State v. Bradley

• Court: Court of Appeals of North Carolina
• Decided: September 21, 2021
• Docket: 20-566
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-495

No. COA20-566

Filed 21 September 2021

New Hanover County, No. 16CRS007232

STATE OF NORTH CAROLINA

v.

JAMES OPLETON BRADLEY, Defendant.

Appeal by Defendant from judgment entered 4 April 2019 by Judge Douglas B.

Sasser in New Hanover County Superior Court. Heard in the Court of Appeals 9

June 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Heidi Reiner, for Defendant-Appellant.

INMAN, Judge.

¶1 Elisha Tucker (“Ms. Tucker”), a resident of New Hanover County and girlfriend

of Defendant James Opleton Bradley (“Defendant”), was reported missing by her

mother in October 2013. Six months later, after law enforcement investigation of Ms.

Tucker’s case had gone cold, Shannon Rippy Van Newkirk (“Ms. Rippy”), Defendant’s

co-worker and another of his romantic interests, disappeared from her home in

Wilmington. Defendant made numerous false statements about his possible STATE V. BRADLEY

Opinion of the Court

involvement in Ms. Rippy’s disappearance, leading police to search Defendant’s

jobsite for her body. There, police found a woman’s nude corpse, bound in the fetal

position by duct tape and wrapped in three trash bags, in a shallow grave beneath a

tree stump. An autopsy later revealed the body belonged to Ms. Tucker. Ms. Rippy

has never been found. 1

¶2 Defendant appeals from a judgment entered following a jury verdict finding

him guilty of first-degree murder in the death of Ms. Tucker. Defendant asserts

prejudicial error in: (1) the admission of evidence concerning Ms. Rippy’s

disappearance; (2) allegedly improper closing arguments by the State; and (3) the

denial of his motion to dismiss the first-degree murder charge for insufficient

evidence of premeditation and deliberation. After careful review, we hold Defendant

has failed to demonstrate prejudicial error.

I. FACTUAL AND PROCEDURAL HISTORY

¶3 The record below tends to show the following:

1. Ms. Tucker’s Disappearance

¶4 On 21 October 2013, Rose Waldron (“Ms. Waldron”) reported her 34-year-old

daughter, Ms. Tucker, missing. Ms. Waldron had filed several missing persons

1 Defendant was tried and convicted for the murder of Ms. Rippy in 2017, and this

Court affirmed his conviction in 2018. State v. Bradley, 262 N.C. App. 373, 820 S.E.2d 129, 2018 WL 5796233 (2018) (unpublished), petition for disc. rev. denied, 372 N.C. 61, 822 S.E.2d 630 (2019). STATE V. BRADLEY

reports previously, as her daughter lived a troubled life that included a heroin

addiction, prostitution, homelessness, and a series of abusive relationships.

¶5 Wilmington Police Detective Carlos Lamberty (“Det. Lamberty”) was named

the lead investigator on Ms. Tucker’s missing person case. Det. Lamberty patrolled

several areas in Wilmington where Ms. Tucker was known to frequent, checked hotels

and motels where she had previously stayed, released a department-wide call for

information, and solicited tips through local media. All of these efforts failed to lead

to the discovery of Ms. Tucker’s whereabouts.

2. The Rippy Disappearance and Investigation

¶6 On 6 April 2014, Roberta Lewis (“Ms. Lewis”) went to visit her daughter, Ms.

Rippy, for her 54th birthday at her apartment in Wilmington. When Ms. Rippy did

not come to the door, Ms. Lewis left and attempted to contact her daughter by phone

over the next several hours. Ms. Lewis still had not heard from her daughter by the

following morning, leading her to contact the Wilmington Police Department.

¶7 An officer forcibly entered the apartment in an effort to locate Ms. Rippy, but

she was not inside. Nothing was missing from the apartment other than Ms. Rippy’s

purse. Her moped—her only source of transportation due to a revoked driver’s license

following several DWIs—was still parked outside. A written missing person report

was filed shortly thereafter, and the matter was assigned to Det. Lamberty. STATE V. BRADLEY

¶8 Wilmington police began their investigation into Ms. Rippy’s disappearance by

obtaining her cellular phone records, which revealed several calls to Defendant on

the night before her disappearance. Given these call records, and in light of the fact

that Defendant and Ms. Rippy were co-workers at a company called Mott

Landscaping, police decided to try and locate Defendant at his home for an interview.

Officers conducted their first interview with Defendant on 9 April 2014. He expressed

surprise at her disappearance but told police she was severely depressed and had

recently expressed suicidal ideations to him. He also told police at a follow-up

interview two days later that he had last seen Ms. Rippy on 3 April 2014.

¶9 Det. Lamberty, along with fellow Detective Kevin Tully (“Det. Tully”), were

able to discern from Ms. Rippy’s cellular location data that she had travelled south

from a bar in downtown Wilmington on 5 April 2014, the night before her

disappearance. Dets. Lamberty and Tully reviewed traffic camera images from that

evening and found footage of a truck matching the description of Defendant’s vehicle

travelling southbound consistent with the cellular location data from Ms. Rippy’s

phone. Dets. Lamberty and Tully also located surveillance footage from a gas station

for the night in question, which showed Defendant buying items inside the station

while Ms. Rippy was seated inside his truck.

¶ 10 Having caught Defendant in a lie about his last contact with Ms. Rippy, police

obtained and executed a search warrant on Defendant’s home and truck. They also STATE V. BRADLEY

interviewed Defendant again. Defendant acknowledged that he had been lying and

explained that he had actually given her a ride to a nearby business on the night

before Ms. Rippy’s disappearance. This statement, too, proved to be untrue, as

neither Defendant, his truck, nor Ms. Rippy appeared on the surveillance footage

obtained from the business identified by Defendant. Police continued to press

Defendant on these inconsistencies, eventually leading him to say that he had last

seen Ms. Rippy on 5 April 2014 when she jumped out of his vehicle near Greenfield

Lake while on the phone with Steven Mott (“Mr. Mott”), the owner of Mott

Landscaping. In a later statement, Defendant told police that he knew he was under

suspicion “because of other reasons in his past[2] and that . . . he was the last person

to see her alive.”

¶ 11 Defendant also told detectives that he had taken at least one woman to a

vacant lot owned by Mott Landscaping to engage in sexual activity. Police spent

several weeks searching properties owned by and associated with Mott Landscaping

for Ms. Rippy without success. Searches of the wooded areas around Defendant’s

home and Greenfield Lake were likewise unsuccessful.

3. The Recovery of Ms. Tucker’s Body

2 Defendant was convicted for the first-degree murder of his 11-year-old stepdaughter

in 1990. See Bradley, 2018 WL 5796233 at *2-3 (discussing the facts of Defendant’s conviction for the murder of his stepdaughter). STATE V. BRADLEY

¶ 12 Law enforcement continued to comb areas connected to Mott Landscaping and

Defendant for Ms. Rippy’s body over the ensuing weeks. On 29 April 2014,

Wilmington police searched a farm owned by Mr. Mott in Pender County that

Defendant was responsible for mowing and clearing. In the course of that search,

officers found a naked body inside three black trash bags buried in a shallow grave.

The body was found in the fetal position, its legs bound with duct tape. The State

Crime Lab’s analysis of the duct tape found on the body would later show it to be

consistent with duct tape recovered from Defendant’s apartment. Bleach and black

trash bags were found in a nearby workshop. Though Det. Lamberty originally

believed the body to be Ms. Rippy, an autopsy later revealed it to be Ms. Tucker.

