{ "id": 4357263, "name": "STATE OF NORTH CAROLINA v. MARK BRADLEY CARVER", "name_abbreviation": "State v. Carver", "decision_date": "2012-06-05", "docket_number": "No. COA11-1382", "first_page": "120", "last_page": "132", "citations": [ { "type": "official", "cite": "221 N.C. App. 120" } ], "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": "599 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631478 ], "year": 2004, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/se2d/599/0515-01" ] }, { "cite": "639 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637636 ], "year": 2007, "pin_cites": [ { "page": "86", "parenthetical": "\"Statements by the defendant that he had never been at the crime scene are sufficient to show that a fingerprint lifted from the premises could only have been impressed at the time of the crime.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0082-01" ] }, { "cite": "644 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638420 ], "year": 2007, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0615-01" ] }, { "cite": "161 L. Ed. 2d 285", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "544 U.S. 909", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5883840, 5894978, 5878466, 5901510, 5894599, 3537800, 5880967, 5898989, 5864815, 5911695, 5900303, 5911316, 5867098, 5893946 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/544/0909-08", "/us/544/0909-01", "/us/544/0909-04", "/us/544/0909-03", "/us/544/0909-12", "/us/544/0909-06", "/us/544/0909-13", "/us/544/0909-07", "/us/544/0909-10", "/us/544/0909-11", "/us/544/0909-09", "/us/544/0909-05", "/us/544/0909-14", "/us/544/0909-02" ] }, { "cite": "358 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985799 ], "year": 2004, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0551-01" ] }, { "cite": "337 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715712, 4720431, 4715122, 4720187, 4718559 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0188-02", "/nc/315/0188-05", "/nc/315/0188-04", "/nc/315/0188-03", "/nc/315/0188-01" ] }, { "cite": "331 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526305 ], "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0543-01" ] }, { "cite": "407 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "166", "parenthetical": "noting that the defendant has the burden of providing an appellate record adequate to allow determination of the defendant's issues" } ], "opinion_index": 0 }, { "cite": "329 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555500 ], "year": 1991, "pin_cites": [ { "page": "546", "parenthetical": "noting that the defendant has the burden of providing an appellate record adequate to allow determination of the defendant's issues" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0534-01" ] }, { "cite": "139 L. Ed. 2d 653", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1057", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11590400, 11590468, 11590661, 11590182, 11590727, 11590086, 11590694, 11590763, 11590641, 11590290, 11590067, 11590580, 11590236, 11590525, 11590142 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1057-07", "/us/522/1057-08", "/us/522/1057-12", "/us/522/1057-04", "/us/522/1057-14", "/us/522/1057-02", "/us/522/1057-13", "/us/522/1057-15", "/us/522/1057-11", "/us/522/1057-06", "/us/522/1057-01", "/us/522/1057-10", "/us/522/1057-05", "/us/522/1057-09", "/us/522/1057-03" ] }, { "cite": "485 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "346 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139365 ], "year": 1997, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0221-01" ] }, { "cite": "451 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "236", "parenthetical": "explaining the holding in Hockett'" } ], "opinion_index": 0 }, { "cite": "339 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557173 ], "year": 1994, "pin_cites": [ { "page": "465", "parenthetical": "explaining the holding in Hockett'" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0456-01" ] }, { "cite": "309 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "309 N.C. 794", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761361 ], "year": 1983, "pin_cites": [ { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0794-01" ] }, { "cite": "404 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "329 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553489 ], "year": 1991, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0202-01" ] }, { "cite": "316 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683956 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0299-01" ] }, { "cite": "309 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "467" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523250 ], "year": 1983, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0234-01" ] }, { "cite": "137 L. Ed. 2d 312", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "520 U.S. 1106", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11656134, 11656039, 11656007, 11655944, 11656170, 11655978, 11655915, 11656205, 11656110, 11655993, 11656090, 11655901, 11656063 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/520/1106-11", "/us/520/1106-07", "/us/520/1106-06", "/us/520/1106-03", "/us/520/1106-12", "/us/520/1106-04", "/us/520/1106-02", "/us/520/1106-13", "/us/520/1106-10", "/us/520/1106-05", "/us/520/1106-09", "/us/520/1106-01", "/us/520/1106-08" ] }, { "cite": "475 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "216" } ], "opinion_index": 0 }, { "cite": "344 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867711 ], "year": 1996, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0242-01" ] }, { "cite": "181 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373726 ], "year": 2007, "pin_cites": [ { "page": "299", "parenthetical": "\"Statements by the defendant that he had never been at the crime scene are sufficient to show that a fingerprint lifted from the premises could only have been impressed at the time of the crime.