State v. Carroll ( 1987 )

355 S.E.2d 844 (1987)

STATE of North Carolina
v.
Bill CARROLL, Jr.

No. 8616SC1090.

Court of Appeals of North Carolina.

May 19, 1987.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Jeffrey P. Gray, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., by Asst. Appellate Defender David W. Dorey, Raleigh, for defendant-appellant.

WELLS, Judge.

Defendant contends that, even taken in the light most favorable to the State, the evidence is insufficient to support a conviction of second-degree murder. Defendant argues several points, which we shall address in turn.

In order to withstand a motion to dismiss, the State must present substantial evidence of each of the elements of the offense charged. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Our courts have interpreted "substantial evidence" to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Evidence which raises merely suspicion or conjecture that the crime was committed or that defendant committed it is not sufficient, even if the suspicion is a strong one. State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971). However, a defendant may be convicted on purely circumstantial evidence; the question is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978); State v. Head, 79 N.C.App. 1, 338 S.E.2d 908, disc. rev. denied, 316 N.C. 736, 345 S.E.2d 395 (1986). Once this threshold is met, it is for the jury to decide whether "the acts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty." State v. Head, supra.

Defendant first asserts that the State has not carried its burden of showing that Wallace Tucker is the victim of murder rather than, for example, the victim of an accident. We disagree.

In any criminal case, the State must show that a crime was committed and that the defendant committed the crime. Earnhardt, supra; Head, supra. The evidence that a crime was committed is often referred to as the corpus delicti, literally "the body of the transgression charged." State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971); Head, supra. This in turn consists of two requirements in homicide cases: (1) there must be a corpse or circumstantial evidence so strong and cogent that there can be no doubt of the death, and (2) the criminal agency must be shown. Dawson, supra; Head, supra. Here, defendant does not contest the identity of the body, but does question whether a reasonable inference that Wallace Tucker was murdered may be drawn from the circumstances in this case. Tucker was found — barely alive — on a country dirt road, his feet in the ditch area. He was between 125-250 feet from the main paved road. He suffered at least three separate blows to the head, with blows on each side of his head. One blow ripped his ear almost off. He also had what the doctors characterized as a "tear" on one of his arms. His money, jewelry, knife and watch were gone. These undisputed facts, coupled with defendant's admission in the form of a statement to his cellmate that "he'd like to do to that damn Keith Stone what he done to that damn hobo they got him accused of killing," are sufficient to support a finding that the crime charged occurred. See State v. Trexler, 316 N.C. 528, 342 S.E.2d 878 (1986).

We now consider whether the evidence that defendant himself committed the crime is sufficient to take the case to the jury. Tucker was last seen in the company of defendant in defendant's blue car. A witness placed a blue or green Plymouth or Dodge at the scene on a deserted road early in the morning, perhaps half an hour before Tucker was found. The State's introduction of the tire tread at the blood stain and of the tire tread of the left front tire of defendant's car strengthened this evidence. Detectives discovered items in defendant's car with Type O blood on them, consistent with Mr. Tucker's blood type but inconsistent with defendant's. Defendant was in possession of a knife which had belonged to the victim; Tucker's brother-in-law stated that he tried to buy the knife from him. Defendant's statement to his cellmate, although somewhat ambiguous, did indicate that he physically harmed Tucker. Accordingly, the evidence of the corpus delicti and the defendant's identity as the one committing the crime was sufficient to take the case to the jury.

Defendant also argues that the State has failed to show the requisite malice with intent to kill. We disagree. Malice sufficient to support a conviction of second-degree murder may be proven by inference from circumstances surrounding the killing. State v. Batts, 303 N.C. 155, 277 S.E.2d 385 (1981). Here, with evidence of three strong blows to different sides of the head, one severe enough to tear the victim's ear almost completely off, was sufficient to establish malice and intent to kill.

In his second assignment of error, defendant contends that the court erred in finding as a factor in aggravation that defendant violated a position of trust or confidence in murdering Wallace Tucker. We agree.

The presumptive term for second-degree murder is fifteen years. The trial court sentenced defendant to a term of forty-five years as a result of two factors found in aggravation: first, that defendant had prior convictions, and second, that defendant took advantage of a position of trust and confidence. The State argues that the finding in aggravation that defendant violated a position of trust is supported by the long history of the special duties owed by drivers to passengers in their cars. However, we find no support in the law of sentencing for this position. In the two cases in which our courts have upheld a finding of this aggravating factor, the defendant and the victim have been either relatives or two men who were "best friends." See State v. Potts, 65 N.C.App. 101, 308 S.E.2d 754 (1983), disc. rev. denied, 311 N.C. 406, 319 S.E.2d 278 (1984) (defendant and victim characterized as "best friends"); see also State v. Goforth, 59 N.C.App. 504, 297 S.E.2d 128 (1982), reversed and remanded on other grounds, 307 N.C. 699, 307 S.E.2d 162 (1983) (defendant charged with attempted rape of his 10-year-old stepdaughter). In the case at bar, defendant and Tucker had met only a day and a half before Tucker was found; the evidence shows only that the two men talked and that Tucker decided to ride down to Darlington with defendant in defendant's car. We therefore find that there is no evidence to support the trial court's finding as a factor in aggravation that defendant took advantage of a position of trust or confidence, and we remand this case for resentencing.

No error in the trial; remanded for resentencing.

HEDRICK, C.J., and BECTON, J., concur.