*1 IN THE COURT OF APPEALS STATE v. CARVER judgmеnt request on his for a writ ordering City of mandamus and Hickory zoning “make decision as to the matters in this case thirty (30) days[.]” within part;
AFFIRMED part. VACATEDin Judges HUNTERand McCULLOUGHconcur.
STATE OF NORTH CAROLINA v. MARK BRADLEY CARVER
No. COA11-1382 (Filed 2012) 5 June first-degree 1. murder — sufficient evidence— Homicide — near crime scene —DNA matched to defendant The trial court did not err in a first-degree by murder case denying defendant’s motion to dismiss. There was sufficient evi- dence that defendant murder, committed the including that at the body time the victim’s was discovered defendant at a spot a short distance from the crime scene and had been there for hours, several and that reрeatedly while defendant denied ever touching vehicle, the victim’s DNA found on the victim’s vehicle was, extremely with an high probability, matched to defendant. 2. first-degree jury question acting in Homicide — murder — — question directly not answered concert — — elements second-degree first- and upon murder instructed
The trial court did not err in first-degree murder case refusing jury’s question to answer the about whether it was still acting consider Although concert. the trial court did not answer the directly, the trial court did review the ele- ments of first- and second-degree murder in its reinstruction. first-degree murder —record sufficient— Homicide — jury instruction sufficient
The trial court did not err in first-degree murder case allowing jury urge to convict defendant under the acting doctrine of in concert when the trial court did not instruct acting satisfy concert. Defendant failed his bur- den of an presenting record to his contention. Further, the trial court’s instruction and reinstruction consis- THE OF APPEALS
IN COURT v. CARVER *2 (2012)]
[221 jury tently adequately conveyed to the that the State was required prove killed the victim. by by 18 March 2011
Appeal judgment Defendant from dated Timothy County Superior Court. Heard in Judge S. Kincaid Gaston April Appeals the Court of Special
Attorney Roy Cooper, by Deputy Attorney General Marquis Elder, the State. General Danielle for Jr., Fialko, by & M. Widenhouse Widenhouse Gordon for Rudolf Defendant.
STEPHENS,Judge. first-degree murder,
Following his indictment on one count of Bradley was pled guilty charge Mark Carver to the Defendant by jury County Superior Court, the tried a in Gaston Honorable by Timothy presiding. S. Kincaid The evidence the State to show that the victim was found dead beside her car on the tended River, cousin shore of the Catawba and that Carver and his were fish- body was and near the ing close the time victim’s discovered strangled murdered. victim had to death time the victim was been bag car, drawstring of her gift with a ribbon from a in her sweat- shirt, a another in the trunk her bungee cord similar to cord investigation Law of the murder revealed that car. enforcement’s samples from the car matched Carver’s and his DNA taken victim’s evi- profiles. DNA When Carver confronted cousin’s repeatedly before, ever dence, denied, seeing he he had done as Further, despite that he touching the victim or her car. his statements victim, law officers that never seen the Carver told enforcement had height thing,” was a “little and he demonstrated victim’s the victim to his relative own. the trial
Following presentation of evidence and after court murder, jury second-degree first- and charges instructed The trial sen- guilty first-degree found murder. court Carver parole. appeals. imprisonment without Carver Carver to life tenced [1] On appeal, first argues that the trial court erred deny there was insufficient evidence ing his motion to dismiss because properly disagree. A trial court Carver committed the murder. We alleged dismiss based on an absence denies motion to IN THE COURT OF APPEALS STATE v. CARVER charged that the defendant committed offense where the court i.e., determines there evi- “relevant evidence — accept might dence that reasonable mind charged. conclusion”—that the defendant committed the offense Cross, 713, 716-17, 345 N.C This (1997). Court de a trial ruling dismiss, reviews novo court’s on a motion to and we view the evidence in the most light State, giv- favorable to the ing every reasonable inference Bagley, therefrom. State v. App. 514, 621 (2007). case,
