IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-405
No. COA20-362
Filed 3 August 2021
Rowan County, No. 16 CRS 052274-75, 19 CRS 1637
STATE OF NORTH CAROLINA
v.
DAVID MYRON DOVER, Defendant.
Appeal by Defendant from judgments entered 19 September 2019 by Judge
Richard S. Gottlieb in Rowan County Superior Court. Heard in the Court of Appeals
9 February 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General K. D. Sturgis, for the State.
Marilyn G. Ozer for defendant-appellant.
MURPHY, Judge.
¶1 When the State presents evidence that raises a strong suspicion of a
defendant’s guilt, but does not remove the case from the realm of surmise and
conjecture, the trial court errs in denying the defendant’s motion to dismiss for
insufficiency of the evidence. Here, the circumstantial evidence presented at trial
showed Defendant had an opportunity to commit the crime charged, but there was
not evidence, even when viewed in the light most favorable to the State, that a STATE V. DOVER
Opinion of the Court
reasonable mind could accept to support the conclusion that Defendant robbed and
murdered the victim.
BACKGROUND
¶2 On 16 May 2016, Defendant David Myron Dover was indicted on one count of
robbery with a dangerous weapon, one count of first-degree murder, and having
attained the status of habitual felon. A jury was impaneled for Defendant’s trial on
9 September 2019. The evidence at trial tended to show the following:
¶3 On the morning of 10 May 2016, Arthur “Buddy” Davis (“Mr. Davis”) was
scheduled to meet one of his daughters, April Anderson, at 7:00 a.m. to give her an
unknown sum of money. When he did not show up, Anderson called Mr. Davis’s place
of employment, Terry’s Auto Sales, and asked to “speak to Buddy[.]” Anderson was
told Mr. Davis was not at work.
¶4 Anderson then called her sister, Charlotte Davis (“Davis”), who directed her
husband, Waylon Barber, to go to Mr. Davis’s mobile home in Kannapolis to check on
him. Contemporaneously, the owner of Terry’s Auto Sales, Terry Bunn, was
concerned about Mr. Davis not showing up at work and decided to go to Mr. Davis’s
mobile home to check on him. Bunn arrived at the mobile home before Barber and,
after knocking on the door and receiving no answer, “slid [a screwdriver] in behind
the door . . . [and] jimmied the door open.” Bunn entered the home, called Mr. Davis’s
name, and observed “something [that] had a real brown look to it” in the kitchen, STATE V. DOVER
which he realized was blood. Bunn then walked to the bedroom, where he found Mr.
Davis lying unconscious on the floor and called 911. Barber arrived shortly thereafter
and also called 911. Paramedics arrived at the mobile home and declared Mr. Davis
dead. According to expert testimony, the cause of Mr. Davis’s death was multiple
stab wounds. No evidence of forced entry into the mobile home was found. The time
of Mr. Davis’s death could not be determined with accuracy and a murder weapon
was never identified.
¶5 Officers who responded to the 911 calls identified a list of possible suspects,
including Defendant. Defendant lived in Rowan County and worked at Terry’s Auto
Sales with Mr. Davis. Due to a crack cocaine substance abuse problem, Defendant
frequently borrowed small amounts of cash from various people in the community,
including Mr. Davis, and failed to pay them back.
¶6 After the investigation at Mr. Davis’s mobile home concluded, some officers
went to locate the other possible suspects. Contemporaneously, other officers went
by Defendant’s house, located in China Grove, “to kind of get a feel of where [he] lived
at.” As the officers were leaving the area, they saw Defendant “pull in, driving.” The
officers knew Defendant previously had his driver’s license revoked and contacted the
Rowan County Sheriff’s Office to advise them Defendant was driving without a
license. The Rowan County Sherriff’s Office took out a warrant for Defendant for
driving while license revoked, but service of the warrant was held off. STATE V. DOVER
¶7 That same day, officers returned to Defendant’s house. Defendant and his
girlfriend, Carol Carlson, who Defendant lived with, came outside the house to speak
with the officers. Defendant and Carlson agreed to let the officers search their house.
