STATE OF NORTH CAROLINA
v. Wake County
No. 04CRS013661
ANTHONY WILLIAMS JONES
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Douglas W. Corkhill, for the State.
Massengale & Ozer, by Marilyn G. Ozer, for defendant-
appellant.
HUNTER, Judge.
A jury found Anthony Williams Jones (“defendant”) guilty of
attempted first degree arson, whereupon he admitted his habitual
felon status. The trial court sentenced defendant as an habitual
felon to an active prison term of 115 to 147 months. Defendant
gave timely notice of appeal. For the reasons stated herein, we
find no error.
At trial, Jonathan Beamon (“Beamon”) testified that defendant
came to his residence at Jeffrey's Mobile Home Park on Poole Road
in Wake County, North Carolina, on 28 February 2004, demanding the
repayment of $275.00 which his friend, Stacy Hendrix (“Hendrix”),
had given Beamon for the purpose of purchasing marijuana. Insidethe trailer with Beamon were his two children, who were two and
four years old. Beamon's mother, Minnie Flinchum (“Flinchum”),
also lived in the residence, but was not at home. Defendant
“pushed his way in the house [and] started ranting and raving about
how he was going to beat [Beamon] up[.]” He told Beamon that the
$275.00 belonged to him, “and he was going to kick [Beamon's] ass
if [he] didn't have this money[.]” Beamon sat down on the couch
with his children, who “were screaming and crying[,]” and told
defendant that he was not going to fight in front of them. He
picked up the telephone and told defendant that “he was calling the
police [and defendant] needed to leave.” Defendant drove away from
the trailer. The police arrived, took a description of the
intruder from Beamon, and told him that he “would have to go down
and file papers on [defendant].” Beamon then called Hendrix and
asked for defendant's name to give to the police. She identified
defendant as Anthony William
(See footnote 1)
Jones.
After speaking to Hendrix, Beamon tried “to calm [his] kids
down” and phoned Flinchum, who said that she was coming home from
work. Beamon then heard someone knocking on his front door.
Peering through a window, he saw defendant. After “beating on thedoor” and threatening Beamon, defendant walked to his car, obtained
a jack from the trunk, and began beating on Beamon's door with the
jack. Beamon called the police and reported “that this guy is
trying to beat my door in” and that Beamon had two small children
in the trailer. After hearing defendant throw down the jack onto
his deck, Beamon “start[ed] smelling kerosene.” He looked out of
his window and saw defendant “standing at the door pouring kerosene
on [the] front door and all down the side, down the deck” with a
can of kerosene that Beamon had been using with a heater. With his
children “screaming and crying to the top of their lungs,” Beamon
called the police a second time and said, “[t]his guy is going to
burn my house down with my two kids in this house.” He then
noticed that kerosene was coming into the house underneath the
front door. Beamon could hear defendant yelling, “I'm going to
burn your f-ing house down if you don't open this f-ing door.”
Beamon looked out of the window again and saw that defendant had
spread kerosene “from about 5[ feet] up on the front door down
. . . [and] all the way that's down the side of the trailer as far
as he could reach.” Holding a cigarette lighter in his hand,
defendant then “squatted down like he's going to burn my house down
with a lighter” and again screamed, “I'm going to burn your f-ing
house down if you don't open the door.” Defendant held the lighter
six to twelve inches from the deck for approximately one minute
until Beamon's mother arrived and “jumped straight out of the car
yelling and screaming.” Defendant was yelling at Flinchum when the
deputy sheriff arrived. Flinchum testified that when she arrived at the house, she
observed a red car parked in the driveway and then “saw someone
bent down on my porch at my front door” as though he was “looking
under [the] door.” She “jumped out of the car and started
hollering” at defendant, who came down from the porch and “was
yelling and cursing” at her. She heard her two grandchildren
“screaming and hollering” and told defendant that he knew the
children were in the house and “he needed to leave.” Flinchum
walked onto the front porch and “saw the kerosene all over the
place[.]” When she entered the trailer, she saw “kerosene all over
[her] floor.”
Wake County Sheriff's Deputy Barry Jones (“Deputy Jones”)
responded to the scene and saw defendant come off of the trailer's
deck and begin arguing heatedly with Flinchum in the yard. Deputy
Jones conducted a pat-down frisk of defendant and found two
cigarette lighters in his front pocket. Defendant told Deputy
Jones that Beamon owed him money and explained that “he kicked the
kerosene can because it was blocking the door.” Deputy R. K.