In this there is circumstantial evidence to show that body Carver committed covered, murder: at time the victim’s dis *3 spot a a was at short distance from the crime had hours; repeatedly scene and been there for several and Carver vehicle, denied ever touching the victim’s but DNAfound on the vic was, extremely high probability, tim’s vehicle with an to matched proved Carver.1 “Most through murder cases are evi circumstantial dence,” Banks, v. _N.C. App. _, _, State 807, 706 S.E.2d 813 (2011), and where the evidence circumstantial, “the may is whether a reasonable inference of guilt defendant’s [] Thomas, drawn from the 236, circumstances.” State v. 296 N.C. 244, 204, (1978) quotation 250 S.E.2d (internal 209 marks omitted). permissible Such an inference present was from the in circumstances Miller, 1, 572 (1975), Supreme S.E.2d where our Court physical held that the existence of establishing evidence a presenсe scene, the defendant’s at crime combined the defend present ant’s statement that he was never at the crime the scene and any absence that lawfully present evidence defendant was ever at scene, permits the crime the inference that the defendant committed the physical crime left the during evidence the crime’s commis sion. 289 N.C. at at Miller, case, 575. In as in this where the defendant’s that present at, statement he was never and never any part of, by touched physical the crime scene was shown evi case, dence—in that fingerprints; case, false, DNA—to be “the compelling permissible most arising inference from defendant’s [the] physical falsehood” is that he left at the crime scene of committing Otherwise, the course the crime.2 See id. had his DNA sample likely 1. A DNA found on victim’s car was “126 million times more Carver[, Caucasian,] be observed from than if it [] came from another indi- unrelated population.” vidual in the North Carolina Caucasian physical although 2. We note that evidence in Miller fin- gerprints DNA, logic equally applies his of the rule from Miller to DNA and fingerprints, only potential application аnd the difference in of the rule to DNA is APPEALS IN THE COURT OF v. CARVER circumstances, “he any time and under lawful been left at other potentially presence incriminating when the would have so stated offi- brought his to his attention enforcement] [law [DNA] cers.” See id. thereof, viewed in DNA’scontradiction
Carver’s denial and the
State,
are sufficient
establish
light
most favorable to
only
at
was com
been left
time the offense
the DNA could
have
App. 295, 299, 639
id.;
Wade,
see
v.
mitted. See
also State
never
(2007)
he had
(“Statements
lifted
fingerprint
at the crime scene are sufficient to show
been
premises
impressed
have
the time of
from the
could
been
warrants denial of Carver’s
crime.”). The establishment of
fact
(where
Cross,
dismiss.
345 N.C
THE Of didn’t them COURT: instruct [c]ourt probably on so аcting appro- in concert it would be—it would priate go and read the to them them ahead instruction and tell they that the law are is the law to consider that the [c]ourt given has without stepping them into that minefield. That acceptable would be to the State.
[Prosecutor]: Yes, sir. [Defense counsel]:
Thereafter, jury court the trial reinstructed the on the law jury court read to in the In initial instructions. neither instance jury did theory, having the court on an charge acting concert request earlier an denied the State’s for such instruction. objected Wefirst note that defense counsel neither when trial jury court annоunced decision its to reinstruct the same given jury began deliberations, instructions as those before the its nor objection given did an opportunity defense counsel note when an after such, properly preserve court’s As reinstruction. Carver failed appellate this issue for review. Weddington, See State v.
210, 404 (1991) (holding jurors requested where instruction, clarification on an and the defendant’s trial counsel agreed plan to the court’s to reread all on instructions the elements of offense, “will complain appeal” the defendant not be heard that the should otherwise); App. 10(a) instructions have been N.C.R. P. object (requiring presence and be heard outside the jury properly preserve a claim in a charge). of error Further, argument properly preserved, were this it would cer- *5 tainly erroneously Carver argument overruled. his the bases that directly jury’s trial question court’s to the refusal answer improper Supreme Hockett, on our Court’s in in decision jury’s questions which the trial court refused to answer the concern- ing Supreme trial, the law and as instructed the Court ordered a new stating that “the court trial should have least reviеwed the ele- 125 APPEALS
IN THE COURT OF v. CARVER 120 directly [jury’s] going if it was not to answer the merits of the offenses requested.” 802, 794, 309 N.C. 309 as defense had counsel 465, Moore, 456, 339 N.C. 451 249, (1983); see also State v. S.E.2d holding the in As the trial 232, (1994) (explaining Hockett'). second-degree mur- here did review the elements of first- court in holding did afoul of reinstruction, in its the court not run the der argument Carver’s is overruled. Hockett.
[3] Relatedly,
Carver
argues
that the trial
court’s
decision
to not
concert,
present
jury
to allow the
acting
instruct the
on
but
State
urged
juiy
“theory
case,”
State’s
of the
which Carver contends
concert, was
acting
of
jury
to convict Carvеr under
doctrine
compounded
fail
alleged
error from trial court’s
erroneous and
unpersuaded.
directly
jury’s question.