4. Investigation Into Ms. Tucker’s Murder

¶ 13 Already arrested for Ms. Rippy’s disappearance, Defendant became a suspect

in the Tucker investigation, resulting in additional searches of his home and effects

for evidence pertinent to that case. Det. Lamberty requested a second search warrant

for Defendant’s truck and removed the driver’s side floormat, carpet, and padding for

DNA analysis. Several screening tests for blood returned positive results for portions

of the floor padding and carpeting, and additional testing conclusively established the

presence of human blood on those items. Samples from the padding and carpeting

were also subjected to DNA analysis. Although the portions of the padding and

floormat which conclusively tested positive for human blood failed to produce usable STATE V. BRADLEY

DNA samples, a section of the padding that tested inconclusively for blood tested

uniquely positive for Ms. Tucker’s DNA.

¶ 14 Police also discovered that a man named Peter Koke (“Mr. Koke”), who had

previous dealings with Mr. Mott, Ms. Rippy, and Defendant, was propositioned by

Ms. Tucker in July of 2013. When Mr. Koke declined her services, Ms. Tucker entered

into a vehicle with Defendant. Mr. Koke had seen Ms. Tucker and Defendant together

at other times and, on one occasion, witnessed a shouting match occur between

Defendant and Ms. Rippy.

¶ 15 A detective with the Wilmington Police Department also met with a woman

named Crystal Sitosky (“Ms. Sitosky”) about Defendant’s involvement with Mses.

Rippy and Tucker. Ms. Sitosky, who struggled with an opioid addiction, first met

Defendant in July of 2012 when he began flirting with her outside her probation

office. Ms. Sitosky saw Ms. Tucker in Defendant’s car during this conversation, which

ended when she and Defendant exchanged numbers. Ms. Sitosky later saw

Defendant again when she called him after her car was immobilized with a flat tire.

She continued to see Defendant periodically because he provided her with money for

drugs. Defendant repeatedly expressed a desire to form a romantic relationship with

Ms. Sitosky, but she rebuffed his advances each time. She also met with Defendant

at both the Mott Landscaping lot where he had engaged with sexual activity with

other women and the tract in Pender County where Ms. Tucker’s body was found. STATE V. BRADLEY

Defendant gave Ms. Sitosky a phone at one point, which contained photographs of

Ms. Tucker and her children. He also hinted to Ms. Sitosky that he was romantically

interested in Ms. Rippy, but that they were not in a relationship.

5. The Trial

¶ 16 Defendant was indicted for the first-degree murder of Ms. Tucker on 5

December 2016 and was tried beginning 22 January 2019. Prior to trial, the State

moved to admit 404(b) evidence of the investigation into Ms. Rippy’s disappearance,

as well as copies of stories Defendant had written about murderers titled “The Beast

Within” and “Serial Killer.” Following a voir dire hearing, the trial court entered a

written order concluding that the circumstances of Ms. Rippy’s disappearance were

sufficiently similar and proximate to Ms. Tucker’s death to be admissible under Rule

404(b) to show: (1) how police came to discover Ms. Tucker’s body; (2) identity; (3)

motive; and (4) plan, preparation, and modus operandi of Defendant. The trial court

also ruled the probative value of that evidence was not outweighed by the danger of

unfair prejudice, and that a limiting instruction would be given to the jury. The trial

court further ruled that Defendant’s short stories were more prejudicial than

probative and therefore inadmissible under Rule 403.

¶ 17 At trial, 23 witnesses testified consistent with the above recitation of the facts.

The State elicited additional testimony that police recovered a “Rug Doctor” carpet

cleaner from Defendant’s apartment, that Defendant had washed his truck several STATE V. BRADLEY

times since the disappearances of Mses. Tucker and Rippy, and that the inability to

recover DNA from the conclusive human blood samples on the truck carpeting and

padding may have been caused by the use of chemical cleaners. Defendant moved to

dismiss the first-degree murder charge at the close of evidence. The trial court denied

Defendant’s motion.

6. Closing Arguments

¶ 18 Following the presentation of evidence, the prosecutor began his closing

argument by opining about notions of good and evil, telling the jury that the love

between parents and children is good, but “just as there is good and beauty in the

world, there’s also evil. And you don’t need a law degree to know what [the killing of

Ms. Tucker] is. This, ladies and gentlemen, is pure evil.” He then asserted that while

there were some differences between Mses. Rippy and Tucker, they both shared a

common connection to Defendant. Defendant’s counsel objected, arguing that the

evidence of Ms. Rippy’s disappearance was introduced for limited purposes, and that

this argument was outside the scope of the trial court’s prior ruling. The trial court

overruled the objection, and the prosecutor continued, emphasizing that the limited

purposes for which evidence around Ms. Rippy’s disappearance was introduced was

to show “the identity of the killer. It goes to motive, is there a plan, is there a modus

operandi.” STATE V. BRADLEY

¶ 19 Later in closing, the prosecutor stated that “[y]ou know, sometimes evil wears

a mask. Sometimes you have to dip below the surface. Sometimes evil is readily

apparent, like when you’re looking at the grotesque deformities on the body of [Ms.

Waldron]’s baby [Ms. Tucker]. But, no, when you’re looking at this defendant, you

have to dip below the surface.” At another point, the prosecutor asked the jury, “[i]s

[Ms. Rippy] in the belly of an alligator in Greenfield Lake? . . . Is she in the belly of

that pig out on Hoover Road? Is she in a hole somewhere? . . . How does it end? Her

life is over. We just haven’t found the body for a funeral yet.” Defendant objected

and moved to strike on the ground that any suggestion Ms. Rippy was dead was

outside the scope of the earlier Rule 404(b) ruling by the trial court. Following a

hearing outside the presence of the jury, the trial court overruled Defendant’s

objection and allowed the prosecutor to continue. The prosecutor resumed argument

by saying “Shannon Rippy is gone too, but she’s not forgotten. She’s dead, but we’ll

never stop looking.” Defendant objected again and was overruled.

¶ 20 The prosecutor’s closing also referenced the DNA evidence tested by the State

Crime Lab, contending that Ms. Tucker’s blood was found in Defendant’s truck.

Defendant objected and moved to strike the argument but was overruled. Later, the

prosecutor offered that “there’s actually only five ways to defend any case,” and began

explaining why no defense could disprove Defendant’s guilt. Defendant objected,

moved for a mistrial, and moved to strike. The trial court sustained that objection STATE V. BRADLEY

and allowed the motion to strike, though it ultimately denied the motion for mistrial.

It then gave a curative instruction that the Defendant is presumed innocent, the

prosecutor’s argument must be disregarded, and that Defendant has no burden in a

criminal prosecution. The prosecutor resumed his argument by reiterating that “the

only burden of proof in this case is on [the State]. . . . There’s no burden on the

defense attorneys, to be clear.”

¶ 21 Finally, in a later segment of closing argument, the prosecutor argued to the

jury that Defendant could not contend both that he was innocent or at most guilty of

second-degree murder, as each position contradicted the other. Defendant objected

and moved for a mistrial on the basis that the prosecutor’s argument suggested

Defendant was responsible for the lesser-included second-degree murder charge on

the verdict sheet. The trial court reviewed the transcript of arguments, concluded

that the State had not made such a suggestion, and denied the motion for mistrial. It

did, however, sustain Defendant’s objection and give a curative instruction that the

verdict sheet was prepared by the court and not the parties.

