State v. Jordan , 1982 N.C. App. LEXIS 3151 ( 1982 )

VAUGHN, Judge.

Defendant’s first argument is that the trial court erred in not allowing his motion to dismiss and motion for appropriate relief because of the insufficiency of the evidence.

Upon motion for nonsuit, all the evidence must be considered in the light most favorable to the State, and the State is entitled to every inference of fact which may be reasonably deduced therefrom. State v. Lynch, 301 N.C. 479, 272 S.E. 2d 349 (1980). If more than a scintilla of evidence is presented to support the indictment, the judge must submit the case to the jury. State v. Agnew, 294 N.C. 382, 241 S.E. 2d 684, cert. denied, 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed. 2d 124 (1978).

The evidence showed that defendant was the only person in his cell; he set two fires, one on top of the commode and one in the commode; torn strips of the mattress were burning; and the wall was charred. Clearly, this is sufficient evidence of felonious burning of personal property to withstand defendant’s motion to dismiss.

Defendant contends that the State failed to show an essential element of felonious burning of personal property: the specific intent to injure or prejudice the owner. The felonious burning statute is G.S. 14-66: “If any person shall wantonly and' willfully set fire to or burn . . . any . . . chattels or personal property of any kind . . . with intent to injure or prejudice . . . the person owning the property, or any other person ... he shall be punished as a Class H felon.” The specific intent to injure or prejudice the owner of the property may be proven by circumstances from which it may be inferred, such as the nature of the act and the manner in which it was done. State v. Wesson, 45 N.C. App. 510, 263 S.E. 2d 298 (1980). In this case, the specific intent could be inferred by the evidence that defendant tore strips of the mattress and set two fires in his cell. There was sufficient evidence to allow the jury to make that determination.

Defendant’s second argument is that the trial court erred in not allowing defendant’s motion to submit the misdemeanor offense of willful and wanton injury to personal property to the jury. In general, a defendant is entitled to have all lesser degrees of offenses submitted to the jury, but the trial court need not submit the lesser degrees when the State’s evidence is positive to each element of the crime, and there is no conflicting evidence relating to any elements of the crime. State v. Drumgold, 297 N.C. 267, 254 S.E. 2d 531 (1979).

The misdemeanor offense of willful and wanton injury to personal property is G.S. 14-160: “(a) If any person shall wantonly and willfully injure the personal property of another he shall be guilty of a misdemeanor. . .

Defendant contends that since there is conflicting evidence as to an element of felonious burning, namely whether there was intent to injure the property owner, the misdemeanor offense should have been submitted to the jury. There is, however, no conflicting evidence. The evidence of the torn mattress strips and two fires in the cell is uncontradicted and infers the specific intent.

We have carefully reviewed defendant’s assignments of error and find no error.

No error.

Judges Webb and Wells concur.