The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1141
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Henderson County
No. 10 CRS 53859
JERMAINE DEPRIE GLOVER
Appeal by defendant from judgment entered 7 May 2013 by
Judge Alan Z. Thornburg in Henderson County Superior Court.
Heard in the Court of Appeals 4 March 2014.
Attorney General Roy Cooper by Assistant Attorney General
Mary Carla Hollis for the State.
Ryan McKaig for defendant-appellant.
STEELMAN, Judge.
Where the State presented sufficient evidence of
defendant’s identity as the perpetrator of the murder, the trial
court did not err by denying his motions for dismissal.
I. Factual and Procedural Background
In October 2009 defendant and Misty Carter had been in a
relationship for several months. They lived together but had not
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been physically intimate for some time, and both were also
seeing other people. Around this time defendant offered to sell
a car to Jessica Levitt, an employee of a local Enmark gas
station where defendant was a regular customer. In discussing
the possible sale, defendant told Ms. Levitt that his
relationship with Ms. Carter was unsatisfactory, that “she was
cheating on him and it upset him,” and that “he was going to
take care of the problem” and planned to “kick her out” of his
trailer.
In early October Ms. Carter learned that she was pregnant,
and planned to leave defendant to live with the baby’s father, a
man named Dewayne Boyd. Ms. Carter spent the weekend of 16-18
October 2009 with her sister, Crystal Branson, and Mr. Boyd. On
Friday, 16 October 2009, Ms. Carter was driving a Mitsubishi
Eclipse that defendant had purchased for her. Ms. Branson
noticed that the vehicle was “spotless” and that Ms. Carter had
“new clothes, her hair freshly done, [and] her nails were
freshly done,” all of which had been paid for by defendant.
After spending the weekend together, Ms. Carter left Ms.
Branson’s house at around 1:00 p.m. on 18 October 2009.
In the early morning hours of 19 October 2009, Roger Burns,
who lived next door to defendant and Ms. Carter, was awakened by
the sounds of defendant and Ms. Carter arguing. He also heard
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the voice of a third person. Mr. Burns heard defendant and Ms.
Carter arguing for ten or fifteen minutes. He then heard Ms.
Carter make a “hollering” sound, after which “it got quiet.”
Shortly thereafter, Mr. Burns saw defendant backing his truck up
to the deck of his trailer, and heard the truck drive away,
accompanied by another vehicle that left from the place where
Ms. Carter usually parked her car. When Mr. Burns saw
defendant’s truck the next day, he noticed that it was wet with
“water dripping off it,” although it had not rained the previous
night. Law enforcement officers performed a forensic search of
defendant’s truck several months later, but did not detect blood
or other forensic evidence.
Before dawn on 19 October 2009, Gerald Knaus was driving on
the Blue Ridge Parkway towards Mt. Pisgah, when a pickup truck
approached him from the opposite direction. The two vehicles
slowed to about ten miles an hour to avoid colliding, and passed
within an arm’s length of each other. Mr. Knaus noticed the
driver’s “unique” appearance, and after he saw a newspaper
photograph of defendant, Mr. Knaus identified him as the driver
of the truck. Mr. Knaus continued up the mountain for two or
three miles, until he came upon the body of a woman lying on the
side of the road. The body, which was nude except for a head
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wrapping, had been set on fire and was still “smoldering.” The
body was subsequently identified as Ms. Carter.
A short time later, SBI Special Agent Jim McClelland
arrived at the location where the body was found, and observed
that her “head was wrapped in a burnt cloth in a burnt plastic
bag.” The wrapping around her head contained a great deal of
blood, and was composed of layers that included fabric, black
plastic, and a cloth tie. Some of the wrappings were consistent
with materials later found in defendant’s trailer. There was a
strong odor of a petroleum-based product about the body, and
subsequent testing indicated that gasoline had been used to set
the body on fire.
Later that morning, Ms. Carter’s 2000 Mitsubishi Eclipse
was found at a Shell gas station not far from where the body was
discovered. Surveillance video showed the vehicle entering the
gas station in the early morning hours of 19 October 2009.
Although her car had been “spotless” the day before, the
floorboard was now covered with mud, leaves, and pine straw. The
front passenger seat was pushed back and Agent McClelland
observed a “large soaking reddish brown stain on the seat.” This
was determined to be a bloodstain that matched Ms. Carter’s DNA
profile. Items belonging to Ms. Carter, including her wallet and
ATM cards, were found inside the car.