7. Conviction and Appeal

¶ 22 After two-and-a-half hours of deliberations, the jury found Defendant guilty of

first-degree murder. The trial then proceeded to the sentencing phase, and the

prosecutor urged the jury to impose the death penalty based on Defendant’s two prior

first-degree murder convictions and the heinous, atrocious, or cruel nature of Ms. STATE V. BRADLEY

Tucker’s murder. The jury was unable to reach a unanimous recommendation. The

trial court then imposed a sentence of life without parole. Defendant gave notice of

appeal in open court.

II. ANALYSIS

¶ 23 Defendant asserts the trial court prejudicially erred in: (1) admitting

substantial evidence of the investigation into Ms. Rippy’s disappearance under Rules

404(b) and 403 of the North Carolina Rules of Evidence; (2) failing to properly address

allegedly improper closing arguments by the State; and (3) denying his motion to

dismiss the first-degree murder charge for insufficient evidence of premeditation and

deliberation. Defendant further asserts that all of the foregoing errors, if

insufficiently prejudicial standing alone, were so cumulatively prejudicial as to

warrant a new trial. We address each argument in turn.

1. Evidence of Ms. Rippy’s Disappearance Under Rules 404(b) and 403

¶ 24 Defendant first contends that the evidence of Ms. Rippy’s disappearance was:

(1) not sufficiently similar to be admitted under Rule 404(b); and (2) was so

voluminous as to be more prejudicial than probative under Rule 403. Defendant

requests plain error review in the event trial counsel failed to timely object to the

challenged evidence.

a. Preservation

¶ 25 Our appellate rules provide that, “[i]n order to preserve an issue for appellate STATE V. BRADLEY

review, a party must have presented to the trial court a timely request, objection, or

motion . . . .” N.C. R. App. P 10(a)(1) (2021). Our Supreme Court has held that “[t]o

be timely, an objection to the admission of evidence must be made at the time it is

actually introduced at trial.” State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322

(2010) (citation and quotation marks omitted). It is therefore insufficient to rely on

objections lodged pre-trial or outside the presence of the jury. Id. Nor is it adequate

to lodge an objection after similar evidence has previously been admitted without

protest, as “the admission of evidence without objection waives prior or subsequent

objection to the admission of evidence of a similar character.” State v. Hudson, 331

N.C. 122, 151, 415 S.E.2d 732, 747–48 (1992) (citation and quotation marks omitted).

¶ 26 Here, Defendant conceded prior to trial that some evidence of Ms. Rippy’s

disappearance was admissible under Rule 404(b) to show how police came to discover

Ms. Tucker’s body. Several witnesses testified at trial about Ms. Rippy without any

objection by Defendant under Rules 404(b) and 403. Defendant first objected based

on Rule 404(b) during Det. Lamberty’s testimony—well after other witnesses,

including Ms. Rippy’s mother and other police officers, had testified on the same

subjects and to substantially identical facts. Because Defendant did not lodge a

timely objection to the evidence of Ms. Rippy’s disappearance that he now challenges

on appeal, he has failed to preserve his Rule 404(b) and 403 arguments for prejudicial

error review. Ray, 264 N.C. at 277, 697 S.E.2d at 322; Hudson, 331 N.C. at 151, 415 STATE V. BRADLEY

S.E.2d at 747–48.

¶ 27 Though Defendant failed to preserve his evidentiary arguments, his principal

brief seeks plain error review of these issues. We review this portion of his appeal

under that standard. See N.C. R. App. P. 10(a)(4) (2021) (“In criminal cases, an issue

that was not preserved by objection noted at trial and that is not deemed

preserved . . . nevertheless may be made the basis of an issue presented on appeal

when the judicial action questioned is specifically and distinctly contended to amount

to plain error.”).3

b. Plain Error Review

¶ 28 In order to demonstrate plain error, a defendant must “show that error

occurred and the error ‘had a probable impact on the jury’s finding of guilty.’ ” State

v. Doisey, 138 N.C. App. 620, 625, 532 S.E.2d 240, 244 (2000) (quoting State v. Odom,

307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)). The error cannot be merely “obvious

or apparent,” Odom, 307 N.C. at 660, 300 S.E.2d at 378, and instead must be a

3 In its brief, the State suggests that plain error review is entirely unavailable because

“Defendant fails to show exceptional circumstances warranting plain error review.” This statement inverts our application of the plain error standard; we will conduct plain error review when “specifically and distinctly contended” in a defendant’s principal brief, N.C. R. App. P. 10(a)(4), but we will only hold plain error exists following that review upon a showing by the defendant that his is an “exceptional case.” State v. Maddux, 371 N.C. 558, 564, 819 S.E.2d 367, 371 (2018) (citation and quotation marks omitted). Cf. State v. Patterson, 269 N.C. App. 640, 645, 839 S.E.2d 68, 72 (2020) (dismissing a defendant’s appeal under plain error review when he failed to argue “why the alleged error rises to plain error” and thus precluded “any meaningful review for plain error”). STATE V. BRADLEY

“fundamental error, something so basic, so prejudicial, so lacking in its elements that

justice cannot have been done.” Id. (quoting United States v. McCaskill, 676 F.2d

995, 1002 (4th Cir. 1982)) (emphasis in original).

c. Standards of Review for 404(b) and 403 Error

¶ 29 We apply two different standards of review to discern whether the trial court

erred under Rules 404(b) and 403. As explained by our Supreme Court:

When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, as it did here, we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court’s Rule 403 determination for abuse of discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).

d. The Trial Court Did Not Err Under 404(b)

¶ 30 Rule 404(b) is a “rule of inclusion of relevant evidence or other crimes, wrongs

or acts by a defendant, subject to but one exception requiring its exclusion if its only

probative value is to show that the defendant has the propensity or disposition to

commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268,

278–79, 389 S.E.2d 48, 54 (1990) (emphasis in original).

¶ 31 The rule itself expressly identifies several purposes for which evidence may be

admitted, including to show “motive, opportunity, intent, preparation, plan, . . . [or] STATE V. BRADLEY

identity.” N.C. R. Evid. 404(b). Because this list “is not exclusive,” State v. White,

340 N.C. 264, 284, 457 S.E.2d 841, 852 (1995), evidence is admissible under the Rule

to show, among other things, “the chain of circumstances or context of the charged

crime . . . if the evidence of other crimes serves to enhance the natural development

of the facts or is necessary to complete the story of the charged crime for the jury.”

Id. at 284, 457 S.E.2d at 853.

¶ 32 Evidence offered for a proper purpose under Rule 404(b) must adhere to “the

requirements of similarity and temporal proximity.” State v. Al-Bayyinah, 356 N.C.

150, 154, 567 S.E.2d 120, 123 (2002) (citations omitted). The crime charged and the

evidence in question need not “rise to the level of the unique and bizarre,” State v.

Green, 321 N.C. 594, 604, 365 S.E.2d 587, 593 (1988), though there must be “some

unusual facts present in both crimes that would indicate that the same person

committed them.” Beckelheimer, 366 N.C. at 131, 726 S.E.2d at 159 (citation and

quotation marks omitted). In discerning whether the 404(b) evidence was properly

admitted, we examine the similarities identified by the trial court rather than the

differences between the crime charged and the proffered evidence. State v. Wilson-

Angeles, 251 N.C. App. 886, 893, 795 S.E.2d 657, 664 (2017) (citations omitted).

¶ 33 The trial court entered a written order with findings of fact and conclusions of

law in support of its decision to admit evidence of Ms. Rippy’s disappearance under

Rule 404(b). The trial court’s findings of fact—none challenged on appeal—include STATE V. BRADLEY

the following:

16. . . . [B]oth Rippy and Tucker struggled with substance abuse issues.

