Appeal by defendant from judgments entered 8 October 2001 by
Judge Henry W. Hight, Jr., in Vance County Superior Court. Heard
in the Court of Appeals 20 August 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Susan R. Lundberg, for the State.
Daniel F. Read for defendant appellant.
McCULLOUGH, Judge.
Defendant Allan Thomas Lassiter was tried before a jury in the
Criminal Session of the Vance County Superior Court. Defendant was
charged with one count of first-degree murder, one count of
occupant or owner setting fire to a dwelling house, and two counts
of burning personal property. The trial commenced on 17 September
2001. On 8 October 2001, the jury found the defendant guilty of
voluntary manslaughter and fraudulently setting fire to and burning
a dwelling house; and not guilty of the two counts of burning
personal property.
The State's evidence tended to show the following: Angela
Griffin (Angela), Sharon Keeling (Keeling), Troy Stainback
(Stainback), and defendant, were all friends. As of the week of
11 October 1999, the intricacies of the relationships among these
four individuals were as follows: Angela and defendant had been
friends since 1992, and shared a close relationship where defendant
sometimes stayed overnight at Angela's house in her bedroom.
Stainback and Angela had an off-and-on intimate relationship and
Stainback was the father of Angela's son Logan. Angela had movedback to her parents' from Stainback's, but during the week of 11
October 1999 she was again spending some nights at his house.
Keeling and defendant had been involved in an intimate relationship
which ended in September of 1999, and defendant was the father of
Keeling's daughter Jessica. Keeling and Angela were best friends
and coworkers at a restaurant, the Wildflower Cafe.
The State offered testimony setting forth the defendant's
repeated tactic of winning the affections of women already involved
in a relationship by telling these women that their current partner
was cheating on them. Tammy Stokes (Stokes), a State's witness,
testified that while she and defendant were both married, they
engaged in an illicit affair. Stokes also testified that defendant
told her that her husband was continuously cheating on her. In
early October of 1999, defendant arranged for Stainback, Angela's
off-and-on boyfriend, to go out with Lisa Rhodes. Stainback and
Rhodes did go out together.
The week of 11 October 1999, defendant made numerous phone
calls to the Wildflower Cafe, Stainback's house, and Angela's
parent's house. On 11 October 1999, defendant called the
Wildflower Cafe twice and talked with someone other than Keeling.
Keeling testified that defendant had never called her at work, nor
had he ever come to visit her there. Angela received a phone call
at the Wildflower Cafe on the morning of 11 October 1999. Later
that day or later that week, as a result of this phone call, Angela
and Keeling went to the residence of Stainback to spy on him from
the woods. They were looking for a girl who was supposed to have
been there with Stainback. Angela was last seen alive on the evening of 15 October 1999.
She worked at the Wildflower Cafe that morning and early afternoon.
While she was working, defendant and Shane Farrar (Farrar) ate
lunch at the Wildflower and talked with Angela. Later that
afternoon, Angela went to Keeling's house and left her son with
Keeling so that she could go out and find Stainback. Angela told
Keeling that she would be back in an hour. Keeling never saw Angela
again.
Around 6:00 p.m., Angela called Everett Grissom's (Grissom)
house twice looking for Stainback. While Angela refused to give
Grissom her location so that he could have Stainback call her back,
phone records indicate that Angela was calling from defendant's
mobile home phone number. The times of these calls match both
Grissom's phone records and defendant's. Angela spoke to Stainback
during the second call. Stainback and Grissom then went to
Wilmington, North Carolina for the weekend.
From 6:29 p.m. on 15 October 1999, until 12:36 a.m. on the
morning of 16 October 1999, a number of people called defendant's
mobile home phone number, but defendant never answered the phone.
