{ "id": 8528521, "name": "STATE OF NORTH CAROLINA v. ESTIL HERMAN WARD", "name_abbreviation": "State v. Ward", "decision_date": "1989-05-16", "docket_number": "No. 8822SC585", "first_page": "682", "last_page": "689", "citations": [ { "type": "official", "cite": "93 N.C. App. 682" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "306 S.E. 2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "320 S.E. 2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "690", "parenthetical": "quoting State v. Jones, 309 N.C. 214, 220, 306 S.E. 2d 451, 455 (1983)" } ], "opinion_index": 0 }, { "cite": "312 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4754130 ], "year": 1984, "pin_cites": [ { "page": "72", "parenthetical": "quoting State v. Jones, 309 N.C. 214, 220, 306 S.E. 2d 451, 455 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0070-01" ] }, { "cite": "316 S.E. 2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679307 ], "year": 1984, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0117-01" ] }, { "cite": "367 S.E. 2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "637", "parenthetical": "tenant could commit arson by burning own apartment only because entire building where others dwelled was threatened" } ], "opinion_index": 0 }, { "cite": "322 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514549 ], "year": 1987, "pin_cites": [ { "page": "196", "parenthetical": "tenant could commit arson by burning own apartment only because entire building where others dwelled was threatened" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0176-01" ] }, { "cite": "349 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "885" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358548 ], "year": 1986, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0338-01" ] }, { "cite": "215 S.E. 2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "561", "parenthetical": "\"gravamen\" of offense is danger to persons \"who are or might be in the dwelling . . .\"" }, { "page": "561" } ], "opinion_index": 0 }, { "cite": "288 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564720 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "50", "parenthetical": "\"gravamen\" of offense is danger to persons \"who are or might be in the dwelling . . .\"" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0044-01" ] }, { "cite": "248 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "860", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "296 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564637 ], "year": 1978, "pin_cites": [ { "page": "77-78", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0075-01" ] }, { "cite": "291 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "606" }, { "page": "606" } ], "opinion_index": 0 }, { "cite": "306 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567497 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "100" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0090-01" ] }, { "cite": "261 S.E. 2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "362 S.E. 2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358965 ], "year": 1987, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0626-01" ] } ], "analysis": { "cardinality": 704, "char_count": 15865, "ocr_confidence": 0.774, "pagerank": { "raw": 2.7302750328549637e-07, "percentile": 0.8310575249753943 }, "sha256": "1edbbdf5973f7b4d7342ab2cb668509e0ca62e6fce6753b130c333541cff0ffc", "simhash": "1:ada412229fdf6c5a", "word_count": 2590 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge PHILLIPS concurs in the result.", "Judge COZORT concurs" ], "parties": [ "STATE OF NORTH CAROLINA v. ESTIL HERMAN WARD" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant appeals his convictions of second-degree murder and second-degree arson. The evidence at trial tended to show that Lori Mayse allegedly hired defendant and her half-brother to kill her husband, Robert Mayse. After various failed attempts, the defendant and the half-brother succeeded in beating and choking Robert Mayse to death. A short time thereafter, defendant wrapped the victim\u2019s body in a blanket and disposed of it in a trash dumpster. Defendant then left the State for several days. When he returned, Ms. Mayse gave defendant fifty dollars to burn the trailer where she and the victim had resided. Ms. Mayse did not live in the trailer after defendant left the state. The evidence further showed that Ms. Mayse had disconnected the electrical power to the trailer before the trailer was burned. Kim Beuckles, the half-brother\u2019s girlfriend, testified that defendant threatened to harm her and her child if she reported the crime and stated she was still afraid of defendant at the time of trial.\nAfter the jury convicted defendant of second-degree murder and second-degree arson, the trial court found that aggravating factors outweighed any mitigating factors and sentenced defendant to life imprisonment on the murder charge. The court imposed the presumptive twelve-year sentence for second-degree arson. Defendant appeals both convictions.