An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-842
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 March 2014


STATE OF NORTH CAROLINA

      v.                                      Nash County
                                              Nos. 11 CRS 051133,051314
MATTHEW KEITH HUTCHESON




      Appeal by Defendant from judgments entered 28 February 2013

by Judge Thomas H. Lock in Superior Court, Nash County.                       Heard

in the Court of Appeals 21 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Teresa M. Postell, for the State.

      Appellate   Defender  Staples   S.   Hughes,  by   Assistant
      Appellate Defender Barbara S. Blackman, for Defendant.


      McGEE, Judge.


      Matthew Keith Hutcheson (“Defendant”) was convicted on 25

February 2013 of second-degree murder and discharging a weapon

into an occupied dwelling.           The evidence presented to the jury,

when viewed in the light most favorable to the State and giving

the State the benefit of all reasonable inferences, is set forth

below.
                                          -2-
       Duwone Parker (“Mr. Parker”), Defendant, and others were

socializing at the home of Mr. Parker’s grandmother (the house)

on the evening of 25 February 2011.                Mr. Parker and Defendant

left    the    house    together     in   Defendant’s    vehicle     that    evening

between 11:00 p.m. and midnight.                A video recording from the

local Wal-Mart showed Defendant and Mr. Parker entering Wal-Mart

at 2:54 a.m. in the early hours of 26 February 2011, buying

food, and then leaving at 3:27 a.m.

       At approximately 5:30 a.m. on the morning of 26 February

2011, several of Defendant’s neighbors heard gunfire coming from

the direction of Defendant’s house.               Amy Feasel (“Ms. Feasel”),

who lived in front of Defendant’s house, heard five to seven

rapidly fired shots, a pause, and then another burst of five to

seven    shots.        After   hearing    the   second    burst    of   shots,   Ms.

Feasel walked to a rear window of her home and saw a man smoking

on the back deck of Defendant’s house.                  The lights were on and

she    watched    the    man   for   five    minutes     as   he   smoked,   paced,

entered the house and turned off the lights.

       John Kilpatrick (“Mr. Kilpatrick”), who lived directly in

front of Defendant’s house, also heard five to seven rapidly

fired shots, a pause, and then another burst of five to seven

shots.        Mr. Kilpatrick thought it sounded like the shots were

fired from just outside his bedroom window.                    Upon hearing the
                                            -3-
first    shots,      Mr.    Kilpatrick      looked        out    a    window,     but    saw

nothing.       He heard the blinds in his spare room shake when the

second burst of shots were fired.                 He called 911.

       Keen    Gravely      (“Mr.    Gravely”)      lived       a    couple     of   houses

behind Defendant’s house and recalled hearing two shots, a one-

second pause, and then another three to four shots.                            Mr. Gravely

looked out his windows, saw nothing, and then called 911.                                  He

said it sounded like the shots were fired from the same gun.

       At   8:06    p.m.,    26     February      2011,    the       evening    after    the

alleged early morning gunshots, credit card records and store

video from a Home Depot               indicated      that Defendant            had bought

plastic     sheeting       from   the   Home      Depot.         Mr.    Parker’s        body,

wrapped in plastic sheeting and secured with tie-down straps and

small strips of duct tape, was found four miles from Defendant’s

house on 2 March 2011. Burn marks were visible on the plastic

sheeting and on Mr. Parker’s body.                  Police found a half-roll of

plastic sheeting of identical size and thickness on Defendant’s

back deck.         Police also found similar tie-down straps and duct

tape    with    small      strips    torn    off    in     a    shed    on     Defendant’s

property.       Police recovered a butane torch, cigarette lighter,

and charcoal lighter fluid from Defendant’s truck.                             Police also

found Mr. Parker’s blood on Defendant’s living room rug, on the

outside and inside of a trashcan outside Defendant’s house, and
                                         -4-
in the bed of Defendant’s truck.

