STATE OF NORTH CAROLINA,
v
.
Wake County
No. 03 CRS 28451
KEITHEN ALEXANDER CURMON 03 CRS 32935
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for defendant-appellant.
STEELMAN, Judge.
Defendant, Keithen Alexander Curmon, appeals his conviction
for first-degree arson. For the reasons discussed herein, we find
no error.
The evidence presented at trial tended to show that Sharon
Bethea and defendant had a romantic relationship, which ended in
the fall of 2002. Following their breakup, the two remained on
relatively friendly terms. However, when Ms. Bethea began dating
David Rochelle, defendant began harassing both of them with
unwanted phone calls. Ms. Bethea told defendant not to contact her
any further. Defendant continued to call her house attempting to
effect a reconciliation and came to her home in December 2002. Ms.Bethea contacted the police who arrived and instructed defendant to
leave her alone.
Approximately a week later, Ms. Bethea came home and found
defendant under her daughter's bed. When she told him to leave he
went to the kitchen, grabbed a knife, and threatened to kill her.
Ms. Bethea managed to knock the knife out of defendant's hand and
ran to her car. Defendant laid down behind her car, preventing her
from leaving. When defendant finally got up, Ms. Bethea drove to
a nearby grocery store and called the police. Ms. Bethea waited at
the grocery store for the police, who accompanied her back to her
home. When they arrived they found defendant in her bed. The
following day Ms. Bethea obtained a temporary restraining order
against defendant. Following a hearing on 31 December 2002, the
trial court entered a domestic violence protective order pursuant
to N.C. Gen. Stat. § 50B-3, which prohibited defendant from
contacting Ms. Bethea. Despite the court order, defendant
continued to harass her by telephoning her numerous times a day,
coming by her home, leaving notes in her mailbox, following her and
Mr. Rochelle, and calling Mr. Rochelle's apartment.
On 18 January 2003, defendant phoned Ms. Bethea approximately
eighty-six times while she was at Mr. Rochelle's apartment. Mr.
Rochelle was able to determine that defendant was the caller by the
appearance of his name on Caller ID. Defendant only left one
message in which he said, “If you don't call me back in seven
minutes, I am going to burn you all up, I'm serious, seven
minutes.” Ms. Bethea called the police who came to the apartmentand transcribed the message. Defendant called six more times that
night while the police were there, even though they told him to
stop. As a result of the threatening message, Corporal B.D. Allen
of the Raleigh Police Department charged defendant on 19 January
2003 for communicating a threat.
In another incident on 9 March 2003, defendant began following
Ms. Bethea and Mr. Rochelle when they left her residence to go to
Mr. Rochelle's apartment. While following the couple, defendant
called Ms. Bethea's cell phone. When Mr. Rochelle answered the
phone, defendant repeatedly told him “you better not come home.”
Upon seeing two police officers at a restaurant the couple stopped
and reported the incident, and as a result the officers escorted
the couple back to Ms. Bethea's home.
On the evening of 6 April 2003, Ms. Bethea arrived at Mr.
Rochelle's apartment around 10:30 or 11:00 p.m. The couple went to
bed at around midnight. A few minutes later, defendant called Mr.
Rochelle's phone, but he did not answer. Approximately five
minutes after the call the smoke alarm inside the apartment went
off. The living room and kitchen were filled with smoke. The
smoke and fire were coming through the side of the front door of
Mr. Rochelle's apartment, and the bottom of his front door was on
fire. The door mat had also been burned and pushed under the door.
Ms. Bethea called 911 and the police and firefighters arrived
shortly thereafter. Following the arrival of the police, Ms.
Bethea discovered she had three messages on her cell phone from
defendant. Officer D.A. Karlinski of the Raleigh Police Departmentresponded to the 911 call and transcribed one of defendant's
messages in which he said, “Give me a call when you get this
message. We have got about one more conversation to have, and
that's going to be it. Be a Mom, Sharon. Be a Mom.”
The police sent the remains of the doormat to the SBI
laboratory for forensic evaluation. The tests revealed that
gasoline had been poured on the mat, thus confirming that the fire
was intentionally set.
There were no eye witnesses to the crime or fingerprints
found. Because of defendant's past threats to Ms. Bethea and Mr.
Rochelle, the police questioned him. Defendant denied any
involvement and told the police that on the night of the fire he
left his mother's home in Raleigh around 10:00 p.m. and that at the
time of the fire he was somewhere on Highway 70 going towards New
Bern. Defendant said his car broke down on the way so he turned
around and drove back to Raleigh.