Defendant had plans to go to a party with Farrar that night, but
Farrar was one of those unable to reach him. During the time
defendant was unreachable as to incoming calls, defendant called
Keeling's house from 7:49 p.m. on into the night, approximately
eight times. Each call was a short conversation between Keeling
and defendant. Keeling testified that during one of the these
conversations, defendant told her he had gone to Middleburg to dine
at the Middleburg Steakhouse, but that he had been unable tobecause the steakhouse was closed that Friday. When asked where he
was the evening of 15 October 1999, defendant gave the following
responses: to Investigator J.M. Cordell of the Vance County
Sheriff's Department, he said he had been with Melanie Carlile
(Carlile), Jennifer Hobgood (Hobgood) and Mark Sizemore
(Sizemore) at Joker's Pool Room commencing between 10:00 p.m. and
12:00 a.m. until 2:00 a.m. on 16 October 1999. To his landlady,
defendant said that he was hanging drywall. To Angela's mother,
defendant said that he had planned on spending the night with
Angela, Keeling, and their kids at Stainback's house. Evidence was
also presented that defendant offered to pay a friend any amount of
money to verify that he was with defendant the night that Angela
disappeared.
Defendant had known Carlile for three months, and their
relationship had turned intimate about a week before 15 October
1999. At 1:12 a.m. on 16 October 1999, Carlile called and spoke
with defendant from Joker's Pool Room. Carlile had tried reaching
defendant thirteen times at his mobile home, but defendant was
unreachable until the 1:12 a.m. call. Carlile testified that
defendant was hesitant to come to the Joker, stating that he said
he was dirty and didn't feel like going nowhere. At about 1:30
a.m., defendant met up with Carlile, Hobgood, and Sizemore. Carlile
first made a statement that defendant arrived in ragged clothing,
but then later testified that he was wearing a new outfit. Hobgood
testified that defendant arrived at Joker's in worn clothing with
dirt on his pants. They stayed at the bar shooting pool until
closing, 2:00 a.m., and then all returned to Carlile's father'shouse. Defendant stayed at Carlile's house until approximately
7:30 a.m. on 16 October 1999. It was the first night he had spent
with Carlile.
On the morning of 16 October 1999, shortly after defendant had
returned to his mobile home, there was a fire in the home's
interior. Defendant claimed the cause was hot grease used in
preparation of Tater Tots. He claims he went to the door of the
mobile home to throw them out, but the wind blew it back in on him
and that was how the fire started. Defendant had no observable
injuries or burns from the fire, and made no complaint of injuries
or burns on the day of the fire.
Based solely on what defendant told the firefighters the day
of the fire, the Vance County Fire Lieutenant's report of the fire
listed its source as a pan of grease. The State's arson and fire
expert witness, Agent David Campbell (Agent Campbell), testified
that it was physically impossible for defendant's mobile home fire
to have been caused by ignited vegetable oil/grease being spilled
on the carpet. Agent Campbell testified that in his opinion the
fire was intentionally set by someone pouring a large quantity of
an ignitable liquid in the living room area and setting it on fire.
This was based in part on Agent Campbell's finding of hydrocarbon
sooting on the inside of the mobile home windows suggesting a
hydrocarbon fuel was the source of the fire. Vegetable oil,
alleged by defendant to be the source of the fire, is not a
hydrocarbon and would not leave a hydrocarbon sooting.
Also on the morning of 16 October 1999, a hole that looked
like a bullet hole was observed in the front side of the mobilehome under the front windows in the area where the most intensive
burning had occurred. The owners of the mobile home testified that
this bullet hole was not in the mobile home when they rented it
to defendant, nor did they believe it to have been present until
the morning of the fire on 16 October 1999. S.B.I. agent and crime
scene specialist Al Langley (Agent Langley) examined the mobile
home and determined that the hole in the front of the mobile home
was a .22 caliber bullet hole fired from the inside of the mobile
home.
At about 8:00 a.m. on the morning of 16 October 1999, Keeling
called Angela's mother Diane Griffin (Diane), and told her that
Angela had not returned to pick up Logan. During the day of 16
October 1999, Diane tried to locate Angela, but could not. Around
5:00 p.m. on that same day, Diane called the Vance County Sheriff's
Department and reported Angela missing.
Later that day, Angela's car was found parked at the
Middleburg Variety Store in Middleburg. The driver's seat was
pushed back against the backseat, indicating that the person who
had driven the car to the Middleburg Variety Store was a person
much taller than Angela. Angela was about five feet two inches
while defendant is about six feet four inches.
In early February 2000, Angela's skull and other skeletal
remains were found in a field and wooded area just off Brookstone
Road and Currin Road. A shallow grave near Angela's remains had
been dug some several months prior to the discovery of the remains.