17. . . . [B]oth Rippy and Tucker had limited financial resources.

18. . . . [B]oth Rippy and Tucker sometimes relied on the Defendant for transportation.

19. . . . [B]oth Rippy and Tucker had criminal convictions connected to their substance abuse issues.

20. . . . Defendant was romantically interested in both Rippy and Tucker and worked to gain their trust and confidence through sustained relationships.

¶ 34 The trial court made additional findings demonstrating how the Rippy and

Tucker investigations were temporally and factually interrelated: (1) the

disappearances occurred nine months apart at most; (2) police searched the Mott

property where Ms. Tucker’s body was found because Defendant and Ms. Rippy both

worked for Mott Landscaping and Defendant was a suspect in Ms. Rippy’s

disappearance; (3) police initially believed the body found on the Mott property was

Ms. Rippy; (4) Defendant was arrested for Ms. Rippy’s murder on the day Ms.

Tucker’s body was found; and (5) Defendant told police that he had cleaned his car

several times after Ms. Rippy had disappeared, and “the forensic evidence that placed

Tucker’s DNA inside the Defendant’s Tahoe was barely visible and appears to have

been degraded by some sort of chemical substance which would be consistent with STATE V. BRADLEY

efforts by the Defendant to clean the vehicle.”

¶ 35 The trial court concluded based on its findings that evidence of Ms. Rippy’s

disappearance and the ensuing investigation was “essential [to] help provide a

complete story to the jury,” and also admissible to prove Defendant’s identity, motive,

intent, premeditation, deliberation, plan, preparation, and modus operandi. The trial

court further concluded that the disappearances were “temporally proximate,” and

their circumstances were “similar in nature.”

¶ 36 We hold that the trial court did not err in admitting the challenged evidence.

¶ 37 Defendant does not argue that the evidence was admitted for improper

purposes; instead, he asserts that “the only information necessary to complete the

story [of Ms. Tucker’s death] was testimony about why detectives were on the

property where Tucker’s body was found,” and the “superficial similarities” between

Mses. Rippy and Tucker were inadequate to satisfy the Rule’s similarity

requirements.

¶ 38 Contrary to Defendant’s contention, it was not possible to provide a natural

and complete development of the facts without testimony concerning Ms. Rippy’s

disappearance and the police investigation that followed, leading to the discovery of

Ms. Tucker’s body. The disappearances and investigations are “inextricably STATE V. BRADLEY

intertwined,” White, 340 N.C. at 286, 457 S.E.2d at 853.4

¶ 39 Simply telling the jury that detectives were searching for a missing person at

the Mott property would not offer an adequate picture of Defendant’s connection to

that missing person. The evidence was necessary to establish the weight and

probative value of the State’s other evidence. For example, Mr. Mott—who was

initially a suspect in Ms. Rippy’s disappearance and who testified that Defendant was

solely responsible for maintaining the tract of land where Ms. Tucker’s body was

found—told the jury that he never met Ms. Tucker and knew nothing about her

murder. If jurors heard nothing about Ms. Rippy and Defendant’s apparent

involvement in her disappearance, they would rightly wonder whether Mr. Mott’s

testimony was truthful given: (1) Ms. Tucker’s dismembered body was found on his

land; and (2) his property was already being searched for a different missing woman.

Cf. State v. Washington, ___ N.C. App. ___, ___, 2021-NCCOA-219, ¶ 21 (holding

404(b) evidence of a prior theft of a handgun used to commit a murder was admissible

in the murder trial in part because it “explained why the legal gun owner was not

4 We note that practically every witness had some connection to both investigations.

The detectives who testified, including Det. Lamberty, handled both cases. Ms. Sitosky came forward to report her knowledge of the relationship between Defendant and Ms. Tucker because she saw a letter from Ms. Rippy’s mother about her missing daughter in the local newspaper. Mr. Mott, originally a person of interest in the Rippy investigation, owned the property where Ms. Tucker’s body was found but was also Ms. Rippy’s employer and on-and- off-again boyfriend. Mr. Koke, who was propositioned by Ms. Tucker and saw her with Defendant, had prior dealings with Defendant and Ms. Rippy. STATE V. BRADLEY

considered a suspect and showed the thoroughness of law enforcement’s

investigation”).

¶ 40 The investigation of Ms. Rippy’s disappearance likewise bears upon Ms.

Sitosky’s credibility. She testified that she had seen Defendant and Ms. Tucker

together on numerous occasions but only reported this information to police because

she “had read in the newspaper about [Defendant] being arrested, [and] [Ms. Rippy]’s

mom had wr[itten] a letter to the newspaper in response to, you know, her daughter

missing, and it touched my heart. . . . I almost felt like I had to say something or do

something. . . . I wanted to be helpful.” Defendant’s suspected involvement in the

disappearance of Ms. Rippy demonstrated why Ms. Sitosky came forward to police.

See White, 340 N.C. at 285–86, 457 S.E.2d at 853 (holding evidence was admissible

under Rule 404(b) to show context in an intertwined case because it was necessary

“to assess [the witness’s] credibility or what weight to give his testimony”).

¶ 41 The evidence uncovered in the investigation of Ms. Rippy’s disappearance also

cast the State’s physical evidence in a more probative light. Police found human blood

present on the carpeting of Defendant’s truck, but the blood samples failed to produce

identifiable DNA. The inverse was true of the padding beneath the carpet, with

analysis verifying the presence of Ms. Tucker’s DNA, but the lab was unable to

confirm human blood as the source. Police also uncovered evidence that Defendant

kept carpet cleaners in his home and bleach at the workshop on the Mott property STATE V. BRADLEY

where Ms. Tucker’s body was found. While these two facts alone are not

incriminating, it takes on probative value alongside: (1) testimony that Defendant

admitted to cleaning his vehicle during the investigation of Ms. Rippy’s

disappearance; and (2) expert testimony that chemical cleaners may have caused the

deterioration of the samples found in Defendant’s car. In short, the investigation into

Ms. Rippy’s disappearance is inseparable from Ms. Tucker’s murder. The trial court

did not err in allowing this evidence to “enhance the natural development of the facts”

because it was “necessary to complete the story of the charged crime for the jury.” Id.

(citations omitted).

¶ 42 We also disagree with Defendant’s characterization of the similarities between

Mses. Rippy and Tucker as “superficial.” He relies on our decision in State v. Gray,

210 N.C. App. 493, 512, 709 S.E.2d 477, 490 (2011), for the proposition that the

similarities between the two women were so generic as to be inconsequential. But

the similarities noted by the trial court in this case are more numerous and probative

than those found inadequate in Gray. In that case, the alleged 404(b) victim and the

alleged victim in the crime charged were of different sexes, in different states, and

victims of different sex acts, with the only similarities being their youth and that the

defendant had access to both through social relationships. 210 N.C. App. at 512–13,

709 S.E.2d at 490–91.

¶ 43 Here, by contrast, both victims: (1) were residents of the Wilmington area; (2) STATE V. BRADLEY

were of the same sex; (3) disappeared within nine months of each other at most,

prompting missing persons reports from their mothers; (4) had legal, financial, and

substance abuse problems, facts particularly pertinent given Ms. Sitosky’s testimony

that Defendant supplied her with money under like circumstances; (5) relied on

Defendant for transportation; (6) had “sustained relationships” with Defendant; and

(7) were subjects of his sexual attention. The similarities noted by the trial court

were sufficient to warrant admission of evidence about Ms. Rippy under Rule 404(b).