As a result of the search, an officer seized two shirts and a pair of blue jeans located
in the back bedroom of Defendant’s house. According to the officer, these items were
seized “[b]ecause they had blood stains or what appeared to be blood stains on the
shirts and on the back of the blue jeans.” Blood DNA tests were done comparing the
blood stains on the clothing seized from Defendant’s house and the blood at the scene
of the crime with Defendant’s blood and Mr. Davis’s blood. Forensic biologists
testified there was no connection between Defendant’s DNA profile and the scene of
the crime, and no connection between the blood stains on Defendant’s clothes and Mr.
Davis’s DNA profile.
¶8 After the officers finished searching the house, Defendant agreed to go to the
Kannapolis police department to talk about Mr. Davis’s death. As they were leaving,
Carlson asked Defendant for money because she was hungry, and Defendant gave
her $20.00 from cash that he had in his pocket at the time.
¶9 Defendant’s interview at the police department was video recorded and played
for the jury. When asked about his whereabouts on the evening of 9 May 2016,
Defendant stated he returned home at about 8:00 or 9:00 p.m. and did not leave his
house for the remainder of the evening. Later during the interview, Defendant STATE V. DOVER
changed his story and stated that on 9 May 2016, he purchased “a dime” of crack
cocaine, brought it back to Terry’s Auto Sales, and smoked it before he did more work
and later went home. He also stated he tried to call Mr. Davis two or three times to
borrow $20.00 at about 10:00 p.m., but Mr. Davis never picked up the phone.
Defendant told the officers that occasionally, Mr. Davis tells him he isn’t going to loan
him any more money, but Mr. Davis recently loaned him $20.00 on the previous
Sunday.
¶ 10 Defendant gave the interviewing officers permission to inspect his cell phone
in an attempt to corroborate his story. Officers attempted to retrieve data from
Defendant’s cell phone using a Cellebrite forensic device, but due to the age of the
phone, the data could not be retrieved. Instead, the officers manually searched the
cell phone’s contents. The manual search revealed the only calls in the cell phone’s
call history were those made after Defendant had been in the presence of the officers,
and the only text message history was one text message received from Carlson on 10
May 2016.
¶ 11 The State also presented location records of Defendant’s cell phone on the night
of 9 May 2016. According to expert testimony from Special Agent Michael Sutton,
Defendant’s cell phone records were assessed to determine which cell towers and
sectors were utilized by his phone in order to map its location. Because “[m]ost towers
are sectorized to increase the number of customers it can serve[,]” cell phone carriers STATE V. DOVER
put “three towers on one pole, pointing in different directions.” Special Agent Sutton
looked at “the topography of the area, the layout of the area, as well as associating
the other towers to come up with an estimated service area of [a] particular tower,”
and determined the general area and sector of where Defendant’s phone was when it
was being used.
¶ 12 The cell tower records showed Defendant made calls at 9:46 p.m., 10:21 p.m.,
10:22 p.m., and 10:23 p.m. on 9 May 2016 from a sector that included his residence
in China Grove. The cell tower records also showed Defendant made calls at 11:22
p.m., 11:30 p.m., 11:31 p.m., and 11:32 p.m. on 9 May 2016 from a sector that included
both Mr. Davis’s mobile home and Terry’s Auto Sales. On 10 May 2016, the cell tower
records showed Defendant made calls at 12:00 a.m., 12:11 a.m., and 12:12 a.m. from
a sector that included the home of Defendant’s drug dealer. Also, on 10 May 2016,
Defendant again made calls between 12:49 a.m. and 1:29 a.m. from the sector that
included his residence in China Grove.
¶ 13 Officers asked Defendant where he obtained the money he gave to Carlson
prior to the interview. He stated he had $300.00 or $400.00 from a customer whose
car he put a transmission in, but it was Bunn’s money since Bunn gave him an
advance on the money Defendant was to receive for the transmission work.
¶ 14 After the interview concluded, Defendant went outside the Kannapolis Police
Department and waited to be transported back to his house. While waiting, STATE V. DOVER
Defendant was arrested on the outstanding warrant for driving while license revoked.
