{ "id": 4033815, "name": "STATE OF NORTH CAROLINA v. KEITH DONNELL MILES", "name_abbreviation": "State v. Miles", "decision_date": "2012-08-21", "docket_number": "No. COA11-1383", "first_page": "593", "last_page": "620", "citations": [ { "type": "official", "cite": "222 N.C. App. 593" } ], "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": "635 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636798 ], "year": 2006, "pin_cites": [ { "page": "475", "parenthetical": "\"In order to preserve an argument on appeal which relates to the exclusion of evidence, . . . the defendant must make an offer of proof so that the substance and significance of the excluded evidence is in the record.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0470-01" ] }, { "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": "456 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "785" } ], 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App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168856 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0457-01" ] }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "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": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "holding that the Court of Appeals lacked the authority to overrule decisions of the Supreme Court of North Carolina and has, instead, a \"responsibility to follow those decisions, until otherwise ordered by the Supreme Court\"" } ], "opinion_index": 1 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1985, "pin_cites": [ { "parenthetical": "holding that the Court of Appeals lacked the authority to overrule decisions of the Supreme Court of North Carolina and has, instead, a \"responsibility to follow those decisions, until otherwise ordered by the Supreme Court\"" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "460 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "127" } ], "opinion_index": 1 }, { "cite": "341 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793072 ], "year": 1995, "pin_cites": [ { "page": "42" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0036-01" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "citation omitted" }, { "page": "455", "parenthetical": "citation omitted" }, { "page": "455", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" }, { "page": "379" }, { "page": "379" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "725 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2012, "pin_cites": [ { "page": "903" }, { "page": "904" }, { "page": "904-05" }, { "page": "904" } ], "opinion_index": 1 }, { "cite": "720 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "396" } ], "opinion_index": 1 }, { "cite": "719 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2011, "pin_cites": [ { "page": "107" }, { "page": "108" }, { "page": "107", "parenthetical": "where the victim's vehicle was parked at the defendant's apartment complex" } ], "opinion_index": 1 }, { "cite": "438 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "750", "parenthetical": "finding sufficient evidence to survive a motion to dismiss where the State presented eyewitness testimony that the defendant was in the area on the morning of the victim's death and where the \"defendant's brand of cigarette package\" was found at the scene" } ], "opinion_index": 1 }, { "cite": "113 N.C. App. 216", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521557 ], "year": 1994, "pin_cites": [ { "page": "223", "parenthetical": "finding sufficient evidence to survive a motion to dismiss where the State presented eyewitness testimony that the defendant was in the area on the morning of the victim's death and where the \"defendant's brand of cigarette package\" was found at the scene" } ], "opinion_index": 1, "case_paths": [ "/nc-app/113/0216-01" ] }, { "cite": "340 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 1 }, { "cite": "315 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715465 ], "year": 1994, "pin_cites": [ { "page": "613-14" } ], "opinion_index": 1, "case_paths": [ "/nc/315/0599-01" ] }, { "cite": "465 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "24" } ], "opinion_index": 1 }, { "cite": "121 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915638 ], "year": 1995, "pin_cites": [ { "page": "99" } ], "opinion_index": 1, "case_paths": [ "/nc-app/121/0090-01" ] }, { "cite": "540 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "428" } ], "opinion_index": 1 }, { "cite": "141 N.C. App. 378", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441388 ], "year": 2000, "pin_cites": [ { "page": "384" } ], "opinion_index": 1, "case_paths": [ "/nc-app/141/0378-01" ] }, { "cite": "235 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "198" }, { "page": "197-98" } ], "opinion_index": 1 }, { "cite": "292 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572704 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "719" }, { "page": "717-18" } ], "opinion_index": 1, "case_paths": [ "/nc/292/0711-01" ] }, { "cite": "240 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "451", "parenthetical": "emphasis added" }, { "page": "451" }, { "page": "451" } ], "opinion_index": 1 }, { "cite": "294 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572673 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "303" }, { "page": "303" }, { "page": "302" } ], "opinion_index": 1, "case_paths": [ "/nc/294/0299-01" ] }, { "cite": "316 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "73" } ], "opinion_index": 1 }, { "cite": "311 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683956 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/311/0299-01" ] }, { "cite": "309 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "467" }, { "page": "468" }, { "page": "467" } ], "opinion_index": 1 }, { "cite": "65 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523250 ], "year": 1983, "pin_cites": [ { "page": "238-39" } ], "opinion_index": 1, "case_paths": [ "/nc-app/65/0234-01" ] }, { "cite": "373 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "433" }, { "page": "434", "parenthetical": "finding sufficient evidence of opportunity where the defendant \"had access to a weapon and bullets which could have caused the death of the victim, had the time and opportunity to commit the murder, and drove a car which could have made the tire tracks found at the dump site.\"" } ], "opinion_index": 1 }, { "cite": "323 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561633 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "452" }, { "page": "452-53" } ], "opinion_index": 1, "case_paths": [ "/nc/323/0447-01" ] }, { "cite": "679 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "871" } ], "opinion_index": 1 }, { "cite": "198 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168856 ], "year": 2009, "pin_cites": [ { "page": "467" } ], "opinion_index": 1, "case_paths": [ "/nc-app/198/0457-01" ] } ], "analysis": { "cardinality": 1972, "char_count": 67353, "ocr_confidence": 0.74, "pagerank": { "raw": 6.618224338405441e-08, "percentile": 0.4040980767604598 }, "sha256": "9b0f1a1d28f1d3a8d503dd3d8283c771b6b626de0015f1e3980cf48c1b32c694", "simhash": "1:73aed023707f8c52", "word_count": 11092 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STROUD concurs.", "Judge CALABRIA dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. KEITH DONNELL MILES" ], "opinions": [ { "text": "McCullough, Judge.\nOn 16 March 2011, Keith Donnell Miles (\u201cdefendant\u201d), was convicted of the first-degree murder of Jonathan Wayne Whitmore (\u201cvictim\u201d) by a Wilkes County jury. The trial court sentenced defendant to life imprisonment without parole. Defendant now appeals. After a complete and careful review of the record, we find the trial court committed no error.\nI. Facts and Procedural Background\nOn 14 September 2009, a Wilkes County grand jury returned an indictment charging defendant with the first-degree murder of the victim. This matter came to trial before a jury at the 7 March 2011 Special Session of the Superior Court for Wilkes County.\nThe relevant evidence produced at trial tended to show the following: The victim owned a business, Foothills Environmental (\u201cFoothills\u201d), which performed demolition and asbestos abatement. Around July 2007, Foothills hired defendant as its subcontractor to perform demolition work on a number of projects for North Carolina Central University (\u201cNCCU\u201d). At the time of the murder, Foothills had not yet completed the necessary paperwork for OSHA and NCCU had not yet remitted payment to Foothills for the work performed. As a result, the victim owed defendant approximately $41,000.00\u2014 $42,000.00 for his subcontracting work on these projects.\nDefendant began contacting NCCU representatives demanding his payment around September October 2007. In summer 2007, defendant began calling the victim\u2019s cellular and home phones demanding payment. Defendant visited the victim\u2019s home in late September 2007 and, two weeks before the victim\u2019s murder, a neighbor witnessed defendant again visit the victim. Between 20 September 2007 and 18 October 2007, defendant called the victim\u2019s home or cellular phone numbers at least 94 separate times, including 7 separate times on 16 October 2007, 11 separate times on 17 October 2007, and 7 separate times on 18 October 2007. After 18 October 2007, defendant never again contacted the victim or either of the NCCU agents demanding payment.