An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-699
                         NORTH CAROLINA COURT OF APPEALS

                              Filed:    18 March 2014


STATE OF NORTH CAROLINA


      v.                                       Cabarrus County
                                               Nos. 11 CRS 55594, 12 CRS 1086
MELVIN BIBIAN WARNER



      Appeal by defendant from judgments entered 17 December 2012

by Judge W. Erwin Spainhour in Cabarrus County Superior Court.

Heard in the Court of Appeals 11 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Teresa M. Postell, for the State.

      Glover & Petersen, P.A., by James R. Glover, for defendant-
      appellant.


      CALABRIA, Judge.


      Melvin Bibian Warner (“defendant”) appeals from judgments

for   offenses      of    first    degree      arson,   maliciously       damaging

occupied property by use of an explosive or incendiary device,

possession     of   a    weapon    of   mass    destruction,      and   attaining

habitual felon status.         We find no error.
                                           -2-
      Defendant and Ula Jones (“Ms. Jones”) started dating in

2010.     They initially lived next door to one another in the same

cul-de-sac          on   Aggie    Street    in    Kannapolis,        North     Carolina.

Defendant subsequently moved into Ms. Jones’ house at 910 Aggie

Street.        In late September 2011, Ms. Jones                   helped      defendant

acquire a one-bedroom apartment and changed the locks to her

home.

      On the evening of 7 October 2011, Ms. Jones had a male

guest in her home.             While Ms. Jones was entertaining her guest,

defendant       sent     her     text   messages,       commenting      on    Ms.   Jones’

failure to reply.              On the evening of 9 October 2011, defendant

and     Ms.    Jones      communicated     through        a    series    of    text    and

telephone messages.              In one text message, defendant indicated

that he had left his social security card, birth certificate,

and other documents at Ms. Jones’ house.                         Ms. Jones put the

items in a bag on her front porch for defendant to collect.

Later    that       evening,      defendant      sent    Ms.    Jones    a    series    of

messages asking her to meet him in the backyard.                        When Ms. Jones

ignored       the    messages,     defendant      left    an   angry     voice      message

stating she was “on some real bulls--t” and that she “better

keep [her] head up.”
                                           -3-
    On    10     October    2011,        while    Ms.    Jones      was   sleeping,    Ms.

Jones’ sixteen-year-old daughter Tracy1 awoke around 2:00 a.m.

and heard a rattle at the door.                   Shortly thereafter, a Molotov

cocktail crashed through Ms. Jones’ bedroom window and started a

blaze    that    spread     to     the    curtains.           Ms.    Jones    awoke    and

immediately called emergency services.

    Firefighters          controlled        the    flames        after    about    thirty

minutes, but the fire rekindled.                   Officers from the Kannapolis

Police    Department        (“KPD”)        began        investigating        Ms.     Jones’

property.       In her backyard and in the woodline, they discovered

several Steel Reserve 211 beer cans.                    Officers also discovered a

dirt path leading through the woods behind Ms. Jones’ house.

The dirt path led through thick briars on one side and had a few

muddy and waterlogged areas.                Approximately forty minutes after

the fire ignited, KPD Sergeant Laura Carden Smith (“Sgt. Smith”)

discovered defendant walking about a quarter of a mile from Ms.

Jones’ house.      When Sgt. Smith discovered defendant, he was less

than 200 yards from the path.

    KPD     Sergeant       Allen    Tomlin        (“Sgt.      Tomlin”)       subsequently

joined    Sgt.    Smith.         Sgts.     Smith        and   Tomlin      observed    that

defendant’s pants and shoes were wet and muddy. Sgt. Tomlin not

1
  Because she was a minor at the time of these events, we use a
pseudonym to protect her privacy and for ease of reading.
                                              -4-
only detected an odor of alcohol on defendant’s breath, but he

also detected an odor of gasoline or kerosene emanating from

defendant.

       Defendant indicated that he was headed towards South Main

Street, where his apartment was located.                       Defendant was walking

in the opposite direction when Sgt. Smith first approached him.

When       Sgt.    Tomlin     asked   defendant        to    consent    to     a    search,

defendant stated he “didn’t have anything,” then turned out his

pockets and emptied the backpack he was carrying onto the patrol

car.       Defendant’s backpack contained two lighters, a flashlight,

and    a    few     cans     of   Steel    Reserve     211    beer,    the   same     brand

discovered in Ms. Jones’ backyard and in the woodline behind the

house.          Defendant also had a torn rag with a strong odor of

gasoline in his pocket.