Defendant was transported to jail where he declined to be interviewed a second time.
¶ 15 While in jail, Defendant made a telephone call to Carlson on a monitored phone
line. The audio recording of this phone call was played for the jury. While on the
phone, Defendant instructed Carlson to look in a trash can for a stack of
approximately $3,000.00 in cash, inside a work glove, which was in turn inside a
McDonald’s bag, and instructed her to use the cash to pay his bail. Carlson located
the money and used $1,000.00 of it for Defendant’s bail money. Officers recovered
the remainder of the money, $1,724.00, from a wallet in Carlson’s purse. The majority
of the cash was in one-hundred-dollar bills. Officers were later able to recover the
McDonald’s bag and the empty work glove inside of it from a garbage can across the
street from Defendant’s house, at Carlson’s mother’s house.
¶ 16 At the close of the State’s evidence, Defendant made a motion to dismiss all
charges “for failure to provide evidence as to each element of each crime[.]” The trial
court denied the motion to dismiss. At the close of all evidence, Defendant renewed
the motion to dismiss all charges, citing “insufficiency of the evidence” as the basis
for the motion. The trial court denied the renewed motion.
¶ 17 During closing arguments, the State argued to the jury:
Admittedly, we don’t have DNA in this case. We don’t. There’s always going to be something you can look at in a crime scene investigation and say it wasn’t done. Short of STATE V. DOVER
us literally picking up the entire trailer and moving [it to] a warehouse and going through it with microscopes, there’s always going to be something you can point out that wasn’t done. We do the reasonable things, the things that lead to evidence that we believe might produce evidence. One way or the other, we’re going to run down your alibi, just like we run down allegations against you, and that was done in this case, time and time again. The problem is, every time they went to check on something that [Defendant] had told them, it was a lie. And everybody else was telling the truth. Everything checked out. But nothing he had to say checked out, and he’s telling you ridiculous things. Ridiculous.
You need a reasonable explanation for that money. If you don’t have a reasonable explanation for where that money came from --
Defendant then objected and the trial court sustained the objection; however, the trial
court did not give a curative instruction. After the conclusion of the State’s closing
argument, Defendant moved for a mistrial based on the lack of a curative instruction.
The trial court denied the motion.
¶ 18 The jury found Defendant guilty of felony murder, based on the underlying
felony of robbery with a dangerous weapon, and first-degree murder on the basis of
malice, premeditation, and deliberation. The jury also found Defendant guilty of
robbery with a dangerous weapon. The trial court sentenced Defendant to life
without parole on the first-degree murder conviction and arrested judgment on the
robbery with a dangerous weapon conviction. Defendant timely appealed.
ANALYSIS STATE V. DOVER
¶ 19 On appeal, Defendant argues the trial court erred by (A) denying his motion to
dismiss all the charges for insufficiency of the evidence, and (B) denying his motion
for a mistrial when the trial court failed to give a curative instruction during the
prosecutor’s improper closing statement. We agree with Defendant that the trial
court erred by denying his motion to dismiss all the charges and vacate his
convictions.
A. Motion to Dismiss
¶ 20 “This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “When reviewing a
defendant’s motion to dismiss for insufficient evidence, [we] must inquire whether
there is substantial evidence of each essential element of the crime and that the
defendant is the perpetrator.” State v. Campbell, 373 N.C. 216, 220, 835 S.E.2d 844,
848 (2019) (marks omitted). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Smith, 186 N.C.
App. at 62, 650 S.E.2d at 33.
¶ 21 However, “[i]f the evidence is sufficient only to raise a suspicion or conjecture
as to either the commission of the offense or the identity of the defendant as the
perpetrator of it, the motion [to dismiss] should be allowed.” State v. Powell, 299 N.C.
95, 98, 261 S.E.2d 114, 117 (1980). This is true even if “the suspicion so aroused by
the evidence is strong.” Id. “In making its determination, the trial court must STATE V. DOVER
consider all evidence admitted, whether competent or incompetent, in the light most
favorable to the State, giving the State the benefit of every reasonable inference and
resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d
211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
¶ 22 We begin by noting the evidence we rely on to analyze the murder charges is
the same evidence we rely on to analyze the robbery with a dangerous weapon charge.
