State v. Ward

379 S.E.2d 251, 93 N.C. App. 682, 1989 N.C. App. LEXIS 398
CourtCourt of Appeals of North Carolina
DecidedMay 16, 1989
Docket8822SC585
StatusPublished
Cited by10 cases

This text of 379 S.E.2d 251 (State v. Ward) 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. Ward, 379 S.E.2d 251, 93 N.C. App. 682, 1989 N.C. App. LEXIS 398 (N.C. Ct. App. 1989).

Opinions

GREENE, Judge.

Defendant appeals his convictions of second-degree murder and second-degree arson. The evidence at trial tended to show that Lori Mayse allegedly hired defendant and her half-brother to kill her husband, Robert Mayse. After various failed attempts, the defendant and the half-brother succeeded in beating and choking Robert Mayse to death. A short time thereafter, defendant wrapped the victim’s body in a blanket and disposed of it in a trash dumpster. Defendant then left the State for several days. When he returned, Ms. Mayse gave defendant fifty dollars to burn the trailer where she and the victim had resided. Ms. Mayse did not live in the trailer after defendant left the state. The evidence further showed that Ms. Mayse had disconnected the electrical power to the trailer before the trailer was burned. Kim Beuckles, the half-brother’s girlfriend, testified that defendant threatened to harm her and her child if she reported the crime and stated she was still afraid of defendant at the time of trial.

After the jury convicted defendant of second-degree murder and second-degree arson, the trial court found that aggravating factors outweighed any mitigating factors and sentenced defendant to life imprisonment on the murder charge. The court imposed the presumptive twelve-year sentence for second-degree arson. Defendant appeals both convictions.

[684]*684These facts present the following issues: I) where a prosecution witness had already testified defendant threatened to kill her and sell her child if she testified against him, whether defendant was prejudiced by the trial court’s admission of the witness’s subsequent statement that she was “afraid” of defendant; II) where one inhabitant of a trailer was dead and the other had vacated the trailer and paid defendant $50 as part of a plan with defendant to burn the trailer, whether the trial court erroneously failed to dismiss the charge of arson under Section 14-58; III) whether the trial court committed plain error in failing to intervene ex mero motu to exclude certain remarks by the prosecutor during his closing argument; and IV) whether the trial court erroneously failed to find an “extenuating relationship” between defendant and his murder victim mitigated the offense of second-degree murder.

I

During the prosecution’s case, the following exchange occurred between a witness and the prosecutor:

Q. You say [defendant’s alleged accomplice] spoke up and told you that they killed Robert?
A. They had killed Robert and wrapped him up in a blanket and put him in my truck and hauled him to a dumpster. . . .
Q. All right.
A. And then [defendant] says, “You better not believe [the accomplice] because he may be lying,” and started laughing about it. . . .
Q. All right. Go ahead.
A. And he said that if [the accomplice], me, or Lori told about what had happened he would kill us, and he said that if I said anything he would take my little boy off and sell him.
Q. Sell him?
A. Right.
Q. You [sic] afraid of [the defendant/?
A. Yes, I am.
[685]*685Mr. CANNON: Objection.
COURT: Overruled.

(Emphasis added.) Defendant contends the trial court erroneously admitted the witness’s testimony that she was “afraid” of defendant at the time of trial.

We agree. The State had not contended defendant intimidated the witness at the time of trial. The witness’s testimony that she was afraid of defendant at the time of trial has no apparent relevance to this case other than to imply the defendant was a violent person; consequently, the witness’s statement that she was afraid at the time of trial should not have been admitted. State v. Bell, 87 N.C. App. 626, 636, 362 S.E. 2d 288, 294 (1987). However, defendant did not object at trial nor assign error on appeal to the witness’s immediately preceding testimony that defendant had threatened to kill her and sell her child if she reported the crime. Given that testimony, we do not believe there is a reasonable possibility that a different result would have been reached if the trial court had excluded the witness’s statement that she was afraid of defendant at the time of trial. See N.C.G.S. Sec. 15A-1443(a) (1988).

II

Defendant also contends the trial court erroneously failed to grant his motion to dismiss the charge of second-degree arson under Section 14-58, which states:

There shall be two degrees of arson as defined at the common law. If the dwelling burned was occupied at the time of the burning, the offense is arson in the first-degree . . . If the dwelling burned was unoccupied at the time of the burning, the offense is arson in the second-degree . . .

N.C.G.S. Sec. 14-58 (1986). Before a motion to dismiss is denied, the court must find substantial evidence of each essential element of the offense charged. The evidence is considered in the light most favorable to the State and the State is entitled to every reasonable inference from that evidence. State v. Powell, 299 N.C. 95, 99, 261 S.E. 2d 114, 117 (1980).

Section 14-58 does not re-define the crime of arson but instead incorporates the common law definition that “arson is the wilful and malicious burning of the dwelling house of another person.” State v. Vickers, 306 N.C. 90, 100, 291 S.E. 2d 599, 606 (1982). [686]*686“Further, since arson is an offense against the security of the habitation and not the property, an essential element of the crime is that the property be inhabited by some person.” Id. The only inhabitants of the trailer before it burned were Robert Mayse and his wife, Lori. Defendant contends the State’s evidence showed the trailer was uninhabited at the time it was burned since: (1) Robert Mayse had been murdered, wrapped in a blanket, and left in a trash dumpster several days before the burning; and (2) Lori Mayse had disconnected the power to the trailer, vacated it and paid defendant $50 pursuant to an alleged scheme with defendant to burn the trailer. Defendant thus contends he could not be convicted of common law arson under these facts since both prior inhabitants of the trailer were permanently absent from the trailer at the time it was burned.

We agree. “[T]he main purpose of common law arson is to protect against danger to those persons who might be in the dwelling house which is burned.” State v. Jones, 296 N.C. 75, 77-78, 248 S.E. 2d 858, 860 (1978) (emphasis added); accord State v. White, 288 N.C. 44, 50, 215 S.E. 2d 557, 561 (1975) (“gravamen” of offense is danger to persons “who are or might be in the dwelling . . .”). Under these particular facts, there was no danger to anyone who “might” have been in the trailer at the time it burned. First, the State’s evidence showed Robert Mayse was dead several days before defendant allegedly burned the trailer. While temporary absence from a dwelling will not affect its status as an inhabited dwelling, the inhabitant’s death certainly renders it uninhabited since someone must “live” in a dwelling for it to be “inhabited.” See State v. Eubanks, 83 N.C. App. 338, 339, 349 S.E. 2d 884, 885 (1986);

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State v. Ward
379 S.E.2d 251 (Court of Appeals of North Carolina, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
379 S.E.2d 251, 93 N.C. App. 682, 1989 N.C. App. LEXIS 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ward-ncctapp-1989.