Police obtained defendant's cell phone records from Sprint,
which included phone numbers called, date, time, duration and a
list of the cell towers that relayed those calls. Ms. Marilyn
Cowlter, an employee of Sprint, testified the range of a cell tower
was one to three miles. Defendant's cell phone records showed that
at 11:06 p.m. on 6 April 2003 he called Ms. Bethea's cell phone.
The call was relayed by the cell tower located at or near 4812 Six
Forks Road, which is in northern Raleigh. Defendant placed
additional calls from his cell phone at 11:13 p.m. on 6 April 2003
and at 12:38 a.m., 12:40 a.m., 12:45 a.m., 12:55 a.m., 12:59 a.m.,and 1:16 a.m. on 7 April 2003. The fire occurred at approximately
12:00 a.m. on 7 April 2003. The calls defendant made that night
were relayed by the cell phone towers located at or near Harps Mill
Road, Creedmoor Road, and Leesville Road, all located in north
Raleigh and in the vicinity of Mr. Rochelle's apartment.
Police arrested defendant and charged him with three counts of
first-degree arson, one count of second degree arson, and one count
of violating the domestic violence protective order. The cases
were joined for trial without objection and were tried at the 5
January 2004 session of superior court. At the close of all the
evidence, the trial court dismissed the charge of second degree
arson. The jury found defendant guilty of three counts of first-
degree arson, as well as violating the domestic violence protective
order. The trial court continued prayer for judgment on two of the
first-degree arson convictions pertaining to the burning of the
residences that adjoined Mr. Rochelle's. The trial court then
sentenced defendant to an active sentence of 77 to 102 months
imprisonment for first-degree arson of Mr. Rochelle's dwelling and
150 days imprisonment for violation of the domestic violence
protective order. Defendant appeals only his conviction for first-
degree arson.
In defendant's first argument he contends the trial court
erred in denying his motion to dismiss because there was
insufficient evidence that he was the perpetrator of the arson. We
disagree. In order to survive a motion to dismiss based on the
insufficiency of the evidence, the State must present substantial
evidence of (1) each essential element of the charged offense and
(2) that the defendant was the perpetrator. State v. Fritsch, 351
N.C. 373, 378, 526 S.E.2d 451, 455 (2000). Substantial evidence
refers to such “relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”
State v. Lucas, 353 N.C.
568, 580-81, 548 S.E.2d 712, 721 (2001).
When considering such a
motion, the court must view the evidence in the light most
favorable to the State, giving the State the benefit of every
reasonable inference. Fritsch, 351 N.C. at 378-79, 526 S.E.2d at
455.
It does not matter whether the State's evidence is direct,
circumstantial, or both; the test for resolving a challenge to the
sufficiency of the evidence is the same.
Lucas, 353 N.C. at 581,
548 S.E.2d at 721.
“Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when the evidence does not
rule out every hypothesis of innocence.” Fritsch, 351 N.C. at
379, 526 S.E.2d at 455 (citation and internal quotation marks
omitted). If the State's evidence is circumstantial, the court
must consider whether the defendant's guilt may reasonably be
inferred from those circumstances. Id. In addition, the trial
judge “may resort to circumstantial evidence of motive, opportunity
and capability to identify the accused as the perpetrator of the
crime.” State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365
(1994). Once the trial judge decides that a reasonable inference
of defendant's guilt may be drawn from the circumstances, it thenbecomes a matter for the jury to decide whether the evidence
presented satisfies the jury beyond a reasonable doubt that the
defendant is guilty.
Id.
The evidence, taken in the light most favorable to the State,
tends to show: (1) defendant was jealous of Ms. Bethea's
relationship with Mr. Rochelle and constantly harassed the couple
in an attempt to break them up and scare Ms. Bethea into
reconciling with him, demonstrating defendant's motive to set the
fire; (2) defendant left a message a few months before the fire
threatening to burn the couple up if they did not return his call;
(3) on the night of the fire defendant left another threatening
message on Ms. Bethea's cell phone stating: “We got about one more
conversation to have and that's going to be it[;]” (4) defendant
was in the vicinity of Mr. Rochelle's apartment at the time the
fire occurred, as demonstrated by his cell phone records, thereby
establishing he had the opportunity to set the fire; (5) defendant
had previously entered Ms. Bethea's home and threatened to kill
her; and (6) the gasoline on the mat indicated the fire was
deliberately set.
