An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                          -2-
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
                                    -3-
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
                                         -4-
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.
                                           -5-
    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.
                                         -6-
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.
                                               -7-
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
                                         -8-
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
                                     -9-
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
                                          -10-
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,
                                     -11-
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
                                 -12-
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.
                                           -13-


      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
                                      -14-
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
                                          -15-
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
                    -16-
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.
                                         -17-


            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.
                                    -18-
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).
