An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-774


Filed: 5 April 2005


         v.                        McDowell County
                                No. 02 CRS 3858

    Appeal by defendant from judgment entered 29 October 2003 by Judge James L. Baker in McDowell County Superior Court. Heard in the Court of Appeals 14 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General David L. Elliott, for the State.

    James N. Freeman, Jr., for defendant-appellant.

    CALABRIA, Judge.

    Johnny Ray Godfrey (“defendant”) was charged with fraudulently burning a dwelling. The evidence tended to show that in 1999, defendant bought a mobile home and obtained homeowner's insurance as required by the finance company. Defendant lived in the mobile home with his wife until she moved back to Michigan with her parents in May of 2002. The two reconciled, and in early August, defendant made plans to drive up to Michigan to bring his wife back to North Carolina.
    Around 11:00 p.m. on 12 August 2002, defendant's neighbor heard “firecrackers going off” and saw an orange glow coming from defendant's home. At 11:31 p.m., the McDowell Fire Department arrived at defendant's home. The fire originated in the kitchenwhere the oven burner had been left on and a length of cloth was hanging out of the open oven door, extending through the kitchen area down the hallway to the master bedroom area. Investigator Steven Hensley of the McDowell County Sheriff's Department , who was qualified as an expert, testified that it would have taken an oven between thirty minutes to ninety minutes to ignite the cloth.
    Defendant claimed that at approximately 6:30 p.m. on 12 August 2002, he went to the home of his friend Derrick Smith and left at approximately 10:00 p.m., at which time, he drove to Michigan to pick up his wife. After defendant received a phone call from his mother the next morning regarding the fire, defendant and his wife returned to North Carolina.
    Defendant gave a statement to Investigator Hensley, in which he admitted that he had been a couple of months behind in his payments on the mobile home. Defendant also gave Investigator Hensley a list of the following items he claimed had been stolen from his mobile home: two fishing poles, a crystal Princess House eagle, a crystal Princess House deer, crystal shot glasses, crystal wine glasses, a crystal cake plate, a crystal bowl, a VCR, a metal Jack Daniels box, pennies and silver in a plastic bottle, a New England 45-70 rifle, a 12-gauge New England shotgun, a U.S. map with quarters, and a Sanyo television. Investigator Hensley, however, determined that defendant had sold the crystal deer and eagle to Becky Crandall and the 45-70 rifle to Curtis Crandall. In addition, defendant's wife advised Investigator Hensley that she had removed the Sanyo television, the crystal shot and wineglasses, and the crystal cake plate and bowl from the mobile home before she left for Michigan in May.
    After the fire, defendant and his wife moved into a hotel, but defendant's wife eventually moved back to Michigan. The insurance company sent a $1,000 check directly to the hotel for housing and defendant and his wife both endorsed a $500 check from the insurance company for living expenses.
    A jury found defendant guilty as charged. The trial court sentenced defendant to six to eight months' imprisonment, gave defendant credit for 192 days spent in confinement, suspended the sentence and placed defendant on one day probation. Defendant appeals.
     Defendant first contends the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. He argues that the State failed to present substantial evidence that he was the perpetrator of the crime. We disagree.
    The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence “in the light most favorable to the State, and the State is entitled to all reasonable inferences whichmay be drawn from the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). 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 for fraudulent purposes. See State v. James, 77 N.C. App. 219, 221, 334 S.E.2d 452, 453 (1985).
    Here, the evidence shows that the defendant was the owner of the dwelling house that was damaged by fire. The fire started in the kitchen where a burner was left on and the oven door was open with cloth coming out of it. Investigator Hensley testified that an oven would have taken between thirty and ninety minutes to ignite the cloth that was placed in it. Defendant left Smith's house at around 10:00 p.m. and, approximately an hour later, defendant's next door neighbor heard “firecrackers” and saw an orange glow coming from defendant's home. Defendant admitted he was delinquent in his mortgage payments. Moreover, several items defendant claimed were stolen had been either sold by defendant or taken by defendant's wife when she left for Michigan. We conclude that sufficient evidence existed that defendant committed the offense of fraudulently burning a dwelling. Accordingly, the trial court properly denied defendant's motion to dismiss the charge.     Defendant also contends the trial court erred in allowing Investigator Hensley to testify as an expert. Defendant argues that Investigator Hensley was not qualified to testify as an expert and that his testimony “did nothing to aid the jury in their understanding of the case.” We disagree.
    Rule 702 of the North Carolina Rules of Evidence provides that expert opinion testimony is admissible where a witness is qualified due to “knowledge, skill, experience, training, or education.” North Carolina case law requires only that the expert witness be “better qualified than the jury as to the subject at hand[.]” State v. Davis, 106 N.C. App. 596, 601, 418 S.E.2d 263, 267 (1992). Whether the witness qualifies as an expert is exclusively within the trial judge's discretion, and is not to be reversed on appeal unless there is a complete lack of evidence to support his ruling. State v. Howard, 78 N.C. App. 262, 270, 337 S.E.2d 598, 603 (1985).
    During voir dire examination, Investigator Hensley testified that he had been employed for over a total of ten years as a police officer with the McDowell County Sheriff's Department, three years as a police officer and fireman with Morganton Public Safety, and two years as a police officer with the Marion Police Department. In his role as an investigator with the McDowell County Sheriff's Department, Investigator Hensley was the lead investigator of twenty arson investigations and participated in thirty arson investigations. Investigator Hensley completed training in arson detection and fire investigation and is a member of the International Association of Arson Investigators. Based on hiseducation and experience, Investigator Hensley was qualified to testify as an expert, and the trial court properly admitted his expert testimony.
    Defendant finally contends the trial court erred by denying his motion for a mistrial after the State placed information regarding prior fires at defendant's residence before the jury during the State's examination of Investigator Hensley. Defendant argues the evidence was highly prejudicial, especially in light of the trial court's earlier Rule 404(b) ruling on similar testimony. Prior to Investigator Hensley's testimony, the State sought to elicit testimony from Detective Dudley Green that police had asked defendant “about circumstances surrounding another fire at a previous residence where [defendant] lived.” Defense counsel objected, and the trial court conducted a Rule 404(b) voir dire hearing. After the hearing, the trial court determined it would exclude the testimony. When the jury returned to the courtroom, the trial court instructed the jury as follows:
        Let the record show that all of the jurors and the alternate are present in the courtroom. Members of the jury, before you stepped out you may have heard mention of other fires or similar - - or a similar fire or fires that might have occurred other than the one that we are dealing with in this case. You are to disregard any mention of any other such events.

