{ "id": 9441388, "name": "STATE OF NORTH CAROLINA v. KENDALL JERMAINE BARNETT", "name_abbreviation": "State v. Barnett", "decision_date": "2000-12-29", "docket_number": "No. COA99-1305", "first_page": "378", "last_page": "397", "citations": [ { "type": "official", "cite": "141 N.C. App. 378" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "pin_cites": [ { "page": "504-05" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "532 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "352 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685072 ], "year": 2000, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0531-01" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. 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Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571619 ], "year": 1998, "pin_cites": [ { "page": "553", "parenthetical": "quoting State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0535-01" ] }, { "cite": "468 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "343 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798779 ], "year": 1996, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0029-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "410" }, { "page": "354" } ], "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "307 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "311-12" } ], "opinion_index": 0 }, { "cite": "309 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760257 ], "year": 1983, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0326-01" ] }, { "cite": "423 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "333 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546001 ], "year": 1992, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0067-01" ] }, { "cite": "447 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "337 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551667 ], "year": 1994, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0641-01" ] }, { "cite": "252 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "536" }, { "page": "541" }, { "page": "541" } ], "opinion_index": 0 }, { "cite": "40 N.C. 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App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523250 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0234-01" ] }, { "cite": "422 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "722" }, { "page": "726", "parenthetical": "quoting State v. Myers, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507655 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "530" }, { "page": "537", "parenthetical": "quoting State v. Myers, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0520-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "373 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "323 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561633 ], "year": 1988, "pin_cites": [ { "page": "451-52" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0447-01" ] }, { "cite": "277 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "384" } ], "opinion_index": 0 }, { "cite": "303 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571418 ], "year": 1981, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0075-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "522 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "69" } ], "opinion_index": 0 }, { "cite": "351 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155797 ], "year": 1999, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0137-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "54 L. Ed. 2d 281", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "434 U.S. 924", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6427200, 6428259, 6427109, 6427687, 6427816, 6427463, 6427563, 6428013, 6427929, 6428122, 6427293 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/434/0924-02", "/us/434/0924-11", "/us/434/0924-01", "/us/434/0924-06", "/us/434/0924-07", "/us/434/0924-04", "/us/434/0924-05", "/us/434/0924-09", "/us/434/0924-08", "/us/434/0924-10", "/us/434/0924-03" ] }, { "cite": "235 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "198" } ], "opinion_index": 0 }, { "cite": "292 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572704 ], "year": 1977, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0711-01" ] }, { "cite": "460 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1996, "pin_cites": [ { "page": "126", "parenthetical": "quoting State v. Furr, 292 N.C. 711, 718, 235 S.E.2d 193, 198, cert denied, 434 U.S. 924, 54 L. Ed. 2d 281 (1977)" }, { "page": "127" }, { "page": "127" }, { "page": "127" }, { "page": "131", "parenthetical": "quoting State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793072 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "42", "parenthetical": "quoting State v. Furr, 292 N.C. 711, 718, 235 S.E.2d 193, 198, cert denied, 434 U.S. 924, 54 L. Ed. 2d 281 (1977)" }, { "page": "42" }, { "page": "42" }, { "page": "42" }, { "page": "50", "parenthetical": "quoting State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0036-01" ] }, { "cite": "12 S.E. 329", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 1 }, { "cite": "107 N.C. 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275036 ], "year": 1890, "opinion_index": 1, "case_paths": [ "/nc/107/0798-01" ] }, { "cite": "240 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "451", "parenthetical": "quoting State v. Goodson, 107 N.C. 798, 12 S.E. 329 (1890)" } ], "opinion_index": 1 }, { "cite": "294 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572673 ], "year": 1978, "pin_cites": [ { "page": "303", "parenthetical": "quoting State v. Goodson, 107 N.C. 798, 12 S.E. 329 (1890)" } ], "opinion_index": 1, "case_paths": [ "/nc/294/0299-01" ] }, { "cite": "N.C. Gen. 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App.", "case_ids": [ 8525515 ], "year": 1982, "pin_cites": [ { "page": "5" } ], "opinion_index": 1, "case_paths": [ "/nc-app/59/0001-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 1 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0349-01" ] } ], "analysis": { "cardinality": 1623, "char_count": 45589, "ocr_confidence": 0.763, "pagerank": { "raw": 4.922791619084778e-07, "percentile": 0.9342838134578503 }, "sha256": "b6520cf66b5a834dc263eb5db5421b7222d93122091b8c1bfcc76ea5f250799f", "simhash": "1:17335d3e843fae5a", "word_count": 7554 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge FULLER concurs.", "Judge TIMMONS-GOODSON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. KENDALL JERMAINE BARNETT" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nDefendant Kendall Jermaine Barnett was tried and found guilty of first-degree felony murder in Gaston County Superior Court on 2 December 1998. From a sentence imposing life imprisonment without parole, defendant appeals. After careful review, we conclude defendant received a fair trial free from prejudicial error.