               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1162

                               Filed: 18 September 2018

Bladen County, Nos. 14CRS051701, 16CRS1001

STATE OF NORTH CAROLINA

              v.

ERNEST RAYSEAN GRAY, Defendant.


        Appeal by defendant from judgments entered 16 March 2017 by Judge Douglas

B. Sasser in Bladen County Superior Court. Heard in the Court of Appeals 7 June

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Kenneth A.
        Sack, for the State.

        Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.


        BERGER, Judge.


        On March 16, 2017, a Bladen County jury convicted Ernest Raysean Gray

(“Defendant”) of first-degree murder and discharging a weapon into an occupied

dwelling, and he was sentenced to life in prison without parole. Defendant asserts

that the trial court erred when it denied his motion to dismiss both charges because

the State had not introduced sufficient evidence to establish that he was the

perpetrator of the crimes. We disagree.

                         Factual and Procedural Background
                                   STATE V. GRAY

                                  Opinion of the Court



        In October 2014, Malcolm Jerome Melvin (“Melvin”) was living in a mobile

home park in Elizabethtown, North Carolina, with his girlfriend, Danielle Purdie

(“Purdie”). On October 28, 2014, around 1:15 a.m., Melvin saw a Facebook message

from Defendant on Purdie’s phone.         Melvin responded to the message, both

identifying himself and questioning why Defendant was messaging his girlfriend.

Defendant responded with another message that said, “Wassup doh [expletive] y u

inbox back doh . . . I’m sayn wess up [expletive] wat up want beef now I’m down wit

dat.”

        After discussing the messages with Melvin, Purdie went back to sleep, but

awoke to a knock at the door at about 2:30 a.m. Melvin retrieved his pistol from a

closet and went to the front door. Purdie remained in the bedroom. From the

bedroom, Purdie could hear voices, but she could not identify the individuals at the

door. A person at the door said, “Wass up doh? Wass up? You want beef?” Purdie

then heard a gunshot, saw Melvin fall to the floor, and heard more gunshots. Purdie

ran to Melvin, but he was not breathing and had no pulse.

        Angela Locklear (“Locklear”) and Stephen Johnson (“Johnson”), Defendant’s

uncle, lived in a mobile home that was located about 220 feet from Melvin’s residence.

On October 28, 2014, between 1:00 a.m. and 2:00 a.m., Locklear heard gunshots.

Shortly thereafter, Defendant knocked on their door and asked to speak with his

uncle. Locklear testified that Defendant “looked like somebody was after him or



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                                  Opinion of the Court



something . . . he act[ed] like he was scared.” Defendant told Johnson he did not know

anything about the gunshots. Defendant then fell asleep in their home.

      Around 6:00 a.m. the following morning, Twasjay Brown (“Brown”) knocked on

Locklear and Johnson’s door, looking for Defendant. Johnson asked Brown whether

he or Defendant had anything to do with the events that occurred during the night.

Brown denied any involvement. Defendant and Brown then left the residence.

      When deputies with the Bladen County Sheriff’s Department began

investigating Melvin’s death on October 28, 2014, they found a wallet, with a driver’s

license and social security card belonging to Defendant, on the ground between

Melvin’s residence and Johnson’s residence. A cell phone belonging to Brown was

also found in the front yard of Melvin’s residence, next to .45 caliber shell casings.

Both .45 caliber and 9mm shell casings were recovered from the front yard of Melvin’s

residence. There were several bullet holes on the exterior of the residence near the

front door, as well as several bullet holes inside of the entrance, where investigators

recovered a .45 caliber bullet. Melvin’s pistol was located inside his residence and

had not been fired. Melvin’s cause of death was determined to be a gunshot wound

to the head. The weapon used to kill Melvin was never recovered.

