Opinion
No. COA11–1165.
2012-08-7
STATE of North Carolina v. Boyd Johnston HICKS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General G. Mark Teague, for the State. Duncan B. McCormick for defendant-appellant.
Appeal by defendant from judgments entered 13 January 2011 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 8 February 2012. Attorney General Roy Cooper, by Assistant Attorney General G. Mark Teague, for the State. Duncan B. McCormick for defendant-appellant.
GEER, Judge.
Defendant Boyd Johnston Hicks appeals from his convictions of four counts of conspiracy to commit breaking and entering, four counts of conspiracy to commit larceny after breaking and entering, two counts of burning a building used for trade, two counts of felonious breaking and entering, and two counts of felonious larceny. Defendant primarily contends on appeal that the trial court erred in denying his motion to dismiss the two counts of burning a building used for trade. As the State presented substantial evidence to prove the charges, we find no error.
Facts
The State's evidence tended to show the following facts. In the summer of 2009, Darell Beale and Chris West worked together at Dickinson Tire in Greenville, where they were supervised by defendant. At one point, defendant asked Beale and West whether they would be interested in making some extra money, mentioning that he knew of some places that did not have alarms.
Subsequently, the men would meet, and defendant would tell Beale and West which stores to rob and what tires to get from each store. The meetings took place at different locations, with the men sometimes going out to eat, sometimes meeting at defendant's house, and sometimes meeting at West's house. When the men went to the stores, defendant drove his van, served as a lookout, and sometimes helped the other two men load the tires into the van. Although West and Beale sometimes kept some of the stolen tires for themselves, they generally gave most of the tires to defendant. Defendant would then pay Beale for the tires, and Beale would in turn pay West his share.
On 13 July 2009, defendant, Beale, and West broke into Fulcher Tire Sales and Service, Inc. and stole rims and tires. West and Beale disposed of the rims, but gave the majority of the tires to defendant. Beale took the stolen eighteen-wheeler tires to someone he knew.
The men returned to Fulcher Tire a second time on 4 August 2009 and stole batteries and more tires. West left with some of the merchandise while Beale and defendant remained in the store. When West returned, the store was on fire. West testified at trial that Beale set the fire. The men then went to West's apartment to transfer the tires to defendant. Defendant paid Beale and West $600 .00 each for the stolen tires. On that same evening, the three men also went to Colortyme Custom Wheels, which was on the same road as Fulcher Tire, to steal tires and rims. That store too caught on fire.
On 10 August 2009, Beale and West broke into Carolina Tire and Auto Sales at the direction of defendant. West had worked at the store for a time, while defendant was a frequent visitor to the store. Beale and West gave some of the tires they stole to defendant and left some by the road where the police found them. When the owner arrived at the store, he found the front door pried open and determined that a truck, tires, rims, and tools had been stolen.
Subsequently, West was identified by a confidential informant who had reviewed surveillance tapes of an unrelated robbery. When the police apprehended West, he admitted to several instances of breaking and entering and identified both defendant and Beale as accomplices in some of his thefts.
Defendant was indicted for four counts of conspiracy to commit breaking and entering; four counts of conspiracy to commit larceny after breaking and entering; four counts of conspiracy to commit possession of stolen goods; one count of conspiracy to commit larceny of a motor vehicle; one count of conspiracy to commit possession of a stolen vehicle; two counts of conspiracy to burn a building used for trade; two counts of burning a building used for trade; two counts of felonious breaking and entering; two counts of felonious larceny; and two counts felonious possession of stolen goods.
During the trial, at the close of the State's evidence, the trial court granted defendant's motion to dismiss one count of conspiracy to commit larceny of a motor vehicle; one count of conspiracy to possess a stolen motor vehicle; and two counts of conspiracy to burn a building used for trade. Defendant did not present any evidence. The jury found defendant guilty of four counts of conspiracy to commit breaking and entering; four counts of conspiracy to commit larceny after breaking and entering; four counts of conspiracy to commit felonious possession of stolen goods; two counts of burning a building used for trade; two counts of felonious breaking and entering; two counts of felonious larceny; and two counts of felonious possession of stolen goods. The trial court arrested judgment as to the four counts of conspiracy to possess stolen goods and two counts of possession of stolen goods.