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0295-01" ] }, { "cite": "220 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "pin_cites": [ { "page": "575" }, { "page": "574, 575" } ], "opinion_index": 0 }, { "cite": "289 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566333 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0001-01" ] }, { "cite": "250 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "209", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "pin_cites": [ { "page": "244", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "706 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "813" } ], "opinion_index": 0 }, { "cite": "183 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8204534 ], "year": 2007, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0514-01" ] }, { "cite": "483 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "434" }, { "page": "435", "parenthetical": "where defendant contends that there was insufficient evidence of his guilt, evidence showing that the fingerprint \"could only have been impressed at the time the crime was committed,\" \"standing alone, was sufficient to send [the] case to the jury\"" } ], "opinion_index": 0 }, { "cite": "345 N.C 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53881 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "716-17" }, { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0713-01" ] }, { "cite": "305 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "720" } ], "opinion_index": 1 }, { "cite": "309 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760004 ], "year": 1983, "pin_cites": [ { "page": "179" } ], "opinion_index": 1, "case_paths": [ "/nc/309/0176-01" ] }, { "cite": "156 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1967, "pin_cites": [ { "page": "682" }, { "page": "680" }, { "page": "681" }, { "page": "682" } ], "opinion_index": 1 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "year": 1967, "pin_cites": [ { "page": "383" } ], "opinion_index": 1, "case_paths": [ "/nc/271/0379-01" ] }, { "cite": "235 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "58" } ], "opinion_index": 1 }, { "cite": "293 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561507 ], "year": 1977, "pin_cites": [ { "page": "95" } ], "opinion_index": 1, "case_paths": [ "/nc/293/0091-01" ] }, { "cite": "373 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "434" } ], "opinion_index": 1 }, { "cite": "323 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561633 ], "year": 1988, "pin_cites": [ { "page": "453-54" } ], "opinion_index": 1, "case_paths": [ "/nc/323/0447-01" ] }, { "cite": "711 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2011, "pin_cites": [ { "page": "494", "parenthetical": "quotation marks and citation omitted" }, { "page": "495", "parenthetical": "citation omitted" }, { "page": "497" } ], "opinion_index": 1 }, { "cite": "515 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563969, 1564577, 1564483, 1564008, 1564296, 1564331, 1564174, 1563855, 1564503, 1564049, 1563795, 1563863, 1563768, 1564252, 1564093 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/us/515/1135-02", "/us/515/1135-14", "/us/515/1135-10", "/us/515/1135-04", "/us/515/1135-15", "/us/515/1135-07", "/us/515/1135-03", "/us/515/1135-09", "/us/515/1135-08", "/us/515/1135-01", "/us/515/1135-12", "/us/515/1135-11", "/us/515/1135-05", "/us/515/1135-06", "/us/515/1135-13" ] }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "223" } ], "opinion_index": 1 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "192" } ], "opinion_index": 1, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "citation omitted" }, { "page": "455", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 1 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" }, { "page": "379" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "309 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "468-69", "parenthetical": "where the trial court erred by denying the defendant's motion to dismiss when the State presented substantial opportunity evidence but no evidence of motive" } ], "opinion_index": 1 }, { "cite": "65 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523250 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "240-41", "parenthetical": "where the trial court erred by denying the defendant's motion to dismiss when the State presented substantial opportunity evidence but no evidence of motive" }, { "page": "239" }, { "page": "241, 309" } ], "opinion_index": 1, "case_paths": [ "/nc-app/65/0234-01" ] }, { "cite": "220 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "pin_cites": [ { "page": "575" }, { "page": "574" }, { "page": "575" } ], "opinion_index": 1 }, { "cite": "289 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566333 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "6" }, { "page": "6" } ], "opinion_index": 1, "case_paths": [ "/nc/289/0001-01" ] } ], "analysis": { "cardinality": 1109, "char_count": 31768, "ocr_confidence": 0.732, "pagerank": { "raw": 6.461525581711085e-08, "percentile": 0.3983274700571346 }, "sha256": "909b17d1a891804f8fa59bead6596a444b4d1b7c85039145101cfdc76d36b88f", "simhash": "1:a22e747fc24e9d70", "word_count": 5280 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MCGEE concurs.", "Judge HUNTER, ROBERT N., JR., dissents with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. MARK BRADLEY CARVER" ], "opinions": [ { "text": "STEPHENS, Judge.