Appeal by defendant from judgment entered 15 February 2003 by
Judge Clarence E. Horton, Jr., in Cabarrus County Superior Court.
Heard in the Court of Appeals 29 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa Granberry Corbett, for the State.
Moser, Schmidly & Roose, by Richard G. Roose, for defendant-
appellant.
LEVINSON, Judge.
Defendant (Michael Teeter) appeals from judgment entered upon
his conviction of burning a garage in violation of N.C.G.S. § 14-62
“Burning of Certain Buildings.” For the reasons that follow, we
conclude his conviction must be vacated.
The relevant facts are not in dispute, and are summarized as
follows: On 14 January 2002 defendant was charged with first
degree arson in an indictment alleging in pertinent part that the
defendant
willfully and feloniously did maliciously burn
the dwelling house inhabited by Rita Ilene
Mullis and Allie Teeter located at 405 OakdaleAvenue, Kannapolis, North Carolina. At the
time of the burning, Rita Ilene Mullis and
Allie Teeter [were] in the dwelling house.
The case was originally tried on 22 July 2002 before Judge W. Erwin
Spainhour. Trial evidence tended to show that in June 2001 the
defendant's mother, Allie Teeter, was staying with her sister
defendant's aunt, Rita Mullis, at 405 Oakdale Avenue, Kannapolis.
Approximately ten to fifteen yards from the Mullis house was a
garage, in which were stored household items, including a freezer
filled with food, chests of drawers containing clothing, a
lawnmower, and unused furniture. Both women were home on the
evening of 29 June 2001. At around 2:00 a.m Teeter and Mullis
discovered that the garage adjacent to the house was on fire. The
fire department was summoned and contained the fire before it
spread beyond the garage. At trial, Teeter testified that several
days later the defendant told her he had set the fire. Defendant's
sister and brother-in-law also testified that defendant had
confessed that he was responsible for burning the garage. In
addition, the Kannapolis fire investigator offered an expert
opinion that the fire did not start accidentally, but was set
intentionally.
At the close of the State's evidence, defendant moved for
dismissal, on the grounds that there was a fatal variance between
the indictment and the proof offered at trial. He argued that,
although there was evidence that defendant burned the garage at 405
Oakdale, no evidence had been offered to support the allegation in
the indictment that the dwelling at 405 Oakdale had been burned.
The prosecutor argued that an indictment for arson of the dwellinghouse at 405 Oakdale was sufficient to charge burning of an
adjacent building within the curtilage of the house, such as the
garage. The trial court granted defendant's nonsuit motion and
dismissed the arson charge against defendant.
On 5 August 2002 defendant was re-indicted for burning the
same garage on Oakdale Avenue. He was charged in two separate
indictments. One charged defendant with second degree arson, and
the other indictment charged defendant with burning an uninhabited
building, in violation of G.S. § 14-62. Defendant was retried
before Judge Clarence E. Horton on 13 January 2003. The evidence
presented at the second trial was virtually identical to the trial
evidence from the first trial, and at the close of the State's
evidence, defendant again moved for dismissal. The trial judge
dismissed the charge of second degree arson, but denied defendant's
motion with respect to the charge of burning an uninhabited
building. Defendant was convicted of the charge and received an
active prison sentence of twenty-five to thirty months. From this
conviction and judgment, defendant appeals.
Defendant argues that his second trial was conducted in
violation of his constitutional double jeopardy rights. We agree.
Defendant's first trial was upon an indictment charging him
with first degree arson. “The common law definition of arson is
still in force in North Carolina, and arson has been defined as the
willful and malicious burning of the dwelling house of another
person.”
State v. Jones, 110 N.C. App. 289, 291, 429 S.E.2d 410,
412 (1993) (citations omitted). “At common law, arson was themalicious and voluntary or willful burning of another's house, or
dwelling house,
or outhouse appurtenant to or a parcel of the
dwelling house or within the curtilage.” 5 Am. Jur. 2d
Arson and
Related Offenses § 1 (2004) (emphasis added). North Carolina has
long followed this common law rule that arson includes the burning
of a dwelling or of an outbuilding in the curtilage of the house.
See, e.g., State v. Cuthrell, 235 N.C. 173, 176, 69 S.E.2d 233, 235
(1952):
[I]t must be borne in mind that the common law
crime of arson embraces only a dwelling house
and such structures as are within the
curtilage. The extension of the crime, in
modified forms, to the burning of other
buildings and structures rests entirely upon
statutory grounds.
“In North Carolina, 'curtilage of the home will ordinarily be
construed to include at least the yard around the dwelling house as
well as the area occupied by barns, cribs, and other
outbuildings.'”
State v. Rhodes, 151 N.C. App. 208, 214, 565
S.E.2d 266, 270 (2002) (quoting
State v. Frizzelle, 243 N.C. 49,
51, 89 S.E.2d 725, 726 (1955)). Thus, under our common law
definition of arson, a defendant may properly be charged with arson
when he burns an outbuilding within the curtilage of an inhabited
house.
“The General Assembly adopted N.C.G.S. § 14-58 . . . [i]n
order to give more protection when a dwelling house is occupied by
a person at the time of the burning.”
