State v. Norris, 172 NC App 722 (04-574) 08/16/2005

Appeal by defendant from judgment entered 3 October 2003 by Judge Gary L. Locklear in Robeson County Superior Court. Heard inthe Court of Appeals 12 January 2005. (See footnote 1)

Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State.

Nora Henry Hargrove for defendant-appellant.

    TIMMONS-GOODSON, Judge.

    Nathan Norwood Norris, Jr. (“defendant”), appeals his conviction for first-degree arson. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error, but we remand the case for resentencing.
    The State's evidence presented at trial tends to show the following: On 29 January 2003, defendant's wife, Jessica Wood (“Jessica”), told defendant that she no longer loved him and that she wanted to separate and move in with her mother, Peggy Wood (“Peggy”). That evening, defendant drove Jessica to Peggy's residence. Defendant and Jessica argued during the drive. As Jessica was exiting defendant's automobile, defendant told her, “If I was you, I'd sleep light tonight.”
    At approximately 1:30 a.m. the next morning, Peggy awoke to the sound of an “explosion” outside her residence. Peggy observed flames through her bedroom window and evacuated all occupants from the residence. Robeson County Sheriff's Department Investigator Rory McKeithan (“Investigator McKeithan”), an arson investigator, responded to a call regarding a fire at Peggy's residence. Uponarriving at the scene, Investigator McKeithan parked his automobile approximately fifty yards from the residence. As he approached the residence, Investigator McKeithan smelled a “strong odor of what appeared to be gasoline.” The odor intensified as Investigator McKeithan neared the residence.
    Investigator McKeithan interviewed Jessica and Peggy inside Peggy's residence. During the interview, Peggy's telephone rang. Peggy answered the telephone and told Investigator McKeithan that it was defendant calling. Investigator McKeithan spoke to defendant on the telephone and explained that he needed to interview defendant about the fire. Defendant told Investigator McKeithan that he could not have been at the residence that evening because he had been drinking all day, had passed out, and had awoken just before making the telephone call.
    After Investigator McKeithan finished gathering evidence, he returned to the Robeson County Sheriff's Office. Defendant was brought in for questioning, and, after advising him of his rights, Investigator McKeithan interviewed defendant. Defendant's statement to Investigator McKeithan contains the following pertinent narration:
        On the way back to Lumberton, Jessica told me that she did not love me any more and that she did not want to be with me any more. I asked how she could want to end this marriage when we had been together for four years. Jessica looked as if she didn't care.

        . . . .

        I took Jessica back to her mother's house . . . . When we arrived at Peggy's house, I called Jessica a bitch. I also toldJessica on the way . . . that she better sleep light tonight. I then laughed and said that she was just not worth it.

        . . . .

        When I arrived in St. Pauls, I went to the Amoco Gas Station on Highway 20 and purchased four dollars worth of gas for my van. I had a plastic 20 ounce Coca-Cola bottle in my van. I filled the bottle half full of gasoline. I put the bottle in the van.

        I then drove to Peggy's house and parked the van on a dirt road beside her house. I got the bottle of gas from the van and walked to Peggy's house. I went to the side of Peggy's house and poured the gasoline on the side of her home. I then took a lighter and set the gas on fire. The fire flamed up and I got scared and ran.

        As I ran away, I looked back and saw flames. Then the flames looked as if they had died down. I was scared. I got back in my van and drove back to Lumberton.

        . . . .

        I told the police officer that I did not know what was going on. I was trying to play stupid. I told the officer that I had been drinking all day and that I had passed out. Then the police returned and picked me up.
    On 5 May 2003, defendant was indicted for the first-degree arson of Peggy's residence. Defendant's trial began the week of 30 September 2003. The State presented testimony from Jessica, Peggy, and Investigator McKeithan, who read defendant's statement into evidence. Defendant presented no evidence. On 3 October 2003, the jury found defendant guilty of first-degree arson. The trial court subsequently found as an aggravating factor that, during the commission of the offense, defendant knowingly created a great risk of death to more than one person by means of a weapon or devicewhich would normally be hazardous to the lives of more than one person. As mitigating factors, the trial court found that defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer prior to arrest, that defendant had a support system in the community, and that defendant had a positive employment history or was gainfully employed. After concluding that the aggravating and mitigating factors balanced one another out, the trial court sentenced defendant to fifty-one to seventy-one months imprisonment, a term within the presumptive range. Defendant appeals.