\nThe evidence presented at trial tended to show that shortly after 9:00 a.m. on 17 July 1996, customers of the Simply Amazing Grocery Store (store) in Gastonia, North Carolina found Max Hightower (victim), a store employee, dead behind the counter. At the time, the store cash register was emitting a beeping sound. Store owner Burgin Lindley (Lindley) testified that when someone improperly tries to open the cash register it emits a steady beep. Lindley further testified that when he arrived at the store shortly after the victim\u2019s body was discovered, approximately sixteen to twenty-four dollars in cash was missing from under the counter.\nGastonia Police Officers arrived at the store at approximately 9:30 a.m. While conducting their investigation, the police found a shoe impression in the blood on the floor around the victim\u2019s body. The police also found a bloody shoe impression on the white T-shirt the victim was wearing in his lower abdomen area. A State Bureau of Investigation (SBI) expert later compared photographs of these footprints with shoes owned by defendant. The SBI expert was unable to make a conclusive identification by comparison to defendant\u2019s shoes, but found defendant\u2019s shoes consistent with the bloody footprints. Although there was no indication that defendant\u2019s shoes had been washed, they did not test positive for blood residue. An SBI expert testified that blood may be removed from \u201cwear surfaces of the soles ... in a short time by walking.\u201d In addition, he testified that walking in the rain would probably be sufficient to remove blood from the soles of shoes. Moreover, the SBI examined shoes taken from another suspect the Gastonia police initially considered, and were able to eliminate the shoes as having left the prints in the blood at the store.\nPolice obtained several latent fingerprints from the store, including from the store counter, the register and boxes around the counter. No identifications could be made with these prints.\nOutside the store police found a large wooden stick with blood, hair, and tissue on the end. Lindley testified that the stick the police found outside the store was for his dog to play with and was normally kept on top of a drink machine in the store. Lindley further testified that the stick was actually more like a \u201cclub,\u201d big around at the top and \u201ctapered down a little bit.\u201d SBI forensics experts later determined that a DNA sample taken from the stick was consistent with the victim\u2019s DNA. The pathologist who performed the autopsy on the victim testified that the victim died as a result of an extensive brain injury secondary to multiple blows to the skull. He further testified that death would have resulted within minutes after the wounds were inflicted.\nThere was testimony that a number of individuals were seen near the store on the morning of the murder. Although the Gastonia police initially considered some of these individuals in connection with the murder, they focused on defendant at the end of July. On 15 August 1996, while defendant was in police custody on another matter, he made a statement to Detective Larry Hardin regarding the murder. Prior to making his statement, defendant was orally advised of, and in writing waived, his Miranda rights. Defendant initially denied any involvement with the murder and denied being in the store that day. Detective Hardin then told defendant that the shoes he was wearing had the same sole pattern as the pattern found in the store in the victim\u2019s blood. At this point, defendant admitted to having been in the store that morning, but again denied any involvement in the murder. According to defendant, when he went into the store on the morning of 17 July 1996, he saw the victim lying behind the counter still breathing. Defendant walked around the counter to the victim to see if he was alright. Defendant stated that the victim moved his hand, which startled him, causing defendant to \u201cpush off\u201d the victim with his foot. Defendant then backed out of the area behind the counter. As he backed away from the victim, defendant hit the cash register, causing some keys to drop. Defendant caught the keys, placed them on the counter and continued to back out from behind the counter. In the process, defendant bumped into a cigarette display, grabbed a pack of the cigarettes and continued toward the door of the store. Defendant then stated that he stepped on a bloody stick lying on the floor, which he picked up and threw on the grass outside the store as he ran outside.\nAt trial, defendant testified that he did not contact the police after leaving the store because he \u201cdidn\u2019t want to be mixed up in it.\u201d In addition, defendant testified that he initially told the police that he had not been at the store on the morning of 17 July 1996, because he \u201cdidn\u2019t want to have anything to do with it,\u201d and because there was an outstanding arrest warrant for him.\nOn appeal defendant first argues that the trial court erred in denying his motions to dismiss and set aside the verdict. Defendant contends that the State presented insufficient evidence to sustain his conviction for first-degree felony murder. To support his contention, defendant argues that there is a lack of direct evidence in the form of eyewitnesses and physical evidence, and no proof of motive. We are not persuaded.\nTo convict a defendant of murder, the State must \u201c \u2018offer evidence from which it can be reasonably inferred that the deceased died by virtue of a criminal act and that the act was committed by the defendant.\u2019 \u201d State v. Lambert, 341 N.C. 36, 42, 460 S.E.2d 123, 126 (1996) (quoting State v. Furr, 292 N.C. 711, 718, 235 S.E.2d 193, 198, cert denied, 434 U.S. 924, 54 L. Ed. 2d 281 (1977)); State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Here it is undisputed that the victim died by virtue of a criminal act. The issue here is whether the State presented sufficient evidence tending to show that it was defendant who committed the criminal act.