Defendant lived nine-tenths of a mile from the shallow grave and
the location of Angela's remains. The condition of Angela's remainswere consistent with her having been dead since October of 1999.
Angela's skull showed numerous fractures on the left, right, and
back sides. The State's medical expert witness determined that
these fractures were blunt force injuries that were the likely
cause of Angela's death.
The interior of the mobile home, the carpeting, and other
furnishings that had been in the mobile home at the time of the
fire, were tested for traces of blood. These tests were
inconclusive. Agent Susan Barker (Agent Barker) confirmed that
extreme heat can destroy blood, and a fire can prevent detectives
from finding evidence of blood.
The jury found the defendant guilty of (1) voluntary
manslaughter of Angela Griffin and (2) fraudulently setting fire to
and burning a dwelling house; and not guilty of the two counts of
burning personal property. The trial court determined defendant
had a prior record level of II. He was therefore sentenced to
consecutive terms of 77 to 102 months for the offense of voluntary
manslaughter, and 8 to 10 months for the offense of fraudulently
setting fire to and burning a dwelling house. Defendant entered
notice of appeal of the judgment against him on 8 October 2001.
On appeal, defendant argues the trial court erred by (I)
allowing the introduction of testimony regarding an alleged .22
caliber bullet hole in the front side of defendant's mobile home;
(II) allowing expert testimony that it was physically impossible
for grease to have caused the fire in the mobile home; (III)
denying defendant's motion to dismiss on grounds of sufficiency of
the evidence; (IV) instructing the jury that premeditation anddeliberation can be inferred from evidence of how a defendant
handles a victim's body; and (V) instructing the jury that
concealing evidence relating to the death of Angela Griffin was a
fraudulent purpose pursuant to N.C. Gen. Stat. § 14-65 (2001). For
the reasons set forth herein, we are not persuaded by defendant's
arguments and conclude he received a trial free from reversible
error.
I. The .22 Caliber Bullet Hole
[1] By his first assignment of error, defendant contends the
trial court erred by allowing testimony regarding an alleged .22
caliber bullet hole in the front side of defendant's mobile home.
Because there was no evidence that Angela's death was caused by a
gunshot, no evidence that anyone heard a shot, and no evidence that
defendant had a .22 caliber rifle, defendant argues the bullet hole
evidence is irrelevant.
The scope of relevant evidence in North Carolina is as
follows: Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2001).
Generally, all relevant evidence is admissible. N.C. Gen. Stat.
§ 8C-1, Rule 402 (2001). The North Carolina Supreme Court has
consistently stated that in a criminal case every circumstance
calculated to throw any light upon the supposed crime is admissible
and permissible.
State v. Arnold, 284 N.C. 41, 47, 199 S.E.2d 423,
427 (1973);
see also State v. Riddick, 316 N.C. 127, 137, 340S.E.2d 422, 428 (1986);
State v. Collins, 335 N.C. 729, 735, 440
S.E.2d 559, 562 (1994).
Defendant was charged with the murder of Angela Griffin. The
State's evidence did establish that Angela had been intentionally
killed, though the exact cause of death could not be determined.
From the examination of her skull, a likely cause of death was
blunt force traumas to her head. However, in light of other
relevant facts circumstantial to the bullet hole, the traumas to
her head do not preclude the possibility that Angela may have also
been shot at but not struck, shot and wounded, or even shot and
killed.
On 8 November 1999, Agent Langley determined by physical
examination and chemical testing that the hole in the front side of
the mobile home rented and occupied by defendant was a .22 caliber
bullet hole. Agent Langley also determined that the bullet had
been fired from inside the mobile home to the outside. The bullet
was never found.
Testimony established that defendant had a rifle or shotgun in
the living room of the mobile home on the morning of 16 October
1999. Furthermore, it was undisputed that there was what appeared
to be a bullet hole in the front side of the mobile home on 16
October 1999. It was also undisputed that when defendant rented
the mobile home there was no bullet hole, and there were no reports
of one thereafter until 16 October 1999.
While there was no evidence presented during the trial
directly linking the .22 caliber bullet hole in the mobile home to
the killing of Angela, the bullet hole was located at the deepestand heaviest burn area in the mobile home. This was below the
windows. This fact supports the State's theory that the fire was
intentionally set by defendant to cover up evidence pertaining to
Angela's death. Evidence was presented at trial that extreme heat
can destroy blood.