\nOn 18 October 2007, the evening of the murder, the victim returned home from a job in Greensboro around 6:30 p.m. and picked up his daughters for dinner. Ms. Whitmore was not expecting her husband that night, but greeted her family at the door around 7:30 p.m. and retired to the living room with her daughters. The victim went outside and told his family that he would \u201cbe right back.\u201d The victim had his work gear with him at his truck.\nAt some time after 7:30 p.m., Ms. Whitmore and her daughters heard a load \u201croaring sound\u201d outside the window, which they described as a \u201croaring\u201d of an engine. One of the victim\u2019s daughters looked out the window and witnessed \u201cwhat looked like a big tour bus\u201d with orange lights at the top and the bottom. She also described the vehicle as big and box-like, similar to a bus, U-Haul, or R.V. Defendant\u2019s wife owned an R.V. matching this description with similar amber lights, which defendant later sold in December 2007. When the R.V. was recovered in Georgia two years later, a section of carpet had been removed and replaced, a bleach stain was found near the driver\u2019s side couch, and a bloodstain not matching the victim\u2019s DNA was found.\nAfter the vehicle drove by, Ms. Whitmore and her daughters noticed that the victim was not home. Ms. Whitmore noticed that the door was unlocked, the victim\u2019s work vehicle was still outside, and the victim\u2019s keys were on the picnic table outside. Around 8:00 p.m., Ms. Whitmore and her daughters began calling the victim, the victim\u2019s son, and family friends inquiring as to the victim\u2019s whereabouts. Ms. Whitmore also called defendant and left him voicemails. Defendant\u2019s cellular records indicated that he did not pick up Ms. Whitmore\u2019s calls, but listened to her voicemails almost immediately after she recorded them. While on the phone with her sister around 4:30 a.m., Ms. Whitmore received a call from defendant\u2019s number and an unidentified voice asked why she had been calling. Ms. Whitmore pleaded for defendant to return her husband, but the voice stated that defendant had been in the hospital all night.\nThe victim\u2019s neighbor, Dorothy Adams, discovered the body the morning of 19 October 2007, at approximately 7:15 a.m. The body was discovered approximately 100 feet from the rear of the Whitmores\u2019 home and 77 feet from the nearest light pole, positioned down a slope from the roadside and in an area of low shrubs near a dogwood tree. Mrs. Adams slept outside in her gazebo, about 150 feet away from where the body was found, from 10:00 p.m. to 4:00 a.m. and had not heard any loud or unusual sounds during that time.\nThe autopsy showed that the victim died of a single gunshot wound to the back of his head. The wound was located towards the middle of the victim\u2019s skull. Gunshot residue analysis revealed that the gun was not pressed against the victim\u2019s head, but was no more than one inch from it. The bullet that killed the victim could have been from a 9 millimeter, 10 millimeter, .38 millimeter, or possibly a .40 millimeter firearm, but not a .22 millimeter, .32 millimeter, or a .45 millimeter gun. The victim also had a scrape on his face and on the back of his right arm and a blood alcohol content of .11.\nAt trial, the medical examiner who performed the autopsy testified that based on the varying development of rigor mortis in each individual, the victim\u2019s actual time of death was difficult to pinpoint. A local medical examiner who filled out a written request for autopsy form but who did not perform the autopsy or testify at trial recorded the estimated time of death as somewhere between 8:00 p.m. and 9:00 p.m. The police discovered a .40 caliber shell casing at the scene. Detectives later searched the victim\u2019s truck and defendant\u2019s vehicles, but found no physical evidence connected to the crime. Police did not search the Whitmore home.\nDetectives interviewed defendant on 19 October 2007, at approximately 3:00 p.m. and discovered that defendant had admitted himself to Duke Hospital at 4:26 a.m. on 19 October and again about ten hours later. Defendant first told detectives that he had worked in Raleigh until about 5:00 p.m. the day before, but later changed his statement and said that he was in Rocky Mount all evening and did not return home to Durham until 8:00 p.m. On the morning of the murder, defendant left the following voicemail on the victim\u2019s machine:\nJonathan, Jonathan this is Keith. I have been calling you. You know I have been calling. Now, I am going to get me a lawyer, but it ain\u2019t going to be to collect my money. And you will see me. You need to call me. You done pissed me the f-k off. And g-d--nit, you need to f- \u2014 g call me. Now, I am going to tell you, I don\u2019t give a f-k about living. If you want to [live], you need to g-d-n pay me my m \u2014 f-\u2014g money. And this is Keith m \u2014 f-\u2014g Miles. And I swear to God, when I see you, you\u2019re going to know it. I mean that s-t. M \u2014 f-\u2014r, you\u2019d better call me. Do you hear me? You know, you had better check the g-d-n message. Ain\u2019t a d-n thing you can do in this world to stop me from getting a hold of you. I done told you this s-t, and I tried to g \u2014 d-n keep my patience with you but you want to play with me. M \u2014 f\u2014r, they going to pay you, you going to pay me. I don\u2019t give a f-k. You\u2019re going to pay me.\nOn the afternoon of the murder at 3:23 p.m., defendant called Ms. Whitmore looking for the victim, and told her \u201cthat when [the victim] doesn\u2019t communicate we are going to have problems,\u201d that defendant needed \u201cto come up there\u201d to \u201cstraighten this mess out,\u201d that defendant was owed $42,000.00, and again that defendant was going to \u201ccome up there and get [the victim].\u201d\nAt trial, the State called an FBI Special Agent who testified as to defendant\u2019s whereabouts on 18 October 2007, which were pinpointed by over 100 cellular phone calls. Defendant consistently utilized cellular phone towers in the Raleigh-Durham area in the morning and early afternoon, towers in the Durham area in the late afternoon, and between 4:00 p.m. and 7:00 p.m., towers indicating a progression westbound. Beginning at 7:23 p.m., defendant utilized one of the three cellular towers in the Wilkesboro area, thus placing him in the vicinity of the victim\u2019s home and scene of the murder. Defendant made a four-second call to the victim\u2019s work phone at 7:23 p.m. through a Wilkesboro tower. Following that call was a 12-minute gap. Beginning again at 7:35 p.m. and through 7:46 p.m. defendant made a series of calls to his wife, family members, and a friend, first utilizing towers in the Wilkesboro area, then towers indicating a progression east. Beginning at 7:46 p.m. and through 7:55 p.m., defendant used towers crossing the Wilkes County line. Defendant made 22 subsequent calls from 8:00 p.m. to 11:00 p.m. which indicated defendant was progressing eastward through Winston-Salem, Greensboro, and finally to Durham.\nThe State presented the testimony of Alfreddie Roberson, a friend of defendant\u2019s since 2000. In 2009, Roberson entered into a plea agreement with federal prosecutors to provide truthful information regarding this case in return for immunity and a sentence reduction. Roberson testified he knew that the victim owed defendant and that defendant had called and visited the victim. Additionally, Roberson testified defendant explicitly stated he was going to drive to the victim\u2019s house in his R.V. and kill the victim if he did not receive his money. Roberson stated that defendant kept a handgun, the size of a 9 millimeter or a .45 caliber, in the door of his truck. The State offered additional evidence corroborating Roberson\u2019s testimony.\nAt the close of the State\u2019s evidence, defendant moved to dismiss the case for insufficient evidence. Defendant renewed his motion at the close of all the evidence. The trial court instructed the jury on only first-degree murder, and on 16 March 2011, the jury returned a unanimous guilty verdict. Thereafter, defendant moved for a dismissal notwithstanding the verdict and gave oral notice of appeal. As required by statute, defendant was sentenced to life imprisonment without the possibility of parole. On 16 March 2011, defendant filed written notice of appeal pursuant to our Rules of Appellate Procedure. After a complete and careful review of the record, the transcript, and the arguments presented by the parties, we find the trial court committed no error.\nII. Analysis\nA. Substantial Evidence of Defendant as the Murderer\nDefendant first contends that the trial court erred in denying his motion to dismiss for insufficiency of the evidence. Specifically, defendant argues the State failed to present sufficient evidence from which the jury could conclude that defendant was the perpetrator of the offense. Additionally, defendant contends the State presented insufficient evidence of his motive, opportunity, and means to commit the murder. We disagree.\nThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo and views the evidence in the light most favorable to the State, giving the State every reasonable inference therefrom, and resolving any contradictions or discrepancies in the State\u2019s favor. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007); State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). When reviewing a defendant\u2019s motion to dismiss, this Court determines only whether there is substantial evidence of (1) each essential element of the offense charged and of (2) the defendant\u2019s identity as the perpetrator of the offense. See State v. Lowry, 198 N.C. App. 457, 465, 679 S.E.2d 865, 870 (2009). Whether the evidence presented at trial is substantial evidence is a question of law for the court. See State v. Earnhardt, 307 N.C. 62, 65 66, 296 S.E.2d 649, 651 (1982). \u201cSubstantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.\u201d State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002); see State v. Smith, 300 N.C. 71, 78 79, 265 S.E.2d 164, 169 (1980). Substantial evidence simply means that \u201cthe evidence must be existing and real, not just seemingly or imaginary.\u201d State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).\nWhether the evidence presented is direct or circumstantial, the test for sufficiency of the evidence is the same. See State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). \u201cCircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.\u201d State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). Then, it is for the jury to resolve any contradictions or discrepancies in the evidence and \u201cdecide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.\u201d State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994) (internal quotation marks and citation omitted).\nWhere, as here, defendant does not dispute that the victim died by virtue of a criminal act, asserting only that the evidence presented was insufficient to support a reasonable finding that defendant was the perpetrator of the offense, we review the evidence for \u201cproof of motive, opportunity, capability and identity, all of which are merely different ways to show that a particular person committed a particular crime.\u201d State v. Bell, 65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983), aff'd, 311 N.C. 299, 316 S.E.2d 72 (1984). Where the evidence raises only a suspicion or conjecture as to the defendant\u2019s identification as the perpetrator, no matter how strong, the motion to dismiss should be allowed. State v. Hayden,_N.C. App._,_,, 711 S.E.2d 492, 494, disc. review denied, 365 N.C. 349, 717 S.E.2d 737 (2011). \u201c[E]vidence of either motive or opportunity alone is insufficient to carry a case to the jury.\u201d Bell, 65 N.C. App. at 238 39, 309 S.E.2d at 467. However, this Court must assess the quality and strength of the evidence as a whole. See id. Whether the State has presented sufficient evidence to identify defendant as the perpetrator of the offense is not subject to \u201can easily quantifiable \u2018bright line\u2019 test.\u201d See id. at 239, 309 S.E.2d at 468.\nIn the instant case, the only evidence adduced at trial tending to show defendant murdered the victim was circumstantial. Nevertheless, under the standards set out above, we hold the State produced substantial evidence from which the jury could conclude that defendant was the perpetrator of the offense and that defendant possessed the motive, means, and opportunity to murder the victim. The victim owed defendant approximately $41,000.00 \u2014 $42,000.00 for a subcontracting job performed several months before the murder. Defendant persistently contacted the victim over the summer demanding his money and between 20 September 2007 through 18 October 2007, defendant called the victim at least 94 separate times. Additionally, Alfreddie Roberson testified that defendant, defendant\u2019s business, and defendant\u2019s family were experiencing financial troubles due to the stagnant nature of the current economy. Thus, a rational juror could reasonably conclude that defendant\u2019s strong financial interest in receiving payment from the victim constituted a financial motive.\nFurther, on the morning of the murder, defendant left the victim an angry voicemail stating that he would be retaining a lawyer, but not for the purposes of collecting his money, and threatening that the defendant would ultimately get \u201ca hold of\u2019 the victim. A rational juror could reasonably infer that defendant was intentionally threatening the victim\u2019s life. Similarly, Roberson stated that on the morning of the murder, defendant confided that if he did not obtain his money soon, he would kill the victim. Roberson testified that later that same day, defendant told him that he was going to Wilkesboro to either collect his money from the victim or kill the victim. Roberson also testified that he had previously seen defendant with a handgun, the size of a 9 millimeter or .45 caliber firearm, which defendant stowed in the door of his truck. Roberson\u2019s testimony constituted positive evidence of defendant\u2019s motive and intention to murder the victim, but also established a question of fact as to whether defendant possessed a firearm equivalent to the .40 caliber murder weapon, which would establish the means by which defendant perpetrated the crime.\nLastly, the State presented the testimony of the victim\u2019s wife and the victim\u2019s neighbor who witnessed defendant visit the victim\u2019s house on two separate occasions, in September 2007 and two weeks before the murder. The victim\u2019s wife and daughter also observed a vehicle similar to an R.V. owned by defendant\u2019s wife in front of their home, an observation which was corroborated by cellular phone records. Notably, defendant\u2019s phone records showed that between the times of 7:23 p.m. and 7:46 p.m. defendant utilized one of three cell phone towers in Wilkesboro, thereby pinpointing his location to Wilkesboro, in the vicinity of the victim\u2019s home and site of the crime. Taking the State\u2019s evidence as a whole and resolving all contradictions in favor of the State, a reasonable juror could conclude that defendant was in the vicinity of the victim\u2019s home and the scene of the crime at the time of death, thereby establishing defendant\u2019s opportunity to commit the murder. Additionally, when first interviewed by the police defendant denied being in Wilkesboro.\nDefendant cites a number of cases to support his contention. Defendant first argues that State v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978), and State v. Furr, 292 N.C. 711, 235 S.E.2d 193 (1977) are instructive. In Lee, the victim was discovered in a wooded area a few miles from the defendant\u2019s home with two small bullet holes in the left side of her neck. See Lee, 294 N.C. at 300, 240 S.E.2d at 449. The evidence tended to show that the defendant was seen on numerous occasions in possession of a .25 caliber pistol that was never linked to the crime; shots were heard in the vicinity of the scene of the crime; and defendant told a witness he was planning on killing the victim. See id. at 301 02, 240 S.E.2d at 450. Our Supreme Court determined that, although the State\u2019s evidence tended to show defendant\u2019s malice and motive to commit the murder, and created a \u201cstrong suspicion\u201d of defendant\u2019s guilt because the State could not conclusively place the defendant at the murder scene, the evidence was not substantial to the point of excluding the \u201crational conclusion that some other unknown person may be the guilty party.\u201d Id. at 303, 240 S.E.2d at 451 (internal quotation marks and citation omitted).\nIn Furr, the State presented ample evidence that the defendant harbored ill will towards his wife, the victim, and that the defendant actively sought his wife\u2019s death. Furr, 292 N.C. at 718 19, 235 S.E.2d at 198. One witness testified that he may have seen the defendant with the victim on the day of the murder, but little further evidence established the events that transpired on that day. See id. at 717, 235 S.E.2d at 197. Several guns were found in the defendant\u2019s and victim\u2019s homes, but none were linked to the murder. See id. No physical evidence was presented. See id. Our Supreme Court held the State proved the defendant\u2019s motive to murder his wife, but failed to prove opportunity or the remaining elements that would positively identify him as the perpetrator. See id. at 717, 235 S.E.2d at 198. Instead, the Court resolved the case based on the law of principals and accessories to first-degree murder. See id. at 719, 235 S.E.2d at 198.\nBoth Lee and Furr are easily distinguishable from the present case. In Lee, the Court could not hold \u201cthat the State failed to offer substantial evidence that\u201d the defendant was the murderer where no evidence placed him at the scene of the crime. See Lee, 294 N.C. at 303, 240 S.E.2d at 451. As we concluded above, in the present case, the State presented substantial evidence of defendant\u2019s motive and his exact whereabouts around the time of the murder. In Furr, the Court decided the defendant\u2019s guilt by an entirely different body of law. See Furr, 292 N.C. at 719, 235 S.E.2d at 198. Further, in State v. Lowry, 198 N.C. App. 457, 679 S.E.2d 865 (2009), this Court recently reviewed both Lee and Furr and recounted that in both cases, the State produced evidence of motive, but not opportunity. See id. at 467, 679 S.E.2d at 872. Thus, defendant\u2019s attempts to analogize this case to Lee and Furr in order to overturn his conviction fall short.