See State v. Hembree, 368 N.C. 2, 12, 770 S.E.2d 77, 84–85 (2015) (holding evidence

of uncharged murder was sufficiently similar under Rule 404(b) when the trial court

found both female victims were murdered, white, prostitutes, drug users, located in

the same county, and acquaintances and sexual partners of the defendant).

e. The Trial Court Did Not Err Under Rule 403

¶ 44 Defendant argues the trial court abused its discretion in concluding the

evidence of Ms. Rippy’s disappearance was more probative than prejudicial under

Rule 403, relying principally on Hembree. Because Hembree is distinguishable and

the trial court appears to have carefully considered potential prejudice, we hold the

Defendant has failed to show the trial court abused its discretion in this ruling.

¶ 45 In Hembree, the bodies of two murdered women were discovered independently

in South Carolina; one was left half-naked in a culvert, while the other was found

burned along a dirt road. 368 N.C. at 4, 770 S.E.2d at 80. The defendant—who at STATE V. BRADLEY

one point confessed to murdering both women in North Carolina before disposing of

them across the border—was tried for the murder of the half-naked woman. Id. Prior

to trial, the State moved to introduce evidence of the burned woman’s murder under

Rule 404(b). 368 N.C. at 6, 770 S.E.2d at 81. The trial court admitted that evidence

under Rules 404(b) and 403, concluding it showed a common plan or scheme and was

more probative than prejudicial. Id. Once trial commenced, however, the State

focused primarily on the death of the burned woman, introducing at least sixteen

graphic photographs of the burned body and testimony from a witness describing

what the burned body felt like to touch. Id. at 6–7, 770 S.E.2d at 81–82. The State

also introduced evidence of the cause of death for both women; while there was some

evidence that the half-naked woman had died an accidental death by cocaine

overdose, the State’s evidence that the burned woman had died by strangulation was

“more certain.” Id. at 7, 770 S.E.2d at 82. In fact, on the whole, “there was more

evidence presented concerning the [burned woman’s] murder than there was for the

murder” actually being tried. Id., 770 S.E.2d at 81 (quotation marks omitted).

Defendant was convicted of the half-naked woman’s murder, sentenced to death, and

appealed. Id. at 9, 770 S.E.2d at 83.

¶ 46 On appeal, our Supreme Court held that the trial court erred in admitting the

evidence of the burned woman’s death. Id. at 16, 770 S.E.2d at 87. The Court reached

that result based for four reasons: (1) the central issue at trial was the victim’s STATE V. BRADLEY

unclear cause of death, and the certainty provided by the evidence that the burned

woman was strangled “likely weighed heavily in the jury’s deliberations[;]” (2) the

State introduced testimony from a witness who described what it felt like to touch

the burned body alongside more than a dozen “stark and unsettling” photographs of

the charred remains; (3) evidence of the burned body focused on the differences

between the two deaths “rather than a similarity as anticipated under Rule 404(b)[;]”

and (4) “the lack of an obvious connection between the offenses” rendered the 404(b)

evidence less probative than in other cases. Id. at 14–16, 770 S.E.2d at 86–87. Thus,

because the victim’s “cause of death was uncertain, and the Rule 404(b) evidence was

so emotionally charged,” our Supreme Court held the trial court erred by admitting:

an excessive amount of evidence about [the burned woman], particularly photographic evidence, when the probative value of the sum total of that evidence was substantially outweighed by the risks that it would confuse the issues before the jury, or lead the jury to convict based on evidence of a crime not actually before it.

Id. at 16, 770 S.E.2d at 87.

¶ 47 Hembree is distinguishable from this case. First, unlike in Hembree,5 there is

an obvious connection between the disappearances of Mses. Rippy and Tucker, as

5 We note that in Hembree, the Supreme Court surveyed instructive cases from other

jurisdictions and found Flowers v. State, 773 So.2d 309 (Miss. 2000), in which evidence of three other murders was admitted in the trial of a fourth murder, most similar. It then quoted a lengthy excerpt from Flowers, including the following language: “It is the ‘necessity’ STATE V. BRADLEY

revealed by the two police investigations that became intertwined. Second, this case

did not involve 404(b) evidence in the form of highly inflammatory and gruesome

photographs of Ms. Rippy that ran the risk of inflaming the jury’s passions; the only

graphic images the jury saw were those of Ms. Tucker’s dismembered body. Third,

the evidence did not serve to highlight the differences between Mses. Rippy and

Tucker. Instead, the evidence admitted demonstrated how Defendant targeted both

women pursuant to a common plan or scheme. Lastly, there was substantial evidence

beyond Ms. Rippy’s disappearance introduced by the State, including the testimonies

of Ms. Sitosky and Mr. Koke linking Defendant to Ms. Tucker, the discovery of Ms.

Tucker’s body at a location Defendant was responsible for clearing and maintaining,

the presence of Ms. Tucker’s DNA alongside human blood on the flooring of

Defendant’s car, and the recovery of duct tape from Defendant’s home consistent with

tape used to bind Ms. Tucker’s body. Given these distinctions, Hembree is inapposite.

¶ 48 The trial court’s deliberate and discretionary weighing of potential unfair

prejudice against the evidence’s probative value is also pertinent to our analysis. In

its order, the trial court excluded evidence of Defendant’s short stories about serial

killers as more prejudicial than probative under Rule 403, “indicating [its] careful

by the State to use the other evidence of three killings in order to tell a coherent story that is the key to its admissibility. The case at bar is not one of those cases so interconnected that mention of the other three murders is necessary to tell the whole story.” Hembree, 368 N.C. at 15, 770 S.E.2d at 86 (quoting Flowers, 773 So.2d at 324) (emphasis added). STATE V. BRADLEY

consideration of the evidence.” Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 161. The

order further discloses that the trial court conducted this analysis as to the 404(b)

evidence that was admitted, concluding “[t]hat the danger of unfair prejudice does

not substantially outweigh the relevance of this evidence to the disappearance of

Rippy in connection with the current trial for Tucker’s murder.” And the trial court

admitted 404(b) evidence with an appropriate limiting instruction. We cannot say

that the trial court abused its discretion under Rule 403 given the factors above. See

Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 161 (holding no abuse of discretion in

the admission of Rule 404(b) evidence under Rule 403 for these reasons).

2. Closing Arguments

¶ 49 Defendant next contends that the trial court erred at closing argument in: (1)

allowing the prosecutor to argue Ms. Tucker’s blood was found in Defendant’s car

over Defendant’s objection; (2) allowing the prosecutor to rely on 404(b) evidence of

Ms. Rippy’s disappearance for purposes outside those for which it was admitted; (3)

denying Defendant’s mistrial motion when the prosecutor’s argument impermissibly

shifted the burden of proof of guilt to the defense; (4) denying Defendant’s mistrial

motion after the prosecutor suggested the presence of second-degree murder on the

verdict sheet meant Defendant had invited such a conviction; and, (5) failing to

intervene ex mero motu after the prosecutor argued his personal opinions to the jury.