The trial court has discretion on admission of evidence. This
Court will only disturb such discretion 'unless it is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.'
State v. Burgess, 134
N.C. App. 632, 635, 518 S.E.2d 209, 211 (1999) (quoting
State v.
McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)
(quoting
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527
(1988))). In the instant case, the following facts support the
trial judge's discretionary decision to admit evidence pertaining
to the bullet hole: (1) the cause of death of Angela cannot be
conclusively established; (2) the defendant allegedly had a rifle
or shotgun in his mobile home on the 16 October 1999; (3) testimony
established the bullet hole was not known by or reported to the
owner of defendant's mobile home before 16 October 1999; (4)
testimony established the bullet had been fired from inside the
mobile home to the outside; and (5) the location of the bullet hole
on the inside of the mobile home was at the deepest and heaviest
burn area. These facts establish that the trial court's decision to
admit this evidence was not arbitrary.
Finally, had we found the trial court's decision to admit the
bullet hole evidence was arbitrary, defendant still has the burden
of showing that but for its admission, he would not have beenconvicted of voluntary manslaughter. We agree with the State that
the bullet hole evidence was a rather small piece of evidence in
this elaborate circumstantial case, and did not so prejudice
defendant to establish that its admittance was more than harmless.
[2] Defendant's second issue alleging error contends the trial
court erred in allowing expert witness Agent Campbell to testify
regarding the impossibility that grease could have caused the fire
of 16 October 1999. Defendant argues that Agent Campbell's expert
opinion was merely speculation. We do not agree.
Generally, a witness as an expert may give testimony in the
form of an opinion if his or her specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue.
State v. Blakeney, 352 N.C. 287, 311-12, 531 S.E.2d
799, 816-17 (2000),
cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780
(2001);
State v. Eason, 328 N.C. 409, 421-22, 402 S.E.2d 809, 815
(1991);
see N.C. Gen. Stat. § 8C-1, Rule 702 (2001). The expert
may base such an opinion on information not otherwise admissible,
so long as it is the type of information reasonably relied upon by
experts in the particular field in forming opinions or inferences
upon the subject.
Eason, 328 N.C. at 421, 402 S.E.2d at 815. Our
Supreme Court has also held that a properly qualified arson expert
may offer opinion testimony that fire was set intentionally.
State
v. Hales, 344 N.C. 419, 424-25, 474 S.E.2d 328, 330-31 (1996).
Agent Campbell testified that he has 40 years of experience
with firefighting. His experience is comprised of over 3000 hours
of fire department training and fire investigation training. Agent Campbell received his training from a large number of institutions
and organizations recognized in the field of fire training and fire
investigation, including the International Association of Arson
Investigators, the North Carolina Fire Institute, and the North
Carolina State Bureau of Investigation. This training includes
learning fire chemistry behavior, fire cause and origin, and arson.
Agent Campbell is also a level-three instructor in the field of
fire and arson investigation who teaches numerous courses each year
for institutes such as the International Association of Arson
Investigators and the United States Bureau of Alcohol, Tobacco, and
Firearms.
Agent Campbell was accepted without objection as an expert in
the field of fire chemistry and behavior, fire cause and origin,
and arson and fire investigation. Defendant objected to Agent
Campbell's testimony that the fire was caused by a hydrocarbon
source, and that it was physically impossible for grease to have
started the fire because, as tested, the fire would go out when it
hit the floor. Defendant believes that the jury could be trusted
to form its own common sense conclusions about cooking fires and no
assistance from an expert is permissible. We disagree.
Agent Campbell was a qualified expert whose testimony assisted
the trier of fact as to the potential origin and cause of the fire
in defendant's mobile home. His testimony was not limited to
enlightening the jury as to how an everyday grease fire occurs, but
expanded on why this was not an ordinary grease fire.