      Karen     Kelly     (“Ms.   Kelly”),      a    pathologist,         testified     at

trial that she had determined Mr. Parker died of a gunshot wound

to the neck “below and behind his right ear” and that the shot

had been fired from a distance of less than three inches.                               On

cross-examination, Ms. Kelly testified it was possible that Mr.

Parker’s wound could have been self-inflicted.

      Police searched Defendant’s house and vehicle on 3 March

2011, and found a 9.0 mm handgun in Defendant’s truck.                           Jennifer

Pohlheber (“Agent Pohlheber”), a State Bureau of Investigation

firearms      and    ballistics     expert,         testified      that    the     bullet

recovered from Mr. Parker’s body                had the same general class

characteristics as the bullets test fired from Defendant’s 9.0

mm   handgun,       and   could   have   been       fired   from    a     9.0    mm,   .38

caliber, or .357 caliber handgun.               According to Agent Pohlheber,

rifling replication and damage to the bullets complicated her

ability to make a positive match.

      Mr. Kilpatrick noticed bullets and bullet holes in his den,

trophy room, and shed on 3 March 2011.                  Police recovered one 9.0

mm bullet from Mr. Kilpatrick’s window facing, one 9.0 mm bullet

from inside his house, and two 9.0 mm bullets from his shed.

Police found two shell casings in flowerpots outside Defendant’s

home.      Agent Pohlheber testified that the shell casings were
                                                 -5-
fired from Defendant’s 9.0 mm handgun.                                Agent Pohlheber also

stated the bullets recovered from Mr. Kilpatrick’s home and shed

bore class characteristics similar to the test bullets she fired

from Defendant’s handgun and thus could have been fired from

Defendant’s handgun.             Defendant was arrested on 3 March 2011 and

charged with discharging a weapon into an occupied dwelling and

injury to real property.                  Defendant was subsequently indicted on

6 June 2011 for first-degree murder and on 11 July 2011 for

discharging a weapon into occupied property and injury to real

property.

    During Defendant’s opening statement at trial, Defendant’s

counsel     stated       that,       at        some    point     on    26   February       2011,

Defendant    woke       up    from        “a    drug-induced,          intoxicated       alcohol

binge”    with     no     memory          of     events    from        earlier     that     day.

Defendant found his friend, Mr. Parker, lying dead on the floor.

    Defendant        presented            expert       testimony        from      Dr.    Claudia

Coleman    (“Dr.     Coleman”),           a     forensic       psychologist;       Dr.    Wilkey

Wilson    (“Dr.    Wilson”),         a     neuropharmacologist;             and    Dr.    George

Corvin (“Dr. Corvin”), a forensic psychiatrist.                                These experts

testified that Defendant suffered from long-term polysubstance

dependence        (addiction          to         anti-anxiety           medications,        pain

medications,       and       crack        cocaine),       bipolar       disorder,        chronic

depression,       major      depressive           episodes      overlaying        the    chronic
                                             -6-
depression, anxiety disorder, and possibly obsessive compulsive

disorder.        Dr.    Coleman    and       Dr.    Corvin   testified        that    these

conditions prevented Defendant from being able to deliberate or

form   a     specific    intent    to    kill,       an   element     of    first-degree

murder.

       In his closing argument, Defendant’s counsel argued that

the State had failed to prove Defendant fired the shots into Mr.

Kilpatrick’s house or that Defendant killed Mr. Parker.                              In the

alternative, defense counsel maintained that, if the jury was

convinced Defendant had killed Mr. Parker, Defendant was at most

guilty of second-degree murder as Defendant was unable to form

the specific intent necessary for first-degree murder due to his

demonstrated substance abuse and mental health issues.

       The    jury     returned   verdicts          of    guilty     of    second-degree

murder     and   of     discharging      a    weapon      into     occupied    property.

Defendant      was    sentenced    to    consecutive         terms    of    one   hundred

forty-four to one hundred eighty-two months for second-degree

murder and sixty to eighty-one months for discharging a weapon

into occupied property.           Defendant appeals.

