STATE OF NORTH CAROLINA
v. Forsyth County
No. 03 CRS 050017
JAMES BRADLEY HUFFMAN
Attorney General Roy Cooper, by Special Deputy Attorney
General Susan K. Nichols, for the State.
Grace, Holton, Tisdale & Clifton, P.A., by Christopher R.
Clifton and Michelle B. Clifton, for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals his convictions, following a jury trial, for
second-degree arson, burning of personal property, and assault on
a firefighter. Finding no error, we affirm the judgments of the
trial court.
The State's evidence showed the following: In the early
morning of 1 January 2003, a fire destroyed a house owned by Connie
Kuhn at 5205 Pine Hall Road in Walkertown, North Carolina. Kuhn
purchased and started living in the house in 1991, and began dating
defendant in 1993. Defendant moved into the house with Kuhn in
late 1997 or early 1998, prior to the birth of their son, Bradley,
in 1998. During the course of their relationship, she anddefendant “had problems and [Kuhn] would move out and then move
back in. Move out and move back in.” Kuhn made the mortgage
payments on the house and paid for all of the utilities.
In October of 2002, Kuhn ended her relationship with defendant
after a heated confrontation in which he threw things at her and
threatened her. Fearing for her life, Kuhn fled to her mother's
residence, taking with her only a few personal effects that fit
into a backpack. She and Bradley stayed with her mother, while
defendant continued to live in her house. Kuhn retained a key to
the house, which contained all of her and Bradley's furniture,
bedding, and personal effects and most of their clothes. She took
Bradley to the house to visit defendant “an hour here and an hour
there.” Kuhn also came back to the house on at least one occasion
to obtain additional clothing for her and Bradley while defendant
was at work. Kuhn received her mail at work but never submitted a
change of address notice to the post office. Kuhn continued to pay
the mortgage and utilities on the house, believing, “[t]hat was
still my residence. I was planning on going back there.” Prior to
the fire, she had last visited the house in early December.
When asked if she and defendant discussed “how long [she]
would allow him to remain in the residence[,]” Kuhn testified as
follows:
He told me that he was going to move out. I
never told him when he had to leave but he
told me he was going to move out. . . . Move
into his grandfather's house and then he told
me he was going to move to Mississippi where
his parents live.
In mid-December of 2002, Kuhn asked defendant “when he was
leaving[,]” and he replied that he was moving to Mississippi.
“Several days” before the fire, defendant and Kuhn again discussed
when he would move out of her house and remove the furniture and
other items belonging to him. Defendant told Kuhn on this occasion
“that it would be easier just to torch the place than to separate
the stuff or move it.”
On the afternoon of 31 December 2002, defendant paid an
unannounced visit to Kuhn's workplace and asked her for a hug.
When she refused, he told her that she had changed and was “a cold
person[.]” Defendant later made a series of “angry” telephone
calls to Kuhn while she was attending a New Year's Eve party at her
uncle's house. During one call, defendant said “that he moved his
stuff to his grandfather's and that he would be leaving either the
next day or two days later.” In other calls, defendant accused
Kuhn of having an affair. Several times, defendant told her “that
he would end up with a new or better house before [she] would.”
Defendant called Kuhn a final time just after midnight on 1 January
2003, and said things that she interpreted to be “threats.”
Kuhn left the party at approximately 1:15 a.m. on 1 January
2003. As she was driving to a friend's house in Kernersville, she
received a phone call from a neighbor on Pine Hall Road, who told
her that her house was on fire. When Kuhn arrived at the burning
house, defendant was standing in a neighbor's yard. Kuhn described
their ensuing exchange as follows: I asked him what happened to the house
and . . . he said that I shouldn't be
concerned as to what happened to the house. I
should be concerned that no one got hurt. I
told him that I was glad that no one got hurt
but what happened to the house.
He said, again, you should just be glad
that no one got hurt and I said I am happy no
one got hurt but what happened to the house.
His voice got really, you know, a lot sterner
and he said to me you're not hearing me. You
should be glad that no one got hurt. The next
time you won't be so lucky.
As Kuhn walked away from defendant, he cursed at her and said that
“he was going to get [her] and he would kill [her].” Defendant
then called Kuhn from a cellular telephone in a fire truck and
said, “All I wanted was a hug.”
Forsyth County Assistant Fire Marshal Marty Whicker responded
to the fire at 5205 Pine Hall Road at 2:36 a.m. on 1 January 2003.
As he was speaking to Kuhn, defendant called her from the fire
truck. Whicker walked over to the truck, opened the door and asked
defendant if he had used the department's phone. Defendant
responded, “[I]t is none of your damn business what I do.”