\nFollowing his indictment on one count of first-degree murder, Defendant Mark Bradley Carver pled not guilty to the charge and was tried by a jury in Gaston County Superior Court, the Honorable Timothy S. Kincaid presiding. The evidence presented by the State tended to show that the victim was found dead beside her car on the shore of the Catawba River, and that Carver and his cousin were fishing close by at the time the victim\u2019s body was discovered and near the time the victim was murdered. The victim had been strangled to death with a ribbon from a gift bag in her car, the drawstring of her sweatshirt, and a bungee cord similar to another cord in the trunk of her car. Law enforcement\u2019s investigation of the murder revealed that DNA samples taken from the victim\u2019s car matched Carver\u2019s and his cousin\u2019s DNA profiles. When Carver was confronted with this evidence, he denied, as he repeatedly had done before, ever seeing or touching the victim or her car. Further, despite his statements that he had never seen the victim, Carver told law enforcement officers that the victim was a \u201clittle thing,\u201d and he demonstrated the victim\u2019s height relative to his own.\nFollowing the presentation of evidence and after the trial court instructed the jury on the charges of first- and second-degree murder, the jury found Carver guilty of first-degree murder. The trial court sentenced Carver to life imprisonment without parole. Carver appeals.\nOn appeal, Carver first argues that the trial court erred by denying his motion to dismiss because there was insufficient evidence that Carver committed the murder. We disagree. A trial court properly denies a motion to dismiss based on an alleged absence of evidence that the defendant committed the charged offense where the court determines that there is substantial evidence \u2014 i.e., \u201crelevant evidence that a reasonable mind might accept as adequate to support a conclusion\u201d \u2014 that the defendant committed the offense charged. State v. Cross, 345 N.C 713, 716-17, 483 S.E.2d 432, 434 (1997). This Court reviews de novo a trial court\u2019s ruling on a motion to dismiss, and we view the evidence in the light most favorable to the State, giving the State every reasonable inference therefrom. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).\nIn this case, there is only circumstantial evidence to show that Carver committed the murder: at the time the victim\u2019s body was discovered, Carver was fishing at a spot a short distance from the crime scene and had been there for several hours; and Carver repeatedly denied ever touching the victim\u2019s vehicle, but DNA found on the victim\u2019s vehicle was, with an extremely high probability, matched to Carver. \u201cMost murder cases are proved through circumstantial evidence,\u201d State v. Banks, _N.C. App. _, _, 706 S.E.2d 807, 813 (2011), and where the evidence presented is circumstantial, \u201cthe question [] is whether a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances.\u201d State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (internal quotation marks omitted). Such an inference was permissible from the circumstances present in State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975), where our Supreme Court held that the existence of physical evidence establishing a defendant\u2019s presence at the crime scene, combined with the defendant\u2019s statement that he was never present at the crime scene and the absence of any evidence that defendant was ever lawfully present at the crime scene, permits the inference that the defendant committed the crime and left the physical evidence during the crime\u2019s commission. 289 N.C. at 6, 220 S.E.2d at 575. In Miller, as in this case, where the defendant\u2019s statement that he was never present at, and never touched any part of, the crime scene was shown by physical evidence \u2014 in that case, fingerprints; in this case, DNA \u2014 to be false, \u201cthe most compelling permissible inference arising from [the] defendant\u2019s falsehood\u201d is that he left the physical evidence at the crime scene in the course of committing the crime. See id. Otherwise, had his DNA been left at any other time and under lawful circumstances, \u201che would have so stated when the potentially incriminating presence of his [DNA] was brought to his attention by the [law enforcement] officers.\u201d See id.