    [1]As an initial matter, we note that defendant's brief does not contain arguments supporting each of the original assignments of error on appeal. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.
    The issues on appeal are whether the trial court erred: (I) by denying defendant's motion to dismiss; (II) by denying defendant's request for a jury instruction on attempted arson; and (III) in sentencing defendant.
    [2] Defendant first argues that the trial court erred by denying his motion to dismiss the charge of first-degree arson. Defendant asserts that the State failed to produce sufficient evidence tending to show that the residence was burned. We disagree.    In ruling on a motion to dismiss, “the trial court must determine whether there is substantial evidence of each element of the offense charged . . . .” State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The trial court must consider the evidence in the light most favorable to the State, granting the State the benefit of every reasonable inference. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    Arson is a common law crime, and has been defined as “the willful and malicious burning of the dwelling house of another person.” State v. Eubanks, 83 N.C. App. 338, 339, 349 S.E.2d 884, 885 (1986). Where the building is occupied at the time of the burning, the offense is first-degree arson. N.C. Gen. Stat. § 14- 58 (2003). Similarly, where the building is a “mobile home or manufactured-type house or recreational trailer home which is the dwelling house of another and which is occupied at the time of the burning, the same shall constitute the crime of arson in the first degree.” N.C. Gen. Stat. § 14-58.2 (2003).
        [S]ome portion of the [building] itself, in contrast to its mere contents, must be burned to constitute arson; however, the least burning of any part of the building, no matter how small, is sufficient, and it is not necessary that the building be consumed or materially damaged by the fire.

State v. Oxendine, 305 N.C. 126, 129, 286 S.E.2d 546, 548 (1982). In order for a building to be “burned” within the definition ofarson, the building must be “'charred, that is, when the wood is reduced to coal and its identity changed, but not when merely scorched or discolored by heat.'” Id. (quoting State v. Hall, 93 N.C. 571, 573 (1885)).
    In Oxendine, the defendant argued that the State produced insufficient evidence to show he burned the structure, rather than the interior, of a residence. On appeal, our Supreme Court noted that evidence was introduced at trial tending to show that the fire was accompanied by a large amount of smoke, was visible from the highway, and was responsible for the loosening of the building's electrical wiring. 305 N.C. at 130, 286 S.E.2d at 548. The Court concluded that from this evidence alone, “one could reasonably infer that the fire inside the house was substantial enough to cause at least some charring of the structure[.]” Id. (emphasis in original). The Court noted that the State's case was “further strengthened” by testimony that the curtains of the building were burned, that dark or burned patches appeared on the wall, that the wallpaper was burned, that there was a heavy odor of kerosene in the area, and that smoke was present throughout the building. Id. The Court concluded that
        Surely, this evidence plainly showed that the dwelling itself, and not merely something in it (the curtains), had been burned. It is difficult to perceive how dark, burned patches could appear on a wall absent the prior incidence of at least minor charring of that wall's substantive material. Defendant's additional argument that the presence of burnt wallpaper in the dwelling had no rational tendency to indicate the charring of the building's structure simply defies good sense and logic. Wallpaper affixed to an interiorwall is unquestionably a part of the dwelling's framework. If the wallpaper is burning, it would perforce suggest that the house is also burning. Hence, we hold that where, as here, the evidence discloses that the wallpaper in a dwelling has been burned, it competently substantiates the charring element of arson.