Defendant cursed Whicker and told him “I am not going to cooperate
with you. I am not going to tell you a damn thing.” Unable to get
defendant out of the truck, Whicker sought assistance from Forsyth
County Sheriff's Deputy Rick B. Rumley. Defendant was taken into
custody after he pushed and shoved Rumley and challenged him to a
fight. As Rumley was placing him in handcuffs, defendant turned
around and kneed or kicked Whicker in the upper thigh. Defendant
then screamed at Whicker, “I will find out who you are, and I willkill you and your family[.]” Kuhn later identified defendant to
Whicker as her boyfriend and said “that they had had some
relationship problems and that she had moved out a few months prior
to the fire and given [defendant] some time to get his affairs in
order and she was planning on moving back into the house.”
During his investigation of the fire scene, Whicker found
“unusual burn patterns on the floor, some low level burning” in the
den area of the house's ground floor level. A carpet sample taken
from the area was found to contain gasoline residue. Whicker also
found a red plastic can containing gasoline outside of the
residence next to the garage. Assisted by an accelerant-detecting
canine, State Bureau of Investigation Special Agent and Certified
Fire Investigator Patrick Whatley examined the remains of the house
with Whicker and concluded that the fire was “incendiary or set in
nature” and was caused by gasoline being “placed or poured in the
lower level . . . of the structure and then set by human hand.”
Defendant first claims the trial court erred in denying his
motion to dismiss the charge of second-degree arson, absent
substantial evidence that the house at 5205 Pine Hall Road was the
“dwelling of another” at the time of the fire. N.C. Gen. Stat.
§ 14-58 (2005). Inasmuch as the evidence showed Kuhn had not lived
in the house since October of 2002, defendant argues that she was
not an inhabitant of the house for purposes of the arson statute.
See State v. Britt, 132 N.C. App. 173, 178, 510 S.E.2d 683, 687
(“[I]t is an essential element of the crime of arson that the
burned house be inhabited.”), disc. review denied, 350 N.C. 838,538 S.E.2d 571 (1999). Defendant characterizes Kuhn's relationship
to the house and her behavior leading up the fire as “akin to those
of a landlord who acknowledged and respected his exclusive
occupancy of the house.” As the sole occupant of the house,
defendant insists he cannot be found guilty of arson.
In reviewing the denial of a defendant's motion to dismiss,
our task is to “'determine only whether there is substantial
evidence of each essential element of the offense charged and of
the defendant being the perpetrator of the offense.'” State v.
Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (citation
omitted), cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002).
Substantial evidence is defined as that which is “adequate to
convince a reasonable mind to accept a conclusion.” Id. (citation
omitted).
The crime of second-degree arson denotes “the willful and
malicious burning of the dwelling of another which is unoccupied at
the time of the burning.” State v. Hodge, 121 N.C. App. 209, 210,
465 S.E.2d 14, 15 (1995); N.C. Gen. Stat. § 14-58 (2003). As
defendant challenges only the sufficiency of the evidence that the
burned building was the “dwelling of another,” we confine our
analysis to this element of the charge.
To be a “dwelling of another” and thus subject to arson, the
structure must be inhabited by a person other than (or in addition
to) the defendant at the time of its burning. See State v. Ward,
93 N.C. App. 682, 685-87, 379 S.E.2d 251, 253-54, disc. review
denied, 325 N.C. 276, 384 S.E.2d 258 (1989); State v. Vickers, 306N.C. 90, 100, 291 S.E.2d 599, 606 (1982) (“'[D]welling house' as
contemplated in the definition of arson means an inhabited
house.”), overruled on other grounds by State v. Barnes, 333 N.C.
666, 678, 430 S.E.2d 223, 229, cert. denied, 510 U.S. 946, 126 L.
Ed. 2d 336 (1993). The burning of an uninhabited house, or the
burning of a house by its sole inhabitant, is not arson, inasmuch
as "the main purpose of common law arson is to protect against
danger to those persons who might be in the dwelling house which is
burned." State v. Jones, 296 N.C. 75, 77, 248 S.E.2d 858, 860
(1978). As suggested above, however, the “requirement that the
dwelling burned be that of 'another' is satisfied by a showing that
some other person or persons, together with the defendant, were
joint occupants of the same dwelling unit.” State v. Shaw, 305
N.C. 327, 338, 289 S.E.2d 325, 331 (1982). Moreover, “'mere
temporary absence of the occupants from a house, so that at the
time of its burning there was no human being in it, will not affect
the character of the building as a “dwelling”'” for purposes of the
arson statute. Vickers, 306 N.C. at 99-100, 291 S.E.2d at 606
(citation omitted).