\nCarver\u2019s denial and the DNA\u2019s contradiction thereof, viewed in the light most favorable to the State, are sufficient to establish that the DNA could only have been left at the time the offense was committed. See id.; see also State v. Wade, 181 N.C. App. 295, 299, 639 S.E.2d 82, 86 (2007) (\u201cStatements by the defendant that he had never been at the crime scene are sufficient to show that a fingerprint lifted from the premises could only have been impressed at the time of the crime.\u201d). The establishment of that fact warrants denial of Carver\u2019s motion to dismiss. Cross, 345 N.C at 718, 483 S.E.2d at 435 (where defendant contends that there was insufficient evidence of his guilt, evidence showing that the fingerprint \u201ccould only have been impressed at the time the crime was committed,\u201d \u201cstanding alone, was sufficient to send [the] case to the jury\u201d). Accordingly, we conclude that the trial court did not err in denying Carver\u2019s motion to dismiss. This is so despite Carver\u2019s erroneous contention that, absent evidence of motive, the State failed to present substantial evidence that Carver murdered the victim in this case. \u201cMotive is not an element of first-degree murder, nor is its absence a defense,\u201d State v. Elliot, 344 N.C. 242, 273, 475 S.E.2d 202, 216 (1996), cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997), and while it is \u201crelevant to identify an accused as the perpetrator of the crime,\u201d State v. Bell, 65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983), aff\u2019d per curiam, 311 N.C. 299, 316 S.E.2d 72 (1984), the State presented sufficient evidence to identify Carver as the perpetrator by proving Carver\u2019s presence near the scene of the murder near the time of death in combination with his DNA-controverted statement that he never saw or touched the victim\u2019s car. Carver\u2019s argument is overruled.\nCarver next argues that the trial court erred by \u201crefusing to answer the jury\u2019s question about whether it was \u2018still to consider acting in concert.\u2019 \u201d We disagree.\nOnce the jury had begun their deliberations, they sent a written question to the trial judge, asking, \u201cAre we still to consider acting in concert?\u201d The following colloquy between the court and counsel then ensued:\nTHE COURT: .... Of course, the [c]ourt didn\u2019t instruct them on acting in concert so it would be \u2014 it would probably be appropriate to go ahead and read the instruction to them and tell them that the law that they are to consider is the law that the [c]ourt has given them without stepping into that minefield.\n[Prosecutor]: That would be acceptable to the State.\n[Defense counsel]: Yes, sir.\nThereafter, the trial court reinstructed the jury on the law that the court read to the jury in the initial instructions. In neither instance did the court charge the jury on an acting in concert theory, having earlier denied the State\u2019s request for such an instruction.\nWe first note that defense counsel neither objected when the trial court announced its decision to reinstruct the jury with the same instructions as those given before the jury began its deliberations, nor did defense counsel note an objection when given an opportunity after the court\u2019s reinstruction. As such, Carver failed to properly preserve this issue for appellate review. See State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991) (holding that where jurors requested clarification on an instruction, and the defendant\u2019s trial counsel agreed to the court\u2019s plan to reread all instructions on the elements of the offense, the defendant \u201cwill not be heard to complain on appeal\u201d that the instructions should have been otherwise); N.C. R. App. P. 10(a) (requiring a defendant to object and be heard outside the presence of the jury to properly preserve a claim of error in a jury charge).\nFurther, were this argument properly preserved, it would certainly be overruled. Carver erroneously bases his argument that the trial court\u2019s refusal to directly answer the jury\u2019s question was improper on our Supreme Court\u2019s decision in State v. Hockett, in which the trial court refused to answer the jury\u2019s questions concerning the law as instructed and the Supreme Court ordered a new trial, stating that \u201cthe trial court should have at least reviewed the elemerits of the offenses if it was not going to directly answer the [jury\u2019s] question as defense counsel had requested.\u201d 309 N.C. 794, 802, 309 S.E.2d 249, 253 (1983); see also State v. Moore, 339 N.C. 456, 465, 451 S.E.2d 232, 236 (1994) (explaining the holding in Hockett'). As the trial court here did review the elements of first- and second-degree murder in its reinstruction, the court did not run afoul of the holding in Hockett. Carver\u2019s argument is overruled.\nRelatedly, Carver argues that the trial court\u2019s decision to not instruct the jury on acting in concert, but to allow the State to present to the juiy the State\u2019s \u201ctheory of the case,\u201d which Carver contends urged the jury to convict Carver under the doctrine of acting in concert, was erroneous and compounded the alleged error from the trial court\u2019s failure to directly answer the jury\u2019s question. We are unpersuaded.