floor. Ms. Stewart reported the problem to her supervisor, who told her to periodically check the toilet to make sure it was not overflowing. She checked several times during the remainder of her shift and found the toilet was still flushing but not overflowing. The supervisor decided that, as the water was not overflowing, the toilet could wait until regular museum hours on Tuesday to be repaired. Defendant was informed of the problem with the toilet and of the decision to just let it run until Tuesday.

At 5:30 p.m., the museum closed. Ms. Stewart went off duty and security guard Sandra Roberson reported for duty. The museum building was secured and by 6:20 p.m. defendant and Ms. Roberson were the only people in the museum. At 7:25 p.m., defendant began a routine patrol of the museum. Ms. Roberson remained at the security desk and followed defendant’s progress through the museum by monitoring the museum’s sophisticated alarm system of motion and heat detectors. Defendant radioed Ms. Roberson from the women’s rest room, asked her if she could hear the water running and commented on the amount of water being wasted. Ms. Roberson then noticed that it took a longer time than normal for defendant to get from the women’s room to the next motion detector. When defendant returned from his round, he insisted that Ms. Roberson make the following entry in the log exactly as he dictated it:

While on patrol Officer Davis discovered the water overflow in the ladies room. It was discussed earlier with Hann, and he said not to notify engineering staff until Tuesday morning. Per; Ms. Stewart.

At about 9:35 p.m., Ms. Roberson began her patrol. She heard a sound like running water and discovered “a whole lot of damn water coming down” from the balcony on the entry level overlooking the main gallery. Ms. Roberson called maintenance personnel who instructed her on how to turn off the water to the toilet. Museum employees were also called in to help clean up the water. The water had flowed onto several levels of the museum, staining carpets and shorting electrical outlets, which burned the carpets and became inoperative. The water also flowed into a basement storage room and onto an Eighteenth Century French tapestry, which was rolled up on the floor. When employees began to arrive to help clean up, defendant signed out and left the museum before his shift was over. Defendant was later asked by his supervisor to fill out a report on the incident. He refused and was discharged.

A maintenance crew dismantling the toilet for repair discovered that the outflow pipe was blocked by an eight-inch stack of paper towels. According to the State’s expert witness, the chief engineer at the museum, this stack of towels was sufficient to completely block the outflow pipe. The expert testified that the running toilet flowed at a rate of approximately thirty to sixty gallons of water per minute and that once the outflow pipe became clogged, the water probably began to overflow the toilet in a matter of seconds.

Defendant contended at trial that at the time he made his 7:25 p.m. rounds the toilet was overflowing and the floor drain was handling the water overflow adequately. The chief engineer testified that if the continuously flushing toilet were overflowing, the floor drain could not handle the volume of water.

Defendant was charged with violations of G.S. 14-127 and G.S. 14-398. These statutes read:

§ 14-127. Willful and wanton injury to real property.

If any person shall willfully and wantonly damage, injure or destroy any real property whatsoever, either of a public or private nature, he shall be guilty of a misdemeanor and shall be punished by fine or imprisonment or both, in the discretion of the court.

§ 14-398. Theft or destruction of property of public libraries, museums, etc.

Any person who shall steal or unlawfully take or detain, or willfully or maliciously or wantonly write upon, cut, tear, deface, disfigure, soil, obliterate, break or destroy, or who shall sell or buy or receive, knowing the same to have been stolen, any book, document, newspaper, periodical, map, chart, picture, portrait, engraving, statue, coin, medal, apparatus, specimen, or other work of literature or object of art or curiosity deposited in a public library, gallery, museum, collection, fair or exhibition, or in any department or office of State or local government, or in a library, gallery, museum, collection, or exhibition, belonging to any incorporated college or university, or any incorporated institution devoted to educational, scientific, literary, artistic, historical or charitable purposes, shall, if the value of the property stolen, detained, sold, bought or received knowing same to have been stolen, or if the damage done by writing upon, cutting, tearing, defacing, disfiguring, soiling, obliterating, breaking or destroying any such property, shall not exceed fifty dollars ($50.00), be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court. If the value of the property stolen, detained, sold or received knowing same to have been stolen, or the amount of damage done in any of the ways or manners hereinabove set out, shall exceed the sum of fifty dollars ($50.00), the person committing same shall be punished as a Class H felon.

Clearly, these statutes require, as an essential element of the offenses set forth, a showing that the person charged “willfully” or “wantonly” caused the damage to real property or an object of art. The words “willful” and “wanton” have substantially the same meaning when used in reference to the requisite state of mind for a violation of a criminal statute. State v. Williams, 284 N.C. 67, 199 S.E. 2d 409 (1973). “Willful” as used in criminal statutes means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of the law. State v. Arnold, 264 N.C. 348, 141 S.E. 2d 473 (1965). “Willfulness” is a state of mind which is seldom capable of direct proof, but which must be inferred from the circumstances of the particular case. Id.

The evidence, when viewed in the light most favorable to the State, was sufficient to allow the jury to infer that defendant put the paper towels in the toilet intending to create a serious water problem. It is not necessary for a person to know that he is breaking the law for an act to be “willful.” State v. Coal Co., 210 N.C. 742, 188 S.E. 412 (1936). Further, a person is presumed to intend the natural and foreseeable consequences of his unlawful acts. State v. Ferguson, 261 N.C. 558, 135 S.E. 2d 626 (1964). Damage to the toilet (as an attached fixture, part of the real property, see generally Annot., 52 A.L.R. 2d 222 (1957)) and water damage to the floor of the museum were natural and foreseeable consequences of clogging the constantly-running toilet. Therefore, we affirm the conviction for willful damage to real property in violation of G.S. 14-127.