We are
ure to
answer
found
acting
in concert allows a defendant to be
The doctrine
person
if that
guilty
person
for crimes committed
another
join
purpose
State
in a
to commit the crime.
common
denied,
228,
271,
(1997),
Evans,
v.
485 S.E.2d
cert.
Presumably,
argu
(1998).
STATE v. CARVER (2012)] N.C. 120 [221 jurors Tirado, 551, follow the court’s instructions.” State v. 358 N.C. 581, 515, denied, 909, 599 S.E.2d 535 (2004), cert. 544 U.S. 161 L. Ed. “theory may 2d (2005). 285 While State’s of the case” been have murder, Carver and his cousin were both involved in the presented nothing has jury ignored to indicate that the the court’s any instructions and attributed of Carver’s cousin’s actions to Carver. Accordingly, we cannot conclude that the trial court’s decision concert, instruct the acting argue but to allow the State to theory its argument case was error. Carver’s is overruled.
NO ERROR.
Judge MCGEEconcurs.
Judge HUNTER, N.,JR., ROBERT separate opinion. dissents awith HUNTER,JR., N., Judge, Robert dissenting. majority
I opinion dissent from the and would hold the trial court denying erred in the dеfendant’s degree motion dismiss the first charge murder due to lack substantial evidence of each essential charged element of the offense being perpe- the defendant trator the offense.
“ ‘Upon
dismissal,
defendant’s motion for
for
[the]
the Court is whether
(1)
there
substantial evidence
of each essen
tial element of
charged,
the offense
or
aof
lesser offense included
therein,
(2)
being
perpetrator
of such
[the]
”
so,
properly
offense. If
the motion
Fritsch,
denied.’ State v.
451,
denied,
cert.
(2000)
U.S. 890
(citation omitted). “Substantial evidence is such relevant evidence as
might accept
reasonable mind
a conclu
Smith,
sion.”
(1980)
78 —
(emphasis added). making
determination,
“In
its
the trial court must
admitted,
consider all
competent
whether
incompetent,
light
State,
most favorable to the
giving the State the benefit of
every reasonable
any
inference and resolving
contradictions in its
Rose,
favor.” State v.
through However, circumstantial evidence. THE OF APPEALS
IN COURT v. CARVER circumstantial, the court must con- [i]f *7 may guilt of sider a reasonable defendant’s whether inference the decides that a rea- drawn from the circumstances. Once court guilt may be drawn from the sonable of defendant’s inference facts, circumstances, it is whether the then for the decide satisfy beyond a combination, reasonable singly taken or in [it] actually guilty. doubt that the defendant is quotation Fritsch, 379, (citations 455 and 351 at 526 S.E.2d at N.C. emphases in two omitted) (second original) (first marks alteration Moreover, added). establishing perpetrator the as the the evidence
[w]hen proof circumstantial, the courts of of crime is often [look to] motive, opportunity, capability identity to determine whether may be guilt inference defendant’s inferred a reasonable of merely suspicion there is that the defendant whether perpetrator. the 492, Hayden, _ App. _, _, (2011) 494 N.C.
State
omitted) (alteration
original).
(quotation marks and citation
“
However,
opportunity alone
‘evidence of either motive or
is insuffi
”
carry
jury.’
at_,
(cita
a case to the
Id.
“When whether evidence dismiss, opportunity will be sufficient to survive motion of motive and [depends strength . . . answer on] THE COURT OF IN APPEALS v. CAEVEK evidence, easily opportunity, as well as other available rather than an quantifiable ‘bright Bell, line’ S.E.2d at test.” Instead, peculiar case turns on its own facts a deci- “[e]ach rarely controlling White, sion one case is in another.” State v. subjudice, In (1977). the case similar to Stone, Bell and zero evidence of motive. It opportunity absence of motive lack evidence combined analogous Hayden evidence that makes this case and Bell and dis- tinguishable from Stone.