\nThe doctrine of acting in concert allows a defendant to be found guilty for crimes committed by another person if that person and the defendant join in a common purpose to commit the crime. State v. Evans, 346 N.C. 221, 228, 485 S.E.2d 271, 275 (1997), cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998). Presumably, Carver\u2019s argument is based upon the contention that the State, in its closing argument, informed the jurors that they could convict Carver of murder even if they determined that Carver\u2019s cousin had committed the murder. However, because the closing arguments were not transcribed and are not before this Court on appeal, Carver has failed to satisfy his burden of presenting an adequate record to support his contention. See State v. Brogden, 329 N.C. 534, 546, 407 S.E.2d 158, 166 (1991) (noting that the defendant has the burden of providing an appellate record adequate to allow determination of the defendant\u2019s issues). As such, we cannot conclude that the alleged arguments by the State were prejudicial to Carver. State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (noting that the appellate court cannot assume or speculate that there was prejudicial error when none appears in the record), disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985). Furthermore, the trial court\u2019s instruction and reinstraction consistently and adequately conveyed to the jury that the State was required to prove that Carver killed the victim. The court instructed the jury that they could find Carver guilty of first-degree murder only if the State proved beyond a reasonable doubt: (1) \u201cthat [Carver] intentionally and with malice killed [the victim]\u201d; (2) \u201cthat [Carver\u2019s] acts were a proximate cause of [the victim\u2019s] death\u201d; (3) \u201cthat [Carver] intended to kill [the victim]\u201d; (4) \u201cthat [Carver] acted with premeditation\u201d; and (5) \u201cthat [Carver] acted with deliberation.\u201d \u201cThe law presumes that jurors follow the court\u2019s instructions.\u201d State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). While the State\u2019s \u201ctheory of the case\u201d may have been that Carver and his cousin were both involved in the murder, Carver has presented nothing to indicate that the jury ignored the court\u2019s instructions and attributed any of Carver\u2019s cousin\u2019s actions to Carver. Accordingly, we cannot conclude that the trial court\u2019s decision to not instruct the jury on acting in concert, but to allow the State to argue its theory of the case was error. Carver\u2019s argument is overruled.\nNO ERROR.\nJudge MCGEE concurs.\nJudge HUNTER, ROBERT N., JR., dissents with a separate opinion.\n. A DNA sample found on the victim\u2019s car was \u201c126 million times more likely to be observed from [] Carver[, a Caucasian,] than if it came from another unrelated individual in the North Carolina Caucasian population.\u201d\n. We note that although the physical evidence in Miller was the defendant\u2019s fingerprints and not his DNA, the logic of the rule from Miller applies equally to DNA and fingerprints, and the only potential difference in application of the rule to DNA is the strength of the conclusion as to the defendant\u2019s presence supported by the physical evidence, i.e., that fingerprint evidence may be so'accurate as to conclusively establish a defendant\u2019s presence while DNA evidence may not. See id. at 3-4, 6, 220 S.E.2d at 574, 575 (\u201cThe use of fingerprint evidence for identification purposes is so general and so accurate that in many cases it has been expressly declared that the courts will take judicial notice thereof.\u201d; \u201cDefendant\u2019s thumbprint on the lock conclusively establishes that defendant was [at the crime scene] at some unspecified time.\u201d (emphasis in original)). However, because Carver concedes in his brief that the DNA evidence established his presence at the crime scene in this case, stating that the only connection between himself and the victim was \u201chis having touched her car,\u201d we need not address the accuracy and ubiquity of DNA analysis vis-\u00e1-vis fingerprint analysis, and we find that the rule from Miller is perfectly applicable in this case.", "type": "majority", "author": "STEPHENS, Judge." }, { "text": "HUNTER, JR., Robert N., Judge,\ndissenting.\nI dissent from the majority opinion and would hold the trial court erred in denying the defendant\u2019s motion to dismiss the first degree murder charge due to a lack of substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\n\u201c \u2018Upon [the] defendant\u2019s 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 [the] defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890 (2000) (citation omitted). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78\u201479, 265 S.E.2d 164, 169 (1980) (emphasis added). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135 (1995).\nThe majority aptly notes that most murder cases are proven through circumstantial evidence. However,\n[i]f the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant\u2019s 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.\nFritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and quotation marks omitted) (second alteration in original) (first two emphases added). Moreover,\n[w]hen the evidence establishing the defendant as 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 defendant\u2019s guilt may be inferred or whether there is merely a suspicion that the defendant is the perpetrator.