\nThese facts present the following issues: I) where a prosecution witness had already testified defendant threatened to kill her and sell her child if she testified against him, whether defendant was prejudiced by the trial court\u2019s admission of the witness\u2019s subsequent statement that she was \u201cafraid\u201d of defendant; II) where one inhabitant of a trailer was dead and the other had vacated the trailer and paid defendant $50 as part of a plan with defendant to burn the trailer, whether the trial court erroneously failed to dismiss the charge of arson under Section 14-58; III) whether the trial court committed plain error in failing to intervene ex mero motu to exclude certain remarks by the prosecutor during his closing argument; and IV) whether the trial court erroneously failed to find an \u201cextenuating relationship\u201d between defendant and his murder victim mitigated the offense of second-degree murder.\nI\nDuring the prosecution\u2019s case, the following exchange occurred between a witness and the prosecutor:\nQ. You say [defendant\u2019s alleged accomplice] spoke up and told you that they killed Robert?\nA. They had killed Robert and wrapped him up in a blanket and put him in my truck and hauled him to a dumpster. . . .\nQ. All right.\nA. And then [defendant] says, \u201cYou better not believe [the accomplice] because he may be lying,\u201d and started laughing about it. . . .\nQ. All right. Go ahead.\nA. And he said that if [the accomplice], me, or Lori told about what had happened he would kill us, and he said that if I said anything he would take my little boy off and sell him.\nQ. Sell him?\nA. Right.\nQ. You [sic] afraid of [the defendant/?\nA. Yes, I am.\nMr. CANNON: Objection.\nCOURT: Overruled.\n(Emphasis added.) Defendant contends the trial court erroneously admitted the witness\u2019s testimony that she was \u201cafraid\u201d of defendant at the time of trial.\nWe agree. The State had not contended defendant intimidated the witness at the time of trial. The witness\u2019s testimony that she was afraid of defendant at the time of trial has no apparent relevance to this case other than to imply the defendant was a violent person; consequently, the witness\u2019s statement that she was afraid at the time of trial should not have been admitted. State v. Bell, 87 N.C. App. 626, 636, 362 S.E. 2d 288, 294 (1987). However, defendant did not object at trial nor assign error on appeal to the witness\u2019s immediately preceding testimony that defendant had threatened to kill her and sell her child if she reported the crime. Given that testimony, we do not believe there is a reasonable possibility that a different result would have been reached if the trial court had excluded the witness\u2019s statement that she was afraid of defendant at the time of trial. See N.C.G.S. Sec. 15A-1443(a) (1988).\nII\nDefendant also contends the trial court erroneously failed to grant his motion to dismiss the charge of second-degree arson under Section 14-58, which states:\nThere shall be two degrees of arson as defined at the common law. If the dwelling burned was occupied at the time of the burning, the offense is arson in the first-degree . . . If the dwelling burned was unoccupied at the time of the burning, the offense is arson in the second-degree . . .\nN.C.G.S. Sec. 14-58 (1986). Before a motion to dismiss is denied, the court must find substantial evidence of each essential element of the offense charged. The evidence is considered in the light most favorable to the State and the State is entitled to every reasonable inference from that evidence. State v. Powell, 299 N.C. 95, 99, 261 S.E. 2d 114, 117 (1980).\nSection 14-58 does not re-define the crime of arson but instead incorporates the common law definition that \u201carson is the wilful and malicious burning of the dwelling house of another person.\u201d State v. Vickers, 306 N.C. 90, 100, 291 S.E. 2d 599, 606 (1982). \u201cFurther, since arson is an offense against the security of the habitation and not the property, an essential element of the crime is that the property be inhabited by some person.\u201d Id. The only inhabitants of the trailer before it burned were Robert Mayse and his wife, Lori. Defendant contends the State\u2019s evidence showed the trailer was uninhabited at the time it was burned since: (1) Robert Mayse had been murdered, wrapped in a blanket, and left in a trash dumpster several days before the burning; and (2) Lori Mayse had disconnected the power to the trailer, vacated it and paid defendant $50 pursuant to an alleged scheme with defendant to burn the trailer. Defendant thus contends he could not be convicted of common law arson under these facts since both prior inhabitants of the trailer were permanently absent from the trailer at the time it was burned.\nWe agree. \u201c[T]he main purpose of common law arson is to protect against danger to those persons who might be in the dwelling house which is burned.\u201d State v. Jones, 296 N.C. 75, 77-78, 248 S.E. 2d 858, 860 (1978) (emphasis added); accord State v. White, 288 N.C. 44, 50, 215 S.E. 2d 557, 561 (1975) (\u201cgravamen\u201d of offense is danger to persons \u201cwho are or might be in the dwelling . . .