As such, we discuss the sufficiency of the evidence presented for the first-degree
murder charge, the felony murder charge, and the robbery with a dangerous weapon
charge together. We hold the evidence, even when viewed in the light most favorable
to the State, was insufficient to go to the jury.
¶ 23 Defendant argues “[t]he State failed to present any evidence that [Defendant]
entered the trailer of [Mr. Davis] and committed murder” and “[t]he State failed to
present any evidence connecting [the $3,000.00 in cash] with [the victim].”
¶ 24 The State contends there was evidence presented that “a reasonable mind
might accept as adequate to support [the] conclusion” that Defendant murdered and
robbed Mr. Davis. Smith, 186 N.C. App. at 62, 650 S.E.2d at 33. The evidence
favorable to the State included: Defendant lied to the police and changed his story as
to his whereabouts on the night of the murder; cell tower records placed Defendant STATE V. DOVER
in the same vicinity as Mr. Davis’s mobile home on the night of the murder;1
Defendant deleted his cellphone call and text messaging history; there was no forced
entry in Mr. Davis’s mobile home, suggesting he knew the perpetrator; the fact that
Defendant was in possession of $3,000.00 in cash with no explanation of where it
came from; Mr. Davis’s wallet and any cash he may have had were missing from his
mobile home; Bunn’s testimony that Mr. Davis usually “carried a lot of cash on him”
and kept cash in his wallet; Mr. Davis planned to meet his daughter the morning
after the murder to bring her money; Defendant’s continued asking to borrow money
from Mr. Davis; and Mr. Davis told Defendant a few days before his death he refused
to loan Defendant any more money. The State’s evidence in this case establishes Mr.
Davis was murdered, and “[i]t shows that [Defendant] had the opportunity to commit
it and begets suspicion in imaginative minds. All the evidence engenders the
question, if [D]efendant didn’t kill [the victim], who did? To raise such a question,
however, will not suffice to sustain a conviction.” State v. Jones, 280 N.C. 60, 66, 184
S.E.2d 862, 866 (1971) (marks and citations omitted).
¶ 25 The State urges we can infer Defendant’s motive for murdering Mr. Davis was
because Mr. Davis “has been known to carry around large amounts of cash” and
1 We note that while the State’s evidence shows that Defendant may have been in the
general vicinity of the victim’s mobile home, this general vicinity also overlaps with Terry’s Auto Sales, Defendant’s employer, and a location where Defendant is often present. STATE V. DOVER
Defendant was in possession of a large amount of cash immediately after the murder.
In light of Mr. Davis’s scheduled meeting with his daughter on 10 May 2016 where
he planned to give her money, the jury could reasonably infer Mr. Davis had cash in
his mobile home. However, it is too speculative to assume Mr. Davis had thousands
of dollars’ worth of one-hundred-dollar bills when there is nothing in the Record to
support this assumption, especially considering the Record contains no indication
that Mr. Davis ever loaned anyone more than $20.00 or $50.00. Assuming Mr. Davis
possessed a large amount of cash at the time of his murder, the State failed to present
sufficient evidence that Defendant was the one who took and carried away the cash
from the victim. Rather, the evidence simply established that Defendant had an
opportunity to steal the money at issue. “Under well-settled caselaw, evidence of a
defendant’s mere opportunity to commit a crime is not sufficient to send the charge
to the jury.” Campbell, 373 N.C. at 221, 835 S.E.2d at 848.
¶ 26 State v. White illustrates the principle that a conviction cannot be sustained if
the most the State has shown is the defendant was in an area where he could have
committed the crime. State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977). In White,
the defendant was charged with second-degree murder after a woman was found
stabbed to death in her mobile home located outside of a motel where the defendant
was staying at the time. Id. at 96-97, 235 S.E.2d at 59. There was testimony that a
motel employee heard a woman scream and then saw a man run out of the victim’s STATE V. DOVER
mobile home and head in the direction of the defendant’s motel room. Id. at 92, 235
S.E.2d at 56. Officers found traces of blood on the defendant’s shoes and shirt, but
the DNA analysis failed to match the blood to the victim. Id. at 96, 235 S.E.2d at 59.