\nState v. Hayden, _ N.C. App. _, _, 711 S.E.2d 492, 494 (2011) (quotation marks and citation omitted) (alteration in original). However, \u201c \u2018evidence of either motive or opportunity alone is insufficient to carry a case to the jury.\u2019 \u201d Id. at_, 711 S.E.2d at 495 (citation omitted) (where the trial court erred by denying the defendant\u2019s motion to dismiss when the State presented substantial motive evidence but the only evidence of opportunity was evidence that placed the defendant near the location where the victim was found) (quoting State v. Bell, 65 N.C. App. 234, 240\u201441, 309 S.E.2d 464, 468\u201469 (1983) (where the trial court erred by denying the defendant\u2019s motion to dismiss when the State presented substantial opportunity evidence but no evidence of motive)); but c.f State v. Stone, 323 N.C. 447, 453-54, 373 S.E.2d 430, 434 (1988) (affirming the trial court\u2019s denial of the defendant\u2019s motion to dismiss because though the State presented no evidence of motive, it presented more circumstantial evidence of opportunity than was presented in Bell, including evidence that the defendant\u2019s gun was the one used to kill the victim, that the defendant\u2019s car\u2019s tire treads matched those found at the crime scene, that the defendant had ample time to commit the murder, and that the murder was committed using ammunition matching that found in the defendant\u2019s possession).\n\u201cWhen the question is whether evidence of both motive and opportunity will be sufficient to survive a motion to dismiss, the answer . . . [depends on] the strength of the evidence of motive and opportunity, as well as other available evidence, rather than an easily quantifiable \u2018bright line\u2019 test.\u201d Bell, 65 N.C. App. at 239, 309 S.E.2d at 468. Instead, \u201c[e]ach case turns on its own peculiar facts and a decision in one case is rarely controlling in another.\u201d State v. White, 293 N.C. 91, 95, 235 S.E.2d 55, 58 (1977). In the case subjudice, similar to Bell and Stone, the State presented zero evidence of motive. It is this absence of motive evidence combined with the lack of opportunity evidence that makes this case analogous to Hayden and Bell and distinguishable from Stone.\nThe evidence at trial showed the following: the defendant was fishing with his cousin at a location near the spot where the victim was found strangled to death, lying outside of her car. Police saw the defendant loading fishing equipment into his car when the victim\u2019s body was found but did not question him at that time. No evidence (such as matching tire treads or footprints as in Stone and Barnett) was presented that the defendant actually traveled the path between the two locations. The defendant later returned to the crime scene and asked police if he could retrieve fishnets he left while fishing earlier that day. He was denied access. Along with the defendant and his cousin, at least five other people were near the area where the victim was found, one of whom actually discovered her body. No DNA sample was taken from the man who discovered the victim. Only after the police canvassed surrounding areas did a detective speak to the defendant at his home and learn he was fishing near where the victim was found. After this interview, the defendant was not arrested nor was he even labeled a suspect in the murder.\nUnlike in Stone and Barnett, where the State presented evidence connecting the defendants to the murder weapons, the State here presented no evidence whatsoever connecting the defendant to any of the three ligatures used to suffocate the victim. Moreover, the coroner testifying for the State could not determine the victim\u2019s time of death, making it unreasonable for a juror to infer the victim could have died only during the time the defendant was fishing at the nearby location.\nThe majority places great emphasis on the fact that the defendant\u2019s DNA was found on the victim\u2019s vehicle. However, the majority fails to mention that this DNA was not semen, blood, or saliva DNA; it was touch DNA, which is DNA gathered from skin cells, the testing for which is relatively new and not as accurate as blood or saliva DNA testing. Moreover, it is noteworthy that the defendant\u2019s DNA (touch or otherwise) was not found anywhere else on the outside or the inside of the vehicle. The defendant\u2019s DNA also was not found anywhere on the victim nor was it found on any of the three ligatures used to suffocate the victim. His cousin\u2019s touch DNA, however, was found on the inside of the car near the passenger\u2019s seat.\nNevertheless, relying on State v. Miller, the majority concludes that the defendant\u2019s touch DNA on the victim\u2019s vehicle along with the defendant\u2019s statement to the police that he was never at the crime scene and the absence of any evidence that the defendant was lawfully present at the crime scene permits the inference that the defendant committed the crime and left his touch DNA during the crime\u2019s commission. See State v. Miller, 289 N.C. 1, 6, 220 S.E.2d 572, 575 (1975). The majority notes that our Supreme Court in Miller held that when a defendant says he was never present at the crime scene but his fingerprints are found at the scene and no evidence is presented that he was ever lawfully at the crime scene, \u201cthe most compelling permissible inference arising from [the] defendant\u2019s falsehood\u201d is that he left the fingerprints at the crime scene in the course of committing the crime. See id. Otherwise, had the fingerprints been left at another time, the defendant \u201cwould have so stated when the potentially incriminating presence of his [fingerprints] was brought to his attention by the officers.