Agent Campbell's testimony revealed that the fire moved
rapidly, and was fueled by a hydrocarbon, also know as a Class Bfuel or material, which produced hydrocarbon soot inside the mobile
home. A hydrocarbon is anything that comes from a fractional
distillation process, such as gasoline, kerosene, paint thinner,
and lighter fluid. Vegetable oil is not such a hydrocarbon, and
would not leave any hydrocarbon soot on the interior windows of the
mobile home. Furthermore, Agent Campbell testified as to the burn
pattern of the fire. In the living room, there was no fire burned
V-pattern. However, such a V-pattern was found on the hallway
walls and the kitchen. Additionally, he testified that he found
hydrocarbon soot patterns under the bottom of the trailer, which
was also the location of the deepest burn areas. This reinforced
all of the other findings that established that the fire did not
start in a specific place, such as the stove, but rather over a
large area. This is consistent with the pouring of a quantity of
easily ignitable liquid over an area of the living room floor.
Agent Campbell testified further that in his opinion it was
physically impossible for the 16 October 1999 fire in defendant's
mobile home to have been caused by grease. His testimony was based
on an experiment he ran attempting to ignite Food Lion Vegetable
Oil. After several failed attempts at igniting the hot oil, he
finally did so using a plumber's (benzomatic) torch. He then
poured the ignited oil onto the floor where the fire went out,
leaving grease patterns on the floor. No traces of grease where
found on defendant's living room carpet.
Agent Campbell was a qualified expert who testified as to the
source and cause of the fire of 16 October 1999 in defendant's
mobile home. His expert opinion that the source of this fire wasa hydrocarbon fuel, that it was impossible for ignited vegetable
oil to have been the source of the fire, and that the fuel was
poured in a large quantity on the living room floor of the mobile
home was properly admitted. This assignment of error is overruled.
III. The Trial Court's Denial of Defendant's Motion to Dismiss
Defendant next contends that the trial court erred in denying
his motion to dismiss at the close of the State's evidence and at
the close of all of the evidence, claiming that the evidence was
insufficient to support the charges.
Defendant was charged with:
(1) first degree murder; (2) fraudulently setting fire to dwelling
houses under N.C. Gen. Stat. § 14-65 (2001); and (3) the burning of
personal property under N.C. Gen. Stat. § 14-66 (2001). Defendant
was found guilty of voluntary manslaughter and of fraudulently
setting fire to dwelling houses under N.C. Gen. § 14-65 (2001).
In
State v. Fritsch, 351 N.C. 373
, 378-79
, 526 S.E.2d 451,
455,
cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000)
, our
Supreme Court reiterated the standard of review for motions to
dismiss in criminal trials. The Court quoted
State v. Powell, 299
N.C. 95, 261 S.E.2d 114 (1980):
Upon defendant's motion for dismissal,
the question for the Court is whether there is
substantial evidence (1) of each essential
element of the offense charged, or of a lesser
offense included therein, and (2) of
defendant's being the perpetrator of such
offense. If so, the motion is properly denied.
If the evidence is sufficient only to
raise a suspicion or conjecture as to either
the commission of the offense or the identity
of the defendant as the perpetrator of it, the
motion should be allowed.
Id. at 98, 261 S.E.2d at 117 (citations omitted).
When circumstantial evidence is being used to establish the
sufficiency of the evidence, we review the evidence supporting the
convictions in accord with the following standards: In reviewing
challenges to the sufficiency of evidence, we must view the
evidence 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). Contradictions and
discrepancies do not warrant dismissal of the case but are for the
jury to resolve. The test for sufficiency of the evidence is the
same whether the evidence is direct or circumstantial or both.
State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984).
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. Stone, 323 N.C. 447, 452, 373
S.E.2d 430, 433 (1988).
If the evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant's guilt may be
drawn from the circumstances. Once the court decides that a
reasonable inference of the defendant's guilt may be drawn from the
circumstances, then 'it 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.'
State v.
Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (alteration
in original) (quoting
State v. Rowland, 263 N.C. 353, 358, 139
S.E.2d 661, 665 (1965)).
A. Voluntary Manslaughter [3] Voluntary manslaughter is the unlawful killing of a human
being without malice, express or implied, and without premeditation
and deliberation.
State v. Jackson, 145 N.C. App. 86, 91, 550
S.E.2d 225, 229 (2001). Voluntary manslaughter occurs when one
kills intentionally, but does so in the heat of passion aroused by
adequate provocation or in the exercise of self-defense where
excessive force is used or defendant is the aggressor.
