People v. Welborne

Citations

• 2017 COA 105
• 428 P.3d 602

Syllabus

First Degree Arson—Criminal Mischief—Lesser Included Offense—Res Gestae Evidence—Impeachment—CRE 608(b)—Witness Disclosure. Welborne and his mother set fire to the house in which they lived and filed false insurance claims based on the fire. Welborne was convicted and sentenced to six years in prison for arson, six years for criminal mischief, six years for attempted theft, and eight years for theft—all to be served concurrently. On appeal, Welborne contended that the trial court erred by admitting evidence of his earlier insurance claims to the same company. The prior false insurance claims involved the same company, related to a material fact, and were logically relevant to the charges. Evidence of Welborne's false but fruitful insurance claims was highly probative of whether he acted to deceive the same insurance company with the intent to permanently deprive it of money. The trial court instructed the jury on the limited purposes of the evidence. The evidence was properly admitted under CRE 404(b) and as res gestae evidence. Welborne further contended that the trial court committed reversible error by permitting the prosecutor to impeach him with his California theft conviction. The trial court acted within its discretion in admitting evidence of Welborne's prior theft offense under Rule 608(b) as probative of truthfulness or dishonesty. Although the prosecutor presented evidence of the conviction rather than the underlying facts, any error was harmless. Welborne also argued that the trial court erred by barring him from calling a witness to impeach the testimony of his former girlfriend. Disclosure of this witness was not timely, and Welborne's offer of proof did not show that the testimony was admissible or that the witness would impeach the girlfriend's testimony that Welborne had started the fire. Finally, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge. Because criminal misc