Whitlow (“Deputy Whitlow”) observed a
blue kerosene can laying on the ground off to
the side . . . [and] the pink liquid that had
been poured down the side of the trailer . . .
[which] appeared to extend from the window on
one side down the side of the trailer to the
window on the other with a good bit of pooling
in the snow.
Deputy Whitlow also saw “a good bit [of kerosene] dripping down the
front of the door inside -_ on the inside of the door . . . into
the house running down the face of it.” Captain Michael Arnold of Eastern Wake Fire and Rescue
(“Captain Arnold”) testified that kerosene burned only after it was
heated to its “flash point” and produced enough vapor to ignite.
The ignition source could be placed in the air above the kerosene
or on the kerosene “just so it could heat it up so it could produce
those vapors.” According to Captain Arnold, the fact that snow was
on the ground on 28 February 2004 would have delayed the speed at
which the kerosene reached its flash point and ignited.
Defendant offered no evidence but moved to dismiss the charge
at the conclusion of the State's case. The trial court denied his
motion to dismiss.
On appeal, defendant first claims the evidence was
insufficient to sustain the charge of attempted arson, absent a
showing that he actually intended to burn the trailer, rather than
merely to threaten Beamon. While acknowledging the “copious
evidence that kerosene had been poured across the deck” of the
trailer, he insists that “the State's only physical evidence that
[he] intended to light the spilled kerosene was his possession of
two BIC lighters.” Defendant avers the evidence revealed the
countervailing circumstances reflecting his intention only to
threaten Beamon. He points to Jones's testimony that he might have
had cigarettes in his pocket, thereby explaining his possession of
the lighters. Defendant further notes that he did not bring the
kerosene to the scene, that he splashed kerosene on his own
clothing and thus risked burning himself if he burned the trailer,
and that he made other “empty threats” toward Beamon. We review defendant's challenge to the sufficiency of the
evidence under the following familiar standard:
The evidence is sufficient to sustain a guilty
verdict if substantial evidence was presented
on every element of the offense charged.
“Substantial evidence” is defined as that
amount of relevant evidence that a reasonable
mind might accept as adequate to support a
conclusion. In ruling upon defendant's
motion[] challenging the sufficiency of the
evidence, the trial court is required to
interpret the evidence in the light most
favorable to the State, drawing all reasonable
inferences therefrom in the State's favor.
State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)
(citations omitted). To withstand a motion to dismiss, the
evidence of defendant's guilt “'must be existing and real but need
not exclude every reasonable hypothesis of innocence.'” State v.
Walker, 332 N.C. 520, 533, 422 S.E.2d 716, 723-24 (1992) (citation
omitted).
The crime of arson is 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). First
degree arson includes the burning of 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[.]” N.C. Gen. Stat. § 14-58.2 (2005). Here, defendant was
found guilty of attempted arson. “The elements of an attempt to
commit any crime are: (1) the intent to commit the substantive
offense, and (2) an overt act done for that purpose which goes
beyond mere preparation, but (3) falls short of the completed
offense.” State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921(1996). A person's subjective intent typically “'“must be proved,
if proven at all, by circumstantial evidence, that is, by proving
facts from which the fact sought to be proven may be reasonably
inferred.”'” State v. Alexander, 337 N.C. 182, 188, 446 S.E.2d 83,
86-87 (1994) (citations omitted). Accordingly, the charge of
attempted first degree arson may be sustained upon “evidence from
which a jury could reasonably find that there was an attempt to
burn [an occupied dwelling] which failed[.]” State v. Shaw, 305
N.C. 327, 342, 289 S.E.2d 325, 333 (1982).