       KPD        Investigator      Jennifer        Hyatt    (“Investigator         Hyatt”)

interviewed         defendant       shortly    after        Sgts.   Smith    and     Tomlin

located him.            Investigator Hyatt observed that defendant’s shirt

was torn, and he had fresh scratches on his arms.                              When asked

where      he     was   at   2:00   a.m.    when     the    fire    started,    defendant

claimed he had been looking for work at Concord Mills Mall, and

hitchhiked part of the way to and from the mall.                                   However,

Concord Mills Mall had closed at 7:00 p.m.
                                      -5-
     After interviewing defendant, Investigator Hyatt                      went to

defendant’s unoccupied previous residence at 914 Aggie Street

and discovered a red plastic gas canister that appeared to have

been handled recently in the crawlspace.                   Investigator Hyatt

also detected an odor of gasoline outside 914 Aggie Street, and

a search later revealed a large patch of dead grass a few feet

away from the opening of the crawlspace.                   The landlord later

indicated    he   had   neither    seen     the    gas   canister    nor    poured

gasoline on the grass at that residence.

     On the afternoon of the day of the fire, KPD Sergeant Joe

Yurco (“Sgt. Yurco”) prepared an application to acquire a search

warrant     for     defendant’s     residence.            In   the    affidavit

accompanying his application for the search warrant, Sgt. Yurco

included    numerous    details    regarding       the   circumstances     of   the

fire.      Specifically, Sgt. Yurco stated that officers located

defendant approximately 600 yards from the scene of the fire

wearing clothes that were wet and torn, indicating he may have

used the dirt path, and that defendant possessed a torn rag

soaked with gasoline when he turned out his pockets for Sgt.

Tomlin.      Sgt.    Yurco’s      affidavit       also   included    defendant’s

statement that he was returning from a job interview at Concord

Mills Mall.       Sgt. Yurco believed this was “obviously a false
                                    -6-
statement given the fact that it was 2:30 am [sic].”                 Defendant

also became belligerent when officers questioned him about his

possible involvement with the fire.

      Shortly after acquiring the search warrant, law enforcement

officers arrived at defendant’s residence to serve it.                   Despite

the fact that the officers knocked and announced their presence,

defendant did not answer the door.           When the apartment manager

unlocked the door for the officers, defendant had changed his

clothes and was sitting eight feet from the door.                 The clothes

defendant had been wearing when Sgts. Smith and Tomlin located

him   had   been   washed.     Officers    also    found    defendant’s     cell

phone, but the battery had been removed from the phone.                    On a

table inside the residence, officers noticed defendant’s birth

certificate and social security card.

      Defendant was subsequently arrested and later indicted for

first   degree     arson,    malicious    assault    in     a   secret    manner

(“secret assault”), malicious damage to occupied property by use

of an explosive or incendiary device (“malicious damage”), and

possession of a weapon of mass destruction.                Defendant was also

indicted    for    attaining   habitual    felon    status.        The    secret

assault offense was later dismissed, and defendant was tried for

the remaining offenses in Cabarrus County Superior Court.
                                      -7-
    At     trial,   the     State   presented     evidence       from   fifteen

witnesses, including Ms. Jones, Tracy, Sgt. Tomlin, Sgt. Smith,

Investigator Hyatt, and Sgt. Yurco.            At the close of the State’s

evidence, the trial court denied defendant’s motion to dismiss

the charges.      The defense rested without offering any evidence

and renewed the motion to dismiss, which the trial court again

denied.    On 17 December 2012, the jury returned verdicts finding

defendant guilty of first degree arson, malicious damage, and

possession of a weapon of mass destruction.                     Defendant pled

guilty    to   attaining   habitual    felon    status    but    reserved   all

rights of appeal.     The trial court consolidated the first degree

arson and malicious damage offenses into a single judgment and

sentenced defendant to two consecutive terms of a minimum of 96

and a maximum of 125 months in the custody of the Division of

Adult Correction.     Defendant appeals.

    Defendant’s sole argument on appeal is that the trial court

erred in denying his motion to dismiss because the evidence was

insufficient to permit a reasonable juror to conclude defendant

was the perpetrator of the offenses charged.             We disagree.

    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”         State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).        “In its analysis, the trial court must
                                            -8-
determine    whether     there    is    substantial          evidence      (1)    of     each

essential element of the offense charged and (2) that                                  [the]

defendant    is   the    perpetrator          of       the   offense.”           State     v.

Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citations

omitted).    “Substantial evidence is such relevant evidence as a

reasonable      mind    might     accept          as    adequate      to     support       a

conclusion.”      State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980).         The evidence should be viewed “in the light

most favorable to the State, giving the State the benefit of all

reasonable inferences.”          State v. Benson, 331 N.C. 537, 544, 417

S.E.2d 756, 761 (1992).

    “Circumstantial evidence may withstand a motion to dismiss

and support a conviction even when the evidence does not rule

out every hypothesis of innocence.”                    State v. Fritsch, 351 N.C.

373, 379, 526 S.E.2d 451, 455 (2000) (citation and quotation

marks omitted).        When the evidence is circumstantial, our Courts

often look to motive, opportunity, capability, and identity to

determine    whether      there        is    sufficient           evidence       to    infer

defendant’s guilt.       State v. Hayden, 212 N.C. App. 482, 485, 711

S.E.2d   492,     494    (2011).            “Evidence        of    either    motive       or

opportunity alone is insufficient to carry a case to the jury.”

Id., 711 S.E.2d at 495 (citation omitted).
                                     -9-
       Defendant contends that pursuant to State v. Hayden, the

evidence at trial was insufficient to establish that he was the

perpetrator of the offenses.          In Hayden, this Court held that

the State presented sufficient evidence to support motive, but

failed to present sufficient evidence that the defendant had

either the opportunity or means to commit the offense when there

was no evidence presented linking the defendant to the crime

scene and no murder weapon was introduced at trial.                    212 N.C.

App. at 493-94, 711 S.E.2d at 500. While defendant is correct

that   evidence   of    either   motive    or    opportunity   alone     is   not

enough to prove a defendant’s identity as the perpetrator, the

instant case is distinguishable from Hayden.

       In the instant case, the State presented evidence of motive

with Ms. Jones’ testimony.           Defendant had been upset with Ms.

Jones for a number of reasons.         Ms. Jones had asked defendant to

move out of her home, and Ms. Jones had a male guest in her home

just a few days before the fire.           In addition, Ms. Jones ignored

many of defendant’s text messages and requests to meet him in

the    backyard   the    afternoon    and       evening   before   the    fire.

Furthermore, defendant had also threatened Ms. Jones mere hours

before the fire, warning her to “keep [her] head up.”
                                    -10-
     More     importantly,    the     State    presented      evidence   of

opportunity    and   means,   in    addition   to   motive,    specifically

linking defendant to the crime scene.           Defendant was located a

mere quarter mile away from Ms. Jones’ home less than an hour

after the fire ignited, and his pants and shoes were wet as if

he   had    taken    the   waterlogged     path     through    the   woods.

Investigator Hyatt testified the fresh scratches on defendant’s

arms appeared to be scratches from briars.            Although defendant

told officers that he had been looking for work at Concord Mills

Mall, and hitchhiked for part of the way to and from the mall,

the mall had closed several hours before the fire started at

2:00 a.m.     He also became belligerent with officers when asked

about his potential involvement with the fire.

     The State also presented substantial evidence that included

numerous items defendant used in the offenses.                The rag Sgt.

Tomlin found in defendant’s pocket later tested positive for

gasoline, as did a soil sample collected from the yard behind

defendant’s prior residence at 914 Aggie Street, where the gas

canister was discovered in the crawlspace.           In addition, samples

taken from under Ms. Jones’ bedroom window tested positive for

“hydrocarbons consistent with residual gasoline.”             Defendant was

also carrying butane lighters and the same brand of beer that
                                   -11-
was discovered in Ms. Jones’ backyard.          When officers served the

search warrant on defendant’s residence, defendant had already

washed his clothes and removed the battery from his cell phone.

Defendant’s     birth   certificate   and    social    security     card,   the

documents Ms. Jones had left on the front porch for him to

retrieve, were on a table inside his residence.

    The State in the instant case presented evidence supporting

a finding not only of motive, but also of opportunity and means,

linking defendant both to the crime scene and to the offenses.

Taken in the light most favorable to the State, the evidence

supports    a    reasonable   inference       that     defendant     was    the

perpetrator of the offenses.          The trial court determined there

was sufficient evidence to infer defendant’s guilt.                  “[I]t is

for the jury to decide whether the facts, taken singly or in

combination, satisfy [it] beyond a reasonable doubt that the

defendant is actually guilty.” Fritsch, 351 N.C. at 379, 526

S.E.2d at 455 (emphasis in original) (citation omitted).                     We

therefore   hold    the   trial   court     properly    denied     defendant’s

motion to dismiss.

    No error.

    Judges BRYANT and GEER concur.

    Report per Rule 30(e).