Our Supreme Court held that, although “the evidence raises a strong suspicion as to
[the] defendant’s guilt[,]” it was “not sufficient to remove the case from the realm of
surmise and conjecture.” Id. at 95, 235 S.E.2d at 58. Our Supreme Court
acknowledged the State’s evidence established that the defendant was in the general
vicinity of the victim’s residence at the time of the murder, the defendant gave
contradictory statements to law enforcement officers, and it could “even reasonably
be inferred that the defendant was at the home of the deceased when the deceased
came to her death, or shortly thereafter.” Id. at 97, 235 S.E.2d at 59. Nevertheless,
our Supreme Court reversed the defendant’s conviction. Id.
¶ 27 Here, the State offered evidence that the victim “has been known to carry
around large amounts of cash”; the victim planned to bring money to his daughter on
the morning he was found murdered, although it is unknown how much money;
Defendant was a crack cocaine addict who frequently borrowed small amounts of
money from various people in the community, including the victim; Defendant was in
possession of approximately $3,000.00 in cash after the murder and concealed that
cash outside his girlfriend’s mother’s house; Defendant was in the vicinity of the
victim’s residence for a period of time on the night of the murder; Defendant changed STATE V. DOVER
his story and gave contradictory statements to law enforcement officers; and
Defendant deleted all call and text message history from his cellphone except for the
calls and text messages from the morning the victim was discovered murdered. This
evidence may be fairly characterized as raising a suspicion of Defendant’s guilt, but
crucial gaps existed in the State’s evidence. The State failed to link Defendant to the
stolen cash or prove that the $3,000.00 worth of one-hundred-dollar bills Defendant
hid in the McDonald’s bag in the trash can was cash stolen from the victim’s mobile
home. “The full summary of the incriminating facts, taken in the strongest view of
them adverse to [Defendant], excite[s] suspicion in the just mind that he is guilty, but
such view is far from excluding the rational conclusion that some other unknown
person may be the guilty party.” Jones, 280 N.C. at 66, 184 S.E.2d at 866 (marks
omitted).
¶ 28 “The State has shown that [] [D]efendant was in the general vicinity of the
deceased’s home at the time of the murder and that he made several arguably
contradictory statements during the course of the police investigation.” White, 293
N.C. at 97, 235 S.E.2d at 59. However, “the State has [only] established that []
[D]efendant had an opportunity to commit the crime charged.” Id. To infer anything
“[b]eyond that we must sail in a sea of conjecture and surmise. This we are not
permitted to do.” Id. There was no evidence beyond mere speculation that Defendant
was at the scene of the crime, had a motive to commit these crimes, or that Defendant STATE V. DOVER
actually committed the crimes. Although “[t]he circumstances raise a strong
suspicion of [D]efendant’s guilt, . . . we are obliged to hold that the State failed to offer
substantial evidence that [D]efendant was the one who [stabbed the victim].” Jones,
280 N.C. at 67, 184 S.E.2d at 866. There is insufficient evidence to establish
Defendant was the perpetrator of the murder and the robbery.
¶ 29 “We believe the evidence raises a strong suspicion as to [D]efendant’s guilt, but
that is not sufficient to remove the case from the realm of surmise and conjecture.”
White, 293 N.C. at 95, 235 S.E.2d at 58. We find the Record is insufficient to show
more than a suspicion that Defendant murdered Mr. Davis and robbed him with a
dangerous weapon. “Because there was insufficient evidence to support the
commission of the underlying felony, there is also insufficient evidence to support
[D]efendant’s conviction of felony murder.” State v. Bates, 309 N.C. 528, 535, 308
S.E.2d 258, 263 (1983). The trial court erred in denying Defendant’s motion to
dismiss all charges and we reverse the trial court’s ruling on the motion to dismiss
and vacate his convictions.