                            I.    Standard of Review

       The standard of review on a motion to dismiss is de novo.

Neier v. State of N.C., 151 N.C. App. 228, 232, 565 S.E.2d 229,

232 (2002) (citations omitted).                    Under this standard, the Court
                                         -7-
“considers     the    matter      anew   and   freely    substitutes         its    own

judgment” for that of the trial court.                  State v. Williams, 362

N.C.    628,   632-33,      669     S.E.2d     290,    294    (2008)        (citations

omitted).

       When considering the denial of a “defendant’s motion for

dismissal, the question for the [trial] [c]ourt 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.”                 State v. Powell, 299 N.C.

95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted).                            Where

the evidence merely “raise[s] a suspicion or conjecture as to

either the commission of the offense or the identity of the

defendant      as     the   perpetrator        of     it,”    the      evidence      is

insufficient        and   the   motion    to   dismiss       should    be    granted.

Powell, 299 N.C. at 98, 261 S.E.2d at 117.                      However, if the

evidence “is relevant and adequate to convince a reasonable mind

to accept a conclusion,” it is substantial and the case should

be submitted to the jury.           State v. Robinson, 355 N.C. 320, 336,

561 S.E.2d 245, 255 (2002) (citations omitted).                       Circumstantial

evidence is sufficient even where it does not rule out every

hypothesis suggesting innocence.               State v. Mann, 355 N.C. 294,

301, 560 S.E.2d 776, 781 (2002) (citations omitted).
                                         -8-
       When determining whether substantial evidence exists, the

trial court views the evidence in the light most favorable to

the    State,    “giving      the   State    the    benefit    of   all   reasonable

inferences.”           State v. Benson, 331 N.C. 537, 544, 417 S.E.2d

756,    761     (1992)     (citations       omitted).         “Contradictions      and

discrepancies do not warrant dismissal of the case” but should

be resolved by the jury.            Benson, 331 N.C. at 544, 417 S.E.2d at

761.        Furthermore,        the     “defendant’s        evidence      should    be

disregarded unless it is favorable to the State or does not

conflict with the State’s evidence.”                State v. Fritsch, 351 N.C.

373, 379, 526 S.E.2d 451, 455 (2000) (citation omitted).

                                         II.

       Defendant first argues the trial court erred by denying his

motion to dismiss for insufficiency of the evidence for the

charge of discharging a weapon into an occupied dwelling.                           We

disagree.

       In reviewing Defendant’s motion to dismiss, this Court must

determine whether there was substantial evidence of the crime

and also whether Defendant was sufficiently identified as the

perpetrator.           Powell, 299 N.C. at 98-99, 261 S.E.2d at 117.

Defendant       does    not   dispute   that    a   crime     was   committed,     but

rather challenges the sufficiency of the evidence identifying

him as the perpetrator.
                                       -9-
    Multiple witnesses testified they heard shots fired from

the direction of Defendant’s house in the early hours of 26

February 2011.     There was also evidence presented at trial that

showed: (1) Defendant was at his house that night, (2) around

the time the shots were fired, only one person was observed

standing outside Defendant’s house, (3) the only other person at

Defendant’s    house    that   night    was     Mr.   Parker,   and   (4)   Mr.

Parker’s body was found less than a week later in woods near

Defendant’s house.      While Defendant presented a theory that Mr.

Parker, in fact, fired the shots into Mr. Kilpatrick’s home and

then committed suicide, the test for determining whether the

charge should have been submitted to the jury is not whether

Defendant     offered   a   plausible        alternative   explanation,     but

rather whether a “reasonable inference of [Defendant’s] guilt

may be drawn from the circumstances.”              State v. Stone, 323 N.C.

447, 452, 373 S.E.2d 430, 433 (1988).