      Defendant was indicted for first-degree murder and discharging a weapon into

an occupied dwelling. At trial, Defendant moved to dismiss both charges at the close

of the State’s presentation of evidence, and the motion was renewed at the close of all



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                                   Opinion of the Court



the evidence. Both of Defendant’s motions were denied. Defendant was found guilty

of first-degree murder and discharging a weapon into an occupied dwelling, and

sentenced to life imprisonment without parole. Defendant gave timely notice of

appeal.

                                  Standard of Review

      “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). “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.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (citation and quotation marks omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d

150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-

79, 265 S.E.2d 164, 169 (1980).

                    In reviewing challenges to the sufficiency of
             evidence, we must view the evidence in the light most
             favorable to the State, giving the State the benefit of all
             reasonable inferences. Contradictions and discrepancies
             do not warrant dismissal of the case but are for the jury to
             resolve. The test for sufficiency of the evidence is the same
             whether the evidence is direct or circumstantial or both.
             Circumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence. If the


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                                       Opinion of the Court



               evidence presented is circumstantial, the court must
               consider whether a reasonable inference of defendant’s
               guilt may be drawn from the circumstances. Once the court
               decides that a reasonable inference of 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 it beyond a reasonable doubt that the
               defendant is actually guilty.

Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455 (purgandum1).

                                            Analysis

       In North Carolina, a death that is the result of a “felony committed or

attempted with the use of a deadly weapon shall be deemed to be murder in the first

degree.” N.C. Gen. Stat. § 14-17(a) (2017).

               The elements of felony murder are (1) that a defendant, or
               someone with whom the defendant was acting in concert,
               committed or attempted to commit a predicate felony under
               N.C. Gen. Stat. § 14-17(a) (2013); (2) that a killing occurred
               in the perpetration or attempted perpetration of that
               felony; and (3) that the killing was caused by the defendant
               or a co-felon.

State v. Maldonado, 241 N.C. App. 370, 376, 772 S.E.2d 479, 483-84 (purgandum),

appeal dismissed, disc. review denied, ___ N.C. ___, 776 S.E.2d 196 (2015). Shooting




       1  Our shortening of the Latin phrase “Lex purgandum est.” This phrase, which roughly
translates “that which is superfluous must be removed from the law,” was used by Dr. Martin Luther
during the Heidelberg Disputation on April 26, 1518 in which Dr. Luther elaborated on his theology
of sovereign grace. Here, we use purgandum to simply mean that there has been the removal of
superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of
reading.


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                                    STATE V. GRAY

                                   Opinion of the Court



into an occupied dwelling is a qualifying predicate felony for felony murder pursuant

to Section 14-17(a). State v. Wall, 304 N.C. 609, 613, 286 S.E.2d 68, 71 (1982).

      When evidence of whether the defendant was the perpetrator of the crime is

circumstantial, “courts often [look to] proof of motive, opportunity, capability, and

identity to determine whether a reasonable inference of the defendant’s guilt may be

inferred or whether there is merely a suspicion that the defendant is the perpetrator.”

State v. Hayden, 212 N.C. App. 482, 485, 711 S.E.2d 492, 494 (2011) (citation and

quotation marks omitted). “The evidence need only give rise to a reasonable inference

of guilt in order for it to be properly submitted to the jury.” State v. Stone, 323 N.C.

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

      As this Court explained before in State v. Lowry:

             The real problem lies in applying the test to the individual
             facts of a case, particularly where the proof is
             circumstantial. One method courts use to assist analysis
             is to classify evidence of guilt into several rather broad
             categories.    Although the language is by no means
             consistent, courts often speak in terms of proof of motive,
             opportunity, capability and identity, all of which are
             merely different ways to show that a particular person
             committed a particular crime. In most cases these factors
             are not essential elements of the crime, but instead are
             circumstances which are relevant to identify an accused as
             the perpetrator of a crime. . . .
                    While the cases do not generally indicate what
             weight is to be given evidence of these various factors, a
             few rough rules do appear. It is clear, for instance, that
             evidence of either motive or opportunity alone is
             insufficient to carry a case to the jury. On the other hand,
             when the question is whether evidence of both motive and


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                                   Opinion of the Court



               opportunity will be sufficient to survive a motion to
               dismiss, the answer is much less clear. 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.

