STATE OF NORTH CAROLINA
v
.
Sampson County
Nos. 99 CRS 52200,
99 CRS 52202
SHIRLEY CHANCE COLPAERT,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Sandra Wallace-Smith, for the State.
Philip E. Williams, for defendant-appellant.
HUDSON, Judge.
Defendant appeals her conviction and sentence for one count of
assault with a deadly weapon with intent to kill inflicting serious
injury and one count of first-degree arson. We find no prejudicial
error.
The evidence at trial tends to show that on 16 April 1999,
John Paul Phillips (“J.P.”) and his cousin, Jeff Miller, went to
visit J.P.'s father, John McKerry Phillips, the victim in this
case. The victim was living with Defendant, his girlfriend of
many years. The victim and Defendant regularly consumed alcohol,
and were drinking on the night of 16 April 1999. During that
evening, they began arguing, and Defendant threatened to burn thevictim, a threat J.P. and Anthony Loving, one of the victim's
nephews, had heard Defendant make on previous occasions. Due to
his drinking, the victim was passing in and out of consciousness:
He would awaken, continue to drink and argue with Defendant, and
then would pass out again. J.P. eventually went to sleep. Later,
Miller heard a noise and went into the kitchen to see his uncle
lying on the floor, and Defendant standing over him, spraying
lighter fluid on his back and head and threatening him. Miller
grabbed the lighter fluid from Defendant, and Defendant asked for
a lighter and matches. Miller awakened J.P. The two collected all
the lighters and matches and stayed the night to keep watch. At
daybreak, now 17 April 1999, things had calmed down, and they left.
When J.P. and Miller left, Defendant had gone to bed, and the
victim was sitting in a chair in the living room, semi-conscious.
On the afternoon of 17 April 1999, Anthony Loving was going to
a pond near his mother's house, which was next door to the victim's
house, when he saw Defendant sitting on a picnic table outside his
mother's house. He approached Defendant and asked her what she was
doing. She told Loving that he needed to go get his “damn uncle,”
because “he's done set himself on fire.” Loving went to his
uncle's house, and, when he opened the front door, smoke and flames
came out. The house was too hot to enter, so Loving went to a
neighbor's house and told her to call 911.
The fire department arrived, and a fireman found the victim
under the kitchen table. The victim was taken to the hospital with
third-degree burns over thirteen to sixteen percent of his body. He also suffered life-threatening injury from smoke inhalation.
Defendant also was taken to the hospital. A rescue worker at the
hospital observed that Defendant was laughing, and was loud and
jovial. Defendant said, “Yoo-hoo, I have had fun today.”
A fire investigation and arson agent with the State Bureau of
Investigation, who was admitted as an expert in the field of cause
and origins of fires and arson, testified that the fire was
intentionally set. There were two points of origin: the chair
where the victim had been sitting when last seen, and a place next
to the front door of the house.
The victim testified that on a previous occasion he had set
the bed on fire while he was smoking. Additionally, he testified
that he had lost two houses to fire. The victim had little memory
of the events leading up to the fire of 17 April 1999. He
remembered that his son and nephew were at the house the night
before and that he had been drinking heavily. He stated that he
had been smoking. He recalled waking up, seeing smoke in the room,
and trying to get out. The court sustained an objection by the
State, and the victim was not allowed to testify that he did not
believe Defendant set the fire.
Herman Loving, another of the victim's nephews, was allowed to
testify over Defendant's objection that in the summer of 1995, he
and his girlfriend, Maria, lived with the victim and Defendant. On
one occasion during that period, the victim and Maria went to
Fayetteville together. Defendant got angry and set a bundle of
Maria's clothes on fire. Loving also testified that in 1995 he hadheard Defendant say to the victim, “I'll set your ass on fire.”
Additionally, Loving testified that the victim's houses had burned
two or three times.
Barbara Williams testified over Defendant's objection that in
1995, she was living with a man named Irvin Hepler. Defendant
claimed that Hepler had taken her money from her. On 5 September
1995, Defendant set fire to Williams's trailer. Although Defendant
did not know it, Williams was inside the trailer when Defendant set
it on fire. Williams left the trailer, and when she returned, she
observed that the back room of the trailer had been badly burned.
Defendant later pled guilty to two counts of burning a dwelling;
the dates of offense were listed on the judgment as 5 and 6
September 1995.