Id. at 130-31, 286 S.E.2d at 548-49 (footnotes omitted) (emphasis in original).
    In the instant case, Peggy's residence was described at trial as a double-wide mobile home with a vinyl exterior. Peggy testified that a “poof, explosion” woke her up the morning of the incident, and that she could “see the flames” which “burnt” her residence. Investigator McKeithan testified to the presence of a strong odor of gasoline in the area of the residence, and he noted “damage to the left end” of Peggy's residence. Investigator McKeithan testified that “[f]ire and smoke damage had occurred” to Peggy's residence, as well as charring. The State presented photographs of the residence taken the day after the fire. During defense counsel's argument regarding the motion to dismiss, the trial court reviewed the photographs and noted the following:
        I don't know if you can tell from those photographs that the wood was burned. . . . But unless my eyes are deceiving me, I guess you would say wood chars, vinyl melts away when it is heated under a flame or intense heat. And I think melting in this instance is the equivalent of charring.
    In light of Oxendine, we conclude that, when viewed in the light most favorable to the State, the evidence in the instant case tends to show that Peggy's residence was burned within the common law meaning of arson. The melting of vinyl constitutes a change inthe identity of the material beyond a mere scorching or discoloration by heat. Thus, evidence tending to show that the vinyl on the exterior of a residence is melted substantiates the charring element of arson. Furthermore, as detailed above, Peggy testified that she could see flames out her window, and Investigator McKeithan noted damage to Peggy's residence, including smoke damage and charring. Therefore, in light of the foregoing, we conclude that the trial court did not err by denying defendant's motion to dismiss the charge of first-degree arson.
    [3] Defendant next argues that the trial court erred by denying his request for a jury instruction on attempted arson. Defendant asserts that the evidence introduced at trial required that the trial court instruct the jury on the lesser-included offense. We disagree.
    In State v. Shaw, 305 N.C. 327, 289 S.E.2d 325 (1982), the defendant was convicted for the first-degree arson of a residence occupied by his wife and three nieces. On appeal, the defendant sought a new trial because the trial court denied his request to instruct the jury on attempted arson. The Supreme Court noted that “[w]here there is evidence of defendant's guilt of a lesser degree of the crime set forth in the bill of indictment, the defendant is entitled to have the question submitted to the jury . . . .” Id. at 338, 289 S.E.2d at 331 (citing State v. Moore, 300 N.C. 694, 268 S.E.2d 196 (1980)). However, with respect to arson, the Court concluded that
        If there [i]s sufficient evidence from which the jury could find that there was an actual“burning” of the [victim's] house, and if there is no credible evidence from which the jury could find an attempt to burn which failed, [the] defendant would not be entitled to an instruction on the lesser included offense of attempt to commit arson.

305 N.C. at 339, 289 S.E.2d at 332 (footnote omitted) (emphasis in original).
    In the instant case, based on the evidence detailed above -- including the melting of the vinyl siding discussed supra -- there was sufficient evidence from which the jury could find that there was an actual burning of Peggy's residence. Furthermore, there was no evidence presented at trial from which the jury could find an attempt to burn the house which failed. As the Court noted in Shaw, “'[t]he trial court is not required to charge the jury upon the question of the defendant's guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of [the] defendant's guilt of such lesser degrees.'” Id. at 342, 289 S.E.2d at 333 (quoting 4 N.C. Index 3d, Criminal Law § 115 (1976)). Accordingly, in light of Shaw and the record in the instant case, we conclude that the trial court did not err by refusing to instruct the jury on the lesser-included offense of attempted arson.
    [4] In his brief as well as in a motion for appropriate relief filed with his appeal, defendant argues that the trial court erred in sentencing him. Defendant asserts that his sentence should be remanded due to the trial court's failure to submit the aggravating factor to the jury for proof beyond a reasonable doubt. We agree.
    In State v. Allen, 359 N.C. 425, ___ S.E.2d ___ (2005), ourSupreme Court recently examined the constitutionality of North Carolina's structured sentencing scheme in light of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). After reviewing the applicable case law, the Court in Allen concluded that, when “[a]pplied to North Carolina's structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” 359 N.C. at 437, ___ S.E.2d at ___ (citing Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen. Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17). In the instant case, as detailed above, following defendant's conviction for first-degree arson, the trial court found as an aggravating factor that, during the commission of the offense, defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person. As mitigating factors, the trial court found that defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer prior to arrest, that defendant had a support system in the community, and that defendant had a positive employment history or was gainfully employed. After balancing the aggravating and mitigating factors, the trial court concluded that “both aggravating and mitigating factors balance outone another,” and it therefore sentenced defendant in the presumptive range. We conclude that the trial court erred.   (See footnote 2)
    We note that in Allen, the Court provided the following pertinent limitation to its holding:
        We emphasize that Blakely, which is grounded in the Sixth Amendment right to jury trial, affects only those portions of the Structured Sentencing Act which require the sentencing judge to consider the existence of aggravating factors not admitted to by a defendant or found by a jury and which permit the judge to impose an aggravated sentence after finding such aggravating factors by a preponderance of the evidence. Those portions of N.C.G.S. § 15A-1340.16 which govern a sentencing judge's finding of mitigating factors and which permit the judge to balance aggravating and mitigating factors otherwise found to exist are not implicated by Blakely and remain unaffected by our decision in this case.