The trial court then sentenced defendant to two consecutive presumptive-range terms of 11 to 14 months imprisonment for felonious breaking and entering and felonious larceny with respect to Colortyme. For the Fulcher Tire breaking and entering and larceny on 4 August 2009, the trial court sentenced defendant to a presumptive-range term of 11 to 14 months imprisonment on each count. Those sentences were to run consecutively with one another and at the conclusion of the sentences relating to the breaking and entering and felonious larceny of Colortyme.
For each count of setting fire to a place of business—involving Fulcher Tire and Colortyme—the trial court sentenced defendant to a presumptive-range term of 25 to 30 months imprisonment. Those sentences were to run consecutively to each other and at the end of the term of imprisonment imposed for the felonious larceny and breaking and entering of Fulcher Tire.
With respect to one count of conspiracy to commit breaking and entering and one count of conspiracy to commit larceny after breaking and entering, the trial court imposed a presumptive-range term of eight to 10 months imprisonment for each count, with the sentences to run consecutively with one another and at the expiration of the terms of imprisonment imposed for setting fire to a place of business. With respect to the remaining conspiracy counts, the trial court then imposed six presumptive-range sentences of eight to 10 months imprisonment, suspended those sentences, and ordered 36 months of supervised probation to begin at the expiration of the final term of imprisonment. Defendant timely appealed to this Court.
I
Defendant first contends on appeal that the trial court erred in denying his motion to dismiss all but one of the conspiracy counts because the evidence supported only one ongoing conspiracy and not multiple, separate conspiracies. The State, however, argues that defendant did not make that argument before the trial court and, therefore, did not preserve the issue for appellate review. We agree.
Defendant's motion to dismiss was the subject of extensive argument in the trial court with the trial judge asking numerous questions regarding the evidence supporting each count of the various indictments. Ultimately, the trial court granted the motion to dismiss as to four different counts. During that oral argument, however, defendant never contended that the separate conspiracy counts should be dismissed. Instead, defendant's apparent strategy appeared to be a divide and conquer approach, focusing on the evidence of each breaking and entering separately in order to argue that West and Beale had committed a number of the thefts on their own volition without defendant's involvement. The argument made on appeal would not have been consistent with that strategy.
As our Supreme Court has explained: “This Court has long held that where a theory argued on appeal was not raised before the trial court, ‘the law does not permit parties to swap horses between courts in order to get a better mount’ “ on appeal. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Because defendant's argument regarding the conspiracy counts was not properly preserved, we do not address it.
Defendant next contends that the trial court erred in not dismissing the counts of burning a building used for trade. When considering a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime and of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002).
“ ‘Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must be viewed “in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
N.C. Gen.Stat. § 14–62 (2011) provides:
If any person shall wantonly and willfully set fire to or burn or cause to be burned, or aid, counsel or procure the burning of, any uninhabited house, or any stable, coach house, outhouse, warehouse, office, shop, mill, barn or granary, or any building, structure or erection used or intended to be used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, he shall be punished as a Class F felon.
Under this statute, the State must prove the following elements: that the defendant (1) willfully and wantonly (2) set fire to or caused to be burned, or aided, counseled, or procured the burning of (3) any building, structure, or erection used or intended to be used in carrying on a trade or manufacture. See State v. Avery, 315 N .C. 1, 25, 337 S.E.2d 786, 799 (1985) (holding with respect to essentially identical language in N.C. Gen.Stat. § 14–67.1 that State must prove “that a defendant willfully and wantonly attempt[ed] to set fire to or burn any building or structure” (emphasis omitted)); State v. Brackett, 306 N.C. 138, 141, 291 S .E.2d 660, 662 (1982) (holding with respect to identically worded N.C. Gen.Stat. § 14–65 that “the State was required to prove (1) that [defendant] was the owner or occupier (2) of a dwelling house (3) that [defendant] burned or set on fire (4) wantonly and willfully”) .
Although the parties discuss extensively a requirement that the fire be “incendiary” in nature—an element drawn from the 29–year–old case of State v. Tew, 62 N.C.App. 190, 193, 302 S.E .2d 633, 635 (1983)—the reference to “incendiary” merely refers to the requirement that the fire be intentionally set. See State v. Smith, 34 N.C.App. 671, 675, 239 S.E.2d 610, 612–13 (1977) (holding that “incendiary” element was met when expert witness testified that “the fire was intentionally set”). See also Brackett, 306 N.C. at 142, 291 S.E.2d at 662–63 (holding that for burning of building to be “willful and wanton burning, it must be shown to have been done intentionally, without legal excuse or justification, and with the knowledge that the act will endanger the rights or safety of others or with reasonable grounds to believe that the rights or safety of others may be endangered”).