Id. To
survive a motion to dismiss a charge of voluntary manslaughter, the
State must bring forth a quantum of evidence, viewed in their
favor, that allows a reasonable inference that Angela was
intentionally killed and that defendant was the perpetrator of the
killing.
1. Intentional Killing and Adequate Provocation
In the instant case, there is uncontroverted evidence that the
remains of Angela Griffin were found in February of 2000. The
remains included her skull, skeletal remains, bones, and pieces of
blond hair. The remains were found near a shallow grave in the
area of Brookstone Road and Currin Road. The area where the remains
were found was approximately nine-tenths of a mile from the
defendant's mobile home. Evidence of record establishes that the
condition of these remains is consistent with Angela having been
dead since October of 1999. Angela was last seen alive on the
afternoon of 15 October 1999.
Angela's skull had numerous fractures on the right, left, and
back. The Chief Medical Examiner, Dr. John Butts (Dr. Butts),
determined that these skull fractures were blunt force injuries
caused by the head being struck with a heavy object at considerablevelocity, or by the head being slammed against a hard surface. Dr.
Butts also testified these fractures were probably the cause of
Angela's death. Considering this evidence in the light most
favorable to the State, we believe a reasonable jury could infer
that Angela was intentionally killed on the night of 15 October
1999.
Furthermore, we believe the State put forth a sufficient
quantum of evidence to survive a motion to dismiss, which, when
viewed in their favor, substantially supports the reasonable
inference by the jury that defendant could have had adequate
provocation for the intentional killing of Angela the night of 15
October 1999. Evidence established that defendant had a history of
breaking up intimate relationships by gaining the confidences of
both partners. He did so by leading the man astray, and informing
the woman that her man was cheating on her. Defendant's purpose was
to then induce the woman to be intimate with him.
The State offered evidence that defendant was very close to
Angela, and had spent the night at Angela's house and even in her
room on a number of occasions. This occurred despite the fact that
Angela had a long-term boyfriend, Stainback, with whom she had a
child, and with whom defendant was friends. The State presented
the testimony of Lisa Rhodes that defendant had arranged for her to
go out with Stainback in October of 1999. Phone records establish
that on 11 October 1999 defendant called the Wildflower Cafe, where
Angela worked, during the morning hours. Keeling, defendant's ex-
girlfriend, testified that she did not talk to defendant on 11
October 1999 while at work at the Wildflower, but that Angela didtake a call that morning. Evidence suggests that in reaction to
this phone call, Angela went with Keeling to Stainback's house to
spy on him. Throughout the week of 11 October 1999, phone records
also indicate that defendant called Angela numerous times at work,
at Stainback's house, and at her parents' home. Circumstantial
evidence suggests also that Angela and Stainback's relationship was
still regular, as Angela was spending more nights over at his home.
Viewing the above evidence in the light most favorable to the
State, we believe the trial court did not err in allowing the jury
to infer that defendant was seeking to break up Stainback's and
Angela's relationship with the prospect of having a more intimate
relationship with Angela. Circumstantial evidence suggests that
defendant set Stainback up with Rhodes so that he could then tell
Angela that Stainback was cheating on her. This evidence also
shows that Angela took a call which led her to spy on Stainback to
see if in fact he was cheating. From this evidence, we believe a
jury could reasonably infer that Angela rebuffed defendant's desire
to have a more intimate relationship with her, provoking a response
of passion in defendant and leading to voluntary manslaughter.
2. Defendant as the Perpetrator of the Offense
[4] The State also provides a sufficient quantum of
circumstantial evidence that defendant was the last person in the
presence of Angela and thus the perpetrator of the intentional
killing of Angela. Phone records establish that in the early
evening of 15 October 1999, at 6:01 p.m. and 6:10 p.m., someone
from defendant's phone number called Grissom's phone number.
Grissom and Stainback were leaving together from Grissom's house togo to Wilmington for the weekend. Grissom testified that on that
same day around 6:00 p.m., Angela called twice attempting to locate
Stainback, and that Angela would not reveal her location to Grissom
for the purposes of having Stainback call her back. Grissom also
testified that at no time on 15 October 1999 did he talk to
defendant on the phone.