State v. Barnes, 333 N.C.
666, 677, 430 S.E.2d 223, 229 (1993). The “Punishment for arson”
statute provides:
There shall be two degrees of arson as defined
at the common law. If the dwelling burned wasoccupied at the time of the burning, the
offense is arson in the first degree and is
punishable as a Class D felony. If the
dwelling burned was unoccupied at the time of
the burning, the offense is arson in the
second degree and is punishable as a Class G
felony.
N.C.G.S. § 14-58 (2003). Likewise, the inclusion, within the
common law definition of arson, of outbuildings within the
immediate curtilage of a dwelling is consistent with “'the main
purpose of common law arson [which] is to protect against danger to
those persons who might be in the dwelling house which is
burned[.]'”
State v. Pigott, 331 N.C. 199, 207, 415 S.E.2d 555,
560 (1992) (quoting
State v. Jones, 296 N.C. 75, 77, 248 S.E.2d
858, 860 (1978)). We conclude that the original indictment
charging defendant with arson was sufficient to support a
conviction for burning the garage within the curtilage of the
house.
We further conclude that the original indictment was not
invalid on account of its failure to specify the particular
outbuilding within the curtilage that defendant burned.
In examining the sufficiency of a bill of
indictment, the trial judge must determine
that: “(1) The offense is charged in a plain,
intelligible, and explicit manner; (2) The
offense is charged properly so as to avoid the
possibility of double jeopardy; and (3) There
is such certainty in the statement of the
accusation as to enable the accused to prepare
for trial and to enable the court, on
conviction . . . to pronounce sentence
according to the rights of the case.”
Jones, 110 N.C. App. at 291, 429 S.E.2d at 411-12 (upholding
conviction for second degree arson upon indictment that did not
state that building was unoccupied at time of fire) (quoting
Statev. Reavis, 19 N.C. App. 497, 498, 199 S.E.2d 139, 140 (1973)). On
the facts of this case, the absence in the indictment of a specific
reference to the
garage neither impaired defendant's ability to
present a defense, nor exposed him to the possibility of successive
prosecutions.
Because the original indictment charging defendant with arson
would have supported a conviction for burning the garage next to
the house, we conclude that the trial court erred by dismissing the
charge against defendant at the first trial. We further conclude
that dismissal of the original arson charge precludes further
prosecution for burning the same outbuilding. For example, in
State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972), defendant
was tried for robbery with a dangerous weapon. His motion for
nonsuit was granted, on the grounds that there was a fatal variance
between the victim alleged in the indictment and the evidence at
trial. Defendant was subsequently re-indicted for the same robbery
under an indictment that alleged a different victim. On appeal,
the North Carolina Supreme Court held that the original indictment
would have been sufficient to support a conviction, and that the
trial judge erred by granting defendant's nonsuit motion at the
first trial. That being so, the Court held that principles of
double jeopardy barred defendant's retrial:
Whether correct or erroneous, the judgment of
nonsuit had the force and effect of a verdict
of “not guilty” as to the [charge] for which
Ballard was then being tried, [and] . . .
barred further prosecution for that crime. . .
. Decision on this appeal is that the
judgment of nonsuit for variance was
improvidently entered[, and]. . . protects
Ballard from the second prosecution[.]
Id. at 483-84, 490, 186 S.E.2d at 373-74, 377-78.
Similarly, in
State v. Vestal, 131 N.C. App. 756, 509 S.E.2d
249 (1998), the trial court
sua sponte dismissed the charges
against defendant at the close of the State's evidence. The State
attempted to appeal, and argued that principles of double jeopardy
would not bar the appeal or a retrial. This Court disagreed,
holding that
due to the trial court's
sua sponte dismissal
of this case, defendant was involuntarily
deprived of his constitutional right to have
his trial completed by the jury which had been
duly empaneled and sworn. . . . [T]he rule
against double jeopardy bars further
prosecution of defendant on the charge set
forth in the indictment.
Id. at 760, 509 S.E.2d at 252 (citations omitted).
We note that the issue of whether the State might originally
have charged defendant with violating G.S. § 14-62 by burning an
outbuilding
outside the curtilage of an
inhabited dwelling is not
before this Court. In the instant case, the State elected to
indict defendant for first degree arson. We conclude that an
indictment for first degree arson of an inhabited dwelling house is
sufficient to support a conviction for burning a building within
the curtilage of the dwelling house. Accordingly, the trial judge
erred by granting defendant's motion for dismissal at the first
trial. “Whether correct or erroneous, the judgment of nonsuit had
the force and effect of a verdict of 'not guilty.'”
Ballard, 280
N.C. at 484, 186 S.E.2d at 374. Therefore, defendant could not be
retried for burning the same garage. We recognize that the absence
of a statutory definition of arson has rendered this area of law
somewhat murky; we further acknowledge that, although defendantserved a two-year prison term for this offense, it will not result
in a conviction on his record. However, for the reasons discussed
above, we conclude that defendant's conviction must be
Vacated.
Judges McCULLOUGH and HUDSON concur.
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