\nDefendant next contends that State v. Hayden,_N.C. App. _, 711 S.E.2d 492 (2011), is indistinguishable. In Hayden, the victim was discovered lying beside his still-running vehicle on the side of the road in a wooded area. The victim died from a gunshot wound to the head, but the handgun found on the front seat of his car was not the murder weapon. See id. at_, 711 S.E.2d at 493. The defendant had a history of threatening the victim, which indicated the defendant\u2019s ill will towards the victim and his intention and motivation to murder. See id. at_, 711 S.E.2d at 494 95. The Court held that while the defendant\u2019s history of threats or physical abuse constituted evidence of motive, by not conclusively placing the defendant at the scene of the crime at the time of the murder, the State failed to propound substantial evidence of the defendant\u2019s means or opportunity to commit the crime. See id. at_, 711 S.E.2d at 496 97.\nHayden is distinguishable from this case. Here, defendant was placed in the immediate vicinity of the scene of the crime by real-time cellular phone tracking. Additionally, the victim\u2019s family testified to observing a vehicle in their neighborhood shortly after the time of the victim\u2019s disappearance, and within the time range the defendant was placed in Wilkesboro, similar to defendant\u2019s wife\u2019s R.V. Therefore, defendant\u2019s attempts to analogize this case to Hayden are unsuccessful.\nDefendant broadly contends that should this Court hold the trial court committed no error, we would run afoul of the general rule espoused in State v. Powell, State v. Bell, and State v. Lee, that where evidence merely arouses a suspicion or conjecture of defendant\u2019s guilt, another party may reasonably be identified as the murderer and thus defendant\u2019s motion to dismiss must be granted. See Lee, 294 N.C. at 303, 240 S.E.2d at 451. However, as to his remaining arguments, defendant himself freely engages in speculation. Defendant argues that, because the State failed to establish a connection between defendant and the murder weapon, failed to present DNA evidence or other physical evidence, such as blood in defendant\u2019s R.V., failed to explain the victim\u2019s elevated blood alcohol content, and failed to show that defendant possessed any of the victim\u2019s property or had any of the victim\u2019s blood on his person, the record lacks substantial evidence identifying defendant as the perpetrator of the crime. Defendant contends that because solely circumstantial evidence links him to the crime, circumstances may exist that exonerate defendant.\nThe case law clearly shows that no singular combination of evidence, nor any finite, quantifiable amount of evidence constitutes substantial evidence. See Bell, 65 N.C. App. at 239, 309 S.E.2d at 468. Once the court has determined that the evidence of motive and opportunity as a whole surmounts the initial benchmark of sufficiency, the task of assessing the value and weight of that evidence is for the jury. Factually, this Court does not interpret a lack of certain types of evidence as somehow negating defendant\u2019s guilt.\nFinally, defendant strains to convince this Court that State v. Pastuer, 205 N.C. App. 566, 697 S.E.2d 381 (2010), aff\u2019d by an equally divided court, 365 N.C. 287, 715 S.E.2d 850 (2011), is instructive. Because we distinguish Pastuer, we need not address the issue of Pastuer's lack of precedential value. In Pastuer, defendant\u2019s wife\u2019s body was discovered wrapped in a blue tarp in the trunk of her car approximately 100 yards from a highway. See Pastuer, 205 N.C. App. at 268, 697 S.E.2d at 383. At trial, the State presented abundant evidence tending to show defendant\u2019s history of hostility towards his estranged wife sufficient to prove motive. See id. at 572, 697 S.E.2d at 385 86. However, the State introduced little physical evidence linking the defendant to the crime scene and little circumstantial evidence as to the defendant\u2019s whereabouts around the time of the victim\u2019s disappearance and death. See id. Contrasted to the instant case, defendant\u2019s whereabouts at the time of the murder were proved by positive evidence of his cellular phone records and were confirmed by eyewitness testimony. Thus, Pastuer is inapposite.\nWhile the State persuasively argues that this case is similar to State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), aff\u2019d, 354 N.C. 350, 554 S.E.2d 644 (2001); State v. Bostic, 121 N.C. App. 90, 465 S.E.2d 20 (1995); State v. Ledford, 315 N.C. 599, 340 S.E.2d 309; State v. Parker, 113 N.C. App. 216, 438 S.E.2d 745 (1994); State v. Patel,_ N.C. App._, 719 S.E.2d 101 (2011), disc. review denied,_N.C. _, 720 S.E.2d 395 (2012), as well as State v. Stone, 323 N.C. 447, 373 S.E.2d 430 (1988), ultimately, we find State v. Carver,_N.C. App. _, 725 S.E.2d 902 (2012), controlling. In Carver, defendant and his cousin were fishing at a spot a short distance from the crime scene around the time of the murder. See Carver,_. N.C. App. at_, 725 S.E.2d at 904. The defendant denied his presence at the scene, but his alibi was refuted by positive DNA analysis linking him to the victim\u2019s vehicle. See id. This Court held the trial court committed no error in denying defendant\u2019s motion to dismiss and that, while the State failed to show the defendant\u2019s motive to murder the victim, defendant\u2019s presence near the scene of the crime during the time in which the murder was committed, as well as the positive evidence linking him to the scene of the crime, taken in the light most favorable to the State was sufficient to establish his identity as the murderer. See id.\nIn the instant case, as in Carver, defendant\u2019s false alibi was contradicted by positive evidence placing him in the vicinity of the murder around the victim\u2019s time of death. See id. As we found above, defendant\u2019s cellular phone records and the testimony of the victim\u2019s family that they observed what appeared to be an R.V. similar to defendant\u2019s wife\u2019s, taken in the light most favorable to the State, constitute substantial opportunity evidence placing defendant near the scene of the crime around the time of the victim\u2019s murder. Therefore, we hold defendant\u2019s arguments are without merit and the trial court committed no error in denying defendant\u2019s motion to dismiss.\nB. Excluded Evidence of Alternate Perpetrators\nWe initially note that, although in his brief defendant mentions the argument that the \u201cLeach brothers,\u201d referring to two of the victim\u2019s acquaintances, could have been the perpetrators of the crime, the State filed a motion in limine on this matter, which the court took under advisement and did not definitively rule on during trial. Defendant did not pursue this issue, never again raised this issue, nor did he at the time of the trial court\u2019s initial ruling make any offer of proof or explication of evidence that would support the conjecture offered in his brief. Therefore, we hold defendant abandoned this issue for appellate review. See State v. Ryals, 179 N.C. App. 733, 740 41, 635 S.E.2d 470, 475 (2006) (\u201cIn order to preserve an argument on appeal which relates to the exclusion of evidence, . . . the defendant must make an offer of proof so that the substance and significance of the excluded evidence is in the record.\u201d) (internal quotation marks and citation omitted).\nNext, we address the preliminary issue of whether defendant properly preserved his constitutional claims for appellate review. Defendant claims the trial court erred by excluding evidence that Rachael Whitmore, the victim\u2019s wife, possessed the motive and opportunity to murder her husband, thereby casting a reasonable doubt on the guilt of defendant. Defendant claims the ruling violated his constitutional rights to present a defense, to confront and examine witnesses called against him, and to offer for the jury evidence tending to support his version of the facts.\nPrior to trial, the State filed a motion in limine that effectively prohibited defendant from questioning Ms. Whitmore on her husband\u2019s alleged extramarital affair and from presenting an argument and eliciting testimony from Ms. Whitmore that would imply her guilt and cast doubt on the guilt of defendant. The trial court took the motion under advisement awaiting Ms. Whitmore\u2019s voir dire and further proffer from defendant. After a complete interview with Ms. Whitmore, defendant proffered the evidence that Ms. Whitmore may have murdered her husband based on anger for her husband\u2019s infidelity, jealousy of his mistress(es), and the financial motive of receiving the benefits of his life insurance policy. Thereafter, the trial court made a definitive ruling granting the State\u2019s motion. Defendant did not raise his constitutional objections at that point, nor did he object to the alleged constitutional violations at any time during the remainder of the trial.\nAfter a careful review of the record and the applicable case law, we hold defendant has failed to preserve his constitutional claim for appellate review. Further, in his brief, defendant did not \u201cspecifically and distinctly\u201d allege plain error nor did he request plain error review in accordance with the case law and our Rules of Appellate Procedure. N.C. R. App. P. 10(a)(4). See State v. Lawrence,_N.C. __,_, 723 S.E.2d 326, 334 (2012) (holding that \u201cthe plain error standard of review applies on appeal to unpreserved instructional or evidentiary error,\u201d but may be applied where there is danger of prejudice amounting to a \u201cmiscarriage of justice\u201d and \u201c \u2018cautiously and only in the exceptional case\u2019 \u201d ) (citation omitted); see also State v. Towe,_N.C._,_,_S.E.2d_, __(No. 121PA11, 14 June 2012 at 10 11). We fail to see the possibility of prejudice amounting to a miscarriage of justice and decline to review defendant\u2019s constitutional claims.