90 N.C. App. 489 | N.C. Ct. App. | 1988
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
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
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.
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, the court held the evidence insufficient to show “wanton and willful” burning where the defendant’s house was set back from other buildings; the defendant was home alone at the time of the fire and the defendant reported the fire herself.
In the case at bar, the use of a highly flammable and volatile substance such as kerosene coupled with the proximity of the other buildings (Joe’s luncheonette) placed the interests and safety of others in jeopardy. That several witnesses testified to having been in the immediate area at the time of the fire confirms this point. We believe these facts meet the requirements of the Brackett test for “willful and wanton” under G.S. § 14-62 and hold that the State adduced sufficient evidence to make out its case against defendant.
However, we agree with defendant’s second argument that the trial court committed prejudicial error in allowing the State to elicit testimony from Ms. Craig regarding the previous Food-land fire. The State argues that the testimony relating to the prior fire was admissible to show bias; indeed, the trial court stated that the evidence was admissible for the purpose of showing bias. Because Craig’s previous employment with Clark was terminated due to the other Foodland fire, the State argued that evidence thereof was admissible by way of illustrating the previous relationship between Clark and Craig thereby suggesting bias. We disagree.
The specific exchange of which defendant complains is as follows:
*497 Q. Mrs. Craig, at the first Foodland Grocery where you worked for Mr. Harvey Clark in 1983, why was your employment terminated?
Mr. Ervin: Objection.
COURT: Overruled.
Q. You may answer?
COURT: Answer the question.
A. It burned.
Mr. Ervin: Request the instruction?
COURT: Denied.
Mr. ERVIN: Move to strike the answer.
Court: Denied.
Mr. Ervin: Request a limiting instruction?
COURT: Denied. Anything further for this witness.
Although evidence of a witness’ bias has long been admissible, see State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183 (1981); State v. Turner, 283 N.C. 53, 194 S.E. 2d 831 (1973) and the foregoing colloquy, by revealing their long-term relationship, may suggest bias as between the two defendants, to be admissible evidence must tend to prove or bear some logical relation to a fact in issue. N.C. Gen. Stat. § 8C-1, Rule 401 of the N.C. Rules of Evidence; Brandis on North Carolina Evidence §§ 77, 78 (1982). In the case before us, the “prior fire” testimony is completely irrelevant. It neither confirms nor suggests a relationship between Clark and Craig nor does it imply bias. The State’s efforts to introduce the evidence served to prejudice the jury by connecting both defendants with a previous fire at their place of employment. As such, the admission of this evidence constituted prejudicial error.
We addressed a similar issue in State v. Alley, 54 N.C. App. 647, 284 S.E. 2d 215 (1981) where evidence of prior non-criminal, unrelated fires was held inadmissible because of its prejudicial character. Moreover, we pointed out that because the State had failed to show that defendant had had any connection with the previous fires, the exception for the admission of prior bad acts
Defendant Craig’s Appeal
By her third assignment of error, Ms. Craig contends that the trial court’s denial of her motion(s) to dismiss constituted error. We agree.
To prevail against a motion to dismiss, the State was required to produce substantial evidence of each element of the offense charged and to show that defendant was involved in the crime. Earnhardt, supra; Powell, supra. The evidence in this case taken in the light most favorable to the State fails to show that Ms. Craig either perpetrated or assisted in the perpetration of the Foodland fire. There was no indication that Ms. Craig had any opportunity or motive to burn the store. At most, the evidence shows that Ms. Craig was implicated by her mere presence at the scene. The “mere presence” of Ms. Craig at the scene of the fire, taken alone, is insufficient to incriminate her as an aider and abettor in a crime. State v. Scott, 289 N.C. 712, 224 S.E. 2d 185 (1976). There was no evidence that defendant Craig intended to aid defendant Clark in burning the store and/or that she communicated such an intent. See State v. Rankin, 284 N.C. 219, 200 S.E. 2d 182 (1973). That Craig and Clark had known each other for 29 years, that Craig worked for Clark and that she was seen with him exiting the store just before the fire was insufficient evidence to connect her with the perpetration of the fire.
As to defendant Clark,
New trial.
As to defendant Craig,
Judgment vacated.