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On the afternoon of 19 October 2009, defendant asked
employees of the Enmark station for permission to dispose of
trash in their dumpster. Although defendant was a regular
customer there, he had never previously made such a request. The
video surveillance camera captured him leaving a black trash bag
in the dumpster. On 21 October 2009, SBI Assistant Special Agent
Tom Ammons found a black plastic bag in the dumpster containing
items belonging to defendant and Ms. Carter, including mail
addressed to each of them and a car title.
The autopsy of Ms. Carter revealed that her death was
caused by “a deep penetrating wound” to the left front of her
head, “from the eye up into the scalp area” and “into the skull”
resulting in fractures and brain injury. Although the murder
weapon was not identified, the pathologist who performed the
autopsy determined that the wound had been inflicted by a “heavy
instrument” with “at least a four-inch long sharp surface, such
as an ax,” “a meat cleaver,” or another object that “would have
that sort of shape and would be able to be wielded to form such
a heavy wound that went right through the skull and caused all
of those fractures.”
After 19 October 2009, defendant returned rented furniture
to the rental company, including a couch that was missing a
cushion. Defendant claimed that a dog had “eaten” the cushion.
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In examining defendant’s trailer, Agent McClelland saw no dog
beds, or “any other items related to a pet or a dog, water
bowls, dog leashes, [or] food bowls[.]”Stains on the furniture
returned by defendant, including stains that would have been
under the missing cushion, contained blood that matched Ms.
Carter’s DNA profile. Ms. Carter’s blood was also found on the
floor and walls of defendant’s trailer.
Defendant had a prosthetic leg resulting from an amputation
below his knee. Shaun Dolen, a prosthetist who had provided
prosthetic care to defendant, recalled that prior to Ms.
Carter’s death defendant was an “active amputee” and walked
without a discernable limp. However, after Ms. Carter’s body was
found, defendant was observed walking with a pronounced limp,
and told Mr. Dolen that he “couldn’t have” killed Ms. Carter.
This made Mr. Dolen uncomfortable, since he believed that
defendant “would have had the ability to have done what he is
charged with.”
In 2009, Kelly Foster was a manager at American General
Financial Services, which had provided financing for defendant’s
purchase of two vehicles. In the fall of 2009, Ms. Foster spoke
with defendant several times about his accounts. Prior to the
death of Ms. Carter, defendant’s gait was normal, and Ms. Foster
did not realize that he had a prosthesis. However, after Ms.
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Carter’s body was discovered, defendant walked with a “very
pronounced” limp. In addition, after Ms. Carter’s body was
discovered, defendant “consistently would volunteer information”
about the murder, despite Ms. Foster’s efforts to keep their
discussions “on a professional level.” He told Ms. Foster that
“there was no way that he could commit the murder” and that
“they [didn’t] have anything on him to show that he would have
done that.” Defendant “brought up the subject that he had
assisted Misty in trying to buy her a car” and “appeared to be
angry that he had spent money on helping her buy a vehicle.” He
told Ms. Foster “that he would not be able to do the things that
they said that he could do, that he would not be able to lift a
200-plus pound person and move her body,” while at the same time
gesturing “as if he was picking something up and laying it on
his shoulder, hoisting it up with a motion.” Defendant’s
comments made Ms. Foster “very uncomfortable” and she informed
local law enforcement officers about their conversations.
Defendant was indicted for the first-degree murder of Ms.
Carter on 9 August 2010. He was initially tried at the 26
February 2013 Session of Criminal Superior Court for Henderson
County. However, the trial judge declared a mistrial when the
jury was unable to reach a unanimous verdict. Defendant was
tried a second time before Judge Thornburg, beginning on 22
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April 2013. On 7 May 2013 the jury returned a verdict finding
defendant guilty of second degree murder. The trial court
sentenced defendant to a term of 157 months to 198 months
imprisonment.
Defendant appeals.
II. Denial of Defendant’s Motions to Dismiss
In the sole issue raised on appeal, defendant argues that
the trial court erred by denying his motions to dismiss the
charge against him for insufficiency of the evidence. We
disagree.