We hold that this evidence was sufficient to submit the charge
of first-degree arson to the jury. “'In 'borderline' or close
cases, our courts have consistently expressed a preference for
submitting issues to the jury . . . .'” State v. Jenkins, ___ N.C.
App. ___, ___, 606 S.E.2d 430, 433, aff'd, ___ N.C. ___, ___ S.E.2d
___ (2005) (citations omitted). Therefore, the trial court did not
err in denying defendant's motion to dismiss and submitting thematter to the jury for its determination. This argument is without
merit.
In defendant's second argument he contends the trial court's
restitution recommendation included in the judgment, ordering
defendant to pay $100.00 to David Rochelle for damages sustained as
a result of the fire, must be vacated because it was not supported
by the evidence.
If the trial judge recommends payment of restitution as a
condition to defendant's parole or work release, the amount of
restitution recommended must be supported by evidence received at
trial or sentencing. State v. Wilson, 340 N.C. 720, 726, 459
S.E.2d 192, 196 (1995). The State concedes the trial court's order
was not supported by the evidence and must be vacated.
In defendant's third argument he contends the trial court's
recommendation that he have no contact with Mr. Rochelle, Ms.
Bethea, or her family for the duration of his incarceration is an
unconstitutional form of punishment. We disagree.
The State contends defendant is prohibited from raising this
issue on appeal because he did not object to the recommendation at
sentencing as required by Rule 10(b)(1) of the Rules of Appellate
Procedure. An error at sentencing is not considered an error at
trial for the purpose of Rule 10(b)(1) because this rule is
“directed to matters which occur at trial and upon which the trial
court must be given an opportunity to rule in order to preserve the
question for appeal.” State v. Hargett, 157 N.C. App. 90, 93, 577
S.E.2d 703, 705 (2003) (citing State v. Canady, 330 N.C. 398, 401,410 S.E.2d 875, 878 (1991)). Accordingly, defendant was not
required to object at sentencing to preserve this issue for
appellate review.
In the judgment sentencing defendant on the first-degree arson
charge the trial court recommended defendant have “no contact with
David Rochelle, Sharon Bethea or family during incarceration.”
Defendant contends this recommendation violates N.C. Const. art.
XI, § 1. which provides:
The following punishments only shall be known
to the laws of this State: death,
imprisonment, fines, suspension of jail or
prison term with or without conditions,
restitution, community service, restraints on
liberty, work programs, removal from office,
and disqualification to hold and enjoy any
office of honor, trust, or profit under this
State.
The trial court's “no contact” recommendation was not a
mandatory and binding part of the judgment. Rather, much like an
order of restitution, it “constitutes a recommendation to the
Secretary of the Department of Correction and the Parole
Commission, not an order binding defendant . . . upon entry of the
judgment in this action,” as “neither the Parole Commission nor the
Department of Correction is bound by the judge's recommendation .
. . .” Wilson, 340 N.C. at 725-26, 459 S.E.2d at 195. Since this
recommendation is not a binding judgment, it does not run afoul of
our state's constitution.
However, since the “no contact” recommendation is analogous to
the trial court's authority to recommend a defendant pay
restitution, it must be reasonable in light of the evidence adducedat trial or sentencing. See id. at 726, 459 S.E.2d at 196
(requiring such support despite the fact the recommendations are
not binding because there is “'no reason to interpret the statutes
of this State to allow judges to make specific recommendations that
cannot be supported by the evidence before them'”) (citations
omitted).
Considering the nature and extent of defendant's harassment of
the couple, the trial court's recommendation that defendant have no
contact with either of them or Ms. Bethea's family was reasonable.
In addition, the recommendation is also reasonable because it is
limited to a specific and well-defined group and is limited in
duration to defendant's incarceration. This argument is without
merit.
In defendant's fourth argument he contends the trial court
committed reversible error in admitting the State's evidence of
defendant's “other crimes,” as it was irrelevant and inadmissible
under Rule 404(b) and Rule 403 of the Rules of Evidence. We
disagree.
Specifically, defendant objects to the admission of evidence
related to the 18 January 2003 incident when he left a voice
message threatening to “burn you all up” if Ms. Bethea did not
return his call. Defendant also cites the admission of evidence
regarding the incident on 9 March 2003 when the couple sought
police assistance because defendant was following them and then
left a threatening message telling Mr. Rochelle “you better not
come home.” Defendant objected and the trial court overruled theobjection finding the evidence admissible under Rule 404(b) of the
Rules of Evidence.