This Court has previously found “a mobile home used . . . as
a weekend vacation residence” to be an inhabited “dwelling of
another” for purposes of the arson statute. Hodge, 121 N.C. App.
at 209-10, 465 S.E.2d at 15. Similarly, in State v. Gulley, 46
N.C. App. 822, 823-24, 266 S.E.2d 8, 9 (1980), we reversed a
defendant's conviction for the crime of burning an uninhabited
house under N.C. Gen. Stat. § 14-62, upon evidence that theoccupants of the house were only temporarily absent over the
Thanksgiving weekend. “Since a dwelling which is merely temporarily
unoccupied falls within the definition of arson” under N.C. Gen.
Stat. § 14-58, we concluded “that the legislature meant something
more than the temporary absence of the occupants” when it created
a separate offense applicable to “uninhabited” houses under N.C.
Gen. Stat. § 14-62. Gulley, 46 N.C. App. at 823, 266 S.E.2d at 9.
In Vickers, the Supreme Court cited favorably the case of People v.
Losinger, 331 Mich. 490, 50 N.W.2d 137 (1951), cert. denied, 343
U.S. 911, 96 L. Ed. 1327 (1952), which affirmed an arson conviction
upon evidence that “the cabin or cottage burned was unoccupied at
the time of the fire but was occupied by the owner at frequent
intervals, particularly during hunting season, and was intended to
serve as the owner's home following his retirement.” Vickers, 306
N.C. at 100, 291 S.E.2d at 606.
In contrast to these cases, we have found a trailer
uninhabited, and thus not covered by the arson statute, where it
had been “permanently abandoned” by its erstwhile occupant at the
time of the fire. Ward, 93 N.C. App. at 685-87, 379 S.E.2d at
253-54. In Ward, Lori Mayse was living in the trailer with her
husband when she arranged for defendant to kill her husband and
dispose of the body. After she had committed the murder, she paid
defendant $50 to burn down the trailer. In finding the trailer
uninhabited, we first found that the husband's death terminated his
status as an inhabitant. We then pointed to “the undisputed
evidence . . . that Lori Mayse had ceased to inhabit the trailer atthe time it was burned.” Id. at 687, 379 S.E.2d at 254. We noted
she “had shut off electric power to the trailer and was living
elsewhere[,]” and that she had consented to or actively arranged
the burning. Id. at 686, 379 S.E.2d at 254. Such actions, we
concluded, were “certainly evidence of [her] intention not to
return to the trailer.” Id.
Based on the relevant authority, we find substantial evidence
to support the jury's finding that the house at 5205 Pine Hall Road
was inhabited by Kuhn at the time of its burning on 1 January 2003.
Although Kuhn was temporarily absent from her house pending
defendant's departure, she considered it to “still [be her]
residence . . . [and] was planning on going back there.” Unlike
the former occupant in Ward, Kuhn's actions in no way evinced an
intent to abandon the house. She continued paying the mortgage and
utilities, did not change her mailing address, and kept virtually
all of both her and her son's possessions there. She also retained
a key to the house which she used at her pleasure and returned
there from time to time to gather her belongings. Moreover, Kuhn
had ongoing discussions with defendant about his departure and had
been told by defendant on the day before the fire that he was
moving out of the residence within a day or two. Unlike a landlord
who leases a dwelling to a tenant, Kuhn's absence from her home was
based upon her fear of defendant, not upon her recognition of any
contractual or legal right to his exclusive occupancy of the house.
Accordingly, we overrule this assignment of error.
Defendant next asserts that the trial court erred by refusingto allow him to cross-examine Kuhn about her alleged romantic
affair with Tom Goco. On voir dire, Kuhn acknowledged that Goco's
wife called Kuhn at some point after the fire and accused her of
having an affair with Goco. Defendant asserts that he had a right
under N.C.R. Evid. 401 and the Confrontation Clause to elicit
testimony from Kuhn tending to show “that someone other than the
defendant had an opportunity or motive to commit the act in
question[.]”
“[I]t is well settled that 'to be both relevant and
admissible, evidence tending to show the guilt of one other than
the defendant must point directly to the guilt of a specific person
or persons.'" State v. Hester, 343 N.C. 266, 271, 470 S.E.2d 25,
28 (1996) (quoting State v. Larrimore, 340 N.C. 119, 144, 456
S.E.2d 789, 802 (1995)). To be allowed into evidence under N.C.R.
Evid. 401, “'such evidence must tend both to implicate another and
be inconsistent with the guilt of the defendant.'” State v.
Williams, 355 N.C. 501, 532, 565 S.E.2d 609, 628 (2002) (quoting
State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279-80 (1987)),
cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Here,
defendant's offer of proof failed to produce any evidence directly
inculpating Goco or his wife in the arson. Evidence of their
potential motive to harm Kuhn was thus inadmissible and was
properly excluded by the trial court. We note that defendant
failed to raise his constitutional claim in the trial court, as
required to preserve the issue for appellate review. State v.
Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985). No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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