With respect to the conviction for violation of G.S. 14-398, the evidence was not in our view sufficient to support the necessary finding that defendant’s act was the proximate cause of the damage to the tapestry. The State presented no evidence as to the condition of the tapestry immediately before 25 May 1985. A photograph showing the tapestry without the tideline was tendered into evidence, but no witness testified as to when the photograph was made. This photograph was an item in the conservation file containing information on each art object at the museum. The photograph does not depict the linen border which according to the evidence was sewn on in 1978. The most recent condition report in the file was dated January 1980. Further, the evidence was uncontradicted that the tapestry was lying on the floor rolled up in a storage room located directly under the rest room with the malfunctioning toilet. Other objects stored in this room did not get wet. The State’s evidence showed that water ran into the room because the seal around the pipe for the floor drain in the rest room had not been properly caulked. This crack permitted water to seep down the outside of the pipe. The record is devoid of any evidence as to when the tapestry was stored in this room and when it was last unrolled prior to 25 May 1985. In our view, considering all the evidence in the light most favorable to the State, the mere fact that this tapestry was wet on 25 May 1985 is not sufficient to support a finding beyond a reasonable doubt that defendant’s act in putting the towels in the toilet caused the tideline damage to the tapestry. Evidence as to the condition of the tapestry prior to the flooding was necessary to establish all material elements of the offense. In In re Meant, 51 N.C. App. 153, 275 S.E. 2d 200 (1981), respondents were observed throwing rocks at a carload of motor vehicles on a train; when the train stopped two vehicles were damaged. This Court per Judge (now Justice) Whichard stated:

The testimony of the State’s witness tended to show that the train in question was en route from Rocky Mount to Hope Mills. The witness testified: “I did not personally inspect the cars in Rocky Mount. A member of our department told me that the cars were in good shape when they were in Rocky Mount.” This testimony was properly stricken, upon respondents’ motion, as hearsay. Without this testimony there was no evidence before the court as to the condition of the automobiles prior to their arrival at the locus in quo, and such evidence was an essential foundation to a permissible inference that the damage resulted from the acts of respondents rather than from some other cause.

51 N.C. App. at 155-56, 275 S.E. 2d at 202.

The trial court erred in denying defendant’s motion to dismiss the felony charge against him. Our ruling on this issue makes discussion of defendant’s assignments of error regarding the proper measure of damage to the tapestry unnecessary as those contentions relate to the felony only.

Defendant also assigns error to the trial court’s order allowing a jury view at the art museum and to the court’s conduct of the jury view itself. Under G.S. 15A-1229(a), the decision to permit a jury view is vested in the discretion of the trial judge. The decision will not be disturbed absent an abuse of discretion. See State v. Wilson, 313 N.C. 516, 330 S.E. 2d 450 (1985). Defendant has shown no abuse of discretion by the trial judge in permitting the view.

Defendant also contends that the order permitting the view was fatally defective as it failed to include an instruction to the officer escorting the jury that no one is to be allowed to communicate with the jury. See G.S. 15A-1229(a). This contention is without merit. The order was drafted jointly by the district attorney and defense counsel and was entered with only a general objection to the jury view itself. While not reciting the language of the statute verbatim, the order did contain sufficient precautionary language to insure that defendant’s right to an impartial jury was not impaired, including orders that the jury be accompanied by two deputies, that the jurors not be allowed to talk among themselves and that no one be allowed to speak with the jury. This order was sufficient to comply with the requirements of G.S. 15A-1229(a) and the assignment of error is overruled.

Defendant further contends that he was unduly prejudiced by the conduct of the jury view as the press was allowed to be present and the members of the press were introduced to the jury. Criminal trials in North Carolina are open to the press and the public. N.C. Const, art. I, § 24. Defendant argues that by allowing the press to attend the jury view and by introducing the members of the press to the jurors, the trial judge unduly prejudiced him by emphasizing the highly publicized nature of the trial and by detracting from the decorum of the proceedings. Although conditions were less than ideal for court proceedings, the trial judge kept the press quiet and away from the jury and gave adequate instructions to the jury concerning the publicity surrounding the trial.

Finally, defendant contends that by allowing individual jurors to ask questions at the jury view, the trial court committed prejudicial error. We disagree. The jurors were allowed to state their questions, which were duly recorded by the court reporter. The questioning was tightly controlled and conducted in such a way as to fully protect defendant’s right to a fair trial. The trial judge asked each attorney if there were any objection to the question, and defense counsel never voiced an objection. Defendant has failed to demonstrate any prejudice resulting from the manner in which the jury view was conducted.

In summary, defendant’s conviction in 85CRS47980, willful damage to an object of art, is vacated. We find no prejudicial error in defendant’s conviction for willful damage to real property, and the case is remanded to the Superior Court for entry of judgment on the misdemeanor conviction.

No. 85CRS47980 —reversed.

No. 85CRS47981 —no error.

Remanded for entry of judgment.

Judge Eagles concurs. Chief Judge HEDRICK concurs in the result in part and dissents in part.