STATE OF NORTH CAROLINA
v. Caldwell County
No. 03 CRS 3205
DANNY L. BRYANT
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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