\u201d Id.\nI, however, disagree with the majority\u2019s application of Miller to the case sub judice. First, Miller requires that fingerprint evidence be \u201caccompanied by substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed\u201d before allowing the inference that the defendant must have been present during the commission of the crime. Id. at 4, 220 S.E.2d at 574. The only evidence indicating the defendant left the touch DNA on the car at the time of the murder is that he happened to be fishing near the location where the victim was found. There is no other evidence tying the defendant to the crime scene. As such, I cannot hold that substantial evidence of circumstances accompanies the defendant\u2019s touch DNA on the victim\u2019s car to indicate such DNA could only have been left at the time the murder was committed.\nMoreover, this case is distinguishable from Miller because the physical evidence found at the scene was touch DNA, not fingerprint evidence. The majority acknowledges this difference yet nevertheless equates the two types of evidence. The majority chooses not to address \u201cthe accuracy and ubiquity of DNA analysis vis-a-vis fingerprint analysis\u201d because the defendant \u201cconcedes in his brief that the DNA evidence established his presence at the crime scene in this case, stating that the only connection between himself and the victim was \u2018his having touched her car.\u2019 \u201d I, however, do not read the defendant\u2019s brief to have made such a concession. Admitting to having touched the victim\u2019s car does not admit presence at the crime scene because cars are mobile objects, often parked in public places and touched, intentionally or not, by countless people throughout a given day. As the defendant\u2019s touch DNA was matched only to the outside of the victim\u2019s vehicle and only in one place, one cannot draw a reasonable inference that the defendant must only have touched the victim\u2019s car at the crime scene and thus was involved in her murder. Such an inference \u201cis far too tenuous to be considered as substantial proof of anything.\u201d See Bell, 65 N.C. App. at 241, 309. S.E.2d at 469 (where the inference that the defendant owned the knife used to kill the victim was too tenuous to constitute substantial evidence even though a knife consistent with the one used to kill the victim was found near the defendant). In fact, the State\u2019s own touch DNA expert testified there is no way to tell when the defendant\u2019s touch DNA sample was left on the vehicle. \u201cIn order for this Court to hold that the State has presented sufficient evidence of defendant\u2019s 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.\u201d Hayden, _N.C. App. at _, 711 S.E.2d at 497.\nAs I do not equate the defendant\u2019s concession to touching the victim\u2019s car to mean he was present at the crime scene, I find it necessary to address the accuracy and ubiquity of touch DNA analysis versus fingerprint testing to determine whether the logic of Miller applies equally to touch DNA as it does to fingerprints. I would hold that it does not. The State\u2019s second expert on touch DNA testified at trial that touch DNA testing is a relatively new technique and is not as reliable as saliva and blood DNA testing. The expert also described a phenomenon known as secondary skin cell transfers, where if person A touches person B, and person B touches a pen, person A\u2019s DNA can be found on the pen. On the other hand, \u201c[t]he use of fingerprint evidence for identification purposes is so general and so accurate that in many cases it has been expressly declared that the courts will take judicial notice thereof.\u201d Miller, 289 N.C. at 6, 220 S.E.2d at 575. Moreover, while our Supreme Court in Miller references ten cases that review the sufficiency of fingerprint evidence to establish the identity of an accused before announcing the rule that the majority relies on in this case, I cannot find even one case in North Carolina that has reviewed the sufficiency of touch DNA evidence to establish the identity of an accused, much less any case in this state that even discusses the accuracy of touch DNA. With such little guidance on the accuracy of touch DNA combined with the fact that the defendant\u2019s touch DNA was found on the outside of the victim\u2019s mobile car and could have been left at any time, I cannot apply the rule in Miller here because I cannot equate fingerprint and touch DNA analysis.