359 N.C. at 439, ___ S.E.2d at ___ (emphasis added). However, we are not convinced that the circumstances of the instant case are implicated by the above-quoted limiting language. Defendant's appeal asks us to decide whether a defendant sentenced in thepresumptive range after a balancing of aggravating and mitigating factors is nevertheless prejudiced by the trial court's failure to submit the aggravating factor or factors to the jury for proof beyond a reasonable doubt. The issue does not involve the general ability of the trial court to balance properly found aggravating and mitigating factors, which we recognize remains a discretionary decision. Id. at 439, ___ S.E.2d at ___. Instead, the issue involves a “structural error” by the trial court, whereby the “safeguards [for] participation of jurors in sentencing” are affected. Id. at 440, ___ S.E.2d at ___.
    In the instant case, the trial court found that defendant knowingly created a great risk of death to more than one person by means of a hazardous weapon or device. This determination was made unilaterally, without first submitting the issue to the jury for proof beyond a reasonable doubt. The State emphasizes that defendant was nevertheless sentenced in the presumptive range, and that therefore the trial court's failure to submit the aggravating factor to the jury was effectively cured by defendant's sentence in the presumptive -- and admittedly constitutionally-approved -- range. However, we are not convinced that the ultimate disposition of the case cured the underlying Sixth Amendment error. Instead, we note the similarities of the State's argument and the “harmless error” argument our Supreme Court refused to apply to sentencing errors in Allen. Recognizing that “'[s]peculation on what juries would have done if they had been asked to find different facts' is impermissible,” the Court held that “'[h]armless error analysiscannot be conducted on Blakely Sixth Amendment violations.'” 359 N.C. at 448, ___ S.E.2d at ___ (quoting State v. Hughes, 154 Wash. 2d 118, 148, 110 P.3d 192, 208 (2005)) (alterations in original).
    We conclude that the same reasoning applies to the instant case. Just as the Court in Allen was unable to speculate as to whether the jury would have found the aggravating factor at issue, this Court is unable to speculate whether the jury would have found the aggravating factor found by the trial court in the instant case. Assuming arguendo that the jury did not find the aggravating factor, the trial court would then be left to “balance” only the three mitigating factors it found. Although the trial court would retain the discretion to sentence defendant in the presumptive range despite the presence of the mitigating factors, we are nevertheless persuaded by the possibility that defendant might be sentenced in the mitigated range due to the absence of aggravating factors.
    Defendant's sentence in the presumptive range for first-degree arson -- based in part upon a unilateral finding that the offense created a great risk of death to more than one person -- contains the same defect as a sentence in the aggravated range based upon a unilaterally found aggravating factor. In both situations, the trial court violated a defendant's Sixth Amendment right by failing to submit for jury determination a factor which permitted the trial court to impose a longer sentence than that set forth in the provisions defining the underlying offense. Thus, after reviewing the record and circumstances of the instant case, we conclude thatdefendant is entitled to a new sentencing hearing, notwithstanding the trial court's decision to sentence him the presumptive range. On remand, the trial court is instructed to submit any factor in aggravation to the jury for proof beyond a reasonable doubt. Following the jury's determination, the trial court may then balance the properly found aggravating and mitigating factors in accordance with the discretion granted it by N.C. Gen. Stat. § 15A- 1340.16.
    In light of the foregoing conclusions, we hold that defendant received a trial free of prejudicial error, but we remand the case for resentencing.
    No error at trial; remanded for resentencing.
    Judge HUDSON concurs.
    Judge STEELMAN concurs in part and dissents in part.

STEELMAN, Judge concurring in part and dissenting in part.

I fully concur with the majority opinion as to the first two issues discussed. However, I must respectfully dissent as to the third issue.