After review of the record under the mandated highly deferential standards of review, STATE V. BRADLEY

we hold that Defendant has failed to show prejudicial error individually or

collectively.

a. Standards of Review

¶ 50 A trial court’s ruling on defendant’s objection to closing argument is reviewed

for abuse of discretion. State v. Lopez, 363 N.C. 535, 538, 681 S.E.2d 272, 273 (2009)

(citing State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)). So, too, is a trial

court’s denial of a motion for mistrial. State v. Williams, 7 N.C. App. 51, 52, 171

S.E.2d 39 (1969). We will hold the trial court abused its discretion only when its

ruling “could not have been the result of a reasoned decision.” Jones, 355 N.C. at 131,

558 S.E.2d at 106 (citation and quotation marks omitted). Application of this

standard in the context of closing arguments requires us to “first determine[] if the

remarks were improper. . . . Next, we determine if the remarks were of such

magnitude that their inclusion prejudiced defendant, and thus should have been

excluded by the trial court.” Id. Prejudice is identified by “assess[ing] the likely

impact of any improper argument in the context of the entire closing,” State v. Copley,

374 N.C. 224, 230, 839 S.E.2d 726, 730 (2020) (citations omitted), and by “look[ing] to

the evidence presented by the State to determine whether there is a reasonable

possibility the jury would have acquitted defendant if the prosecutor’s remarks had

been excluded.” Id. at 231, 839 S.E.2d at 730 (citations omitted). STATE V. BRADLEY

¶ 51 Closing arguments that fail to garner an objection when made are reviewed to

determine whether the “remarks were so grossly improper that the trial court

committed reversible error by failing to intervene ex mere motu.” Jones, 355 N.C. at

133, 558 S.E.2d at 107. To show gross impropriety, a defendant must demonstrate

that “the prosecutor’s comments so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” State v. Rose, 339 N.C. 172, 202, 451

S.E.2d 211, 229 (1994) (citations and quotation marks omitted). “[O]nly an extreme

impropriety on the part of the prosecutor will compel this Court to hold that the trial

judge abused his discretion in not recognizing and correcting ex mero motu an

argument that defense counsel apparently did not believe was prejudicial when

originally spoken.” State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693

(1996).

¶ 52 Both the trial court and the prosecutor enjoy significant leeway at closing

argument. See State v. Cummings, 361 N.C. 438, 465, 648 S.E.2d 788, 804 (2007)

(“[T]he trial court has broad discretion to control the scope of closing arguments.”

(citations omitted)); State v. Flowers, 347 N.C. 1, 36, 489 S.E.2d 391, 411 (1997)

(“[P]rosecutors are given wide latitude in the scope of their argument.” (citation

omitted)). A prosecutor may therefore “argue to the jury the law, the facts in evidence

and all reasonable inferences drawn therefrom,” Flowers, 347 N.C. at 36–37, 489

S.E.2d at 412 (citation omitted), but is prohibited from “plac[ing] before the jury STATE V. BRADLEY

incompetent and prejudicial matters by injecting his own knowledge, beliefs, and

personal opinions not supported by the evidence.” Id. at 36, 489 S.E.2d at 412

(citation and quotation marks omitted). In discerning whether the prosecutor’s

remarks were improper, “we must give consideration to the context in which the

remarks were made and the overall factual circumstances to which they referred.”

State v. Thompson, 359 N.C. 77, 110, 604 S.E.2d 850, 873 (2004) (citation and

quotation marks omitted).

b. Statements About Ms. Tucker’s Blood

¶ 53 The prosecutor repeatedly argued during closing that Ms. Tucker’s blood was

present in Defendant’s car, and Defendant objected to these statements numerous

times. The trial court overruled these objections each time.

¶ 54 A prosecutor may argue any reasonable inferences from the evidence

introduced at trial. State v. Boyd, 214 N.C. App. 294, 305–06, 714 S.E.2d 466, 475

(2011). Here, the State introduced expert testimony and lab results showing the

conclusive presence of human blood on sections of carpeting and padding of the

driver’s seat flooring in Defendant’s car, though no DNA samples were recoverable

from those sections. Other evidence produced opposite results, as Ms. Tucker’s DNA

was found on a section of the floor padding that returned inconclusive (but not

negative) results for human blood. The State’s experts testified that these

discrepancies may well have been the result of chemical cleaners, and other evidence STATE V. BRADLEY

showed Defendant had: (1) cleaned his car several times after Ms. Tucker

disappeared; and (2) had bleach in his workshop and carpet cleaners in his home.

Finally, the section of flooring containing Ms. Tucker’s DNA does not appear prone to

incidental contact with other sources of DNA, as it was located beneath both a rubber

floormat and a layer of carpeting below the driver’s seat. All of this evidence leads to

a reasonable inference that the DNA—found alongside sections testing positive for

human blood—was sourced from Ms. Tucker’s blood. For these reasons, we hold the

trial court did not err in overruling Defendant’s objections to this portion of closing

argument.

c. Statements About Ms. Rippy’s Death

¶ 55 Defendant also argues that the trial court erred in allowing the prosecutor,

over Defendant’s objections, to argue that Ms. Rippy was dead during closing

arguments. Defendant takes specific issue with the prosecutor’s statements in light

of the trial court’s admonition, made during the pre-trial 404(b) motion hearing, that

it “want[ed] to make sure that there’s no intention of the State ever going in with any

witness and to ever discussing the death of Ms. Rippy Van Newkirk. It would just

be, again, as to her disappearance.”

¶ 56 Despite Defendant’s argument to the contrary, the trial court’s evidentiary

rulings did not preclude the State from arguing in closing that Ms. Rippy was

deceased. The State introduced testimony, without objection, that the Wilmington STATE V. BRADLEY

Police Department changed the internal designation of Ms. Rippy’s investigation

from a missing persons case to murder. Later, when Defendant requested the written

internal report reflecting this new designation be redacted once in evidence, the State

made clear its intention to argue to the jury that Ms. Rippy was dead:

[W]e’re not saying that he’s been convicted of that murder, which we all know in this room; but that’s far different that saying that it’s now termed a murder by WPD, which it is the second that he’s arrested for it, which is the standard business practice of the WPD.

. . . [W]e are not embracing the fact that Ms. [Rippy] might be in Tahiti right now. She’s dead, and he did it. We’re not saying he did it in front of this jury . . . . But we’re not running from the fact that she’s dead, and I intend to argue that she’s dead in my closing argument.

The trial court then denied Defendant’s motion, noting that the State had not sought

to elicit any evidence of Defendant’s conviction for Ms. Rippy’s murder. Based on this

evidentiary ruling made at trial,6 and given the trial court permitted the State to

argue Ms. Rippy was dead over Defendant’s objection, it appears the trial court only

limited evidence of Defendant’s conviction for Ms. Rippy’s murder and did not intend

to bar evidence suggesting—or arguments asserting—that she was dead.

6 We note that pre-trial rulings on the admissibility of evidence are preliminary, and

the trial court’s final determination is made at the time evidence is introduced. See State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997) (“Rulings on these motions . . . are merely preliminary and subject to change during the course of trial, depending upon the actual evidence offered at trial . . . .” (citation and quotation marks omitted)). STATE V. BRADLEY

¶ 57 Again, a prosecutor may argue “all the facts in evidence as well as any

reasonable inferences that may be drawn from those facts,” State v. Riley, 137 N.C.

App. 403, 413, 528 S.E.2d 590, 597 (2000), and it is reasonable to infer from the

evidence presented that Ms. Rippy is deceased. The State introduced testimony that:

(1) Defendant volunteered in a police interview that he “was the last person to see

[Ms. Rippy] alive,” suggesting he believed Ms. Rippy could be dead; (2) the

Wilmington Police Department reclassified Ms. Rippy’s case from a missing persons

investigation to first-degree murder; and (3) no one had located Ms. Rippy or her body

after five years of continuing criminal and volunteer investigations into her

whereabouts.7 Given this testimony, the trial court did not err in denying

Defendant’s objection to the prosecutor’s argument that Ms. Rippy is dead based on

a reasonable inference from the evidence presented.