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2004). Rule 404(b) is a rule
of inclusion not exclusion. State v. Lloyd, 354 N.C. 76, 88, 552
S.E.2d 596, 608 (2001). Accordingly, such evidence will be
“admissible so long as it is relevant to any fact or issue other
than the character of the accused[,]” and the other crimes or
wrongs are connected by both temporal proximity and circumstance.
Id. (citations and internal quotation marks omitted). “The
determination of similarity and remoteness is made on a
case-by-case basis, and the required degree of similarity is that
which results in the jury's 'reasonable inference' that the
defendant committed both the prior and present acts.” State v.
Stevenson, ___ N.C. App. ___, ___, 611 S.E.2d 206, 209 (2005).
“The similarities need not be 'unique and bizarre.'” Id.
(citations omitted).
Here, defendant's statement that if someone did not call him
back he was going to “burn you all up,” was admissible to prove a
number of the listed purposes, namely defendant's motive, intent,
plan, common scheme, as well as defendant's identity as the
arsonist. Further, the evidence concerning the incident on 9 March2003 was also admissible for the same enumerated purposes.
Defendant continually harassed the couple. He made numerous phone
calls, left threatening messages, followed the couple around, and
even hid in Ms. Bethea's home and threatened to kill her with a
knife. All of this evidence was admitted without objection by
defendant. While these were not the precise type of crimes for
which defendant was charged, it shows an alarming trend of
defendant's escalating acts of violence towards the couple due to
his jealousy over their relationship.
The threatening messages were left within a matter of months
prior to the fire. Remoteness in time is less significant when the
prior conduct is used to show intent, identity, motive, common plan
or scheme, or absence of mistake, as is the case here. Id. at ___,
611 S.E.2d at 210 (noting “remoteness in time generally affects
only the weight to be given such evidence, not its admissibility”)
(quoting Lloyd, 354 N.C. at 91, 552 S.E.2d at 610). Thus, the
trial court did not err in determining the evidence was admissible
under Rule 404(b).
Defendant also asserts that even if the evidence of his “other
crimes” was admissible under Rule 404(b), the trial court should
have excluded it under Rule 403 of the Rules of Evidence. Rule 403
provides that “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .”
N.C. Gen. Stat. § 8C-1, Rule 403 (2004). “The exclusion of
evidence under Rule 403 is a matter generally left to the sound
discretion of the trial court[.]” Stevenson, ___ N.C. App. at ___,611 S.E.2d at 210. Accordingly, we will not overturn the trial
judge's decision absent a showing that the decision was
“'manifestly unsupported by reason or is so arbitrary it could not
have been the result of a reasoned decision.'” Id. (citations
omitted).
In the instant case, the trial court did not abuse its
discretion by admitting evidence of defendant's prior crimes or
acts. The trial court guarded against the possibility of prejudice
by instructing the jury to consider the evidence only for the
limited purposes of establishing identity, intent, motive, absence
of mistake, and common plan. Accord id. See also State v. Hyatt,
355 N.C. 642, 662, 566 S.E.2d 61, 75 (2002) (holding the admission
of evidence regarding defendant's prior misconduct was not unduly
prejudicial under Rule 403 where the trial court gave a limiting
instruction regarding the permissible uses of 404(b) evidence).
Thus, this argument is without merit.
In defendant's fifth and final argument he contends the trial
court erred in instructing the jury that it could consider the 18
January and 9 March 2003 “other crimes” evidence to prove identity.
We disagree.
The trial court instructed the jury that the evidence
concerning defendant's previous threats to Ms. Bethea with a
knife, stating he would “burn you all up,” and telling the couple
they better not go home, should only be considered for the limited
purpose of showing the identity of the person who committed the
crime, that defendant had a motive for the commission of the crime,that defendant had the intent, which is a necessary element of the
crime charged, that there existed in defendant's mind a plan,
scheme, system or design involving the crime charged in the case,
and the absence of mistake or accident. As we stated above, the
evidence of these other crimes or wrongs was admissible for the
limited purposes enumerated in Rule 404(b). Therefore, it was
proper for the judge to give a limiting instruction concerning what
purpose the jury could use the evidence. In addition, the judge's
instruction was a correct statement of the law. See N.C.P.I. --
Crim. 104.15. This argument is without merit.
For the reasons discussed herein, we find defendant received
a fair trial, free from error. We remand the case for modification
of the portion of the trial court's judgment recommending defendant
pay restitution in the amount of $100.00.
NO ERROR AS TO TRIAL; REMANDED FOR STRIKING OF RESTITUTION
PROVISION IN THE JUDGMENT.
Judges HUDSON and JACKSON concur.
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