Defendant assigns as error the trial court's admission of:
Herman Loving's testimony that in 1995 he heard Defendant say to
the victim, “I'll set your ass on fire”; Loving's testimony that in
1995 he saw Defendant burning some clothes and heard her say, “I
set the clothes on fire”; Barbara Williams's testimony that in 1995
Defendant set her trailer on fire; and a certified copy of the
judgment of conviction of Defendant showing two counts of “burning
a dwelling.” Defendant argues that this evidence should have been
excluded pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999).
The State argues that the evidence fits within exceptions listed in
Rule 404(b), namely to show identity and absence of accident. See
id. Assuming arguendo that the court erred in admitting all of the
evidence identified above, we hold that Defendant is not entitledto a new trial because the error was not prejudicial.
A defendant is prejudiced by an error in an evidentiary ruling
“when there is a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached.” N.C. Gen. Stat. § 15A-1443(a) (1999). We do not believe
there is a reasonable possibility that, without the evidence in
question, the jury would have acquitted Defendant.
First we note that both Miller and Anthony Loving testified,
without objection, that they had heard Defendant threaten to burn
the victim. Thus, Herman Loving's testimony to the same effect was
redundant. Regarding the evidence about prior conduct, we hold
that there is no reasonable possibility that it affected the
outcome of the trial.
The State presented evidence that the night before the fire,
Defendant and the victim had been drinking heavily and fighting,
and Defendant threatened to burn the victim. Defendant sprayed
lighter fluid over the victim, then asked for a lighter and
matches. J.P. and Miller took all matches and lighters away and
stayed with Defendant and the victim through the night. When J.P.
and Miller left, the victim was still in a semi-conscious state.
The fire was set the next day, after J.P. and Miller had gone.
Anthony Loving found Defendant sitting outside near the house while
the fire burned. She did not appear upset and had not summoned
help. A volunteer rescue worker testified that she later heard
Defendant say in a loud and jovial voice, “Yoo-hoo, I have had fun
today.” Upon investigation, it was determined that the fire wasintentionally set. We believe it is unlikely that, had the court
excluded the evidence that Defendant set two fires and was
convicted of burning a dwelling in 1995, the jury would have
acquitted Defendant. Accordingly, the admission of the evidence
does not constitute prejudicial error.
Defendant also argues that the trial court erred in refusing
to allow the victim to testify that he did not believe Defendant
started the fire. The victim would have testified for the defense
as follows:
Q. Do you think Ms. Colpaert started that
fire, in your heart?
A. In my heart, I don't think she did.
The State objected, and, after conducting voir dire, the court
sustained the objection. We review the trial court's ruling for
abuse of discretion. See State v. Shuford, 337 N.C. 641, 650, 447
S.E.2d 742, 747 (1994).
Rule 701 of the North Carolina Rules of Evidence provides that
If the witness is not testifying as an
expert, his testimony in the form of opinions
or inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (1999).
Here, the trial court refused to admit the victim's testimony
because the victim's “recollection [of the events leading up to the
fire] is very sketchy, at best, and this opinion would be
speculation on his part.” Further, the court found that the
victim's “opinion as to whether the defendant would have done thisto him, is not based upon any perception or anything he observed
and can recall from that afternoon,” but rather was “based upon his
emotional ties to the defendant.”
Defendant argues that the victim's opinion is probative and
relevant to the issue of whether Defendant set the fire. We do not
believe the trial court abused its discretion by excluding this
testimony. The trial court found that the victim had no
independent recollection of how the fire started, and thus had no
knowledge of whether Defendant set the fire. The victim's
subjective belief that Defendant was not capable of hurting him
does not tend to make it any less likely that Defendant set the
fire. Additionally, the victim's opinion regarding whether
Defendant was capable of setting the fire would not have been
helpful to understanding his testimony, nor would it have been
helpful to the jury in its determination of the facts at issue.
Thus, the trial court did not abuse its discretion in refusing to
admit the opinion testimony. See State v. Owen, 130 N.C. App. 505,
515-16, 503 S.E.2d 426, 433, disc. review denied, 349 N.C. 372, 525
S.E.2d 188 (1998). Accordingly, this assignment of error is
overruled.
No prejudicial error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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