A. Standard of Review
“Upon defendant’s motion for dismissal, the question for
the Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator
of such offense. If so, the motion is properly denied. 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 of it, the motion should be
allowed.” State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d 885, 890-
91 (1986) (citing State v. Roseman, 279 N.C. 573, 184 S.E. 2d
289 (1971), and State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679
(1967)) (other citations omitted). “Whether the evidence
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presented at trial is substantial evidence is a question of law
for the court. ‘Substantial evidence is that amount of relevant
evidence necessary to persuade a rational juror to accept a
conclusion.’” State v. Miles, __ N.C. App. __, __, 730 S.E.2d
816, 822 (2012) (citing State v. Earnhardt, 307 N.C. 62, 65-66,
296 S.E.2d 649, 651 (1982), and quoting State v. Mann, 355 N.C.
294, 301, 560 S.E.2d 776, 781 (2002)) (other citation omitted),
aff’d, 366 N.C. 503, 750 S.E.2d 833 (2013). In ruling on a
motion for dismissal:
The evidence is to be considered in the
light most favorable to the State; the State
is entitled to every reasonable intendment
and every reasonable inference to be drawn
therefrom; contradictions and discrepancies
are for the jury to resolve and do not
warrant dismissal; and all of the evidence
actually admitted, whether competent or
incompetent, which is favorable to the State
is to be considered by the court in ruling
on the motion.
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)
(citing State v. Thomas, 296 N.C. 236, 250 S.E. 2d 204 (1978))
(other citation omitted).
“The test of the sufficiency of the evidence to withstand
the motion is the same whether the evidence is direct,
circumstantial or both. ‘When the motion . . . calls into
question the sufficiency of circumstantial evidence, the
question for the Court is whether a reasonable inference of
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defendant’s guilt may be drawn from the circumstances. If so, 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.’” Powell 299 N.C. at 99, 261
S.E.2d at 117 (quoting State v. Rowland, 263 N.C. 353, 358, 139
S.E. 2d 661, 665 (1965) (other citations omitted). “It is
immaterial that any individual piece of circumstantial evidence,
taken alone, is insufficient to establish the identity of the
perpetrator. If all the evidence, taken together and viewed in
the light most favorable to the State, amounts to substantial
evidence of each and every element of the offense and of
defendant’s being the perpetrator of such offense, a motion to
dismiss is properly denied.” Mercer 317 N.C. at 98, 343 S.E.2d
at 892 (citing State v. Ledford, 315 N.C. 599, 340 S.E. 2d 309
(1986)) (other citation omitted).
B. Analysis
First-degree murder is the “‘intentional and unlawful
killing of a human being with malice and with premeditation and
deliberation.’ Murder in the second degree is the unlawful
killing of a human being with malice but without premeditation
and deliberation.” State v. Smith, 347 N.C. 453, 463, 496 S.E.2d
357, 363 (1998) (quoting State v. Fisher, 318 N.C. 512, 517, 350
S.E.2d 334, 337 (1986), and citing State v. Brown, 300 N.C. 731,
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735, 268 S.E.2d 201, 204 (1980)). Defendant does not dispute the
sufficiency of the evidence that Ms. Carter was murdered, but
challenges only the sufficiency of the evidence that he was the
perpetrator. “Where, as here, defendant does not dispute that
the victim died by virtue of a criminal act, asserting only that
the evidence presented was insufficient to support a reasonable
finding that defendant was the perpetrator of the offense, we
review the evidence for ‘proof of motive, opportunity,
capability and identity, all of which are merely different ways
to show that a particular person committed a particular crime.’
. . . Whether the State has presented sufficient evidence to
identify defendant as the perpetrator of the offense is not
subject to ‘an easily quantifiable bright line test.’” Miles, __
N.C. at __, 730 S.E.2d at 822-23 (quoting State v. Bell, 65 N.C.
App. 234, 238-39, 309 S.E.2d 464, 467-68 (1983)). There are
“numerous cases in which our courts have held that
circumstantial evidence is adequate to support a conviction of
murder.” State v. Curry, 203 N.C. App. 375, 396, 692 S.E.2d 129,
144 (citing State v. Franklin, 327 N.C. 162, 172, 393 S.E.2d
781, 787-88 (1990)), disc. review denied, 364 N.C. 437, 702
S.E.2d 496, (2010). In this case, after a careful review of all
of the evidence, we hold that the State presented sufficient
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evidence to permit a reasonable juror to find that defendant
killed Ms. Carter.
In State v. Brown, 350 N.C. 193, 202, 513 S.E.2d 57, 63
(1999), our Supreme Court held:
It is well established that “in a criminal
case . . . evidence is competent and
relevant . . . if it reasonably allows the
jury to draw an inference as to a disputed
fact.” . . . [W]e hold that evidence of
motive is always relevant and admissible
where it tends to show that the defendant
committed the alleged act.