B. Motion for a Mistrial
¶ 30 Defendant also argues “the [trial] court erred by failing to promptly cure the
prosecutor’s improper [closing] argument which shifted the burden of proof to []
Defendant” and the trial court should have granted his motion for a mistrial. Our
holding in Part A–that the trial court erred in denying Defendant’s motion to dismiss STATE V. DOVER
all charges–renders Defendant’s second argument, regarding his motion for a
mistrial, moot. See State v. Angram, 270 N.C. App. 82, 88, 839 S.E.2d 865, 869 (2020)
(“Because we must reverse the judgment, we need not address [the] defendant’s other
issue on appeal.”). As we agree with Defendant’s first argument, we must reverse the
trial court’s ruling on the motion to dismiss all charges, as well as vacate Defendant’s
judgments, and we need not address Defendant’s other issue on appeal.
CONCLUSION
¶ 31 The State failed to present substantial evidence that Defendant was the
perpetrator of any of the crimes he was tried upon. The trial court erred in denying
Defendant’s motion to dismiss all charges. We reverse its ruling and vacate
Defendant’s convictions.
REVERSED.
Judge DILLON concurs.
Judge ARROWOOD dissents with separate opinion. No. COA20-362 – State v. Dover
ARROWOOD, Judge, dissenting.
¶ 32 I respectfully dissent from the majority’s holding that the trial court erred in
denying defendant’s motion to dismiss for insufficient evidence. Although the
majority’s holding does not reach defendant’s motion for a mistrial, I also would hold
that the trial court properly denied defendant’s motion. I would affirm the trial
court’s order and uphold defendant’s convictions.
I. Motion to Dismiss for Insufficient Evidence
¶ 33 In ruling on a motion to dismiss, “the trial court need determine only whether
there is substantial evidence of each essential element of the crime and that the
defendant is the perpetrator.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824,
826 (2015) (internal quotation marks and citation omitted). Substantial evidence is
defined by the North Carolina Supreme Court as “evidence which a reasonable mind
could accept as adequate to support a conclusion.” State v. Lee, 348 N.C. 474, 488,
501 S.E.2d 334, 343 (1998) (citing State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655,
663 (1995)). In reviewing the trial court’s decision on appeal, the evidence must be
viewed “in the light most favorable to the State, giving the State the benefit of all
reasonable inferences.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)
(citation omitted).
¶ 34 In order to be submitted to the jury for determination of defendant’s guilt, the
evidence “need only give rise to a reasonable inference of guilt.” State v. Turnage,
362 N.C. 491, 494, 666 S.E.2d 753, 755 (2008) (citing State v. Stone, 323 N.C. 447, STATE V. DOVER
ARROWOOD, J., dissenting.
452, 373 S.E.2d 430, 433 (1988)). This is true regardless of whether the evidence is
direct or circumstantial. State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998).
If the court decides that a reasonable inference of the defendant’s guilt may be drawn
from the circumstances, then “it is for the jury to decide whether the facts, taken
singly or in combination, satisfy them beyond a reasonable doubt that the defendant
is actually guilty.” State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978)
(citation and emphasis omitted).
¶ 35 In considering circumstantial evidence, a jury may properly make inferences
on inferences in determining the facts constituting the elements of the crime. State
v. Childress, 321 N.C. 226, 232, 362 S.E.2d 263, 267 (1987). Making inferences which
naturally arise from a fact proven by circumstantial evidence “is the way people often
reason in everyday life.” Id.
¶ 36 When ruling on a motion to dismiss, the only question for the trial court is
whether “the evidence is sufficient to get the case to the jury; it should not be
concerned with the weight of the evidence.” State v. Earnhardt, 307 N.C. 62, 67, 296
S.E.2d 649, 652 (1982) (citing State v. McNeil, 280 N.C. 159, 162, 185 S.E.2d 156, 157
(1971)). If the evidence is sufficient only to raise a suspicion or conjecture as to either
the commission of the offense or the identity of the defendant as the perpetrator, the
motion to dismiss must be allowed. State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d
718, 720 (1983) (citing State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974)). STATE V. DOVER
¶ 37 The majority accurately summarizes the evidence presented in this case, but I
disagree with the majority’s resulting analysis. In summarizing the evidence, the
majority appears to engage in a determination of whether the facts, taken singly or
in combination, were satisfactory beyond a reasonable doubt that defendant is
actually guilty. With respect to defendant’s motion to dismiss for insufficient
evidence, the only question we must answer is whether there was evidence that gives
rise to a reasonable inference of guilt.