\nThe standards for the admissibility of evidence are governed by the evidentiary rules of relevance, not the strictures of the Constitution. Defendant\u2019s theory of the case is that the trial court erred in excluding evidence to be adduced at trial from Ms. Whitmore that was relevant under Rule 401 of the North Carolina Rules of Evidence. Defendant claims the excluded evidence passes the test of Rule 401 in that it has the tendency to make the existence of a fact that is of consequence to the determination of the action \u2014 whether defendant was the perpetrator of the offense \u2014 less probable than it would be without the evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2011). Defendant argues the evidence implicating Ms. Whitmore and exonerating himself is relevant beyond the point of mere speculation and conjecture.\nDefendant proffered an argument on this issue at the time the trial court took the motion in limine under advisement and again at the time the trial court made its definitive ruling. Despite defendant\u2019s failure to enunciate the proper standard of review governing evidentiary errors, we exercise our power under Rule 2 of our Appellate Rules of Procedure and review the trial court\u2019s exclusion of alternate perpetrator evidence under our state evidence code for prejudicial error.\nWhen the trial court excludes evidence based on its relevancy, a defendant is entitled to a new trial only where the erroneous exclusion was prejudicial. See State v. Wilkerson, 363 N.C. 382, 415, 683 S.E.2d 174, 194 (2009), cert. denied,_U.S._, 176 L. Ed. 2d 734 (2010). A defendant is prejudiced by the trial court\u2019s evidentiary error where there is a \u201creasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a) (2011). Defendant bears the burden of showing prejudice. See Wilkerson, 363 N.C. at 415, 683 S.E.2d at 194. Here, defendant has not shown a reasonable possibility the jury would have reached a different result had further evidence implicating Ms. Whitmore been admitted.\nEvidence casting doubt on the guilt of the accused and insinuating the guilt of another must be relevant in order to be considered by the jury. See State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 280 (1987). Because the relevancy standard in criminal cases is \u201crelatively lax,\u201d \u201c[a]ny evidence calculated to throw light upon the crime charged should be admitted by the trial court.\u201d State v. McElrath, 322 N.C. 1, 13, 366 S.E.2d 442, 449 (1988) (internal quotation marks and citation omitted). However, the general rule remains that the trial court has great discretion on the admission of evidence. State v. Lassiter, 160 N.C. App. 443, 450, 586 S.E.2d 488, 494 (2003). \u201cEvidence that another committed the crime for which the defendant is charged generally is relevant and admissible as long as it does more than create an inference or conjecture in this regard.\u201d Cotton, 318 N.C. at 667, 351 S.E.2d at 279. Rather, it \u201cmust point directly to the guilt of the other party.\u201d Id. The evidence must simultaneously implicate another and exculpate the defendant. See State v. Floyd, 143 N.C. App. 128, 132, 545 S.E.2d 238, 241 (2001).\nDefendant cites numerous cases supporting his contention, which we now distinguish in turn. In State v. Israel, 353 N.C. 211, 539 S.E.2d 633 (2000), the defendant proffered evidence that a specific person had both the opportunity to kill the victim \u2014 the third party was identified on video surveillance entering and exiting the victim\u2019s apartment \u2014 and the motive to murder the victim. See id. The Court held that not only was the evidence of defendant\u2019s guilt \u201cequivocal,\u201d but that because of the substantial evidence incriminating the third party, there was a reasonable possibility that had the jury considered the alternate perpetrator evidence, a different result would have been reached. See id. In both Cotton and State v. Sneed, 327 N.C. 266, 393 S.E.2d 531 (1990), the exclusion of conflicting eyewitness testimony exonerating the defendants was deemed prejudicial error. See Cotton, 318 N.C. at 667, 351 S.E.2d at 280; Sneed, 327 N.C. at 268, 274, 393 S.E.2d at 532 33, 535. In McElrath, a murder case based solely on circumstantial evidence, the trial court excluded a map that arguably indicated an alternate murder plan inconsistent with the murder plan the defendant could have been involved in. See McElrath, 322 N.C. at 12 14, 366 S.E.2d at 448 49. A jury could have concluded from viewing the alternate plan that a different group of assailants had the motive and opportunity to commit the murder. See id.\nWe believe the facts of the instant case are distinguishable from this line of cases. Unlike in Israel, Cotton, and Sneed, where alternate perpetrators were positively identified and both direct and circumstantial evidence demonstrated the third parties\u2019 opportunity and means to murder, this defendant proffers merely conjecture as to Ms. Whitmore\u2019s possible actions \u2014 she need only step outside her home to murder her husband \u2014 whereas the State contradicts these speculations with the explicit testimony of Ms. Whitmore\u2019s daughters that they had been with their mother all night. Further, the State notes that no direct, physical evidence indicates Ms. Whitmore\u2019s guilt.\nDefendant claims the jury could infer that Ms. Whitmore possessed the motive to murder her husband from the following facts: knowledge of her husband\u2019s infidelity or infidelities, their pending divorce, and the promise of a $75,000.00 life insurance policy payout. Defendant claims the jury could infer that Ms. Whitmore possessed the opportunity and means to murder her husband from the following facts: Ms. Whitmore need only step outside to accomplish the task, the family did not hear a gunshot, the local medical examiner\u2019s estimated time of death did not coincide with the passing of the R.V. and the victim\u2019s blood alcohol content, and no physical or DNA evidence linked Ms. Whitmore to any murder weapon. Defendant argues this evidence casts doubt on his guilt by offering only negative evidence and conjecture, whereas the State refutes this claim with positive and uncontradicted evidence exculpating Ms. Whitmore. Moreover, in simply enumerating possible factual scenarios in his briefs, defendant has not met his burden of showing a reasonable possibility that a different result would have been reached had the purported inculpatory evidence been admitted. Accordingly we hold defendant\u2019s argument has no merit and the trial court committed no error in disallowing further evidence or argument implicating Ms. Whitmore in the murder of her husband.\nC. Lesser Included Offense of Second-Degree Murder\nDefendant argues the trial court erred by not instructing the jury on the lesser included offense of second-degree murder. Defendant contends that the State failed to present substantial evidence from which a juror could conclude that after premeditation and deliberation defendant formed the specific intent to murder the victim. Defendant specifically argues that, because the victim had an elevated blood alcohol reading and a wound on his face, the evidence tended to show that a fight occurred immediately before the murder. We disagree and hold the trial court committed no error in refusing defendant\u2019s request for a charge on second-degree murder.\nA defendant properly preserves error under Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure warranting this Court\u2019s full review of the record on appeal by requesting a specific instruction at the charge conference, notwithstanding defendant\u2019s failure to formally object to the charge when given. See State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988). When reviewing the record to determine whether the denial of defendant\u2019s request was error, we ask whether, viewing the evidence in the light most favorable to the State, a reasonable juror could conclude that after premeditation and deliberation defendant formed the specific intent to murder the victim. Patel,_N.C. App. at_, 719 S.E.2d at 109 10. Defendant is entitled to an instruction on a lesser included offense only where the evidence adduced at trial supports the reasonable inference that the jury could find the defendant guilty of the lesser offense and acquit him of the greater. See State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000).\nFirst-degree murder is \u201cthe unlawful killing of a human being with malice, premeditation and deliberation.\u201d Vause, 328 N.C. at 238, 400 S.E.2d at 62 (internal quotation marks and citation omitted). \u201cMurder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation\u201d and is a lesser included offense of first-degree murder. State v. Flowers, 347 N.C. 1, 29, 489 S.E.2d 391, 407 (1997). \u201c[M]alice is presumed where the defendant intentionally assaults another with a deadly weapon, thereby causing the other\u2019s death.