¶ 58 Nor does it appear the prosecutor referenced the death of Ms. Rippy for an

improper purpose. Instead, the prosecutor used that inference to downplay

Defendant’s anticipated attempts “to say that there’s a lot of differences between

7 Although North Carolina law governing the estates of missing persons has abolished

the common law presumption of death based on absence, N.C. Gen. Stat. § 28C-1 (2019), we note that the modern trend amongst jurisdictions is to recognize a presumption of death after five years. See Am. Jur. 2d Death § 399 (2021) (noting that the Uniform Probate Code provides for a presumption of death after five years’ absence and is now “followed in several jurisdictions”). The State commenced closing arguments in this case ten days prior to the five-year anniversary of Ms. Rippy’s disappearance. STATE V. BRADLEY

these women” and to emphasize an additional similarity between them to show “who’s

the identity of the killer, [Ms. Tucker’s] killer. It goes to is there a motive, is there a

plan, is there a modus operandi.” Later, the prosecutor argued “I want to be very

clear, I am not asking that you punish him for [Ms. Rippy’s] case today. In fact, that

is absolutely an impermissible use. Instead, what it does is it goes to modus

operandi.” The remaining mentions of Ms. Rippy’s death likewise show the inference

was drawn for the jury for these permissible purposes. Read in context, alongside the

trial court’s specific instruction to the jury that evidence of Ms. Rippy’s disappearance

could only be used for the limited permissible purposes outlined above, we hold that

Defendant has failed to demonstrate any abuse of the trial court’s wide discretion in

overruling his objections to these statements by the prosecutor. See, e.g., State v.

Murillo, 349 N.C. 573, 603–4, 509 S.E.2d 752, 770 (1998) (holding prosecutor’s

argument that the defendant—an expert marksman who was previously convicted

for involuntary manslaughter in shooting of his first wife and was now on trial for

first-degree murder in the shooting death of his fourth wife—likely did not

accidentally shoot both wives was not improper when it was a reasonable inference

from the evidence and was argued for a proper 404(b) purpose).

d. Prosecutor’s Burden-Shifting and Verdict Sheet Comments

¶ 59 Defendant next asserts that the trial court erred in denying his motion for a

mistrial after it sustained Defendant’s objections to comments from the prosecutor STATE V. BRADLEY

that suggested Defendant: (1) bore the burden of proving his own innocence; and (2)

was responsible for the inclusion of second-degree murder as a lesser-included offense

on the verdict sheet. Defendant’s counsel immediately objected to the comments, the

trial court sustained the objections after hearing arguments outside the presence of

the jury, and the trial court gave curative instructions to the jury once closing

statements resumed. Defendant asserts on appeal that the curative instructions

were inadequate; our precedents, however, lead us to hold otherwise.

¶ 60 Our Supreme Court has held that “[w]here, immediately upon a defendant’s

objection to an improper remark made by the prosecutor in his closing argument, the

trial court instructs the jury to disregard the offending statement, the impropriety is

cured.” State v. Woods, 307 N.C. 213, 222, 297 S.E.2d 574, 579 (1982) (citations

omitted). We have applied this rule to hold that any prejudice in a prosecutor’s

closing argument was cured when the defendant timely objected, the court held a

bench conference to resolve the objection, and the trial judge issued a curative

instruction once proceedings resumed. State v. Peterson, 179 N.C. App. 437, 468–69,

634 S.E.2d 594, 617 (2006). Our Supreme Court has noted such curative instructions

may serve to alleviate prejudice even when the record shows the instruction was both

incomplete and somewhat untimely. See State v. Barden, 356 N.C. 316, 381–82, 572

S.E.2d 108, 149 (2002) (declining to hold a delayed, incomplete, and ambiguous

instruction was ineffective “because a jury is presumed to follow a court’s STATE V. BRADLEY

instructions” (citation omitted)). The curative instructions provided in this case fall

within the holdings in Woods, Barden, and Peterson. The trial court did not err in

denying Defendant’s motions for mistrial under these circumstances.

e. Statements of Personal Opinion

¶ 61 Defendant further argues that the trial court erred in not intervening ex mero

motu to the comments by the prosecutor about “evil.” Those statements, in the

context of the prosecutor’s larger argument, are as follows:

The world is a beautiful place and there is good in it. . . . We know that there’s good in the world because [our children] are born innocent and playful.

....

But, you know, the job of a parent, of course, is to keep our children from harm. And just as there is good and beauty in the world, there’s also evil. And you don’t need a law degree to know what this is. This, ladies and gentlemen, is pure evil.

I’m not going to show you the contents of inside that bag. You’ve seen it. Suffice it to say, it’s heinous, it’s brutal, it’s a lonely way to die.

The world is a beautiful place. . . . You know, sometimes evil wears a mask. Sometimes you have to dip below the surface. Sometimes evil is readily apparent, like when you’re looking at the grotesque deformities on the body of Rose’s baby [Ms. Tucker]. But, no, when you’re looking at this defendant, you have to dip below the surface. STATE V. BRADLEY

(Emphasis added). Defendant asserts that these comments were particularly

improper because the prosecutor displayed a posterboard to the jury with a picture of

Defendant—who is Black—alongside images of Mses. Tucker, Sitosky, and Rippy—

all of whom are white.

¶ 62 Presuming, arguendo, the prosecutor’s statements were referring to

Defendant—rather than the murder of Ms. Tucker—as evil, such derogatory

comments do not rise to the level of gross impropriety requiring the trial court’s

intervention ex mero motu. See State v. Larrimore, 340 N.C. 119, 163, 456 S.E.2d

789, 812–13 (1995) (holding prosecutor’s statements that the defendant was “the

ultimate[,] . . . the quintessential evil” and “one of the most dangerous men in this

State” were not grossly improper (emphasis in original)). The trial court gave

Defendant an opportunity to review the posterboard before it was shown to the jury,

and Defendant’s counsel told the court that “we don’t have any objection to—to what

[the prosecutor] is going to introduce.” Additionally, the jury was already well aware

of the races of Defendant and Mses. Tucker, Sitosky, and Rippy without the use of

the State’s visual aid; Defendant was present in the courtroom for trial, Ms. Sitosky

testified before the jury, and the State introduced photographs of Mses. Tucker and

Rippy into evidence and published them to the jury. Finally, the prosecutor never

drew attention to or referenced the races of Defendant or the three women in closing.

While we are cognizant of racial bias, we do not see any gross impropriety in the STATE V. BRADLEY

prosecutor’s conduct given that: (1) Defendant did not object to the prosecutor’s

comments about evil or the use of the posterboard; (2) neither the prosecutor nor the

posterboard commented on race; (3) the posterboard did not implicate race beyond

the inclusion of photographs of persons the jury had already observed over the several

days of trial; and (4) Defendant points to no caselaw where gross impropriety has

been found on this theory. As such, we decline to hold that the trial court erred in

failing to intervene ex mero motu.

f. Cumulative Prejudice in Closing Argument

¶ 63 Defendant concludes his discussion of closing arguments by asserting that the

cumulative effect of the alleged improper remarks is so prejudicial as to warrant a

new trial. Having held that Defendant has not shown error in the trial court’s actions

during closing argument, we further hold that Defendant cannot show error through

cumulative prejudice.

3. Motion to Dismiss

¶ 64 Defendant also asserts that the trial court erred in denying his motion to

dismiss the first-degree murder charge for insufficient evidence of premeditation and

deliberation with specific intent to kill. We hold the trial court did not err based on

the evidence when taken in the light most favorable to the State.

a. Standard of Review

¶ 65 We review the denial of a motion to dismiss for insufficiency of the evidence de STATE V. BRADLEY

novo. State v. Phachoumphone, 257 N.C. App. 848, 861, 810 S.E.2d 748, 756 (2018).

