State v. Warner

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2014
• Docket: 13-699
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-699 NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Cabarrus County Nos. 11 CRS 55594, 12 CRS 1086 MELVIN BIBIAN WARNER

Appeal by defendant from judgments entered 17 December 2012

by Judge W. Erwin Spainhour in Cabarrus County Superior Court.

Heard in the Court of Appeals 11 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.

Glover & Petersen, P.A., by James R. Glover, for defendant- appellant.

CALABRIA, Judge.

Melvin Bibian Warner (“defendant”) appeals from judgments

for offenses of first degree arson, maliciously damaging

occupied property by use of an explosive or incendiary device,

possession of a weapon of mass destruction, and attaining

habitual felon status. We find no error. -2- Defendant and Ula Jones (“Ms. Jones”) started dating in

2010. They initially lived next door to one another in the same

cul-de-sac on Aggie Street in Kannapolis, North Carolina.

Defendant subsequently moved into Ms. Jones’ house at 910 Aggie

Street. In late September 2011, Ms. Jones helped defendant

acquire a one-bedroom apartment and changed the locks to her

home.

On the evening of 7 October 2011, Ms. Jones had a male

guest in her home. While Ms. Jones was entertaining her guest,

defendant sent her text messages, commenting on Ms. Jones’

failure to reply. On the evening of 9 October 2011, defendant

and Ms. Jones communicated through a series of text and

telephone messages. In one text message, defendant indicated

that he had left his social security card, birth certificate,

and other documents at Ms. Jones’ house. Ms. Jones put the

items in a bag on her front porch for defendant to collect.

Later that evening, defendant sent Ms. Jones a series of

messages asking her to meet him in the backyard. When Ms. Jones

ignored the messages, defendant left an angry voice message

stating she was “on some real bulls--t” and that she “better

keep [her] head up.” -3- On 10 October 2011, while Ms. Jones was sleeping, Ms.

Jones’ sixteen-year-old daughter Tracy1 awoke around 2:00 a.m.

and heard a rattle at the door. Shortly thereafter, a Molotov

cocktail crashed through Ms. Jones’ bedroom window and started a

blaze that spread to the curtains. Ms. Jones awoke and

immediately called emergency services.

Firefighters controlled the flames after about thirty

minutes, but the fire rekindled. Officers from the Kannapolis

Police Department (“KPD”) began investigating Ms. Jones’

property. In her backyard and in the woodline, they discovered

several Steel Reserve 211 beer cans. Officers also discovered a

dirt path leading through the woods behind Ms. Jones’ house.

The dirt path led through thick briars on one side and had a few

muddy and waterlogged areas. Approximately forty minutes after

the fire ignited, KPD Sergeant Laura Carden Smith (“Sgt. Smith”)

discovered defendant walking about a quarter of a mile from Ms.

Jones’ house. When Sgt. Smith discovered defendant, he was less

than 200 yards from the path.

KPD Sergeant Allen Tomlin (“Sgt. Tomlin”) subsequently

joined Sgt. Smith. Sgts. Smith and Tomlin observed that

defendant’s pants and shoes were wet and muddy. Sgt. Tomlin not

1 Because she was a minor at the time of these events, we use a pseudonym to protect her privacy and for ease of reading. -4- only detected an odor of alcohol on defendant’s breath, but he

also detected an odor of gasoline or kerosene emanating from

defendant.

Defendant indicated that he was headed towards South Main

Street, where his apartment was located. Defendant was walking

in the opposite direction when Sgt. Smith first approached him.

When Sgt. Tomlin asked defendant to consent to a search,

defendant stated he “didn’t have anything,” then turned out his

pockets and emptied the backpack he was carrying onto the patrol

car. Defendant’s backpack contained two lighters, a flashlight,

and a few cans of Steel Reserve 211 beer, the same brand

discovered in Ms. Jones’ backyard and in the woodline behind the

house. Defendant also had a torn rag with a strong odor of

gasoline in his pocket.