Here, defendant argues that the State presented insufficient evidence that the fire was intentionally set or that he was the perpetrator. With respect to whether the fire was intentionally set, Detective Christopher Burack of the Greenville Police Department testified without objection that he did not begin his investigation until the fire marshals had told him that the fires were intentionally set. The State also presented evidence that the Fulcher fire and Colortyme fire occurred on the same night, just down the road from each other. In addition, the manager of the Colortyme store testified that the surveillance video from his store showed two individuals running away from the store as it caught on fire.
This evidence was sufficient to allow the jury to conclude that the fires were intentionally set and, therefore, that the State had proven the willful and wanton element. See State v. Eubanks, 83 N.C.App. 338, 339, 349 S.E.2d 884, 885 (1986) (“The fire was the result of an incendiary act, and not an accidental cause, according to the testimony of a State Bureau of Investigation arson investigator.”); Tew, 62 N.C.App. at 191, 302 S.E.2d at 634 (holding fire was “clearly of incendiary origin” where cigarettes with paper towels and matches at the end were found in the building as a mechanism to light the fire in that case).
With respect to whether defendant was a perpetrator, West testified that he, Beale, and defendant robbed Fulcher Tire on 4 August 2009, that he left Beale and defendant in the building, and that when he returned the building was on fire. He further testified on cross-examination without objection or motion to strike that Beale set the fire at Fulcher Tire. West also testified that the three men went to rob Colortyme, and that store also “got set on fire.”
“It is well-established that the uncorroborated testimony of an accomplice will sustain a conviction so long as the testimony tends to establish every element of the offense charged.” State v. Keller, 297 N.C. 674, 679, 256 S.E.2d 710, 714 (1979). West's testimony was sufficient to support a verdict finding that defendant was one of the perpetrators of the crime. We need not decide whether the evidence was sufficient to establish that defendant set the fire himself because he was tried under a theory of acting in concert.
“ ‘Acting in concert means that the defendant is present at the scene of the crime and acts together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.’ “ State v. Wade, ––– N.C.App. ––––, ––––, 714 S.E.2d 451, 456 (2011) (quoting State v. Graham, 186 N.C.App. 182, 197, 650 S.E.2d 639, 649 (2007)), disc. review denied,––– N.C. ––––, 726 S.E.2d 181 (2012). “Under the theory of acting in concert, if two or more persons join in a purpose to commit a crime, each person is responsible for all unlawful acts committed by the other persons as long as those acts are committed in furtherance of the crime's common purpose.” State v. Hill, 182 N.C.App. 88, 92–93, 641 S.E.2d 380, 385 (2007).
Here, the State's evidence was sufficient to prove that defendant was present at Fulcher Tire and Colortyme, that the three men were acting pursuant to a common plan or purpose to steal tires, and that Beale set the fire at Fulcher Tire. A reasonable juror could also infer that one of the three men set the fire at Colortyme given the Fulcher Tire fire, the presence of the three men, and West's testimony that the fire “got set.” A jury could reasonably infer that the fires were set in connection with the theft.
Defendant argues that the accomplices' testimony was inconsistent and self-serving. His argument, however, ignores the proper standard of review. Questions regarding the credibility of the evidence are “always for the jury.” State v. Locklear, 320 N.C. 754, 762, 360 S.E.2d 682, 686 (1987).
Drawing all reasonable inferences from the evidence in the light most favorable to the State, the State's evidence was sufficient to survive a motion to dismiss on the question of defendant's responsibility for the fire. See State v. Woods, 109 N.C.App. 360, 366, 427 S.E.2d 145, 149 (1993) (“The defendant was the only person seen in close proximity to the fire after it started. The defendant also failed to warn the nearby residents, lied about his identity, and attempted to flee the scene in a stolen car.”); State v. Clark, 90 N.C.App. 489, 495, 369 S.E.2d 607, 610 (1988) (holding that fact “smoke was seen seeping out under the soda machine just as defendants were leaving” was, along with other evidence, sufficient to survive a motion to dismiss). The trial court, therefore, properly denied the motion to dismiss.
No error. Judges STEELMAN and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).