State v. Dover, ___ N.C. App. ___, 2021-NCCOA-405 (Aug. 3, 2021)

In this Rowan County case, the defendant was convicted of felony murder based on an underlying felony of robbery with a dangerous weapon and first-degree murder based on premeditation and deliberation. The defendant was charged after one of his coworkers, Arthur Davis, was found dead in his residence due to multiple stab wounds. Investigating officers found bloody clothes at the defendant’s residence, but forensic biologists testified that those clothes had no DNA connection with the victim, and that there was no other connection between the defendant’s DNA profile and the scene of the crime. When asked about his whereabouts on the night of the crime, the defendant told investigators that he tried to call the victim that night to borrow money from him, but that Davis never answered. The defendant said he then went to his place of employment, smoked crack, did some work, and then went home. Cell site location analysis performed on the defendant’s phone records showed him to be in a sector that included both the victim’s home and his place of employment on that night. After talking with officers, the defendant was arrested and jailed on an unrelated charge. In a jailhouse phone call on a monitored line, the defendant instructed his girlfriend to bail him out using approximately $3,000 in cash hidden in a work glove, which was in turn hidden in a McDonald’s bag in a trash can. The defendant moved to dismiss all charges for insufficiency of the evidence at the close of the State’s evidence and again at the close of all evidence. At closing, the prosecutor noted the lack of DNA evidence, but said that the jury “need[ed] a reasonable explanation for that money.” The defendant objected as the prosecutor was saying “If you don’t have a reasonable explanation for where that money came from . . . ,” which the trial judge sustained, but without giving a curative instruction. 

On appeal, the defendant argued that the trial court erred by denying his motion to dismiss all the charges for failure to provide evidence as to each element of each crime. A majority of the Court of Appeals agreed. Even giving the State every reasonable inference and resolving any contradictions in its favor, the court concluded that the evidence here was insufficient to go to the jury. The State presented no evidence that the defendant entered Mr. Davis’s trailer, and no evidence connecting the $3,000 with the victim. Evidence indicating that the defendant was in the vicinity of the victim’s home on the night of the offense, and that the victim was supposed to bring money to his daughter the next day but that no money or billfold was found in his house, showed only that the defendant had the opportunity to commit the crime and that someone may have taken money from the victim. There was no evidence beyond speculation, the court said, that the defendant actually went to the victim’s house, had a motive to commit the crimes, or actually did it. The court thus found that the trial court erred by failing to grant the defendant’s motion to dismiss and vacated the defendant’s convictions. Having vacated the convictions, the majority did not reach the defendant’s second argument regarding the trial court’s failure to give a limiting instruction related to the State’s improper closing argument, which arguably shifted the burden of proof to the defendant.

A dissenting judge would have found the evidence sufficient to give rise to a reasonable inference of guilt, and that the trial court therefore did not err by denying the defendant’s motion to dismiss. The dissenting judge also would have concluded that the trial court did not err in failing to give a limiting instruction regarding the State’s closing argument in light of a unobjected-to rephrasing of the argument by the prosecutor after the parties conferred with the judge.