    We hold the testimony         of the State’s witnesses            and the

physical evidence constituted evidence “relevant and adequate to

convince a reasonable mind to” conclude that Defendant committed

the crime.     The charge of firing into an occupied dwelling was

properly submitted to the jury.              Robinson, 355 N.C. at 336, 561

S.E.2d at 255 (citation omitted).              The trial court did not err

in denying Defendant’s motion to dismiss this charge.
                                           -10-
                                           III.

      Defendant next argues the trial court erred by denying his

motion to dismiss the State’s first-degree murder charge for

insufficiency of the evidence.              We disagree.

      Defendant       was     convicted     of    second-degree        murder.        In

reviewing a motion to dismiss, this Court must determine whether

there was substantial evidence of the crime and also whether

Defendant      was        sufficiently     identified      as    the     perpetrator.

Powell,   299       N.C.     at   98-99,    261   S.E.2d   at     117.         Defendant

contends the State failed to prove both that Mr. Parker died by

virtue    of    a    criminal        act   and    that   the    criminal       act   was

perpetrated by Defendant.

      The State’s evidence, even if circumstantial, need not rule

out every hypothesis offered by Defendant suggesting innocence.

Mann, 355 N.C. at 301, 560 S.E.2d at 781.                        Thus, Defendant’s

implied alternative theory that Mr. Parker did not die by virtue

of a criminal act, but rather committed suicide, has no bearing

on our determination as to whether the trial court’s denial of

Defendant’s motion to dismiss was proper.

      Circumstantial          evidence     may    also   provide       the     requisite

evidence of motive, opportunity, capability and identity needed

to   identify       the    accused    as   the    perpetrator     of     the    offense.

Stone, 323 N.C. at 452, 373 S.E.2d at 434.                     The evidence, viewed
                                          -11-
in the light most favorable to the State and giving it the

benefit of all reasonable inferences as this Court is required

to do, State v. Benson, 331 N.C. at 544, 417 S.E.2d at 761,

tended    to    show   Defendant      was    at   the     scene     of     the    murder,

establishing Defendant’s opportunity to commit the crime.                                The

evidence also demonstrated that Defendant possessed a 9.0 mm

handgun capable of firing the bullet recovered from Mr. Parker’s

body.      Furthermore, during the early morning of 26 February

2011,     gunshots     were       heard    coming       from    the       direction      of

Defendant’s      house     where    both    Defendant         and   Mr.    Parker       were

present.       Defendant emphasizes in his brief that there was no

history of violence between Defendant and Mr. Parker, and that

on the evening in question, they had socialized together without

any   incident,      and   that    Defendant      had    no    motive     to     kill   Mr.

Parker.    While motive can be “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), it “is not an element of [a

crime], nor is its absence a defense.”                        State v. Elliot, 344

N.C. 242, 273, 475 S.E.2d 202, 216 (1996).

      Additionally, there is substantial evidence that Defendant

disposed of Mr. Parker’s body.

               The conduct of the accused at the time of
               the offense or after being charged with it,
               such as flight, the fabrication of false and
               contradictory statements, the concealment of
                                  -12-
            the instruments of violence, the destruction
            or removal of proofs tending to show that an
            offense had been committed or to ascertain
            the offender, all are reviewable in evidence
            as circumstances connected with and throwing
            light upon the question of imputed guilt.

State v. Spencer, 176 N.C. 709, 715, 97 S.E. 155, 158 (1918).

Defendant’s failure to contact the police, along with evidence

of   his   concerted   efforts   to   conceal    Mr.   Parker’s   body,    is

“relevant and adequate” evidence upon which “a reasonable mind

[could]    accept   [the]   conclusion”   that    Defendant   killed      Mr.

Parker.    Robinson, 355 N.C. at 336, 561 S.E.2d at 255.

      We hold this evidence was sufficient to survive Defendant’s

motion to dismiss the charge of murder.          The trial court did not

err in submitting this charge to the jury.

      No error.

      Judges HUNTER, Robert C. and ELMORE concur.

      Report per Rule 30(e).