We conclude the State adduced substantial evidence that
defendant attempted to burn the trailer occupied by Beamon and his
children on 28 February 2004. Defendant's actions of dousing the
front of the trailer with kerosene and then holding his lighter up
to the dwelling were overt acts beyond mere preparation sufficient
to constitute an attempt to burn the structure. Moreover, we find
that the circumstances, including defendant's threats to Beamon,
supported a reasonable inference that defendant actually intended
to burn the trailer, knowing it was occupied, but was interrupted
by Flinchum before the kerosene reached its flash point. While
defendant insists on appeal that his threats to burn the trailer
were empty, “'[a] man's intentions can only be judged by his words
and deeds; he must be taken to intend those consequences which are
the natural and immediate results of his acts.'” State v. Webb,
309 N.C. 549, 557, 308 S.E.2d 252, 257 (1983) (quoting State v.
Smith, 268 N.C. 167, 173, 150 S.E.2d 194, 200 (1966)). The
possibility that defendant was merely pretending to ignite thekerosene in order to goad Beamon into opening his door was a matter
for the jury to consider, but did not exclude a finding of guilt.
See Walker, 332 N.C. at 533, 422 S.E.2d at 723-24. Because the
evidence was sufficient to support the charge, we overrule this
assignment of error.
Defendant next avers the trial court committed reversible
error by overruling his objection to “inflammatory, grossly
prejudicial, victim impact, hearsay evidence concerning the key
issue to be decided by the jury[.]” The transcript reflects
defendant's objection to the following testimony by Beamon
regarding the effect of the incident upon his daughter:
Q. What were your children doing [as
defendant was pouring kerosene on your door]?
A. Running around screaming and crying
man. My little girl knows what's going on.
She's four years old. She's very intelligent.
It's kind of scary to be honest with you to
have a four year old little girl that looks at
you to this day and says, daddy, that man is
not going to come burn our house down right
before she goes to sleep. I'm looking at my
little girl, no baby, I would never let this
happen.
[DEFENSE COUNSEL]: Objection, your
Honor.
THE COURT: Overruled.
Defendant offered no grounds for his objection and did not ask to
be heard on the issue. He now contends that Beamon's testimony
about his daughter's response was hearsay, “expressing her belief
that [defendant]'s intent was to burn her house down.” Defendant
further claims that a father's testimony regarding the fear of hisyoung daughter invited the jury to rule based on emotion rather
than the objective facts.
“'A general objection, when overruled, is ordinarily not
adequate unless the evidence, considered as a whole, makes it clear
that there is no purpose to be served from admitting the
evidence.'” State v. Perkins, 154 N.C. App. 148, 152, 571 S.E.2d
645, 648 (2002) (quoting State v. Jones, 342 N.C. 523, 535, 467
S.E.2d 12, 20 (1996)). Here, “[d]efendant's counsel gave no basis
for the objection[] and the transcript does not clearly demonstrate
grounds for the objection[].” Id. Accordingly, having failed to
articulate the grounds for his objection, defendant failed to
properly preserve this issue for appeal. Id. (citing State v.
Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 704 (1986)).
We note that Beamon's trial testimony was replete with
additional references to his children “screaming and crying[,]”
“freaking out[,]” “flipping out[,]” and being “petrified” and
“terrified” in response to defendant's assault on their residence.
Brent Boykin of the Raleigh Wake County 911 Center testified that
he “remember[ed] . . . hearing the kids or children screaming in
the background” during Beamon's 911 call. Flinchum likewise
testified that when she arrived and confronted defendant, she
“could hear [her two grandchildren] screaming and hollering” inside
the trailer. Defendant's failure to object to substantially
similar evidence of the fear experienced by Beamon's children
waived any objection on this basis. See State v. Shamsid-Deen, 324
N.C. 437, 445, 379 S.E.2d 842, 847 (1989). We further note thatBeamon's daughter did not assert knowledge of defendant's intention
during the incident. Rather, she merely expressed her concern
about his possible future actions based on her observations.
Therefore, contrary to defendant's argument on appeal, the child's
request for Beamon's assurance that “that man is not going to come
burn our house down” did not constitute hearsay evidence of
defendant's intent to commit arson. See N.C.R. Evid. 801(c)
(defining hearsay as an out-of-court statement “offered in evidence
to prove the truth of the matter asserted” by the declarant).
Finally, assuming, arguendo, that the child's statement to Beamon
was inadmissible hearsay, “we are not convinced that there is a
reasonable possibility that a different result would have been
reached at trial had this statement not been admitted. Thus, we
find no prejudicial error.” State v. Locklear, 349 N.C. 118, 149,
505 S.E.2d 277, 295 (1998).
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
Rule 28 of our Rules of Appellate Procedure, we deem them
abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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