\u201d State v. McNeill, 346 N.C. 233, 238, 485 S.E.2d 284, 287 (1997). Premeditation and deliberation are processes of the mind and are not easily amenable to proof by direct evidence. See Vause, 328 N.C. at 238, 400 S.E.2d at 62. Rather, premeditation and deliberation are usually established by circumstantial evidence. See id. However, \u201cmere speculation is not sufficient to negate evidence of premeditation and deliberation.\u201d Gary, 348 N.C. at 524, 501 S.E.2d at 67.\nPremeditation means the act was \u201cthought out beforehand for some length of time, however short.\u201d State v. Hunt, 330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991). \u201c[Deliberation means an intention to kill, executed by defendant in a \u2018cool state of blood\u2019 in furtherance of a fixed design or to accomplish some unlawful purpose.\u201d State v. Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 838 (1981). However, \u201ccool state of blood\u201d does not mean \u201can absence of passion and emotion.\u201d State v. Faust, 254 N.C. 101, 108, 118 S.E.2d 769, 773 (1961).\nPremeditation and deliberation may be inferred by: lack of provocation on the part of the victim, the defendant\u2019s conduct, statements, and threats before the murder, and past ill will between the parties, State v. Gladden, 315 N.C. 398, 430 31, 340 S.E.2d 673, 693 (1986); bringing a weapon to the scene of the crime or anticipating a confrontation in which the defendant was prepared to use deadly force, State v. Larry, 345 N.C. 497, 514, 481 S.E.2d 907, 917 (1997); the nature of the wounds, especially a fatal gunshot wound to the back of the head, Keel, 337 N.C. at 476, 447 S.E.2d at 751, Hunt, 330 N.C. at 428, 410 S.E.2d at 481; flight from the scene, leaving the victim to die, State v. Sierra, 335 N.C. 753, 759, 440 S.E.2d 791, 795 (1994); and fabricating an alibi, discarding a weapon or other evidence suggesting guilt, or attempting to cover up any involvement in a crime, State v. Chapman, 359 N.C. 328, 376 77, 611 S.E.2d 794, 828 29 (2005), State v. Trull, 349 N.C. 428, 448, 509 S.E.2d 178, 191 92 (1998).\nIn the present case, the record supports the inference that defendant murdered the victim after premeditation and deliberation. Defendant harassed the victim over the telephone at least 94 times and visited the victim\u2019s home at least twice; defendant threatened the victim\u2019s life in a voicemail message on the afternoon of the murder; defendant declared his intention to murder the victim to a confidant; defendant and the victim were known to have a heated relationship and to have argued over payment in the past; defendant anticipated a confrontation whereby he would use deadly force while driving from Durham to Wilkesboro; defendant crafted a false alibi when questioned by the police; defendant fled the scene leaving the victim to die; and defendant sold his wife\u2019s R.V., which the jury could infer was the vehicle defendant drove on the night of the murder, less than two months after the murder. Most notably, the victim died as a result of a gunshot wound to the center back of the head, discharged at close range, indicating that defendant not only inflicted a brutal, fatal wound on the victim with a deadly weapon, but that even if defendant and the victim were fighting at the time the shot was fired, the victim\u2019s back was to defendant and the victim was fleeing from him or turning away from a fight at the time of his death. Defendant argues the scratch on the victim and the victim\u2019s elevated blood alcohol content indicate that a fight ensued, which precipitated the murder. Even if defendant\u2019s argument had merit, \u201cevidence that the defendant and the victim argued, without more, is insufficient to show that defendant\u2019s anger was strong enough to disturb his ability to reason\u201d and hinder his ability to premeditate and deliberate the killing. State v. Solomon, 340 N.C. 212, 222, 456 S.E.2d 778, 785 (1995). In sum, defend-ant has proffered no evidence supporting the submission of second-degree murder; all the evidence in this case supports the jury\u2019s conclusion that defendant murdered the victim with malice and after premeditation and deliberation. Accordingly, we hold the trial court committed no error in failing to instruct the jury on second-degree murder.\nIII. Conclusion\nIn conclusion, the State presented sufficient evidence from which a reasonable juror could rationally conclude that defendant possessed the motive, opportunity, and means to murder the victim and that defendant was ultimately the perpetrator of the offense. Defendant abandoned the argument that the \u201cLeach Brothers\u201d were possible perpetrators of the victim\u2019s murder for appellate review. Defendant did not meet his burden of showing a reasonable possibility that had the trial court allowed defendant to introduce and argue evidence implicating Ms. Whitmore as the assailant in her husband\u2019s murder, the jury would have reached a different verdict. Further, defendant did not properly preserve error in accordance with our Rules of Appellate Procedure and is barred from presenting the argument that defendant\u2019s constitutional rights were violated by the exclusion of this evidence. Finally, defendant proffered no positive uncontradicted evidence showing that defendant did not intentionally murder the victim after premeditation and deliberation. Accordingly, defendant did not show that the trial court erred by failing to instruct the jury on second-degree murder. Therefore, we hold defendant\u2019s arguments are without merit and the trial court committed no error.\nNo error.\nJudge STROUD concurs.\nJudge CALABRIA dissents.", "type": "majority", "author": "McCullough, Judge." }, { "text": "CALABRIA, Judge,\ndissenting.\nI concur with the majority that the trial court properly excluded evidence that prohibited Keith Donnell Miles (\u201cdefendant\u201d) from questioning Rachel Whitmore (\u201cthe victim\u2019s wife\u201d) on certain issues by granting the State\u2019s motion in limine. I also concur with the majority that the court did not err by denying defendant\u2019s requested jury instruction on the lesser included offense of second-degree murder. However, I find that the trial court erred by denying defendant\u2019s motion to dismiss the first-degree murder charge. Therefore, I respectfully dissent.\nAt the close of the State\u2019s evidence, and again at the close of all the evidence, the trial court denied defendant\u2019s motion to dismiss. When the defendant makes a motion for dismissal, \u201c \u2018the 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 (2000) (citation omitted).\nThe majority correctly states that the only evidence adduced at trial tending to show defendant murdered Jonathan Whitmore (\u201cthe victim\u201d) was circumstantial. While \u201c[circumstantial evidence may withstand a motion to dismiss[,]\u201d State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988), \u201c \u2018[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.\u2019 \u201d Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation omitted). \u201cThe law will not allow a conviction on evidence that merely gives rise to suspicion or conjecture that the defendant committed the crime.\u201d State v. Lambert, 341 N.C. 36, 42, 460 S.E.2d 123, 127 (1995).\n\u201c[E]vidence of either motive or opportunity alone is insufficient to carry a case to the jury.\u201d State v. Bell, 65 N.C. App. 234, 238-39, 309 S.E.2d 464, 467 (1983), aff\u2019d per curiam, 311 N.C. 299, 316 S.E.2d 72, 73 (1984). \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 Id. at 239, 309 S.E.2d at 468.\nI agree with the majority that there was sufficient evidence of motive to overcome defendant\u2019s motion to dismiss. Defendant had a financial motive and repeatedly made threatening phone calls to the victim, visited his home, and indicated to Alfreddie Roberson (\u201cRoberson\u201d) that he would kill the victim if he did not receive the money that the victim owed him. However, evidence of motive alone is insufficient to carry a case to the jury. Id. at 238-39, 309 S.E.2d at 467.1 find that the State produced evidence of motive, suspicion and conjecture but failed to produce sufficient evidence of opportunity to identify defendant as the perpetrator.\nThe State and the majority rely on cases where some physical evidence or eyewitness testimony linked the defendant to the crime scene and therefore created a reasonable inference that defendant was the perpetrator. In State v. Carver, which the majority finds controlling, the victim was found dead on the shore of a river beside her car._N.C. App._,_, 725 S.E.2d 902, 903 (2012). The only evidence that showed the defendant committed the murder was circumstantial. Id. at_, 725 S.E.2d at 904. The Court held that there was sufficient evidence to deny the defendant\u2019s motion to dismiss where there was evidence that the defendant was fishing near the victim\u2019s car, close to the time of the victim\u2019s murder and despite the defendant\u2019s claims that he had not seen or touched the victim or the victim\u2019s car, positive DNA analysis found on the victim\u2019s vehicle was \u201csufficient to establish that the DNA could only have been left at the time the offense was committed.