\nIt is well settled in this State that a conviction on evidence which merely gives rise to suspicion or conjecture that it was the defendant who committed the crime will not stand. State v. Sokolowski, 351 N.C. 137, 143, 522 S.E.2d 65, 69 (1999); Lambert, 341 N.C. at 42, 460 S.E.2d at 127. However, it is equally clear that if there is substantial evidence, whether it is direct, circumstantial, or both, that it was the defendant who committed the crime, a motion to dismiss must be denied. Lambert, 341 N.C. at 42, 460 S.E.2d at 127. Our Supreme Court has described \u201csubstantial evidence\u201d as \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980); State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from that evidence. Lambert, 341 N.C. at 42, 460 S.E.2d at 127; State v. Stone, 323 N.C. 447, 451-52, 373 S.E.2d 430, 433 (1988). \u201cContradictions and discrepancies must be resolved in favor of the State,\u201d State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984), and the trial court is not to consider defendant\u2019s evidence rebutting the inference of guilt \u201cexcept to the extent that it explains, clarifies or is not inconsistent with the State\u2019s evidence . . . .\u201d State v. Walker, 332 N.C. 520, 530, 422 S.E.2d 716, 722 (1992). Thus, the evidence need only give rise to a reasonable inference of guilt for the case to be properly submitted to the jury. Here, we conclude that when viewed in the light most favorable to the State, substantial evidence of first-degree murder was presented to sustain defendant\u2019s conviction.\nDefendant relies heavily on State v. Bell, 65 N.C. App. 234, 309 S.E.2d 464 (1983), aff\u2019d per curium, 311 N.C. 299, 316 S.E.2d 72 (1984) to support the argument that there was insufficient evidence to show that he committed the crime charged. In Bell, the defendant was convicted of second-degree murder. We held that the evidence, when taken in the light most favorable to the State, at most showed that the defendant had a non-exclusive opportunity to kill the victim, and that standing alone was insufficient to survive a motion to dismiss. Id. at 241, 309 S.E.2d at 469. In Bell, \u201c[t]he only substantial evidence linking defendant to the crime consisted of the victim\u2019s keys which were found in the defendant\u2019s pockets.\u201d Id. Here there is more evidence.\nDefendant\u2019s statements, both to the police and at trial, place him at the store on the morning of the murder. Defendant initially denied being present at the store on the morning the murder took place. When defendant eventually admitted to being in the store that morning, he related a story that a reasonable juror could infer was designed to explain the presence of his fingerprints at the crime scene. Although defendant contends that he happened upon the victim after the fatal head wound was inflicted, this argument is premised upon the possibility that another person struck the fatal blows just prior to defendant\u2019s arrival at the store. The forensic pathologist, however, testified that the victim could only have survived a matter of minutes after the infliction of the head wounds. Thus, defendant\u2019s statements that he did not see anyone else in the store on the morning of the murder, that the victim was still alive when he saw him lying behind the counter, and that he picked up the stick containing the victim\u2019s hair, blood and tissue, all place defendant as the person who had access to the victim during the crucial moments that he could have survived after being bludgeoned. From this, a reasonable juror could find that defendant inflicted the fatal blows.\nAlthough defendant acknowledges that his statements to the police were inconsistent, he maintains that they were \u201cwholly exculpatory\u201d and that he made his initial false statement because he feared involvement with the police. In State v. Walker, 332 N.C. 520, 537, 422 S.E.2d 716, 726 (1992) (quoting State v. Myers, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983)), our Supreme Court stated that \u201cfalse, contradictory or conflicting statements made by an accused may be considered as a circumstance tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [himself].\u201d Thus, here as in Walker, defendant\u2019s statements were used by the State to prove guilt by implication.\nDefendant also attacks the State\u2019s forensic evidence. The State presented evidence that the shoe prints found on the floor of the store and on the victim\u2019s shirt were consistent with the shoes which defendant admitted wearing on the day of the murder. Defendant, however, argues that the State\u2019s evidence does not lead to a reasonable inference that it was he who left the footprints on the morning of the murder because a conclusive match was not made to his shoes. By his own assertion, defendant stepped in the blood surrounding the victim and \u201cpushed off\u2019 the victim with his foot. Thus, defendant\u2019s statements obviate the need for a conclusive match on the footprints. In addition, although the police were unable to match fingerprints taken in the store to defendant, this was also unnecessary as defendant admitted to touching the cash register, cash register key, store counter and the murder weapon.\nDefendant further contends that the State presented insufficient evidence of motive to sustain his conviction. Motive may be proved by circumstantial evidence. Here, the State presented evidence in the form of defendant\u2019s testimony that he had been unemployed for several months prior to the murder; that he was no longer living with relatives due to familial strain; that he had been drinking and using marijuana and cocaine frequently prior to the murder; that he had been drinking beer and \u201cmaybe\u201d using marijuana the night before the murder; and that he had only \u201csome loose change\u201d in his possession on the morning of the murder. In the light most favorable to the State, this testimony permitted the inference that defendant was in need of money and robbed and murdered the victim to obtain that money. State v. Powell, 340 N.C. 674, 690, 459 S.E.2d 219, 227 (1995), cert. denied, 516 U.S. 1060, 133 L. Ed. 2d 688 (1996).\nThe foregoing evidence, in addition to other evidence adduced at trial, is sufficiently substantial for a jury to draw a reasonable inference that defendant was the perpetrator of the crime of first-degree murder. Accordingly, this assignment of error fails.