By another assignment of error, defendant contends that the trial court erred in instructing the jury on the theory of felony murder to the extent that it allowed the jury to rely on the felony of first-degree
arson as the
predicate felony Supporting that theory. Defendant contends that
first-degree arson could rot be used in this case as the predicate
felony for the felony-murder theory because the evidence at trial
was insufficient to support his conviction for first-degree arson.
Specifically, he contends that here was no evidence that the burned
dwelling was "occupied" for purposes of N.C.G.S.
§ 14-58 or that
the killing and the burning were part of the same criminal incident.
Defendant says that the evidence would only support a finding that
the time interval between the death of the victim and the burning of
the mobile home was too remote, and the relationship between the two
events too attenuated, for them to be part of one continuous
transaction. We disagree.
When measuring the sufficiency of the evidence to support submission of a charged offense to the jury, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence. State v. Quick, 329 N.C. at 31, 405 S.E.2d at 197. The test of the sufficiency of the evidence to withstand defendant's motion to dismiss "is the same whether the evidence is direct, circumstantial, or both." State v. Vause, 328 N.C. 231, 237, 100 S.E.2d 57, 61 (1991).
the evidence in the light most favorable to the State, defendant
carried out his plan to murder and rob the victim and then burned
the evidence of those crimes as parts of one continuous transaction.
The fact that the time interval between the murder and the arson was
as much as three and one-half hours did not prevent a finding
based on all
the surrounding circumstances that the interval was "short" enough
for the arson and the murder to be parts of one continuous
transaction. In this case, given the extent to which defendant went
to hide the stolen property and the complexity of defendant's
criminal scheme, the murder and arson were "so joined by time and
circumstances as to be part of one continuous transaction," id., and
therefore support a finding that the dwelling was "occupied" within
the meaning of N.C.G.S. §
14-58 Therefore, the evidence was sufficient to support
defendant's conviction for first-degree arson. Accordingly, the
trial court did not err in submitting the first-degree murder charge
to the jury on the theory of felony murder, predicated on the felony
of first-degree arson. This assignment is without merit and
Date Printed: June 27, 1998 4:13:13 PM
Arson and Other Burnings § 32 (NCI4th); Homicide § 278 (NCI4th) - interval between killing and burning - occupancy of dwelling -first-degree arson - felony murder
circumstances as to be part of one continuous transaction and
therefore supports a finding that the dwelling was "occupied" within
the meaning of N.C.G.S. §
14-56, and the evidence was thus sufficient to support defendant's
conviction of first-degree arson and the trial court's submission of
felony murder to the jury predicated on the felony of first-degree
arson, where it tended to show that defendant and his accomplice
parked their car near the victim's mobile home at approximately
11:00 p.m.; after murdering and robbing the victim, they drove both
of his vehicles to another county and then returned for the car in
which they had originally arrived; and at that time, which was
between 2:00 and 2:30 a.m., defendant burned the mobile home to
destroy the evidence. The fact that the time interval between the
murder and the arson was as much as three and one-half hours did not
prevent a finding based on all the surrounding circumstances that
the interval was "short" enough for the murder and the arson to be
parts of one continuous transaction.
Am Jur 2d,
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