The evidence at trial following: showed defendant was fishing spot with his cousin at a location near the where the victim strangled death, found lying outside of her car. saw the Police loading equipment into his car when the victim’s *8 body was found but did him at not that time. No evidence (such footprints matching tire treads or as in Barnett) Stone and presented actually path was that the defendant traveled the between the two locations. The defendant later returned to the crime scene poliсe and asked if he could retrieve fishnets he left while ear- fishing day. lier that He Along was denied access. with the defendant his cousin, people at least five other were near the area where the victim found, actually body. was of whom one discovered her DNA No sam- ple was Only taken from the man who discovered the victim. after police canvassed surrounding speak areas did detective his fishing home and learn he was near where the victim interview, was found. After this the defendant was not nor arrested suspect he was even labeled in the murder. Barnett,
Unlike in Stone and where presented connecting weapons, the defendants to the murder pre- the State here no connecting any sented evidence whatsoever the defendant to the three ligatures Moreover, used to suffocate the victim. the coro- testifying ner for the State could not determine the victim’s time of death, making juror it unreasonable for to infer the victim could only during have died the time the defendant was at the nearby location. majority places great emphasis on the fact that the defend-
ant’s DNA was found on However, majority the victim’s vеhicle. semen, blood, DNA; fails mention that this DNA was or saliva DNA, it was gathered cells, touch which is DNA from testing skin relatively for which is new and not as accurate as blood or saliva DNA testing. Moreover, noteworthy (touch it that the defendant’s DNA OF APPEALS
IN THE COURT v. CARVER or anywhere on the outside was not found else otherwise) any- also was not found of the vehicle. The defendant’s DNA inside any ligatures of the three where on the victim nor was it found on however, DNA, His touch was to suffocate the victim. cousin’s used passenger’s near seat. found on the inside of the car Miller, majority Nevertheless, concludes relying on Stаte along DNAon victim’s vehicle that the defendant’s touch police he was at the crime defendant’s statement to the never any that the defendant law- scene the absence of fully permits present at the the inference that defend- crime scene during his DNA the crime’s ant the crime and left touch committed Miller, commission. See State v. held majority Supreme that our Court in Miller
(1975). The *9 “accompanied from which evidence of circumstances substantial only impressed fingerprints find that could have been the can the allowing the inference at the the crime wаs committed” before time present during of the must have been the commission defendant only indicating at 574.The evidence the crime. Id. at S.E.2d at the time of the murder is the touch DNAon car defendant left the victim was happened he to be near the location where to the crime tying no evidence the defendant found. There is other of such, circum- scene. As I cannot hold accompanies DNA on the victim’s car stances the defendant’s touch only at the mur- left the time such DNA could have been indicate der was committed. distinguishable from Miller because
Moreоver, this case is
DNA,
not
scene was touch
physical evidence found at the
IN THE COURT OF APPEALS
STATE v. CARVER
majority
yet
acknowledges
evidence.1 The
this difference
neverthe
equates
types
majority
The
less
two
evidence.
chooses not to
accuracy
ubiquity
analysis
address “the
and
of DNA
vis-a-vis finger
analysis”
print
because
defendant “concedes in his brief that the
presence
DNA evidence established his
at the
scene in
crime
only
case, stating that the
and
connection between himself
the victim
”
having
I, however,
her
was ‘his
touched
car.’
do not read the defend
Admitting
ant’s brief to have made such a
having
concession.
presence
touched the victim’s car does not admit
at the crime scene
objects,
parked
places
cars are
public
because
mobile
often
touched, intentionally
not, by
people throughout
countless
a given
day.
only
As
defendant’s touch DNAwas matched
to the outside
only
place,
the victim’s vehicle and
in one
one cannot draw a rea
only
sonable inference that the
must
have touched the
car at
victim’s
the crime scene and thus was involved in her murder.
Such an inference
far toо
“is
tenuous to
considered as substantial
proof
Bell,
anything.”
See
at
at 469
(where
inference
defendant owned the knife used to kill
was
victim
too tenuous to constitute substantial evidence even
though
knife
used
consistent
the one
to kill the victim was
defendant).
fact,
found near the
In
expert
the State’s own
DNA
touch
way
testified there is
to tell
no
when the
DNA
defendant’s touch
sam
ple
left
on the vehicle. “In order for this Court
hold that
presented
State has
sufficient
opportunity
question,
commit the crime in
the State must have
at trial
not
placing
crime,
the scene of the
but
him
placing
there at the time the
Hayden,
crime
committed.”
_N.C. App. at _,
As
touching
defendant’s concession to
car
present
scene,
victim’s
to mean was
he
crime
I find it nec-
essary
accuracy
ubiquity
analysis
to address the
DNA
touch
fingerprint testing
versus
logic
determine whether the
of Miller
applies equally to
DNA
fingerprints.
touch
as it does to
I would hold
not.
expert
it does
The State’s second
on touch DNAtestified at
relatively
testing
trial that touch DNA
is a
technique
new
and is not as
as
expert
reliable
saliva
DNAtesting.
and blood
also described a
phenomenon
secondаry
transfers,
known
cell
person
skin
where if
person
person
A
B,
pen, person
touches
B
touches
A’sDNAcan
*10
pen.
hand,
on the
fingerprint
found
On
other
use of
evi-
“[t]he
purposes
dence for identification
general
so
and so accurate that in
anywhere
fingerprints
1. The defendant’s
were not found
on the
or her
victim
vehicle.