\nDefendant next contends that the trial court erred in charging the jury on admissions pursuant to North Carolina Pattern Jury Instruction 104.60. We disagree.\nDuring the jury charge conference, the State requested that the trial court instruct the jury on admissions pursuant to N.C.P.1 104.60. At that time, defendant objected to the jury instruction as being \u201csuperfluous.\u201d The trial court overruled defendant\u2019s objection and explained why the instruction on admissions was appropriate:\n[The] admissions that I\u2019m talking about are admissions about being present in the grocery store on the morning of the homicide, the admission that he went behind the counter, the admission that he had contact \u2014 that the defendant kicked the \u2014 or pushed away with his foot the victim\u2019s hand, the fact that he was standing in blood or had his shoe print in blood, the fact that he picked up a stick which had blood and tissue on it which has been identified as being consistent with that of the victim and removed it and took it outside, the fact that he admitted to taking a pack of cigarettes without paying for them, and those \u2014 and perhaps some other admissions. Of course, this charge does not explain to the jury what the admissions are. You are free to argue that one way or the other ....\nThe trial court subsequently instructed the jury, in pertinent part:\nMembers of the jury, there is evidence which tends to show that the defendant has admitted a fact relating to the crime charged in this case. If you find that the defendant has made that admission, then you should consider all of the circumstances under which it was made in determining whether it was a truthful admission and the weight that you will give to it.\nDefendant contends on appeal that the instruction on admissions \u201cwas not supported by the evidence, diluted the State\u2019s burden of proving defendant guilty beyond a reasonable doubt, and was highly prejudicial\u201d thereby violating defendant\u2019s rights \u201cunder our common law, the Fourteenth Amendment to the U.S. Constitution, and Article I, \u00a7 19 of the North Carolina Constitution.\u201d\nOn appeal, a party may not assign as error a jury charge unless a proper objection was made at trial prior to the jury retiring to deliberate. State v. Cummings, 326 N.C. 298, 315, 389 S.E.2d 66, 75 (1990); N.C. R. App. R 10(b)(2). Here, before the jury charge, defendant objected to the instruction as \u201csuperfluous.\u201d Defendant now asserts that the jury charge violated his rights under our common law as well as the United States and North Carolina Constitutions. By failing to object on these bases at trial, defendant has waived these grounds on appeal.\nIn exceptional criminal cases, however, the \u201cplain error\u201d rule may be applied to allow a party relief even though no objection, or an improper objection, was made at trial. Cummings, 326 N.C. at 315, 389 S.E.2d at 75; State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). The \u201cplain error\u201d rule provides that\n[i]n criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule of law . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.\nN.C. R. App. P. 10(c)(4). Our Supreme Court has held that when deciding whether a defect in a jury instruction amounts to \u201cplain error,\u201d the appellate court \u201cmust examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d Odom, 307 N.C. at 661, 300 S.E.2d at 378-79. However, our Supreme Court has also cautioned that the \u201cplain error rule\u201d is \u201calways to be applied cautiously and only in the exceptional case . . . .\u201d Id. at 660, 300 S.E.2d at 378 (quoting State v. McCaskill, 676 F.2d 995, 1002 (4th cir. 1982)).\nOur Supreme Court has described an admission as a \u201cstatement of pertinent facts which, in light of other evidence, is incriminating.\u201d State v. Lambert, 341 N.C. 36, 50, 460 S.E.2d 123, 131 (1995) (quoting State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986)). Defendant\u2019s statements to the police on 15 August 1996 are in the nature of an admission. State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979).\nIn State v. Smith, defendant was convicted of voluntary manslaughter. The victim, defendant\u2019s wife, was found dead in their home on the morning of 17 December. Id. at 73, 252 S.E.2d at 536. The Smith defendant made a statement to the police in which he stated that he was at his home with his wife for the entire night of 16 December. Thus, the defendant\u2019s statement placed him at the \u201cscene of the crime and in the company of the victim.\u201d Id. at 81, 252 S.E.2d at 541. Although defendant denied killing his wife and asserted that his statements were exculpatory as they tended \u201cto show that someone else may have had the opportunity to kill\u201d her, we described the defendant\u2019s statement as \u201cin the nature of an admission.\u201d Id. at 83-84, 252 S.E.2d at 541. Likewise, here defendant\u2019s statement to the police placed him at the scene of the crime and in the company of the victim on the morning of the murder. Defendant acknowledged that he did not see anyone in the store other than the victim. When considered in light of the other evidence presented at trial, especially evidence that the victim could have survived only briefly after the infliction of the fatal wound, this statement is incriminating. Under our language in Smith, therefore, defendant\u2019s statement is in the nature of an admission.\nAssuming arguendo that the instruction was improper, we conclude that defendant has failed to show \u201cplain error.\u201d State v. Shuford, 337 N.C. 641, 646, 447 S.E.2d 742, 745 (1994). In the jury charge, the trial court neither defined nor intimated what defendant\u2019s admissions may have been. The language of the jury charge also left to the jury\u2019s discretion the determination of which of defendant\u2019s statements were admissions and the weight to be given those statements. Because the jury charge on admissions was based upon facts presented by a reasonable view of the evidence, we cannot say that absent the instruction the jury likely would have returned a different verdict. Defendant has failed to meet the \u201c \u2018heavy burden of convincing the Court that, absent the error, the jury probably would have returned a different verdict.\u2019 \u201d Id. (quoting State v. Bronson, 333 N.C. 67, 75, 423 S.E.2d 772, 777 (1992)). Accordingly, this assignment of error fails.