\u201d Id. at_, 725 S.E.2d at 904-05.; see also State v. Barnett, 141 N.C. App. 378, 384, 540 S.E.2d 423, 428 (2000) (finding sufficient evidence to survive a motion to dismiss where the defendant admitted to being at the scene and touching various items and the State also presented evidence that shoe prints on the floor and the victim\u2019s shirt were consistent with the shoes defendant admitted to wearing on the day of the murder); State v. Ledford, 315 N.C. 599, 613-14, 340 S.E.2d 309, 318-19 (1986) (finding sufficient evidence to survive a motion to dismiss where there was evidence of defendant\u2019s boot print in the victim\u2019s home, a cigarette butt consistent with the defendant\u2019s blood type and brand in the home, eyewitness testimony placing the defendant outside the victim\u2019s home at 2:00 a.m. the night of the murder and evidence defendant had in his possession approximately the same amount of money that was taken from the victim); State v. Parker, 113 N.C. App. 216, 223, 438 S.E.2d 745, 750 (1994) (finding sufficient evidence to survive a motion to dismiss where the State presented eyewitness testimony that the defendant was in the area on the morning of the victim\u2019s death and where the \u201cdefendant\u2019s brand of cigarette package\u201d was found at the scene) (emphasis added); State v. Patel,_N.C. App._,_, 719 S.E.2d 101, 107 (2011), disc.. review denied,_N.C._, 720 S.E.2d 395, 396 (2012)(finding evidence of opportunity where the State\u2019s evidence showed that the victim called the defendant twice the day of the murder and told others she was going to his apartment, the defendant avoided other activities and his alibi was unsupported, the victim\u2019s car was located at the defendant\u2019s apartment complex, and a fiber found in defendant\u2019s tmick was consistent with fibers found under the victim\u2019s body); Stone, 323 N.C. at 452-53, 373 S.E.2d at 434 (finding sufficient evidence of opportunity where the defendant \u201chad access to a weapon and bullets which could have caused the death of the victim, had the time and opportunity to commit the murder, and drove a car which could have made the tire tracks found at the dump site.\u201d)(emphasis added). In State v. Bostic, also relied on by the State, there was no physical evidence linking the defendant to the crime scene, but there was eyewitness testimony that confirmed that the defendant assaulted the victim at the scene on the morning of the victim\u2019s death and a subsequent statement by the defendant that he killed the victim. 121 N.C. App. 90, 99, 465 S.E.2d 20, 24 (1995).\nIn the instant case, the State failed to produce any physical evidence or eyewitness testimony linking defendant to the murder scene. When law enforcement arrived, they found the victim\u2019s body at a distance of approximately three feet from the side of the road, and approximately one hundred feet from the victim\u2019s residence. According to Dr. Patrick Eugene Lantz, a forensic pathologist who performed the victim\u2019s autopsy, the victim died as a result of a gunshot wound to the back of the head. The gunshot residue on the victim\u2019s head indicated \u201cthat the wound was near contact or close range, not quite pressed up hard against the skin\u2019s surface, but off of it just a little bit, but definitely not more than an inch away.\u201d The State\u2019s theory at trial was that defendant was waiting at the victim\u2019s home, the victim approached defendant\u2019s R.V. and when the victim failed to pay defendant, defendant shot him. However, there was no evidence that anyone heard a gunshot fired near the victim\u2019s home. The State claimed that the roar of defendant\u2019s R.V. masked the sound of the gunshot. However, the State\u2019s evidence also indicated that the victim\u2019s wife and daughter only heard the vehicle one time and that it was moving fast enough that the victim\u2019s wife was unable to reach the window in time to see the vehicle. Therefore, the State\u2019s theory suggests that defendant shot the victim one inch from his skull as he was driving the R.V. by the victim\u2019s house. This seems highly improbable to create a reasonable inference that defendant was the perpetrator.\nA .40 caliber shell casing was also found, but there was no evidence that defendant\u2019s DNA and fingerprints were found on the shell casing recovered near the victim\u2019s body. No weapons were recovered at the scene, but the victim\u2019s wallet containing identification and cash and the victim\u2019s two cell phones were recovered. The State produced no evidence that defendant\u2019s DNA and fingerprints were found on the victim\u2019s wallet or cell phones either.\nThe majority contends that Carver controls the instant case because in both cases the defendants denied their presence at the scene, but later evidence placed them in the vicinity of the murder. However, Carver is distinguishable because in Carver, DNA was discovered linking the defendant to the victim\u2019s car. Carver,_N.C. App. at_, 725 S.E.2d at 904. In the instant case, unlike Carver, there was no DNA or any other physical evidence linking defendant to the crime scene. In contrast to the cases the State relied on, in the instant case there was absolutely no physical evidence of defendant\u2019s presence at the murder scene: no DNA, no fingerprints, no footprints, no cigarette butts, no fibers and no tire tracks.\nFurthermore, there were no traces of the victim found in defendant\u2019s possession or in his residence. When detectives searched defendant\u2019s residence, they did not find a murder weapon or a gun registered to defendant or anything of evidentiary value pertaining to the case. Although blood was later discovered in defendant\u2019s wife\u2019s R.V., it was confirmed that the blood did not match the victim\u2019s blood.\nThe majority concludes that the cases defendant cites, State v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978), and State v. Furr, 292 N.C. 711, 235 S.E.2d 193 (1977), are inapplicable because in those cases \u201cthe State presented evidence of motive, but not opportunity.\u201d State v. Lowry, 198 N.C. App. 457, 467, 679 S.E.2d 865, 871 (2009). However, Lowry\u2019s interpretation of Lee conflicts with the actual language of Lee. The Court in Lee specifically found that \u201c[t]he State\u2019s evidence in this case establishes a murder; and considered in the light most favorable to the State, shows that the defendant had the opportunity, means and perhaps the mental state to have committed this murder.\u201d Lee, 294 N.C. at 303, 240 S.E.2d at 451 (emphasis added). Therefore, we will follow the language set out in Lee in examining its applicability to the instant case. See Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985) (holding that the Court of Appeals lacked the authority to overrule decisions of the Supreme Court of North Carolina and has, instead, a \u201cresponsibility to follow those decisions, until otherwise ordered by the Supreme Court\u201d).\nIn addition, the majority determines that the Court in Furr \u201cdecided the defendant\u2019s guilt by an entirely different body of law.\u201d However, in both the instant case and in Furr, the issue was whether there was sufficient evidence to convict the defendant of murder. Furr, 292 N.C. at 719, 235 S.E.2d at 198.\nIn Lee, the Court held that the evidence showed \u201ca brutal murder and raise [d] a strong suspicion of [the] defendant\u2019s guilt, but\u201d that \u201cthe State failed to offer substantial evidence that the defendant was the one who shot [the victim].\u201d Lee, 294 N.C. at 303, 240 S.E.2d at 451. Lee has been recently examined by this Court in Patel, where the Court recognized that in Lee the State was unable \u201cto present any evidence placing the defendant with the murdered victim at the time of the murder...[and] there was no evidence linking either [the] defendant to the murder scene or tying him to the means by which the victim was killed.\u201d Patel,_N.C. App. at__, 719 S.E.2d at 108. Similarly, in Furr, the Court found that there was insufficient evidence that the defendant killed his wife where there was no murder weapon in the defendant\u2019s or victim\u2019s home, none of the fingerprints from the scene matched the defendant, and the defendant was only seen in the vicinity of the victim\u2019s home for a short window of time on the morning of the victim\u2019s death. Furr, 292 N.C. at 717-18, 235 S.E.2d at 197-98. Just as the evidence in Lee and Furr was insufficient, the State\u2019s evidence in the instant case was also insufficient because the State presented no physical evidence linking defendant to the murder scene.\nThe majority contends the instant case is distinguishable from Lee because here there is evidence of defendant\u2019s \u201cexact whereabouts around the time of the murder\u201d based on Raven Whitmore\u2019s (\u201cthe victim\u2019s daughter\u201d) report that she saw vehicle similar to defendant\u2019s wife\u2019s R.V. around the time of the victim\u2019s death and defendant\u2019s phone records placing him in Wilkesboro around the time of the murder. I disagree.\nInitially, I note that the majority contends that \u201c[t]he victim\u2019s wife and daughter...observed a vehicle similar to an R.V. owned by defendant\u2019s wife in front of their home....\u201d However, the majority is mistaken. The victim\u2019s wife never testified that she saw an R.V. She testified that she heard a loud noise, but not that she actually saw the vehicle. Furthermore, the victim\u2019s daughter did not initially describe the vehicle as an R.V., but rather she saw what she described as a boxlike vehicle that looked like a U-haul. At trial she testified about what she saw\n[State]: And what did you see?