Evidence shows that on the evening and night of 15 October
1999, defendant could not be reached by phone. He had made plans
with Farrar, a friend with whom he had lunch that day at the
Wildflower Cafe, to go to a party in Virginia. Defendant never
answered Farrar's phone calls that evening regarding the party.
Phone records show some thirteen calls were made by Carlile between
7:09 p.m. on 15 October 1999 and 12:36 a.m on 16 October 1999, all
unanswered. Defendant did answer a call at 1:12 a.m. on 16 October
1999 from Carlile asking him to come to Joker's Pool Room. Carlile
testified that defendant joined them at Joker's around 1:30 a.m.
Carlile testified that defendant was reluctant to come because he
said he was filthy and was washing his clothes. There is some
conflicting testimony as to whether defendant was wearing
disheveled clothing or a new outfit when he arrived at Joker's.
Keeling testified that defendant called her a number of times
on the evening of 15 October 1999. During one of these calls, he
told Keeling that he drove to Middleburg Steakhouse for dinner but
that it was closed. Angela's car, found 16 October 1999 at the
Middleburg Variety, had the driver's seat pushed all the way back
against the backseat, indicating that the person driving the carwas much taller than Angela. Angela was about five feet two inches
while defendant is about six feet four inches.
Finally, the State provided evidence that defendant gave a
number of conflicting statements concerning where he was the night
of 15 October 1999 and tried to establish an alibi.
The evidence put forth by the State, viewed in the light most
favorable to the State, is sufficient to support the inference that
defendant was the perpetrator of the intentional killing of Angela.
Therefore, we believe the trial court properly denied the motion to
dismiss.
B. Burning of a Dwelling for Fraudulent Purposes
[5] The elements for the charge of fraudulently burning a
dwelling under N.C. Gen. Stat. § 14-65 are that the accused was the
owner or occupier of a building that was used as a dwelling house
and that the accused either set fire to, burned, or caused the
dwelling to be burned wantonly and willfully or for fraudulent
purposes.
State v. Payne, 149 N.C. App. 421, 424, 561 S.E.2d 507,
509 (2002).
It is undisputed that defendant occupied the mobile home,
used it as a dwelling, and was alone in the home at the time the
fire commenced. Furthermore, the State has established substantial
evidence that the fire was not caused accidentally, but started in
the living room of the home from a hydrocarbon source.
Defendant claims that the facts of this case, under existing
case law, preclude this Court from finding defendant set fire to
the mobile home for a fraudulent purpose when that alleged purpose
is to burn evidence of guilt of another crime. We disagree andhold that there was substantial evidence from which a reasonable
jury could infer defendant's setting fire to his mobile home was
for a fraudulent purpose pursuant to N.C. Gen. Stat. § 14-65.
Defendant relies on
State v. White, 288 N.C. 44, 215 S.E.2d
557 (1975), arguing that the burning of a dwelling house to conceal
evidence is not a fraudulent purpose as intended by N.C. Gen.
Stat. § 14-65. We disagree with defendant's preclusive reading of
White. At issue in
White was common law arson, where the defendant
in that case attempted to burn the dwelling of another for purposes
of intimidating the occupant, a State's witness. In his jury
instruction, the trial judge had supplanted the fraudulent
purpose terminology of N.C. Gen. Stat. § 14-65 for the language of
the charged crime of common law arson, willful and malicious.
Our Supreme Court stated:
We do not decide whether the precise use
of the term made here by the able trial judge
constituted legal error. It might be argued
that he defined fraudulent purpose to be in
this case burning of the dwelling for the
purpose of intimidating its occupant, a
State's witness. This act would also be a
wilful and malicious burning. Since, the
argument goes, two or more things equal to the
same thing are equal to each other the charge
is saved from error. Be that as it may, and
without considering all the factual
circumstances which may be embraced by the
term fraudulent purpose, we believe that the
concept has no place in a common law arson
case. The better practice is to maintain a
clear distinction between this ancient crime
and burning for a fraudulent purpose as
defined by G.S. 14-65.
White, 288 N.C. at 50, 215 S.E.2d at 561. We believe that
destroying evidence in one's dwelling by setting fire to that
dwelling fits within N.C. Gen. Stat. § 14-65 and is not precludedby the Supreme Court's restraint in
White to assign a more narrow
definition of fraudulent purpose.
