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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA06-1555


Filed: 2 October 2007


         v.                            Caldwell County
                                    No. 03 CRS 3205

    On writ of certiorari to review judgment entered 10 December 2003 by Judge James W. Morgan in Caldwell County Superior Court. Heard in the Court of Appeals 17 September 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Daniel D. Addison, for the State.

    Amos Granger Tyndall, P.A., by Amos Granger Tyndall, for defendant-appellant.

    CALABRIA, Judge.

    Danny Lemuel Bryant (“defendant”) appeals from his judgment entered upon a jury verdict finding him guilty of first degree arson. We find no error.
    On 19 May 2003, the Caldwell County grand jury indicted defendant on a charge of first degree arson. At trial, the State introduced evidence tending to show the following: James Johnson (“victim”) testified he moved into one of the three apartment buildings located on Throneburg Avenue in July of 2001 and resided in apartment 113 on 2 December 2001. Steven Kidwell (“Kidwell”), one of the three guests visiting him at his apartment on 1 December 2001, left around 8:30 p.m. that evening and returned to his ownapartment. When defendant's cigarette burned the victim's tablecloth, the victim communicated with defendant that he was upset. Around 1:30 a.m., defendant told the victim that he would show him “what smoke was or smoking was.” The defendant and Amos Adams (“Adams”), the remaining guest, left the apartment.
    Afterward, the victim fell asleep while watching television in bed, but was awakened when he heard a thump. The victim described the sound of the thump. He said it sounded as if someone had touched the oil tank which was located outside his bedroom window. When he looked out the window, he saw a fire. As the victim walked out the back door, he saw Adams, another occupant of the apartment unit, leaving and walking behind the apartments. Then, he saw Adams walk to the end of the apartments and enter his own apartment. The victim grabbed a mop to try to put out the fire. As he walked down his back porch steps, he fell and injured his leg. After using the mop to put out the fire, the victim started walking around his apartment. He made a decision to use his front door because he did not think he could use the steps behind his apartment. As the victim came around the apartment building, he saw defendant at the side of the victim's car. After defendant threw something into the entrance of the victim's door, the victim's front door and enclosure started burning. Defendant then left and entered Adams' apartment.
    The victim drove to the police station and subsequently flagged down Sergeant Robert Coldiron (“Sergeant Coldiron”). Sergeant Coldiron then drove to the victim's apartment, and when hearrived, flames were visible in the doorway of the end apartment. He identified the end apartment as apartment 113. When asked if he evacuated anybody from the apartment building, Sergeant Coldiron responded that he did. He noted that apartment 115 was vacant and that Kidwell resided in apartment 117. Sergeant Coldiron stated Kidwell's apartment was “two apartments down” from the victim's apartment; both of the apartments were part of the same building. Sergeant Coldiron said the next apartment, number 119, was occupied by defendant, Adams, and Dennis Hall (“Hall”). Sergeant Coldiron indicated it took some persuading to evacuate apartment 119 because defendant and Adams were intoxicated. He told all of them that he “needed them out due to the fact that the building was on fire or there was a fire in one end of the building.” When asked during cross-examination if he was able to find defendant, Adams, and Hall when he knocked on the end apartment, Sergeant Coldiron replied, “Yes, sir.”
    Kidwell testified that he lived in the same place as the victim in the third apartment. He also stated that Adams lived next to him. After returning to his own apartment that night, he “heard a lot of noise over there and everything because the walls are real thin . . . .” Kidwell went to bed and fell asleep, but was later awakened by a police officer warning him to come out of the building because the apartments were on fire.
    Michael Powell (“Powell”), who was a fire investigator at the time, testified there were three sets of apartments at the location. He identified apartment 113 as being the first apartmentin one particular set. Jeffrey Stafford (“Stafford”), who was a detective with the police department at the time, estimated that Adams' apartment was about forty feet from the victim's apartment. Defendant himself testified that he left the victim's apartment that evening and went to Adams' apartment where he went to sleep on a couch. He was awakened by a police officer knocking on the door and telling him to “'[g]et out of this apartment' that the other apartment was on fire.” During cross examination, defendant said the police officer told him that “You're going to have to get out of this apartment until they get this fire under control in the end apartment up here.”