(quoting State v. Jones, 336 N.C. 229, 243, 443 S.E.2d 48, 54
(1994) (internal citation omitted)). In this case, evidence
pertaining to motive included the following:
1. In October 2009, defendant and Ms. Carter
lived together but had not been physically
intimate for some time. Ms. Carter was
expecting the birth of a child fathered by
Mr. Boyd, and planned to leave defendant.
2. When Ms. Carter spent the weekend of 17
and 18 October 2009 with Mr. Boyd and Ms.
Branson, she drove a car that defendant had
recently bought her, and had new clothes,
fresh hair styling and a new manicure, all
of which defendant had paid for.
3. Defendant told Ms. Levitt that Ms. Carter
“was cheating on him and it upset him” but
that “he was going to take care of the
problem” and planned to “kick her out” of
his trailer.
4. After the death of Ms. Carter, defendant
talked to Ms. Foster and seemed angry about
the fact that he had spent money to buy Ms.
Carter a car.
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This evidence would allow a reasonable juror to infer that
defendant had the motives of jealousy and anger for murdering
Ms. Carter. Defendant was angry because, although he lived with
Ms. Carter and had spent money to buy her a car and other items,
she was pregnant with another man’s child and planned to leave
defendant.
Regarding evidence of opportunity, we have held that “[i]n
order for this Court to hold that the State has presented
sufficient evidence of defendant’s opportunity to commit the
crime in question, the State must have presented at trial
evidence not only placing the defendant at the scene of the
crime, but placing him there at the time the crime was
committed.” State v. Hayden, 212 N.C. App. 482, 488, 711 S.E.2d
492, 497 (citing State v. Pastuer, 205 N.C. App. 566, 572, 697
S.E.2d 381, 386 (2010), aff’d per curiam by an equally divided
court, 365 N.C. 287, 715 S.E.2d 850 (2011), and State v. Scott,
296 N.C. 519, 522, 251 S.E.2d 414, 416-17 (1979)), disc. review
denied, 365 N.C. 349, 717 S.E.2d 737 (2011). Evidence that is
sufficient to permit a “reasonable juror [to] conclude that
defendant was in the vicinity of . . . the scene of the crime at
the time of death” “establish[es] defendant’s opportunity to
commit the murder.” Miles at __, 730 S.E.2d 823. In this case,
evidence that defendant was present at the scene of Ms. Carter’s
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death and thus had the opportunity to kill her includes the
following:
1. During the early morning hours of 19
October 2009, defendant’s next door neighbor
heard defendant arguing loudly with Ms.
Carter for ten or fifteen minutes, until Ms.
Carter made a “hollering” sound, followed by
silence. He then saw defendant back his
truck up to the deck of his trailer, and
heard defendant drive his truck away, along
with another vehicle that left from the
place where Ms. Carter usually parked her
car.
2. Ms. Carter’s blood was found on
defendant’s sofa, floor, and wall.
3. Ms. Carter’s vehicle was discovered at a
nearby gas station, where surveillance video
showed that it had been driven and parked in
a remote corner of the gas station parking
lot within an hour or two of the time that
Mr. Burns recalled hearing the fight between
defendant and Ms. Carter.
4. Although Ms. Carter’s car was “spotless”
the day before, when it was found in the
parking lot there was mud, leaves, and pine
straw on the floorboard. There was a “large
soaking reddish brown stain” on the
passenger seat, which was determined to be a
bloodstain matching Ms. Carter’s DNA
profile.
5. The day after Ms. Carter’s death,
defendant’s truck was wet, although it had
not rained, and subsequent examination of
the truck did not reveal the presence of
blood.
This evidence was sufficient to permit a reasonable juror
to find that (1) defendant and Ms. Carter were both at
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defendant’s trailer during the early morning hours of 19 October
2009; (2) during an argument, defendant struck and killed Ms.
Carter; (3) after killing Ms. Carter, defendant transported her
body in her car; and (4) defendant washed his truck to eliminate
evidence of the murder. These inferences are supported by
evidence that Ms. Carter was “hollering” and then abruptly
became silent, by the presence of her blood at various places in
the trailer, and by the condition of her car and the presence of
her blood in the car’s interior.