KPD Investigator Jennifer Hyatt (“Investigator Hyatt”)

interviewed defendant shortly after Sgts. Smith and Tomlin

located him. Investigator Hyatt observed that defendant’s shirt

was torn, and he had fresh scratches on his arms. When asked

where he was at 2:00 a.m. when the fire started, defendant

claimed he had been looking for work at Concord Mills Mall, and

hitchhiked part of the way to and from the mall. However,

Concord Mills Mall had closed at 7:00 p.m. -5- After interviewing defendant, Investigator Hyatt went to

defendant’s unoccupied previous residence at 914 Aggie Street

and discovered a red plastic gas canister that appeared to have

been handled recently in the crawlspace. Investigator Hyatt

also detected an odor of gasoline outside 914 Aggie Street, and

a search later revealed a large patch of dead grass a few feet

away from the opening of the crawlspace. The landlord later

indicated he had neither seen the gas canister nor poured

gasoline on the grass at that residence.

On the afternoon of the day of the fire, KPD Sergeant Joe

Yurco (“Sgt. Yurco”) prepared an application to acquire a search

warrant for defendant’s residence. In the affidavit

accompanying his application for the search warrant, Sgt. Yurco

included numerous details regarding the circumstances of the

fire. Specifically, Sgt. Yurco stated that officers located

defendant approximately 600 yards from the scene of the fire

wearing clothes that were wet and torn, indicating he may have

used the dirt path, and that defendant possessed a torn rag

soaked with gasoline when he turned out his pockets for Sgt.

Tomlin. Sgt. Yurco’s affidavit also included defendant’s

statement that he was returning from a job interview at Concord

Mills Mall. Sgt. Yurco believed this was “obviously a false -6- statement given the fact that it was 2:30 am [sic].” Defendant

also became belligerent when officers questioned him about his

possible involvement with the fire.

Shortly after acquiring the search warrant, law enforcement

officers arrived at defendant’s residence to serve it. Despite

the fact that the officers knocked and announced their presence,

defendant did not answer the door. When the apartment manager

unlocked the door for the officers, defendant had changed his

clothes and was sitting eight feet from the door. The clothes

defendant had been wearing when Sgts. Smith and Tomlin located

him had been washed. Officers also found defendant’s cell

phone, but the battery had been removed from the phone. On a

table inside the residence, officers noticed defendant’s birth

certificate and social security card.

Defendant was subsequently arrested and later indicted for

first degree arson, malicious assault in a secret manner

(“secret assault”), malicious damage to occupied property by use

of an explosive or incendiary device (“malicious damage”), and

possession of a weapon of mass destruction. Defendant was also

indicted for attaining habitual felon status. The secret

assault offense was later dismissed, and defendant was tried for

the remaining offenses in Cabarrus County Superior Court. -7- At trial, the State presented evidence from fifteen

witnesses, including Ms. Jones, Tracy, Sgt. Tomlin, Sgt. Smith,

Investigator Hyatt, and Sgt. Yurco. At the close of the State’s

evidence, the trial court denied defendant’s motion to dismiss

the charges. The defense rested without offering any evidence

and renewed the motion to dismiss, which the trial court again

denied. On 17 December 2012, the jury returned verdicts finding

defendant guilty of first degree arson, malicious damage, and

possession of a weapon of mass destruction. Defendant pled

guilty to attaining habitual felon status but reserved all

rights of appeal. The trial court consolidated the first degree

arson and malicious damage offenses into a single judgment and

sentenced defendant to two consecutive terms of a minimum of 96

and a maximum of 125 months in the custody of the Division of

Adult Correction. Defendant appeals.

Defendant’s sole argument on appeal is that the trial court

erred in denying his motion to dismiss because the evidence was

insufficient to permit a reasonable juror to conclude defendant

was the perpetrator of the offenses charged. We disagree.

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). “In its analysis, the trial court must -8- determine whether there is substantial evidence (1) of each

essential element of the offense charged and (2) that [the]

defendant is the perpetrator of the offense.” State v.

Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citations

omitted). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980). The evidence should be viewed “in the light

most favorable to the State, giving the State the benefit of all

reasonable inferences.” State v. Benson, 331 N.C. 537, 544, 417

S.E.2d 756, 761 (1992).