State v. Lowry, 198 N.C. App. 457, 466, 679 S.E.2d 865, 870-71 (2009) (purgandum).

      Here, the State introduced evidence tending to establish both motive and

opportunity.    First, motive tended to be sufficiently established with testimony

concerning the hostility that existed between Defendant and Melvin over Defendant’s

communication with Purdie. Although Purdie did not see the individuals and was

unable to identify their voices, the evidence tended to show that similar, distinctive

language had been used both in the message sent by Defendant and by the person

speaking with Melvin at the time he was shot. Both communications were about a

perceived “beef” between Defendant and Melvin over Defendant’s interactions with

Purdie. The Facebook message, which could be affirmatively attributed to Defendant,

along with the fact that a speaker using similar language came to Purdie’s home to

confront Melvin with a weapon, evidenced some hostility between Defendant and

Melvin of the kind that would precipitate an intentional killing. This is sufficient for

a reasonable juror to conclude Defendant had motive to kill Melvin.

      Second, Defendant’s opportunity to commit the crimes tended to be sufficiently

established by both physical evidence at the crime scene and testimony of those who

interacted with Defendant near the scene shortly after Melvin’s death. Defendant’s


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                                    STATE V. GRAY

                                   Opinion of the Court



wallet containing his identification and social security cards was found near Melvin’s

residence. Shortly after gunshots were heard, Defendant knocked on the door of

Locklear’s residence, which was located near Melvin’s residence. Brown’s cell phone

was also recovered near the crime scene, and Brown attempted to locate Defendant

shortly after the gunshots had been heard. Because the evidence placed Defendant

at or near the scene of the crime around the time of the victim’s murder, a reasonable

juror could find that Defendant had the opportunity to commit the felony that

resulted in Melvin’s death.

      Finally, it is undisputed that, regardless of who fired a weapon into Purdie’s

residence, an occupied dwelling, it resulted in Melvin’s death. The shots Locklear

heard in the mobile home park that night came from outside Melvin’s residence.

Although there were two weapons fired, based on the shell casings found at the scene,

“[i]t is not necessary to support a conviction of felony-murder that defendant actually

inflicted the fatal shot.” State v. Peplinski, 290 N.C. 236, 240, 225 S.E.2d 568, 571

(1976). When “several persons aid and abet each other” and one “fatally wounds the

victim, all being present, each is guilty of murder in the first degree.” Id. at 240-41,

225 S.E. 2d at 571. The State’s evidence tended to show that Brown had come to

Locklear’s residence to meet with Defendant shortly after Melvin’s death. Moreover,

Defendant’s wallet containing his identification and social security cards, along with

Brown’s iPhone, were found at the crime scene. The evidence tended to show that



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                                    Opinion of the Court



either Defendant or Brown likely fired the fatal shot. Regardless of who actually fired

the fatal shot, however, Defendant could still be found guilty of felony murder.

       As our Supreme Court held,

              [i]f the evidence presented is circumstantial, the court
              must consider whether a reasonable inference of
              defendant’s guilt may be drawn from the circumstances.
              Once the court decides that a reasonable inference of
              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 it beyond a reasonable
              doubt that the defendant is actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (emphasis added). Based upon the

evidence introduced by the State, there was sufficient evidence from which a

reasonable inference of Defendant’s guilt could be drawn. The trial court did not err

in denying Defendant’s motion to dismiss, and the jury’s verdict will not be disturbed

by this Court.

                                          Conclusion

       The trial court did not err in denying Defendant’s motion to dismiss because

the State introduced substantial evidence of each essential element of both

discharging a weapon into an occupied dwelling and felony murder.           Defendant

received a fair trial, free from error.

       NO ERROR.

       Judges DIETZ and TYSON concur.




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