¶ 38 The State presented evidence that the victim carried large amounts of cash on
his person, he was due to bring money to his daughter on the morning he was found
dead, and that a police search of his residence immediately after his murder revealed
no cash or billfold. The State also presented evidence that defendant was a long-term
crack cocaine user that frequently borrowed small amounts of cash from friends, his
employer, and others, including the victim, and was in possession of nearly $3,000 in
cash immediately after the victim’s murder. Regarding this money, the State
presented evidence that the cash was hidden in a glove, inside a McDonald’s bag,
inside his girlfriend’s mother’s outdoor trashcan, across the street from where
defendant was staying, and that defendant had not been in possession of that money
on several occasions prior to the victim’s murder. Finally, the State presented
evidence from defendant’s cell phone records that defendant was in the vicinity of the
victim’s residence and another acquaintance’s residence on the night he told police he STATE V. DOVER
had stayed at home, and that defendant had deleted all call and text histories apart
from very recent calls and a text message from the morning the victim’s body was
discovered.
¶ 39 In this case, I would hold that the evidence of defendant’s location, his
possession of a large amount of cash, his history with the victim, and defendant’s
apparent concealment of evidence was sufficient to raise a reasonable inference that
defendant was guilty of armed robbery and first-degree murder. Accordingly, I
believe the case was properly submitted to the jury.
II. Motion for a Mistrial
¶ 40 “We review the trial court’s denial of [d]efendant’s motion for a mistrial for
abuse of discretion.” State v. Sistler, 218 N.C. App. 60, 70, 720 S.E.2d 809, 816 (2012).
“Abuse of discretion results where the court’s ruling is manifestly unsupported by
reason or is so arbitrary that it could not have been the result of a reasoned decision.”
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). “In our review, we
consider not whether we might disagree with the trial court, but whether the trial
court’s actions are fairly supported by the record.” State v. Lasiter, 361 N.C. 299, 302,
643 S.E.2d 909, 911 (2007).
¶ 41 “Where, 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 STATE V. DOVER
N.C. 213, 222, 297 S.E.2d 574, 579 (1982). However, if a defendant fails to object to
a prosecutor’s closing argument at trial, this Court “must consider whether the
argument was so grossly improper that the trial court erred by failing to intervene ex
mero motu.” State v. Rogers, 355 N.C. 420, 452, 562 S.E.2d 859, 879 (2002). The
defendant’s failure to meet the State’s evidence is properly the subject of a
prosecutor’s closing argument. Id.
¶ 42 In this case, the State’s closing argument addressed facts supported by
competent evidence and suggested inferences based on those facts. The State argued,
without objection, that “every time they went to check on something that the
defendant had told them, it was a lie,” and that none of defendant’s accounts to police
were verified. The State continued as follows:
You need a reasonable explanation for that money. If you don’t have a reasonable explanation for where that money came from –
MR. HOFFMAN: Your Honor, I’m going to object.
THE COURT: Hold on one second. Approach.
(Counsel approached the bench.)
THE COURT: Sustained.
[STATE]: If you can’t in your own mind, reasonably resolve where that money came from, he’s guilty, period. In his world, there was no other place it could have come from. STATE V. DOVER
Although defendant objected to the State’s original phrasing, defendant failed to
object to the following statement and now argues that the trial court should have
issued a curative instruction, rather than simply sustaining the objection. Defendant
additionally cites several cases to support the proposition that a jury charge cannot
cure an error in closing argument and that a curative instruction must be prompt or
immediate. I find this case distinguishable from those cited by defendant, as
defendant did not object to the rephrased argument. Defendant has failed to show
that the State’s closing argument was so grossly improper that the trial court had a
duty to intervene ex mero motu. Accordingly, I would hold that the trial court
properly denied defendant’s motion for a mistrial.