\n[The victim\u2019s daughter]: I seen [sic] what looked like a big tour bus. It was big, with lights around it.\n[State]: And how would you describe the lights?\n[The victim\u2019s daughter]: They were orange. They were at the top and the bottom.\n[State]: And where on the vehicle did you see these orange lights?\n[The victim\u2019s daughter]: I seen [sic] the back part of it.\n[State]: Pardon?\n[The victim\u2019s daughter]: I seen [sic] the back part of it, like a side view.\n[State]: So the side of the vehicle you saw?\n[The victim\u2019s daughter]: Yes, sir.\n[State]: And you said it looked like a tour bus?\n[The victim\u2019s daughter]: Yes, sir.\n[State]: How big was it?\n[The victim\u2019s daughter]: Like width and diameter or something?\n[State]: How long was it?\n[The'victim\u2019s daughter]: I only seen [sic] the back part.\n[State]: What was it doing when you saw it?\n[The victim\u2019s daughter]: It was driving past our mailbox.\n[State]: Did you see anything else outside?\n[The victim\u2019s daughter]: No, sir.\nAll she saw was a side view of the back part of the vehicle as it drove down the street. When asked if the vehicle the victim\u2019s daughter described matched defendant\u2019s wife\u2019s R.V., the investigating detective testified during voir dire that \u201cshe said a large vehicle with lights down the side, and the R.V. does have that.\u201d While the majority claims that the victim\u2019s daughter\u2019s testimony establishes \u201ceyewitness testimony\u201d that proves defendant\u2019s whereabouts on the night of the murder, there is no \u201ceyewitness\u201d who actually saw defendant or even a vehicle that was positively identified as belonging to defendant. Contrast Patel,_N.C. App. at_, 719 S.E.2d at 107 (where the victim\u2019s vehicle was parked at the defendant\u2019s apartment complex). The fact that the victim\u2019s daughter briefly glimpsed the back of an unknown vehicle is insufficient to establish that defendant had the opportunity to murder the victim.\nThe majority determines that, according to phone records, defendant\u2019s presence in Wilkesboro on the night of the murder from 7:23 p.m. to 7:46 p.m. gave him the opportunity to commit the murder. Defendant\u2019s cell phone records indicate he left Wilkes County prior to 8:00 p.m. and the only evidence of the time of the victim\u2019s death was an estimate that the victim died between 8:00 p.m. and 9:00 p.m.\nHowever, there was no evidence presented that defendant and the victim had any plans to meet on the night of the murder. When detectives found the victim\u2019s phone, there were two voicemail messages from defendant, however neither message indicated defendant was going to the victim\u2019s home on 18 October 2007. While defendant told the victim\u2019s wife he would come to the victim\u2019s home to resolve the payment issue, the victim\u2019s wife told defendant that the victim was not at home, but on a job. In fact, the victim\u2019s wife testified that the victim said he was not coming home that night and that she only knew he had come home when he arrived at her gym with their daughters at approximately 7:00 p.m. The State produced no evidence indicating that defendant knew the victim would be home on 18 October 2007.\nMoreover, the amount of time that defendant had access to the victim is less than the amount recognized by the majority. The majority suggests that defendant had approximately twenty-three minutes to meet and murder the victim. However, additional evidence indicated the victim was not at his home at 7:23 p.m. On the night of his death, the victim drove his two daughters to two different places to pick up fast food. A receipt indicated that the victim left a Wendy\u2019s restaurant at 7:24 p.m. The victim\u2019s daughter testified that the restaurant was approximately ten minutes from their home. She also testified that after arriving home, the victim went inside the house, placed his food on the counter and was inside for a minute. Subsequently, the victim left the house. At the earliest, the victim could not have been outside his home until around 7:35 p.m. The State\u2019s evidence showed that defendant made a series of calls, eight in total, from 7:35 p.m. to 7:46 p.m. Therefore, that amount of time indicates that defendant\u2019s phone was in use almost the entire time defendant was near the victim\u2019s house and the victim was outside.\nFurthermore, the victim\u2019s blood alcohol content (\u201cBAC\u201d) was .11 at the time of death. Both the victim\u2019s daughter and his wife testified that the victim had not been drinking prior to returning home. The victim\u2019s daughter also testified that she did not see him consume any alcohol and the victim\u2019s wife stated that he had not been drinking alcohol. Investigators found a 12 pack of beer in the victim\u2019s car. The victim\u2019s BAC of .11 indicated that to register that level he had to consume several beers or a fairly large mixed drink prior to his death.\nThe scenario proposed by the State, and accepted by the majority, suggests that the victim left his home after 7:30 p.m. and consumed enough alcohol to raise his BAC to .11. Defendant was then waiting on the victim\u2019s street at precisely the time the victim stepped outside. Then the victim walked to defendant\u2019s vehicle, defendant shot the victim one inch from the back of his head, then drove off in his R.V. and all of this happened while defendant was using his cell phone. This scenario, along with several other pieces of evidence including defendant\u2019s phone records, merely raise a suspicion of defendant\u2019s guilt and make it improbable that defendant murdered the victim. See Lee, 294 N.C. at 302, 240 S.E.2d at 451.\nUltimately, there is not \u201ca reasonable inference of defendant\u2019s guilt [which] may be drawn from the circumstances.\u201d Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation omitted). The State failed to prove that defendant had sufficient opportunity to commit the crime to identify him as the perpetrator and therefore the trial court should have granted defendant\u2019s motion to dismiss.\n. We note that Carver has been appealed to the Supreme Court of North Carolina based on a dissenting opinion.", "type": "dissent", "author": "CALABRIA, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.", "M. Gordon Widenhouse, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH DONNELL MILES\nNo. COA11-1383\n(Filed 21 August 2012)\n1. Homicide \u2014 first-degree murder \u2014 defendant as perpetrator \u2014 sufficiency of evidence\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s motion to dismiss where defendant contended that there was insufficient evidence that he was the perpetrator. The evidence that defendant murdered the victim was circumstantial, but constituted substantial evidence from which the jury could have concluded that defendant was the perpetrator and that defendant possessed the motive, means, and opportunity to murder the victim. No singular combination of evidence, nor any finite, quantifiable amount constitutes substantial evidence. Once the court has determined that the evidence of motive and opportunity as a whole surmounts the initial benchmark of sufficiency, the task of assessing the value and weight of the evidence is for the jury.\n2. Appeal and Error \u2014 preservation of issues \u2014 issue not pursued\nDefendant abandoned for appellate review the issue of whether two of the victim\u2019s acquaintances could have been the perpetrators of the crime where the State\u2019s motion in limine was not definitively ruled upon during trial, defendant did not make an offer of proof or explanation of evidence that would have supported the conjecture offered in his brief, and defendant never again raised the issue.\n3. Appeal and Error \u2014 preservation of issues \u2014 discretionary review\nAn argument concerning the guilt of another was not properly preserved for appellate review but was reviewed under Appellate Rule 2.\n4. Evidence \u2014 guilt of another \u2014 evidence excluded \u2014 no error\nEvidence implicating someone else and exonerating defendant was properly disallowed where defendant offered only conjecture as to the other person\u2019s actions and the State refuted this claim with positive and uncontradicted evidence exculpating the other person. Defendant did not meet his burden of showing a reasonable possibility of a different result without the evidence by simply enumerating possible factual scenarios.\n5. Homicide \u2014 first-degree murder prosecution \u2014 second-degree murder instruction refused \u2014 no error\nThe trial court did not err in a first-degree murder prosecution by refusing defendant\u2019s request for a charge on second-degree murder where all of the evidence supported the jury\u2019s conclusion that defendant murdered the victim with malice and after premeditation and deliberation, and defendant proffered no evidence supporting the submission of second-degree murder.\nJudge CALABRIA dissenting.\nAppeal by defendant from judgment entered 16 March 2011 by Judge Ronald E. Spivey in Wilkes County Superior Court. Heard in the Court of Appeals 24 May 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.\nM. Gordon Widenhouse, Jr., for defendant appellant." }, "file_name": "0593-01", "first_page_order": 603, "last_page_order": 630 }