Denial is proper when “there is substantial evidence (1) of each essential element of

the offense charged . . . , and (2) of defendant’s being the perpetrator of such offense.”

State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is

defined as “relevant evidence that a reasonable person might accept as adequate, or

would consider necessary to support a particular conclusion. In this determination,

all evidence is considered in the light most favorable to the State, and the State

receives the benefit of every reasonable inference supported by that evidence.” State

v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012). Further, “[a]ny contradictions

or conflicts in the evidence are resolved in favor of the State, and evidence

unfavorable to the State is not considered.” State v. Miller, 363 N.C. 96, 98, 678

S.E.2d 592, 594 (2009) (citations omitted).

b. Evidence of Premeditation and Deliberation

¶ 66 Premeditation and deliberation are necessary elements of first-degree murder.

N.C. Gen. Stat. § 14-17(a) (2019). Our Supreme Court has defined premeditation and

deliberation as follows:

Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation; it is sufficient if the process of premeditation occurred at any point prior to the killing. Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge STATE V. BRADLEY

or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.

An unlawful killing is deliberate and premeditated if done as part of a fixed design to kill, notwithstanding the fact that the defendant was angry or emotional at the time, unless such anger or emotion was strong enough to disturb the defendant’s ability to reason.

State v. Hunt, 330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991) (citations omitted).

¶ 67 Circumstantial evidence showing premeditation and deliberation includes, but

is not limited to, the following:

(1) want of provocation on the part of the deceased, (2) conduct and statements of the defendant before and after the killing, (3) threats made against the victim by the defendant, ill will or previous difficulty between the parties, and (4) evidence that the killing was done in a brutal manner.

State v. Bullard, 312 N.C. 129, 161, 322 S.E.2d 370, 388 (1984) (citation omitted).

Other circumstantial evidence may include “the use of grossly excessive force, or the

dealing of lethal blows after the deceased has been felled.” State v. DeGregory, 285

N.C. 122, 129, 203 S.E.2d 794, 800 (1974) (citations omitted). Also pertinent is “any

unseemly conduct towards the corpse of the person slain, or any indignity offered it

by the slayer, as well as concealment of the body.” State v. Sokolowski, 351 N.C. 137,

145, 552 S.E.2d 65, 70 (1999) (citation omitted).

¶ 68 Defendant argues that the State’s circumstantial evidence in this case was STATE V. BRADLEY

insufficient to allow a reasonable inference that he acted with premeditation and

deliberation in killing Ms. Tucker, contending that: (1) the killing was not

particularly “brutal” as the term is used in the first-degree murder context; and (2)

the Defendant’s disposal and concealment of the body was more indicative of

Defendant’s mindset after the killing than before it.

¶ 69 Relevant caselaw on whether a killing was brutal and thus indicative of

premeditation and deliberation does not support Defendant’s position. For example,

in State v. Hager, 320 N.C. 77, 83, 357 S.E.2d 615, 618 (1987), our Supreme Court

held that a murder was completed in a brutal manner when the victim “died as a

result of the defendant’s vicious beating of him about the head with the butt of a rifle

with such force as to cause an intracranial hemorrhage.” The medical examiner in

this case testified that Ms. Tucker died from four lacerations to her skull and internal

epidural hemorrhaging from repeated blunt force trauma. Ms. Tucker also suffered

even more grievous wounds, including: (1) hemorrhaging in her neck from

strangulation or blunt force;8 and (2) four broken ribs caused by blunt force trauma

8 While the evidence was inconclusive as to whether the neck hemorrhage was caused

by strangulation or blunt force trauma, we note that “[t]he jury may infer premeditation and deliberation from the circumstances of a killing, including that death was by strangulation.” State v. Richardson, 328 N.C. 505, 513, 402 S.E.2d 401, 406 (1991) (citations omitted) (emphasis added). Thus, the injury to Ms. Tucker’s neck suggests premeditation and deliberation, whether it was inflicted by strangulation or blows beyond those to her ribs and skull. STATE V. BRADLEY

inflicted at the time of death. While Defendant points to cases involving even more

extreme attacks than those shown here to argue that this case did not include a brutal

killing, the incidence of more barbaric murders does nothing to diminish the

viciousness of Ms. Tucker’s murder.

¶ 70 We are similarly unconvinced by Defendant’s contention that the manner and

method of the disposal of Ms. Tucker’s body does not show premeditation. Our

caselaw is replete with holdings that postmortem mistreatment and concealment of

a body may support a reasonable inference of premeditation and deliberation. See,

e.g., State v. Pridgen, 313 N.C. 80, 94, 326 S.E.2d 618, 627 (1985) (holding evidence

that “[t]he body was concealed at the side of a deserted dirt path” showed

premeditation and deliberation); State v. Rose, 335 N.C. 301, 319, 439 S.E.2d 518, 527

(1994) (holding “evidence of an elaborate process of removing the body,” including

hiding and eventually burning the body, was “evidence from which a jury could infer

premeditation and deliberation”), abrogated on other grounds, State v. Buchanan, 353

N.C. 332, 340, 543 S.E.2d 823, 828 (2001); Sokolowski, 351 N.C. at 149, 522 S.E.2d at

72 (“[T]his Court has held that unseemly conduct towards a victim’s corpse and efforts

to conceal the body are relevant as circumstantial evidence of premeditation and

deliberation.” (citing Rose, 335 N.C. at 318, 439 S.E.2d at 527); State v. Parker, 354

N.C. 268, 280–81, 553 S.E.2d 885, 895 (2001) (holding defendant’s attempt to cover

up the crime by mistreating and concealing the body in a car on a dirt road and STATE V. BRADLEY

otherwise disposing of physical evidence was indicative of premeditation and

deliberation); State v. Dawkins, 162 N.C. App. 231, 240, 590 S.E.2d 324, 331 (2004)

(holding “evidence of an elaborate process of concealing the body by wrapping it in a

towel, blanket, and trash bag; weighing the body down with weights and anchors;

transporting the body to [a lake]; and disposing of the laden body to sink after the

victim had been killed” was “evidence from which the jury could permissibly infer

premeditation and deliberation”).

¶ 71 In this case, the State introduced substantial evidence of: (1) undignified

treatment and concealment of Ms. Tucker’s body; and (2) efforts to destroy evidence

of the murder. Police located Ms. Tucker’s body in a shallow grave beneath a tree

stump in the back corner of a rural field. The body had been stripped naked, arranged

in a fetal position, and was bound with duct tape. Ms. Tucker’s corpse was wrapped

in three black trash bags before being transported to the grave and buried. The State

introduced additional evidence suggesting Defendant sought to conceal his handling

of the body by using chemical cleaners to wash the interior of his vehicle following

Ms. Tucker’s disappearance. We have no difficulty holding, based on our precedents,

that the above conduct, coupled with the brutal nature of the killing, suffices to

support a reasonable inference of premeditation and deliberation on the part of

Defendant when viewed in the light most favorable to the State.

4. Cumulative Prejudice STATE V. BRADLEY

¶ 72 In his final argument, Defendant asserts that all of the above errors, if

insufficiently prejudicial standing alone, were so cumulatively prejudicial as to

warrant a new trial. As discussed above, Defendant has failed to show any error by

the trial court, and we hold that Defendant cannot show cumulative prejudice absent

such error.

III. CONCLUSION

¶ 73 For the foregoing reasons, we hold Defendant received a fair trial, free from

prejudicial error.

NO ERROR.

Judges TYSON and ARROWOOD concur.