Fraud is defined as [a] knowing misrepresentation of the
truth or concealment of a material fact to induce another to act to
his or her detriment. Fraud is usu[ally] a tort, but in some cases
(esp[ecially] when the conduct is willful) it may be a crime.
Black's Law Dictionary 660 (7th ed. 1999) There is substantial
evidence that defendant intentionally burned the mobile home where
he lived. As set out above in this opinion, there is substantial
evidence of defendant's guilt of the voluntary manslaughter of
Angela. Taking the evidence in a light most favorable to the State,
a jury could reasonably infer that defendant sought to suppress the
truth and deliberately deceive law enforcement in the investigation
of Angela's death by setting fire to his dwelling. We hold this
to be a fraudulent purpose under N.C. Gen. Stat. § 14-65.
[6] In defendant's fourth argument, he acknowledges in his
brief that he failed to object to a jury instruction given by the
trial court which gave examples of circumstances from which
premeditation and deliberation could be inferred. Specifically, the
trial court stated that an inference of premeditation and
deliberation may be drawn from how a defendant handled the body
from the time of the killing until the defendant disposed of the
victim's body. Because defendant failed to object to this jury
instruction, he must show the trial court committed plain error.
Defendant supports his claim by arguing that there was no direct
evidence that he ever handled Angela's body. Plain error review by this Court is well settled in North
Carolina:
[T]he plain error rule . . . is always
to be applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a '
fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,'
or 'where [the error] is grave error which
amounts to a denial of a fundamental right of
the accused,' or the error has ''resulted in
a miscarriage of justice or in the denial to
appellant of a fair trial'' or where the
error is such as to 'seriously affect the
fairness, integrity or public reputation of
judicial proceedings' or where it can be
fairly said 'the instructional mistake had a
probable impact on the jury's finding that the
defendant was guilty.'
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th. Cir.
1982) (footnotes omitted) (emphasis in original),
cert. denied, 459
U.S. 1018, 74 L. Ed. 2d 513 (1982)). Thus, for this Court to find
plain error in the jury instruction concerning how a juror might
draw inferences of premeditation and deliberation, defendant must
show that absent such an instruction he would not have been found
guilty of voluntary manslaughter.
Defendant was charged with first-degree murder. Premeditation
and deliberation are the distinguishing elements of first-degree
murder. Premeditation and deliberation are not elements of
voluntary manslaughter, as set out above in this opinion. The trial
court's example of how these elements of first-degree murder may be
inferred is not plain error on a guilty verdict of voluntary
manslaughter. The Supreme Court addressed this issue some time
ago: The verdict finding defendant guilty of the lesser offense ofvoluntary manslaughter rendered harmless any errors in the court's
instructions on the greater offense, absent a showing that the
verdict was affected thereby.
State v. Mangum, 245 N.C. 323, 330-
31, 96 S.E.2d 39, 45 (1957);
see also State v. De Mai, 227 N.C.
657, 44 S.E.2d 218 (1947). After careful review of the record and
transcript, we see nothing to show that the challenged instruction
to first-degree murder in any way affected the verdict rendered
finding defendant guilty of voluntary manslaughter. This assignment
of error is therefore overruled.
V. Jury Instruction as to a Fraudulent Purpose
[7] Defendant's final argument contends that the trial court
committed plain error when it instructed the jury that concealing
evidence of Angela's death was a fraudulent purpose under N.C. Gen.
Stat. § 14-65. Defendant argues that there is no North Carolina
authority that burning a dwelling to conceal evidence is a
fraudulent purpose under N.C. Gen. Stat. § 14-65. Our standard
of review for plain error is cited above in
Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1985).
As we held previously, we have determined burning one's
dwelling to frustrate an investigation is a fraudulent purpose
and within the proscription of N.C. Gen. Stat. § 14-65. The trial
court therefore did not commit plain error when it instructed the
jury that concealing evidence relating to Angela's death could be
considered a fraudulent purpose.
Upon careful review of the record, the transcript, and the
arguments presented by the parties, we conclude defendant received
a fair trial, free from reversible error. No error.
Judges MARTIN and LEVINSON concur.
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