Although “evidence of either motive or opportunity alone is
insufficient to carry a case to the jury. . . . [w]hen the
question is whether evidence of both motive and opportunity will
be sufficient to survive a motion to dismiss, . . . [the] answer
appears to rest more upon the strength of the evidence of motive
and opportunity, as well as other available evidence, rather
than an easily quantifiable ‘bright line’ test.” Bell, 65 N.C.
App. at 238-39, 309 S.E.2d at 467-68 (citations omitted
(emphasis in original). In this case, the other available
circumstantial evidence of defendant’s guilt was substantial,
and included the following:
1. Before dawn on the morning of 19 October
2009 Mr. Knaus was driving on the Blue Ridge
Parkway towards Mt. Pisgah, when a truck
approached him from the opposite direction.
Both vehicles slowed to about ten m.p.h. and
passed within an “arms’ length” of each
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other, allowing Mr. Knaus to see the driver
clearly. Mr. Knaus identified defendant as
the driver of this truck.
2. About two or three miles from the
location where defendant and Mr. Knaus
passed each other, Mr. Knaus came upon a
body by the side of the road. The body was
wearing only a head wrap and had been set on
fire so recently that it was still
“smoldering.” This body was subsequently
identified as Ms. Carter.
3. On 19 October 2009, defendant asked if he
could dispose of trash at a local gas
station near his house, and was videotaped
leaving a black plastic bag in the gas
station dumpster. Law enforcement officers
later found a black bag in the dumpster that
contained items belonging to defendant and
Ms. Carter, including mail addressed to
defendant and to Ms. Carter and a car title.
4. Following Ms. Carter’s death, defendant
returned rental furniture to the rental
company. A cushion was missing from a couch
defendant returned, which he explained by
saying that a dog had “eaten” the cushion,
although his house contained no evidence of
a dog or other pet. Forensic analysis
revealed bloodstains originating from Ms.
Carter at various locations in defendant’s
trailer, as well as on the couch he
returned, including the area that would have
been beneath the missing cushion.
5. Defendant had a prosthetic leg resulting
from an amputation below his knee. Prior to
Ms. Carter’s murder, he was an “active
amputee” and walked well enough that it was
not apparent that he had a prosthesis.
However, after Ms. Carter’s death, defendant
began walking with a pronounced limp and
making statements to others about his
purported physical inability to have killed
Ms. Carter.
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6. Defendant had several conversations with
Kelly Foster. After Ms. Carter’s death,
defendant “consistently would volunteer
information” about the murder, despite Ms.
Foster’s efforts to keep their discussion
“on a professional level.” Defendant
asserted that law enforcement officers
lacked any proof of his involvement in the
crime and that he was physically incapable
of lifting Ms. Carter. Defendant’s
persistent discussion of the murder made Ms.
Foster so uncomfortable that she reported
his comments to law enforcement officers.
This evidence would permit the jury to make logical
inferences that, in an effort to avoid prosecution for the
murder of Ms. Carter, defendant (1) left Ms. Carter’s car in a
parking lot; (2) drove to a remote area and left Ms. Carter’s
body by the side of the Blue Ridge Parkway after setting it on
fire; (3) removed evidence that Ms. Carter had lived with him by
throwing away items associated with her presence in his trailer;
(4) tried to eliminate evidence of the murder by discarding a
bloodstained couch cushion and proffering an explanation for its
absence that lacked credence; (5) adopted a limping gait to
create the impression that his mobility and physical
capabilities were limited, and (6) was so persistent in
discussing Ms. Carter’s death with Ms. Foster that she felt it
wise to inform law enforcement authorities.
We hold that this evidence, in conjunction with the
evidence of defendant’s motive and opportunity to kill Ms.
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Carter, was sufficient to submit the charges of first and second
degree murder to the jury, and that the trial court did not err
by denying defendant’s motions to dismiss.
In arguing for a contrary result, defendant does not deny
the existence of this evidence. Instead, he attempts to minimize
the importance of this evidence, raises challenges to the
credibility of the witnesses, speculates on the possibility that
someone other than defendant killed Ms. Carter, and directs our
attention to various inconsistencies and discrepancies in the
evidence. It is well-established that “contradictions and
discrepancies do not warrant dismissal of the case - they are
for the jury to resolve.” Earnhardt, 307 N.C. at 67, 296 S.E.2d
at 653.
We hold that the trial court did not err by denying
defendant’s motions for dismissal.
NO ERROR.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).