State v. Carver

725 S.E.2d 902, 221 N.C. App. 120, 2012 WL 1987632, 2012 N.C. App. LEXIS 722

• Court: Court of Appeals of North Carolina
• Decided: June 5, 2012
• Docket: COA11-1382
• Status: Published

Opinions

STEPHENS, Judge.

Following his indictment on one count of first-degree murder, Defendant Mark Bradley Carver pled not guilty to the charge and was tried by a jury in Gaston County Superior Court, the Honorable Timothy S. Kincaid presiding. The evidence presented by the State tended to show that the victim was found dead beside her car on the shore of the Catawba River, and that Carver and his cousin were fishing close by at the time the victim’s body was discovered and near the time the victim was murdered. The victim had been strangled to death with a ribbon from a gift bag in her car, the drawstring of her sweatshirt, and a bungee cord similar to another cord in the trunk of her car. Law enforcement’s investigation of the murder revealed that DNA samples taken from the victim’s car matched Carver’s and his cousin’s DNA profiles. When Carver was confronted with this evidence, he denied, as he repeatedly had done before, ever seeing or touching the victim or her car. Further, despite his statements that he had never seen the victim, Carver told law enforcement officers that the victim was a “little thing,” and he demonstrated the victim’s height relative to his own.

Following the presentation of evidence and after the trial court instructed the jury on the charges of first- and second-degree murder, the jury found Carver guilty of first-degree murder. The trial court sentenced Carver to life imprisonment without parole. Carver appeals.

On appeal, Carver first argues that the trial court erred by denying his motion to dismiss because there was insufficient evidence that Carver committed the murder. We disagree. A trial court properly denies a motion to dismiss based on an alleged absence of evidence that the defendant committed the charged offense where the court determines that there is substantial evidence — i.e., “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” — that the defendant committed the offense charged. State v. Cross, 345 N.C 713, 716-17, 483 S.E.2d 432, 434 (1997). This Court reviews de novo a trial court’s ruling on a motion to dismiss, and we view the evidence in the light most favorable to the State, giving the State every reasonable inference therefrom. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).

In this case, there is only circumstantial evidence to show that Carver committed the murder: at the time the victim’s body was discovered, Carver was fishing at a spot a short distance from the crime scene and had been there for several hours; and Carver repeatedly denied ever touching the victim’s vehicle, but DNA found on the victim’s vehicle was, with an extremely high probability, matched to Carver.¹ “Most murder cases are proved through circumstantial evidence,” State v. Banks, _N.C. App. _, _, 706 S.E.2d 807, 813 (2011), and where the evidence presented is circumstantial, “the question [] is whether a reasonable inference of defendant’s guilt may be drawn from the circumstances.” State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (internal quotation marks omitted). Such an inference was permissible from the circumstances present in State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975), where our Supreme Court held that the existence of physical evidence establishing a defendant’s presence at the crime scene, combined with the defendant’s statement that he was never present at the crime scene and the absence of any evidence that defendant was ever lawfully present at the crime scene, permits the inference that the defendant committed the crime and left the physical evidence during the crime’s commission. 289 N.C. at 6, 220 S.E.2d at 575. In Miller, as in this case, where the defendant’s statement that he was never present at, and never touched any part of, the crime scene was shown by physical evidence — in that case, fingerprints; in this case, DNA — to be false, “the most compelling permissible inference arising from [the] defendant’s falsehood” is that he left the physical evidence at the crime scene in the course of committing the crime.² See id. Otherwise, had his DNA been left at any other time and under lawful circumstances, “he would have so stated when the potentially incriminating presence of his [DNA] was brought to his attention by the [law enforcement] officers.” See id.

Carver’s denial and the DNA’s contradiction thereof, viewed in the light most favorable to the State, are sufficient to establish that the DNA could only have been left at the time the offense was committed. See id.; see also State v. Wade, 181 N.C. App. 295, 299, 639 S.E.2d 82, 86 (2007) (“Statements by the defendant that he had never been at the crime scene are sufficient to show that a fingerprint lifted from the premises could only have been impressed at the time of the crime.”). The establishment of that fact warrants denial of Carver’s motion to dismiss. Cross, 345 N.C at 718, 483 S.E.2d at 435 (where defendant contends that there was insufficient evidence of his guilt, evidence showing that the fingerprint “could only have been impressed at the time the crime was committed,” “standing alone, was sufficient to send [the] case to the jury”). Accordingly, we conclude that the trial court did not err in denying Carver’s motion to dismiss. This is so despite Carver’s erroneous contention that, absent evidence of motive, the State failed to present substantial evidence that Carver murdered the victim in this case. “Motive is not an element of first-degree murder, nor is its absence a defense,” State v. Elliot, 344 N.C. 242, 273, 475 S.E.2d 202, 216 (1996), cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997), and while it is “relevant to identify an accused as the perpetrator of the crime,” State v. Bell, 65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983), aff’d per curiam, 311 N.C. 299, 316 S.E.2d 72 (1984), the State presented sufficient evidence to identify Carver as the perpetrator by proving Carver’s presence near the scene of the murder near the time of death in combination with his DNA-controverted statement that he never saw or touched the victim’s car. Carver’s argument is overruled.

Carver next argues that the trial court erred by “refusing to answer the jury’s question about whether it was ‘still to consider acting in concert.’ ” We disagree.

Once the jury had begun their deliberations, they sent a written question to the trial judge, asking, “Are we still to consider acting in concert?” The following colloquy between the court and counsel then ensued:

THE COURT: .... Of course, the [c]ourt didn’t instruct them on acting in concert so it would be — it would probably be appropriate to go ahead and read the instruction to them and tell them that the law that they are to consider is the law that the [c]ourt has given them without stepping into that minefield.