\nDefendant next argues that the trial court committed \u201cplain error\u201d by allowing the State to cross-examine defendant about the details of a prior conviction and his drug and alcohol use and to engage in an improper closing argument. As previously discussed, a failure to object or except to errors at trial constitutes a waiver of the right to assert the alleged error on appeal unless the defendant can show \u201cplain error.\u201d State v. Oliver, 309 N.C. 326, 340, 307 S.E.2d 304, 311-12 (1983). Here, defendant argues that under the \u201cplain error\u201d standard he is entitled to a new trial on these grounds. We cannot agree.\nDuring the State\u2019s cross-examination of defendant the prosecutor inquired, without objection, about defendant\u2019s forgery conviction and his drug and alcohol use. The following are pertinent excerpts from defendant\u2019s cross-examination:\nQ. You were convicted for possession of stolen property?\nA. Yes.\nQ. And forgery and \u2014 and forgery?\nA. Yes.\nQ. What was the purpose of forging the instruments that were forged? What did you need the money for?\nA. Bills, really.\nQ. Your forgery activities were not to support your drug habit?\nA. No.\nQ. How would you support your drug habit?\nA. Probably from the money that I was making at the job, partly of it.\nQ. Now you had your job, and you were gainfully employed, and you earned a livelihood that was sufficient to support your drug habit?\nA. Um-hum.\nQ. But then you say you had to engage in this forgery activity so you could get additional funds to pay off your expenses for the household that you maintained.\nA. Right.\nDefendant argues this line of questioning was impermissible under the North Carolina Rules of Evidence.\nWhen a defendant elects to testify, evidence of prior convictions is admissible for the purpose of impeaching defendant\u2019s credibility pursuant to Rule 609 of the Rules of Evidence. Rule 609(a) provides that\n[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class Al, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.\nG.S. \u00a7 8C-1, Rule 609(a) (1999). This rule was recently interpreted in State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993).\nIn Lynch, our Supreme Court held that the State is prohibited \u201cfrom eliciting details of prior convictions other than the name of the crime and the time, place, and punishment for impeachment purposes under Rule 609(a) in the guilt-innocence phase of a criminal trial.\u201d Id. at 410, 402 S.E.2d at 353. However, the Lynch Court went on to discuss certain exceptions to this exclusionary rule, including Rule 404(b) of the North Carolina Rules of Evidence.\nHere it is clear that the State exceeded the permissible scope of inquiry into defendant\u2019s prior criminal conviction under Rule 609(a). On cross-examination the State asked defendant whether he had been convicted of possessing stolen property and forgery. When defendant answered affirmatively, the State proceeded to delve into defendant\u2019s motivation for his \u201cforgery activity.\u201d Thus, the State elicited \u201cdetails of prior convictions other than the name of the crime and the time, place, and punishment,\u201d id., allowable for impeachment purposes. However, that the evidence could not be admitted pursuant to Rule 609(a) does not preclude its admission under an alternative Rule of Evidence.\nRule 404(b) of the North Carolina Rules of Evidence provides in pertinent part:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acts in conformity therewith. It may, however, be admissible for other purposes, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake ....\nG.S. \u00a7 8C-1, Rule 404(b) (1999). Our Supreme Court has held that Rule 404(b) states\na clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\nState v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990); State v. King, 343 N.C. 29, 43, 468 S.E.2d 232, 241 (1996). \u201cThe admissibility of evidence under this rule is guided by two further constraints \u2014 similarity and temporal proximity.\u201d Lynch, 334 N.C. at 412, 432 S.E.2d at 354.\nHere, we agree that this testimony was relevant on the issue of defendant\u2019s motive. On direct examination, defendant testified that between January 1996 and July 1996, when the murder occurred, he was using drugs and/or alcohol \u201cfrequently.\u201d Defendant further testified that on the night before the murder took place he was drinking beer and \u201cmaybe\u201d using a \u201clittle marijuana.\u201d On cross-examination, the State further questioned defendant about his drug habit, and about his means of financing that drug habit. The evidence that defendant previously committed forgery to finance his drug habit could properly be admitted, not to show defendant had a propensity to commit forgery or other crimes, but rather to show that his need to support his drug habit and his lack of finances were the motive for the robbery and murder of the victim.\nIn State v. Powell, 340 N.C. 674, 459 S.E.2d 219 (1995), cert. denied, 516 U.S. 1060, 133 L. Ed. 2d 688 (1996) the defendant was convicted of first-degree felony murder. At trial, a State\u2019s witness testified over defendant\u2019s objection that she and defendant used cocaine every day while they were living together. She also testified that during that time neither she nor defendant was employed, and their sole source of income was monthly AFDC and Social Security checks. Our Supreme Court concluded that the trial court properly ruled this evidence admissible pursuant to Rule 404(b). Id. at 690, 459 S.E.2d at 227. The Powell Court stated that the \u201cevidence permits the inference that defendant needed money once the checks stopped . . . and decided to commit the robbery to obtain that money.\u201d Id. Here the evidence elicited on cross-examination about defendant\u2019s drug use and his prior conviction was admissible under Rule 404(b) because it permits the inference that defendant committed this robbery and murder to obtain money he needed to support his drug habit. As such, this evidence helps explain the chain of events leading up to, and the motive behind, the robbery and murder of Max Hightower.\nOur Supreme Court has held that \u201c \u2018[r]emoteness in time is less significant when the prior conduct is used to show . . . motive . . . remoteness in time generally affects only the weight to be given such evidence, not its admissibility.