\u201d). Under these particular facts, there was no danger to anyone who \u201cmight\u201d have been in the trailer at the time it burned. First, the State\u2019s evidence showed Robert Mayse was dead several days before defendant allegedly burned the trailer. While temporary absence from a dwelling will not affect its status as an inhabited dwelling, the inhabitant\u2019s death certainly renders it uninhabited since someone must \u201clive\u201d in a dwelling for it to be \u201cinhabited.\u201d See State v. Eubanks, 83 N.C. App. 338, 339, 349 S.E. 2d 884, 885 (1986); see also Vickers, 306 N.C. at 100, 291 S.E. 2d at 606. Thus, Robert Mayse no longer inhabited the trailer at the time it was burned.\nLikewise, the evidence shows that Lori Mayse had permanently abandoned the trailer at the time of the burning. Ms. Mayse had shut off electric power to the trailer and was living elsewhere at the time of the burning. Furthermore, the State\u2019s evidence showed her consent to, if not active participation in, a scheme with defendant to burn the trailer. This fact alone arguably precluded defendant\u2019s conviction of common law arson: it is certainly evidence of Ms. Mayse\u2019s intention not to return to the trailer. Compare State v. Allen, 322 N.C. 176, 196, 367 S.E. 2d 626, 637 (1987) (tenant could commit arson by burning own apartment only because entire building where others dwelled was threatened) with 5 Am. Jur. 2d, Arson and Related Offenses Sec. 26 (1962) (if person cannot commit common law arson against own dwelling, defendant who burns dwelling at person\u2019s request cannot be prosecuted for common law arson). Thus, the undisputed evidence is that Lori Mayse had ceased to inhabit the trailer at the time it was burned.\nOther statutes prohibit an occupant from burning, or procuring others to burn, the occupant\u2019s dwelling. E.g., N.C.G.S. Sec. 14-65 (1986); N.C.G.S. Sec. 14-67.1 (1986); see also N.C.G.S. Sec. 1449(b) (1986) (damaging property by incendiary device). However, our courts maintain a clear distinction between the \u201cancient crime\u201d of arson and other statutory crimes. White, 288 N.C. at 51, 215 S.E. 2d at 561. Accordingly, we reverse defendant\u2019s conviction of common law arson under Section 14-58. We therefore do not address defendant\u2019s contention that the trial court should have submitted certain alleged lesser-included offenses to the jury at the time it submitted the issue of common law arson.\nIll\nAlthough defendant failed to object to the prosecutor\u2019s closing remarks at trial, defendant now argues the trial court\u2019s failure to exclude the remarks constitutes plain error. Specifically, defendant complains he was prejudiced by the prosecutor\u2019s following statements: (1) \u201cLet me tell you something, folks, you have heard people who are involved in this killing, yet there is someone else that knows about this killing\u201d; (2) \u201cDo you think the family of this boy over here that\u2019s been here all week likes not having that boy or thinking he is out in some garbage dump?\u201d; (3) \u201cThat is, without a doubt, the sorriest doings I\u2019ve ever seen in my life, the killing and all the other stuff you\u2019ve heard about this week.\u201d Defendant also contests the prosecutor\u2019s statements that certain prosecution witnesses were \u201ctruthful.\u201d\nThe trial court properly instructed the jury that defendant was entitled to remain silent during his trial and that the jury was the sole judge of the witnesses\u2019 credibility. We reject defendant\u2019s contention the trial court\u2019s failure to intervene during the prosecutor\u2019s remarks was \u201cplain error\u201d in light of our Supreme Court\u2019s analysis of similar facts in State v. Wilson, 311 N.C. 117, 130, 316 S.E. 2d 54-55 (1984):\nDefendant did not object to the prosecutor\u2019s argument at the time the above statements were made. . . . The defendant\u2019s closing argument and the trial judge\u2019s charge to the jury emphasized the presumption of innocence of the defendant and the State\u2019s burden of proving its case beyond a reasonable doubt. Assuming, arguendo, that the prosecutor\u2019s statement could be construed as . . . impermissible . . ., it was not so extreme or so clearly calculated to prejudice the jury that the trial judge should have ex mero motu instructed the jury to disregard the remarks. Whatever error there may have been, it was cured by the trial judge\u2019s instructions to the jury.\nAccordingly, we reject this assignment of error.\nIV\nAlthough defendant did not request the trial court find that defendant had an extenuating relationship with the murder victim, Robert Mayse, defendant argues the trial court was nevertheless required to find that factor mitigated his conviction of second-degree murder. Cf. N.C.G.S. Sec. 15A-1340.4(a)(2)(i) (offense mitigated if defendant acted under strong provocation or relationship between defendant and victim was \u201cextenuating\u201d). It is true that the trial court has the duty to find a statutory mitigating factor that has not been requested by defendant when the evidence \u201c \u2018so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn\u2019 and the credibility of the evidence \u2018is manifest as a matter of law.