In the Matter of: MM, (02-833) 07/15/2003

    Morrison described the pole shed as an open storage unit used to store farm equipment and grain. It consisted of telephone poles at each end with a tin roof over it and was completely open on all sides. A garden tractor, a self-propelled combine, a hay bind, a hammer meal, and a round baler were located inside the shed, and all were destroyed in the fire. Morrison estimated that the equipment had a value of at least $50,000 and that it would cost approximately $50,000 to replace the pole shed.
    Eddie Harris, the fire marshal in Guilford County, also testified. He said that after he arrived at the scene of the fire, he spotted M.M. and his family and introduced himself to them. M.M. was eleven years old at the time and in the fourth grade. Harris noticed soot on the juvenile's hand and saw two pieces of burned cardboard on the ground in front of the house.
    Harris testified that he asked the family to explain what had happened. Ms. Brady, a woman living in the house with M.M.'s family, told Harris that after M.M. arrived home from school, he went out to the field and stayed there for about 25 minutes retrieving cows. Shortly after he returned from the field, M.M. told Ms. Brady that he smelled smoke. Ms. Brady called 911.
    When Harris questioned M.M., he initially denied havinganything to do with the fire. After further questioning, however, the juvenile admitted that he had been playing with a roll of caps and that he had lit the roll at a spot approximately ten feet from the barn and then had left. Harris went to the site and found a charred area on the ground. From the then-prevailing winds, Harris determined that the fire might have originated from the burning caps, which then could have caught some brush and junk piled up nearby, and from there the fire could have moved to the open shed that contained numerous bales of readily combustible hay. Harris testified that M.M. told him that he never intended for the barn to catch fire. Harris also agreed that an apt summary of M.M.'s possible involvement in the fire would be “a scared little boy who was playing with matches and something horrible happened.” Other than interviewing the juvenile and examining the spot where M.M. had indicated he had been playing with the caps, Harris made no other investigation.
    At the close of the State's evidence, M.M. made a motion to dismiss, which the trial court denied.
    M.M. then testified in his own defense. He explained that when he arrived home from school on the day of the fire, he went out into the field with a cap gun to round up wayward cows. He then began to play with the cap gun and ended up about ten feet away from the pole shed. He was not able to pop the caps in the gun because they were not rolled up and would not feed into the gun. Instead, he found some matches and lit the caps. He heard them pop five or six times, and then he thought they had gone outbecause he did not see any fire or smoke and they were no longer popping.
    At that point, M.M. noticed that another cow was loose so he laid the cap roll, which he thought had been extinguished, on the ground and went to chase the cow back into the pasture. Then he went inside the house. Shortly thereafter he smelled smoke. He told his mother, and she called 911.
    M.M. said that the reason he had soot on his hands was because he had just put a log on the fire in his house. He also said that he was not trying to burn the pole shed down. He explained that the burned pieces of cardboard that Harris had seen were used by his brother and him to start a fire in the stove in the house. After the fire was lit, they took the charred cardboard outside the house and kicked it around to play with it. M.M. also testified that he was not trying to burn the trash pile located near the barn. He initially did not tell Harris the truth about the caps because he was afraid that he would get into trouble.
    On cross-examination, M.M. said that he and his brother had helped his father burn trash outside the house in the past. He had also on prior occasions started a fire in the stove in the mornings by using wood and paper. M.M. said that he was not allowed to light fires without an adult's permission and that he did not have permission to set fire to the caps.
    M.M. also testified that he found the matches that he used to light the caps on the ground near a car. He said that five or six of the caps popped when he lit them, and that after they stoppedpopping, he laid them on the ground. He did not step on the caps nor did he put any dirt or water on the caps.
    At the close of all the evidence, M.M. renewed his motion to dismiss. The trial court then adjudicated M.M. delinquent. M.M. filed a motion for appropriate relief seeking to set aside the adjudication of delinquency upon the basis of insufficient evidence of the specific and criminal intent to burn the shed. The court denied the motion, and M.M. now appeals.

    On appeal, respondent argues that the trial court erred by denying his motion to dismiss based on the insufficiency of the evidence. For the following reasons, we reverse the district court.
    “[I]n order to withstand a motion to dismiss the charges contained in a juvenile petition, there must be substantial evidence of each of the material elements of the offense charged.” In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985). “The evidence must be considered in the light most favorable to the State, and the State is entitled to receive every reasonable inference of fact that may be drawn from the evidence.” In re Brown, 150 N.C. App. 127, 129, 562 S.E.2d 583, 585 (2002) (citing State v. Easterling, 300 N.C. 594, 604, 268 S.E.2d 800, 807 (1980)).
    G.S. § 14-67.1 provides as follows:
    If any person shall wantonly and willfully set fire to or burn or cause to be burned or aid, counsel or procure the burning of any building or other structure of any type not otherwise covered by the provisions of this Article, he shall bepunished as a Class H felon.


    Our Supreme Court has held that a conviction under G.S. § 14- 7.1 does not require that the state prove a “burning” as is required under the arson statute and the common law. State v. Avery, 315 N.C. 1, 25, 337 S.E.2d 786, 799 (1985). It instead requires that a defendant “willfully and wantonly attempt to set fire to or burn any building or structure.” Id. To be willful and wanton, “it must be shown that the act was done intentionally, without legal excuse or justification, and with knowledge of or reasonable grounds to believe that the act would endanger the rights or safety of others.” State v. Payne, 149 N.C. App. 421, 424, 561 S.E.2d 507, 509 (2002).
    Here, the evidence was insufficient in two ways. First, there is no evidence that the fire was of a criminal origin. The fire marshal himself never gave an opinion as to the cause of the fire-- he only stated that the fire might have started from the caps. As the marshal explained at the hearing: “Had the fire started where he was telling me, where those caps were, the wind would have blown it towards the direction of the trash pile and the barn, and then all of that made sense.” The marshal never affirmatively stated, however, that in his opinion, this definitely or probably happened, only that the fire COULD have started this way. This conjecture is not enough to sustain a criminal conviction or a delinquency adjudication, which must be proved beyond a reasonable doubt. State v. Brown, 308 N.C. 181, 183, 301 S.E.2d 89, 90 (1983) (reversing the defendant's conviction for arson where there wasinsufficient proof that the fire was the result of a criminal act; “[I]t is just as reasonable to assume from the State's evidence that the fire was the result of a negligent act or an accident. If nothing more appears, the presumption is that the fire was the result of accident or some providential cause”), overruled on other grounds, State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985).
    Second, we do not believe that the evidence was sufficient to establish, even by inference, that M.M. intended to burn the shed. The State's evidence actually points to the contrary. During the hearing, the State contended that M.M. “probably did not intend for the barn to burn down, but he did intend to set fire to those cap gun pellets.” M.M. also testified that he did not intend to burn the shed. He said that he was upset that the barn burned, that he carried no grudge against the landlord, that he thought the caps were completely extinguished when he set them down, that he never intended to burn either the trash pile or the shed, that he called his mother as soon as he smelled smoke, and that he was scared that he would get in trouble because the barn had burned down. These statements hardly evidence an intent to burn the shed. State v. Brackett, 306 N.C. 138, 143, 291 S.E.2d 660, 663 (1982) (reversing conviction of the defendant where there was no evidence that the defendant acted willfully and wantonly in setting fire to her dwelling house). Because intent is an element of G.S. . 14-67.1, and the State failed to introduce evidence establishing that intent, we conclude that the juvenile's motion to dismiss should have been granted.