\u2019 \u201d State v. White, 349 N.C. 535, 553, 508 S.E.2d 253, 265 (1998) (quoting State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991)). The fact that defendant\u2019s conviction for forgery occurred several years before this crime did not preclude the admissibility of the evidence; instead the passage of time affected the weight to be given that evidence.\nAfter careful review and consideration of the record and briefs, we cannot say that in the absence of this evidence\u2019s admission, the jury would have returned a different verdict. Accordingly, we conclude that the trial court did not commit \u201cplain error\u201d with respect to this evidence.\nDefendant also argues that the trial court committed \u201cplain error\u201d by allowing the State to engage in an improper closing argument. Defendant asserts that the State attempted to prejudice the jury during closing arguments with the following comments:\n[W]e\u2019re here because Kendell [sic] Barnett is a selfish person, and ... a selfish person with a drug problem is a dangerous person ....\nIn order to support his cocaine habit, he began to write checks, dealt in stolen property ....\nThen I got to questioning about the necessity for forged instruments, and then that began to explain well, he needed that money to pay for the daily living expenses ... He worked at the time, used the money that he earned to support that craving for drugs ....\nKendell [sic] Barnett continues to be a selfish person with an addiction to controlled substances ....\n[H]e\u2019s a selfish individual, and because he is selfish, Max Hightower is dead and gone to his just reward ....\n\u201cProsecutors are allowed \u2018wide latitude in the scope of their argument.\u2019 \u201d Powell, 340 N.C. at 694, 459 S.E.2d at 229 (quoting State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987)). \u201cA prosecutor\u2019s argument is not improper where it is consistent with the record and does not travel into the fields of conjecture or personal opinion.\u201d Zuniga, 320 N.C. at 253, 357 S.E.2d at 911. If no objection is made, the trial court will only be required to intervene when the prosecutor\u2019s argument affects the right of a defendant to a fair trial. Id.\nHere, since no objection was made during the prosecutor\u2019s closing argument, the trial court was required to intervene only if the defendant\u2019s right to a fair trial was affected by the closing arguments. After careful review and consideration of the record and briefs, we cannot conclude that the trial court erred in not intervening ex mero mo tu during the argument. Defendant\u2019s assignment of error fails.\nBy his final assignment of error defendant contends that the trial court erred in denying his motion \u201cto reveal the State\u2019s first-degree murder theory.\u201d Specifically, defendant argues that the short-form murder indictment used here violates his due process and equal protection rights under the United States Constitution. We are not persuaded.\nThe indictment against defendant for murder contained the following language:\nThe jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously and of malice aforethought did kill and murder Max M. Hightower.\nThe indictment also stated: \u201cOffense in violation of G.S. 14-17.\u201d Defendant concedes that the indictment complies with the short form murder indictment authorized by G.S. \u00a7 15-144 which provides that\n[i]n indictments for murder and manslaughter ... it is sufficient in describing murder to allege that the accused person felo-niously, willfully, and of his malice aforethought, did kill and murder (naming the person killed) ....\nG.S. \u00a7 15-144 (1999). Our Supreme Court has held that an indictment which complies with the requirements of G.S. \u00a7 15-144 is sufficient to charge murder in the first degree based on any theory set out in G.S. \u00a7 14-17 and referenced in the indictment. State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000). Moreover, our Supreme Court has consistently held that \u201cindictments for murder based on the short-form indictment statute are in compliance with both the North Carolina and United States Constitutions.\u201d Id.) State v. Smith, 352 N.C. 531, 539, 532 S.E.2d 773, 779 (2000); State v. Wallace, 351 N.C. 481, 504-05, 528 S.E.2d 326, 341 (2000). Here, the indictment complied with G.S. \u00a7 15-144 and was therefore sufficient. Accordingly, defendant\u2019s assignment of error is without merit.\nNo error.\nJudge FULLER concurs.\nJudge TIMMONS-GOODSON dissents.", "type": "majority", "author": "EAGLES, Chief Judge." }, { "text": "Judge Timmons-Goodson\ndissenting.\nRespectfully, I dissent. While I believe that the evidence presented by the State was sufficient to permit the jury to find that Mr. Hightower was murdered during the commission of an armed robbery, I do not believe that the evidence was sufficient to demonstrate that defendant perpetrated these crimes. Therefore, the trial court should have allowed defendant\u2019s motion to dismiss the charge of first-degree murder.\nA motion to dismiss is properly denied only \u201c[i]f there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it.\u201d State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). \u201cSubstantial evidence\u201d is defined as \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Pryor, 59 N.C. App. 1, 5, 295 S.E.2d 610, 614 (1982). Thus, to be \u201csubstantial,\u201d the evidence of guilt \u201cmust be existing and real, not just seeming or imaginary.\u201d State v. Sexton, 336 N.C. 321, 361, 444 S.E.2d 879, 902 (1994), grant of post-conviction relief aff'd, 352 N.C. 336, 532 S.E.2d 179 (2000).\nIn ruling on a motion to dismiss, the trial court must examine the evidence and draw all reasonable inferences therefrom in the light most beneficial to the State. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). Exculpatory evidence offered by the defendant is not taken into account, except to the extent that it explains, clarifies, or coincides with the State\u2019s body of facts. State v. Bates, 309 N.C. 528, 535, 308 S.E.2d 258, 262-63 (1983). Additionally, although the propriety of dismissal turns on the peculiar facts of the case under consideration, prior decisions can be instructive as to whether the court should have granted a motion to dismiss given a particular set of circumstances. See State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977) (relying on case with strikingly similar facts as support for decision reversing denial of motion for nonsuit).