    During the charge conference, defense counsel requested that the trial court instruct the jury on the lesser included offense of second degree arson. After hearing arguments from defense counsel and the State, the trial court denied the requested instruction. The jury subsequently found defendant guilty of first degree arson on 10 December 2003. The trial court sentenced him to a term of 77 to 102 months in the North Carolina Department of Correction. Defendant sought a belated appeal of the trial court's judgment in a petition for writ of certiorari, which this Court allowed on 2 December 2005.
    As an initial matter, defendant argues only one of the four assignments of error in the record. Therefore, the three remaining assignments of error are deemed abandoned per N.C. R. App. 28(b)(6) (2007). By the sole assignment of error brought forward in his brief, defendant contends the trial court erred by failing toinstruct the jury on the lesser included offense of second degree arson because there was a factual dispute as to whether the dwelling house was occupied. Defendant contends the victim may have been outside his apartment when the fire was set, so the requested jury instruction was therefore improper because the evidence was unclear as to whether the other occupied apartments adjoined the victim's apartment. Defendant's argument is not persuasive.
    “When there is evidence of guilt of a lesser offense, a defendant is entitled to have the trial court instruct the jury with respect to that lesser included offense . . . .” State v. Lang, 58 N.C. App. 117, 118, 293 S.E.2d 255, 256, disc. review denied, 306 N.C. 747, 295 S.E.2d 761 (1982). However, if there is no conflicting evidence relating to the essential elements of the greater offense, it is unnecessary for the trial court to instruct on the lesser included offense. See State v. Gray, 58 N.C. App. 102, 106, 293 S.E.2d 274, 277, disc. review denied, 306 N.C. 746, 295 S.E.2d 482 (1982). For the trial court here to have been obligated to instruct the jury of the lesser included offense of second degree arson, there must have been some evidence that the dwelling house was unoccupied at the time of the burning. See State v. Scott, 150 N.C. App. 442, 453, 564 S.E.2d 285, 293, appeal dismissed and disc. review denied, 356 N.C. 443, 573 S.E.2d 508 (2002).
    Although the evidence suggests that the victim may have been outside his apartment when the fire was set, an apartment buildingconstitutes one dwelling house. See State v. Jones, 296 N.C. 75, 77-78, 248 S.E.2d 858, 860 (1978) . If any apartment within the building is occupied, the occupancy requirement of first degree arson is satisfied. See State v. Wyatt, 48 N.C. App. 709, 712, 269 S.E.2d 717, 718-19 (1980). The question before this Court is whether there is some evidence that all the other apartments in the building were unoccupied at the time of the burning. If not, the trial court properly declined to instruct the jury on the lesser included offense of second degree arson.
    The evidence that the apartments occupied by Kidwell and Adams were part of the same building as defendant's apartment is uncontradicted. Kidwell testified that he lived in the third apartment, and he described hearing the sounds from the victim's apartment because the walls were thin. He was later awakened by a police officer telling him to come out of the building because the apartments were on fire. Sergeant Coldiron indicated he evacuated others from the apartment building. While he described apartment 115 as being vacant, he said Kidwell's apartment 117 was two apartments away. He found Adams, Hall, and defendant in apartment 119, which was the next apartment. The victim described seeing Adams walking behind the apartments and entering his own apartment on the end.
    Stafford estimated that Adams' apartment was about forty feet from the victim's apartment. Defendant himself testified that a police officer told him to get out until the fire in the end apartment was under control. The fire investigator at the timedescribed seeing three sets of apartments at the location, and he identified the victim's apartment as being the first apartment in one particular set. None of the evidence suggests that the two occupied apartments were not in the same building as the victim's apartment. As a result, the trial court properly refused to instruct the jury on the lesser included offense of second degree arson.
    No error.
    Chief Judge MARTIN and Judge JACKSON concur.
    Report per Rule 30(e).

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