\u2019 \u201d State v. Gardner, 312 N.C. 70, 72, 320 S.E. 2d 688, 690 (1984) (quoting State v. Jones, 309 N.C. 214, 220, 306 S.E. 2d 451, 455 (1983)). Given this standard, defendant asserts the trial court was required to find that an extenuating relationship between defendant and Robert Mayse existed such that his conviction for the murder of Robert Mayse was mitigated.\nOur review of the evidence does not support this assertion. Defendant contends the trial court was compelled to find this factor in light of Lori Mayse\u2019s testimony that she told defendant the victim had been \u201ctorturing\u201d and otherwise mistreating her. Since there was evidence of a scheme between Ms. Mayse and defendant to burn the trailer, the trial court did find defendant\u2019s relationship with Lori Mayse mitigated his alleged arson of her trailer; however, any relationship between defendant and Lori Mayse did not necessarily compel the trial court to find a similar extenuating relationship existed between defendant and Robert Mayse, the murder victim. There was no evidence of strong provocation or an extenuating relationship between defendant and the victim, such that the trial court was compelled to find this mitigating factor under the eviden-tiary standards set forth in Gardner. Accordingly, we also reject this assignment of error.\nConviction for second-degree murder \u2014 no error.\nConviction for second-degree arson \u2014reversed.\nJudge PHILLIPS concurs in the result.\nJudge COZORT concurs", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge COZORT\nconcurring.\nI agree that the facts in this case did not support submission to the jury of the offense of second-degree arson. I hasten to add, however, that defendant is subject to being reindicted and tried on the appropriately designated offense under Article 14 or Article 15 of Chapter 14 of the General Statutes.", "type": "concurrence", "author": "Judge COZORT" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Luden Capone III and Summer Intern R. Dawn Gibbs, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Gordon Widenhouse, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ESTIL HERMAN WARD\nNo. 8822SC585\n(Filed 16 May 1989)\n1. Criminal Law \u00a7 85.2\u2014 witness afraid of defendant \u2014 admission as harmless error\nA defendant charged with murder and arson was not prejudiced by the erroneous admission of testimony by a witness that she was \u201cafraid\u201d of defendant at the time of trial where the witness testified without objection that defendant had threatened to kill her and sell her child if she reported the crimes.\n2. Arson \u00a7 4.2\u2014 second degree arson \u2014trailer uninhabited \u2014insufficient evidence for conviction\nDefendant could not be convicted of common law second degree arson under N.C.G.S. \u00a7 14-58 for burning a trailer because the trailer was uninhabited at the time it was burned where the male occupant had been murdered and left in a trash dumpster several days before the burning, and the female occupant had disconnected power to the trailer, vacated it and paid defendant $50 pursuant to a scheme with defendant to burn the trailer.\n3. Criminal Law \u00a7 102.6\u2014 prosecutor\u2019s jury argument \u2014 no plain error\nThe trial court did not commit plain error in a murder and arson trial by failing to intervene during the prosecutor\u2019s closing argument when the prosecutor stated that \u201cyou have heard people who are involved in this killing, yet there is someone else that knows about this killing,\u201d asked whether the victim\u2019s family \u201clikes not having that boy or thinking he is out in some garbage dump,\u201d stated that this case was \u201cthe sorriest doings I\u2019ve ever seen in my life,\u201d and stated that certain prosecution witnesses were \u201ctruthful.\u201d\n4. Criminal Law \u00a7 138.38\u2014 murder \u2014 mitigating circumstance\u2014 strong provocation or extenuating relationship \u2014 insufficient evidence\nEvidence that a murder victim\u2019s wife told defendant the victim had been mistreating her did not require the trial court to find strong provocation or an extenuating relationship between defendant and the victim as a mitigating circumstance for defendant\u2019s second degree murder of the victim.\nJudge PHILLIPS concurs in the result.\nJudge COZORT concurring.\nAPPEAL by defendant from Gudger (Lamarj, Judge. Judgment entered 11 January 1988 in Superior Court, ALEXANDER County. Heard in the Court of Appeals 10 January 1989.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Luden Capone III and Summer Intern R. Dawn Gibbs, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Gordon Widenhouse, for defendant-appellant." }, "file_name": "0682-01", "first_page_order": 712, "last_page_order": 719 }