\nAt trial, the premise of the State\u2019s theory was the \u201cfelony murder rule,\u201d pursuant to which a murder committed during the perpetration of a felony is \u201cdeemed to be murder in the first degree.\u201d N.C. Gen. Stat. \u00a7 14-17 (1999). According to the State, the underlying felony was armed robbery \u2014 the unlawful taking or attempted taking of \u201c \u2018personal property from another or from any place of business\u2019 with the possession, use, or threatened use of a [dangerous weapon].\u201d State v. Cofield, 129 N.C. App. 268, 280, 498 S.E.2d 823, 832 (1998) (quoting N.C. Gen. Stat. \u00a7 14-87(a)(1993)). Hence, to withstand defendant\u2019s motion for dismissal, it was incumbent upon the State to come forward with substantial evidence that defendant killed Mr. Hightower while perpetrating or attempting to perpetrate an armed robbery of the victim or the convenience store. In my judgment, the State failed to meet this burden.\nThe evidence, viewed in the light most favorable to the State, showed that at or near 9:00 a.m. on the morning of 17 July 1996, defendant entered the Simply Amazing Grocery Store in Gastonia, North Carolina, wearing a pair of black Nike tennis shoes. Minutes later, the body of Max Hightower, an employee of the store, was discovered lying in a pool of blood behind the counter. The victim had been brutally beaten about the head and face. His blood covered the immediate area within three feet of the body and spattered the adjacent wall nearly forty inches up from the floor. Nike shoe impressions consistent with the shoes worn by defendant were found in the blood surrounding the body, and a bloody Nike shoe print was visible on the front of the victim\u2019s T-shirt. The cash register emitted a beeping noise, signaling that it had been improperly used, and roughly eight to twelve two-dollar-bills had been taken from a plastic container kept under the counter. A large wooden stick, covered on one end with the victim\u2019s blood, was found in a grassy area beside the store.\nDefendant, after initially denying his presence, admitted that he had been in the convenience store on the morning of the murder. His statements to the police and his testimony at trial revealed that he arrived at the store after the victim had been attacked. When he saw the victim\u2019s body, he went behind the counter to render assistance, but became frightened when the victim\u2019s hand moved toward him. Defendant kicked at the victim\u2019s chest to keep him from rising. As he backed away from the victim\u2019s body, he stumbled over a large stick, knocking a pack of cigarettes onto the floor. In his haste to leave, defendant grabbed the stick and the cigarettes and ran out the door. Once outside, he threw the stick beside the building and fled.\nDefendant\u2019s evidence further showed that witnesses observed one or more individuals not matching his description waiting in front of the store at or near the time of the crimes. Additionally, while the investigation uncovered several latent fingerprints from items on and around the counter, none of the prints collected at the scene were found to match those of defendant. Moreover, in view of the State\u2019s theory that defendant\u2019s financial needs motivated him to commit these crimes, I think it significant that investigators found a handgun under the counter, several dollars in rolled coins stacked behind the cash register, and nearly $300 in cash in the victim\u2019s wallet. Similarly, despite the evidence that the area immediately surrounding the body was covered with the victim\u2019s blood, forensic testing did not indicate the presence of blood anywhere on defendant\u2019s tennis shoes, nor did the tests reveal that the shoes had been cleaned.\nThe majority, in concluding that the State\u2019s evidence was sufficient to survive defendant\u2019s motion to dismiss, failed to give defendant\u2019s exculpatory evidence due consideration. In my opinion, the majority\u2019s indifference to the evidence tending to absolve defendant of guilt is contrary to our Supreme Court\u2019s ruling in State v. Bates, 309 N.C. 528, 308 S.E.2d 258. In Bates, the defendant was convicted of first-degree murder based on the felony murder rule. The State\u2019s theory was that the defendant murdered the victim during his attempt to rob the victim of personal property found at the scene.\nThe evidence revealed that on the night of the incident, the defendant arrived at the home of Mary Godwin in a battered and agitated state. His \u201cclothing was covered with blood and dirt.\u201d Id. at 530, 308 S.E.2d at 260. According to Mrs. Godwin, \u201c[the] defendant appeared to be severely injured and was pleading for help.\u201d Id. In a field approximately 300 feet from the Godwin residence, law enforcement officers found the body of Roy Warren lying next to an automobile. Several scuff marks were visible in the soil surrounding the body, and spots of blood appeared on the side of the car. Articles of personal property belonging to both the defendant and the victim were scattered about an area approximately seventy feet away from the body. There, additional scuff marks were found, as was blood consistent with the blood types of both the defendant and the victim. The officers also located a .22 caliber revolver lying amidst the other personal items. An autopsy subsequently performed on the body revealed that the victim had endured several small cuts and abrasions, thirty-two stab wounds, and two gunshot wounds inflicted at close range.\nThe defendant testified that he had given the victim his mother\u2019s gun in exchange for $30.00. He stated that on the day of the incident, he asked the victim to return the gun, because his mother had discovered it missing. The victim agreed, and the two made arrangements to meet at a field near the defendant\u2019s house. Later, the victim arrived as planned, but refused to return the gun unless the defendant returned the $30.00. An argument ensued, and when defendant turned to leave, the victim stabbed him in the back. The defendant stumbled, regained his balance, and started running toward the nearest house. The victim then fired two warning shots and threatened to kill the defendant if he did not stop running.