IN THE
OF APPEALS
COURT
v. CARVEK
many
will take
expressly declared that the courts
cases it has been
judicial
Miller,
N.C. at
at 575.
thereof.”
notice
Supreme
ten cases
Moreover, while our
Court in Miller references
sufficiency
establish the
fingerprint
of
evidence to
rеview
majority
identity
announcing
accused
the rule that the
of an
before
case, I
one
in North Carolina
relies
in this
cannot find even
case
on
sufficiency
DNA
to establish
reviewed the
of touch
has
accused,
any
even
identity
an
less
case in this state that
of
much
accuracy
on the
guidance
of
DNA.With such little
discusses the
touch
accuracy
DNA
with the fact that the defendant’s
of touch
combined
and
of the
mobile car
touch DNA was found
the outside
victim’s
any
apply
time,
I
rule in Miller here
could have been left
cannot
analysis.
equate
touch
I cannot
DNA
because
only remaining
of the trial
relevant evidence
our review
during
of the defendant’s motion
dismiss is
court’s denial
consensually
happened
(which
six
questioning of
consistently
the victim.
times),
knowing
denied
interrogating him
him to stand
However, when the officer
instructed
was,
tall the
Defendant stood and indicated
describe how
victim
compared
height.
own
He
he did not
how tall she was
to his
said
Testimony
maybe saw
from two offi-
know her but
her on television.
it was
was not televised and that
cers indicates both
the case
State,
highly
light
Taken
most favorable to the
I
televised.
however,
suspicion
it
guilt;
аdmit this raises a
of the defendant’s
stran-
place
does
him at the
nor connect him to the brutal
scene
merely
surpass
realm
gulation
the victim. It is
insufficient to
“the
of
conjecture”
suspicion and
and does not
constitute
Cutler,
connecting the defendant to the crime. See State v.
(1967). Cutler,
In
day
presented that,
murdered,
a truck similar
on the
the victim
both before
to the
was seen at the scene
the crime
defendant’s
was cov-
body
discovered,
and the
interior
and after the
truck’s
Also on the
380-81,
blood. Id.
Here, Cutler, like in presented only is sufficient suspicion conjecture raise or as to either the commission of the identity offense or the of the perpetrator. defendant as the See also Malloy, 720 (1983) (If evi- dence suspicion “sufficient conjecture raise a as to either the commission of identity the offense or the of the defend- perpetrator,” ant as the the motion allowed, to dismiss should be though suspicion “even aroused strong.” (inter- evidence is nal citation omitted)). Accordingly,I agree cannot that the reasonable mind standard would accept allow a court to the above evidence as the conclusion that the defendant committed degree first theory premeditation murder on a and deliberation.
I also note in this case the trial court dismissed charge of con- spiracy to degree commit first murder due to lack of substantial evi- connecting dence the defendant to my the crime. In opinion, that supports my decision view that there is no substantial evidence to support thе defendant’s commission of degree first murder alone. Therefore, I would reverse judgment of the trial court.
STATE OF NORTH CAROLINA v. ANDRE SHARROD SHARPLESS
No. COA11-1343 (Filed 2012) 5 June testimony personal Evidence — witness beliefs — not — impressions victim’s The trial court did felony not err in a first-degree murder, attempted robbery with a dangerous weapon, first-degree bur- glary, deadly and assault with weapon with intent to kill inflict- ing injury serious case allowing testify a witness to regarding impressions the victim’s when opened the victim first the door and allegedly struggled with defendant. The witness testified regarding his own sequence beliefs of the of events that took notes says present at scene but when a he was never the crime no fingerprints his are found at the scene and scene, lawfully compelling he at the crime “the most was ever permissible arising from defendant’s falsehood” inference [the] committing crime in the course of fingerprints he left at the scene left at another Otherwise, fingerprints crime. id. had the been See potentially time, the have when the defendant “would so stated to his presence [fingerprints] brought his atten- incriminating Id. tion the officers.” application I, disagree majority’s of Miller to however, with the requires First, evidence be judice. the case sub Miller