\nThe only remaining relevant evidence in our review of the trial court\u2019s denial of the defendant\u2019s motion to dismiss is that during questioning of the defendant (which happened consensually six times), the defendant consistently denied knowing the victim. However, when the officer interrogating him instructed him to stand and describe how tall the victim was, Defendant stood and indicated how tall she was compared to his own height. He said he did not know her but maybe saw her on television. Testimony from two officers indicates both that the case was not televised and that it was highly televised. Taken in the light most favorable to the State, I admit this raises a suspicion of the defendant\u2019s guilt; however, it does not place him at the scene nor connect him to the brutal strangulation of the victim. It is merely insufficient to surpass \u201cthe realm of suspicion and conjecture\u201d and does not constitute substantial evidence connecting the defendant to the crime. See State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967). In Cutler, the State presented that, on the day the victim was murdered, a truck similar to the defendant\u2019s was seen at the scene of the crime both before and after the body was discovered, and the truck\u2019s interior was covered in human blood. Id. at 380-81, 156 S.E.2d at 680. Also on the day of the murder, the State showed that the defendant.went to the home of a relative 500 yards from the crime scene and was described as drunk and \u201cbloody as a hog\u201d with a large gash on his head; after the murder, the defendant was found by police wearing bloody clothing and was found in possession of a knife that was covered in both human blood and a hair deemed \u201csimilar\u201d to the chest hair of the victim. Id. at 381-82, 156 S.E.2d at 681. Still, our Supreme Court reversed the trial court\u2019s denial of the defendant\u2019s motion for nonsuit for lack of substantial evidence because there was no motive for the defendant to kill the victim nor was there sufficient opportunity evidence connecting the defend ant to the crime; the evidence amounted to only a \u201cconjecture\u201d that the defendant committed the crime. Id. at 383-84, 156 S.E.2d at 682.\nHere, like in Cutler, the evidence presented 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. See also State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983) (If evidence presented is \u201csufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator,\u201d the motion to dismiss should be allowed, \u201ceven though the suspicion aroused by the evidence is strong.\u201d (internal citation omitted)). Accordingly, I cannot agree that the reasonable mind standard would allow a court to accept the above evidence as adequate to support the conclusion that the defendant committed first degree murder on a theory of premeditation and deliberation.\nI also note in this case the trial court dismissed the charge of conspiracy to commit first degree murder due to lack of substantial evidence connecting the defendant to the crime. In my opinion, that decision supports my view that there is no substantial evidence to support the defendant\u2019s commission of first degree murder alone. Therefore, I would reverse the judgment of the trial court.\n. The defendant\u2019s fingerprints were not found anywhere on the victim or her vehicle.", "type": "dissent", "author": "HUNTER, JR., Robert N., Judge," } ], "attorneys": [ "Appeal by Defendant from judgment dated 18 March 2011 by Judge Timothy S. Kincaid in Gaston County Superior Court. Heard in the Court of Appeals 24 April 2012.", "Attorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State.", "Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARK BRADLEY CARVER\nNo. COA11-1382\n(Filed 5 June 2012)\n1. Homicide \u2014 first-degree murder \u2014 sufficient evidence\u2014 defendant near crime scene \u2014 DNA matched to defendant\nThe trial court did not err in a first-degree murder case by denying defendant\u2019s motion to dismiss. There was sufficient evidence that defendant committed the murder, including that at the time the victim\u2019s body was discovered defendant was fishing at a spot a short distance from the crime scene and had been there for several hours, and that while defendant repeatedly denied ever touching the victim\u2019s vehicle, DNA found on the victim\u2019s vehicle was, with an extremely high probability, matched to defendant.\n2. Homicide \u2014 first-degree murder \u2014 jury question \u2014 acting in concert \u2014 question not answered directly \u2014 elements of first- and second-degree murder instructed upon\nThe trial court did not err in a first-degree murder case by refusing to answer the jury\u2019s question about whether it was still to consider acting in concert. Although the trial court did not answer the question directly, the trial court did review the elements of first- and second-degree murder in its reinstruction.\n3. Homicide \u2014 first-degree murder \u2014 record not sufficient\u2014 jury instruction sufficient\nThe trial court did not err in a first-degree murder case by allowing the State to urge the jury to convict defendant under the doctrine of acting in concert when the trial court did not instruct the jury on acting in concert. Defendant failed to satisfy his burden of presenting an adequate record to support his contention. Further, the trial court\u2019s instruction and reinstruction consistently and adequately conveyed to the jury that the State was required to prove that defendant killed the victim.\nAppeal by Defendant from judgment dated 18 March 2011 by Judge Timothy S. Kincaid in Gaston County Superior Court. Heard in the Court of Appeals 24 April 2012.\nAttorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State.\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for Defendant." }, "file_name": "0120-01", "first_page_order": 130, "last_page_order": 142 }