“Circumstantial evidence may withstand a motion to dismiss

and support a conviction even when the evidence does not rule

out every hypothesis of innocence.” State v. Fritsch, 351 N.C.

373, 379, 526 S.E.2d 451, 455 (2000) (citation and quotation

marks omitted). When the evidence is circumstantial, our Courts

often look to motive, opportunity, capability, and identity to

determine whether there is sufficient evidence to infer

defendant’s guilt. State v. Hayden, 212 N.C. App. 482, 485, 711

S.E.2d 492, 494 (2011). “Evidence of either motive or

opportunity alone is insufficient to carry a case to the jury.”

Id., 711 S.E.2d at 495 (citation omitted). -9- Defendant contends that pursuant to State v. Hayden, the

evidence at trial was insufficient to establish that he was the

perpetrator of the offenses. In Hayden, this Court held that

the State presented sufficient evidence to support motive, but

failed to present sufficient evidence that the defendant had

either the opportunity or means to commit the offense when there

was no evidence presented linking the defendant to the crime

scene and no murder weapon was introduced at trial. 212 N.C.

App. at 493-94, 711 S.E.2d at 500. While defendant is correct

that evidence of either motive or opportunity alone is not

enough to prove a defendant’s identity as the perpetrator, the

instant case is distinguishable from Hayden.

In the instant case, the State presented evidence of motive

with Ms. Jones’ testimony. Defendant had been upset with Ms.

Jones for a number of reasons. Ms. Jones had asked defendant to

move out of her home, and Ms. Jones had a male guest in her home

just a few days before the fire. In addition, Ms. Jones ignored

many of defendant’s text messages and requests to meet him in

the backyard the afternoon and evening before the fire.

Furthermore, defendant had also threatened Ms. Jones mere hours

before the fire, warning her to “keep [her] head up.” -10- More importantly, the State presented evidence of

opportunity and means, in addition to motive, specifically

linking defendant to the crime scene. Defendant was located a

mere quarter mile away from Ms. Jones’ home less than an hour

after the fire ignited, and his pants and shoes were wet as if

he had taken the waterlogged path through the woods.

Investigator Hyatt testified the fresh scratches on defendant’s

arms appeared to be scratches from briars. Although defendant

told officers that he had been looking for work at Concord Mills

Mall, and hitchhiked for part of the way to and from the mall,

the mall had closed several hours before the fire started at

2:00 a.m. He also became belligerent with officers when asked

about his potential involvement with the fire.

The State also presented substantial evidence that included

numerous items defendant used in the offenses. The rag Sgt.

Tomlin found in defendant’s pocket later tested positive for

gasoline, as did a soil sample collected from the yard behind

defendant’s prior residence at 914 Aggie Street, where the gas

canister was discovered in the crawlspace. In addition, samples

taken from under Ms. Jones’ bedroom window tested positive for

“hydrocarbons consistent with residual gasoline.” Defendant was

also carrying butane lighters and the same brand of beer that -11- was discovered in Ms. Jones’ backyard. When officers served the

search warrant on defendant’s residence, defendant had already

washed his clothes and removed the battery from his cell phone.

Defendant’s birth certificate and social security card, the

documents Ms. Jones had left on the front porch for him to

retrieve, were on a table inside his residence.

The State in the instant case presented evidence supporting

a finding not only of motive, but also of opportunity and means,

linking defendant both to the crime scene and to the offenses.

Taken in the light most favorable to the State, the evidence

supports a reasonable inference that defendant was the

perpetrator of the offenses. The trial court determined there

was sufficient evidence to infer defendant’s guilt. “[I]t is

for the jury to decide whether the facts, taken singly or in

combination, satisfy [it] beyond a reasonable doubt that the

defendant is actually guilty.” Fritsch, 351 N.C. at 379, 526

S.E.2d at 455 (emphasis in original) (citation omitted). We

therefore hold the trial court properly denied defendant’s

motion to dismiss.

No error.

Judges BRYANT and GEER concur.

Report per Rule 30(e).