    Subsequently, the following colloquy occurred during defense counsel's cross-examination of Investigator Hensley:
        Q. And did he or she tell you that they had just come in from Michigan?

        A. Yes.
        Q. And what's the other date?

        A. Okay. On the 14th when I talked to him, that's also - - I did a brief interview[] and that's when I collected a list of the items that he gave me that was missing out of the trailer.

        Q. That's also on the 14th?

        A. Yes, on the 14th. And that's also when he told me about that he - - he had at his residence he had previously fires also.

        MR. RIVERA [Defense Counsel]: Objection, Your Honor. Move to strike and move for - -

        THE COURT: Overruled.

        MR. RIVERA [Defense Counsel]: Your Honor, I move for a mistrial. I believe that this is a very damaging comment that without anything else it will confuse the issue to the jury. This is not something that I solicited. It was - - the Court made a ruling about this type of evidence already. It is not admissible. And I don't think an instruction to the jury could cure the effect that this may have on the jury, and I would ask for a mistrial at this time.

        THE COURT: Motion is overruled.

During the trial court's final charge to the jury, the court instructed:
            Evidence has also been received tending to show that other fires had occurred at the defendant's residence. You are not to consider this as any evidence of defendant's guilt in this case.
    “The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen. Stat. § 15A-1061 (2003). “Whether a motion for mistrialshould be granted ... rests in the sound discretion of the trial judge, and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.” State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) (internal citation omitted). Unless the trial court's ruling is so clearly erroneous that it amounts to a manifest abuse of discretion, the ruling will not be disturbed on appeal. State v. Newton, 82 N.C. App. 555, 559, 347 S.E.2d 81, 84 (1986).
    Here, the trial court overruled defendant's objection, but gave a curative instruction in its final charge. “[J]urors are presumed to heed a trial judge's instructions.” State v. Rogers, 355 N.C. 420, 453, 562 S.E.2d 859, 880 (2002). Defendant made no showing that the jury failed to disregard Investigator Hensley's testimony as instructed by the trial court. Accordingly, the trial court did not abuse its discretion by not declaring a mistrial.
    No error.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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