\nThe defendant stopped in the area where the personal items were later found. The victim caught up with the defendant and struck him in the head with the gun. The victim then threw the defendant to the ground, and the two began to fight. When the defendant tried to wrestle the gun away from the victim, it discharged, enabling the defendant to free himself and crawl back to the car. As the defendant was entering the vehicle, the victim grabbed him from behind and pulled him to the ground. Another struggle occurred, and the defendant received a second stab wound to the chest. The defendant pulled the knife from his chest and stabbed the victim repeatedly. The victim eventually released him, and the defendant made his way to the Godwin residence.\nThe Supreme Court concluded that because the defendant\u2019s testimony did not contradict the prosecution\u2019s case in any way, \u201c[the] testimony in its entirety [was to] be characterized as a clarification of the State\u2019s testimonial and physical evidence.\u201d Id. at 535, 308 S.E.2d at 263. The Court then reversed the defendant\u2019s conviction based on the following reasoning:\nWhen defendant\u2019s explanatory testimony is considered along with the physical evidence presented by the State, the logical inference is that the decedent lost the[] items of personal property during the struggle with defendant. There is simply no substantial evidence of a taking by defendant with the intent to permanently deprive [the victim] of the property. We therefore hold that defendant\u2019s motion to dismiss the charge of robbery with the dangerous weapon should have been granted. . . . Because there was insufficient evidence to support the commission of the underlying felony, there is also insufficient evidence to support defendant\u2019s conviction of felony murder.\nId.\nApplying the reasoning in Nates to the case before us, defendant\u2019s testimony, which is entirely harmonious with the State\u2019s physical and testimonial evidence, clarifies the facts presented. Thus, the logical inference arising from the evidence is that defendant happened upon the scene of a brutal crime, that he became frightened after attempting to render assistance, that he tripped over the murder weapon in his haste to leave, and that he grabbed the weapon and ran out of the store. While the State\u2019s evidence, \u201ctaken in the strongest view adverse to defendant,... \u2018excite[s] suspicion in the just mind that he is guilty, . . . such view is far from excluding the rational conclusion that some other unknown person may be the guilty party.\u2019 \u201d State v. Lee, 294 N.C. 299, 303, 240 S.E.2d 449, 451 (1978) (quoting State v. Goodson, 107 N.C. 798, 12 S.E. 329 (1890)).\nIn sum, it is my opinion that the evidence was insufficient to establish that defendant committed the crimes against Mr. Hightower and, thus, the court should have granted his motion to dismiss. Accordingly, I vote to vacate defendant\u2019s conviction and remand this matter to the Superior Court for a new trial.", "type": "dissent", "author": "Judge Timmons-Goodson" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Anne M. Middleton, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENDALL JERMAINE BARNETT\nNo. COA99-1305\n(Filed 29 December 2000)\n1. Homicide\u2014 first-degree murder \u2014 sufficiency of evidence\nThe trial court did not err by denying a first-degree murder defendant\u2019s motions to dismiss and to set aside the verdict where defendant\u2019s statements place him at the store where the murder occurred on the morning of the murder, place defendant as having access to the victim during the moments after the victim was bludgeoned, and may be considered as tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate himself. Although defendant attacks the forensic evidence and the evidence of motive, his statements concerning his presence and the things he touched make a conclusive match on footprints or fingerprints unnecessary and the State presented evidence permitting the inference that defendant was in need of money.\n2. Criminal Law\u2014 instructions \u2014 admissions\nThere was no plain error in a felony murder prosecution where the court charged the jury on admissions. Defendant\u2019s objection at trial was that the instruction was superfluous and he thereby waived appellate assertion that the charge violated his common law and constitutional rights. His statements were in the nature of an admission because they were incriminating in light of the other evidence presented, but, assuming the instruction was improper, it cannot be said that the jury likely would have returned a different result without the instruction because the court neither defined nor intimated what defendant\u2019s admissions may have been and left to the jury\u2019s discretion the determination of which statements were admissions and the weight to be given those statements.\n3. Evidence\u2014 defendant\u2019s drug use and prior crime \u2014 admissible as to motive\nThere was no plain error in a felony murder prosecution arising from the robbery of a store where the State was allowed to cross-examine defendant about a prior forgery conviction and about his drug and alcohol use. The State exceeded the permissible scope of inquiry into defendant\u2019s prior criminal conviction under N.C.G.S. \u00a7 8C-1, Rule 609(a) by eliciting details other than the name, time, and place of the crime and the punishment, but the evidence was admissible under Rule 404(b) to explain the chain of events leading to and the motive behind the crime (support of a drug habit). The fact that the forgery occurred several years before this crime goes to the weight of the evidence rather than its admissibility.\n4. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 defendant as selfish\nThe trial court did not err by not intervening ex mero motu in a prosecutor\u2019s closing argument in a felony murder prosecution where the prosecutor argued that defendant was a selfish person who committed this crime for money to support his drug habit.\n5. Homicide\u2014 first-degree murder \u2014 short-form indictment\nThe short-form indictment used in a felony-murder prosecution complied with N.C.G.S. \u00a7 15-44 and did not violate defendant\u2019s constitutional rights.\nJudge Timmons-Goodson dissenting.\nAppeal by defendant from judgment entered 2 December 1998 by Judge Jesse B. Caldwell, III in Gaston County Superior Court. Heard in the Court of Appeals 9 October 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Anne M. Middleton, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." }, "file_name": "0378-01", "first_page_order": 408, "last_page_order": 427 }