[Prosecutor]: That would be acceptable to the State.

[Defense counsel]: Yes, sir.

Thereafter, the trial court reinstructed the jury on the law that the court read to the jury in the initial instructions. In neither instance did the court charge the jury on an acting in concert theory, having earlier denied the State’s request for such an instruction.

We first note that defense counsel neither objected when the trial court announced its decision to reinstruct the jury with the same instructions as those given before the jury began its deliberations, nor did defense counsel note an objection when given an opportunity after the court’s reinstruction. As such, Carver failed to properly preserve this issue for appellate review. See State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991) (holding that where jurors requested clarification on an instruction, and the defendant’s trial counsel agreed to the court’s plan to reread all instructions on the elements of the offense, the defendant “will not be heard to complain on appeal” that the instructions should have been otherwise); N.C. R. App. P. 10(a) (requiring a defendant to object and be heard outside the presence of the jury to properly preserve a claim of error in a jury charge).

Further, were this argument properly preserved, it would certainly be overruled. Carver erroneously bases his argument that the trial court’s refusal to directly answer the jury’s question was improper on our Supreme Court’s decision in State v. Hockett, in which the trial court refused to answer the jury’s questions concerning the law as instructed and the Supreme Court ordered a new trial, stating that “the trial court should have at least reviewed the elemerits of the offenses if it was not going to directly answer the [jury’s] question as defense counsel had requested.” 309 N.C. 794, 802, 309 S.E.2d 249, 253 (1983); see also State v. Moore, 339 N.C. 456, 465, 451 S.E.2d 232, 236 (1994) (explaining the holding in Hockett'). As the trial court here did review the elements of first- and second-degree murder in its reinstruction, the court did not run afoul of the holding in Hockett. Carver’s argument is overruled.

Relatedly, Carver argues that the trial court’s decision to not instruct the jury on acting in concert, but to allow the State to present to the juiy the State’s “theory of the case,” which Carver contends urged the jury to convict Carver under the doctrine of acting in concert, was erroneous and compounded the alleged error from the trial court’s failure to directly answer the jury’s question. We are unpersuaded.

The doctrine of acting in concert allows a defendant to be found guilty for crimes committed by another person if that person and the defendant join in a common purpose to commit the crime. State v. Evans, 346 N.C. 221, 228, 485 S.E.2d 271, 275 (1997), cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998). Presumably, Carver’s argument is based upon the contention that the State, in its closing argument, informed the jurors that they could convict Carver of murder even if they determined that Carver’s cousin had committed the murder. However, because the closing arguments were not transcribed and are not before this Court on appeal, Carver has failed to satisfy his burden of presenting an adequate record to support his contention. See State v. Brogden, 329 N.C. 534, 546, 407 S.E.2d 158, 166 (1991) (noting that the defendant has the burden of providing an appellate record adequate to allow determination of the defendant’s issues). As such, we cannot conclude that the alleged arguments by the State were prejudicial to Carver. State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (noting that the appellate court cannot assume or speculate that there was prejudicial error when none appears in the record), disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985). Furthermore, the trial court’s instruction and reinstraction consistently and adequately conveyed to the jury that the State was required to prove that Carver killed the victim. The court instructed the jury that they could find Carver guilty of first-degree murder only if the State proved beyond a reasonable doubt: (1) “that [Carver] intentionally and with malice killed [the victim]”; (2) “that [Carver’s] acts were a proximate cause of [the victim’s] death”; (3) “that [Carver] intended to kill [the victim]”; (4) “that [Carver] acted with premeditation”; and (5) “that [Carver] acted with deliberation.” “The law presumes that jurors follow the court’s instructions.” State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). While the State’s “theory of the case” may have been that Carver and his cousin were both involved in the murder, Carver has presented nothing to indicate that the jury ignored the court’s instructions and attributed any of Carver’s cousin’s actions to Carver. Accordingly, we cannot conclude that the trial court’s decision to not instruct the jury on acting in concert, but to allow the State to argue its theory of the case was error. Carver’s argument is overruled.

NO ERROR.

Judge MCGEE concurs. Judge HUNTER, ROBERT N., JR., dissents with a separate opinion.

1 . A DNA sample found on the victim’s car was “126 million times more likely to be observed from [] Carver[, a Caucasian,] than if it came from another unrelated individual in the North Carolina Caucasian population.”

2 . We note that although the physical evidence in Miller was the defendant’s fingerprints and not his DNA, the logic of the rule from Miller applies equally to DNA and fingerprints, and the only potential difference in application of the rule to DNA is the strength of the conclusion as to the defendant’s presence supported by the physical evidence, i.e., that fingerprint evidence may be so'accurate as to conclusively establish a defendant’s presence while DNA evidence may not. See id. at 3-4, 6, 220 S.E.2d at 574, 575 (“The use of fingerprint evidence for identification purposes is so general and so accurate that in many cases it has been expressly declared that the courts will take judicial notice thereof.”; “Defendant’s thumbprint on the lock conclusively establishes that defendant was [at the crime scene] at some unspecified time.” (emphasis in original)). However, because Carver concedes in his brief that the DNA evidence established his presence at the crime scene in this case, stating that the only connection between himself and the victim was “his having touched her car,” we need not address the accuracy and ubiquity of DNA analysis vis-á-vis fingerprint analysis, and we find that the rule from Miller is perfectly applicable in this case.