State v. Dover
| Decision Date | 03 August 2021 |
| Docket Number | No. COA20-362,COA20-362 |
| Parties | STATE of North Carolina v. David Myron DOVER, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General K. D. Sturgis, for the State.
Marilyn G. Ozer, Chapel Hill, for defendant-appellant.
¶ 1 When the State presents evidence that raises a strong suspicion of a defendant's guilt, but does not remove the case from the realm of surmise and conjecture, the trial court errs in denying the defendant's motion to dismiss for insufficiency of the evidence. Here, the circumstantial evidence presented at trial showed Defendant had an opportunity to commit the crime charged, but there was not evidence, even when viewed in the light most favorable to the State, that a reasonable mind could accept to support the conclusion that Defendant robbed and murdered the victim.
¶ 2 On 16 May 2016, Defendant David Myron Dover was indicted on one count of robbery with a dangerous weapon, one count of first-degree murder, and having attained the status of habitual felon. A jury was impaneled for Defendant's trial on 9 September 2019. The evidence at trial tended to show the following:
¶ 3 On the morning of 10 May 2016, Arthur "Buddy" Davis ("Mr. Davis") was scheduled to meet one of his daughters, April Anderson, at 7:00 a.m. to give her an unknown sum of money. When he did not show up, Anderson called Mr. Davis's place of employment, Terry's Auto Sales, and asked to "speak to Buddy[.]" Anderson was told Mr. Davis was not at work.
¶ 4 Anderson then called her sister, Charlotte Davis ("Davis"), who directed her husband, Waylon Barber, to go to Mr. Davis's mobile home in Kannapolis to check on him. Contemporaneously, the owner of Terry's Auto Sales, Terry Bunn, was concerned about Mr. Davis not showing up at work and decided to go to Mr. Davis's mobile home to check on him. Bunn arrived at the mobile home before Barber and, after knocking on the door and receiving no answer, "slid [a screwdriver] in behind the door ... [and] jimmied the door open." Bunn entered the home, called Mr. Davis's name, and observed "something [that] had a real brown look to it" in the kitchen, which he realized was blood. Bunn then walked to the bedroom, where he found Mr. Davis lying unconscious on the floor and called 911. Barber arrived shortly thereafter and also called 911. Paramedics arrived at the mobile home and declared Mr. Davis dead. According to expert testimony, the cause of Mr. Davis's death was multiple stab wounds. No evidence of forced entry into the mobile home was found. The time of Mr. Davis's death could not be determined with accuracy and a murder weapon was never identified.
¶ 5 Officers who responded to the 911 calls identified a list of possible suspects, including Defendant. Defendant lived in Rowan County and worked at Terry's Auto Sales with Mr. Davis. Due to a crack cocaine substance abuse problem, Defendant frequently borrowed small amounts of cash from various people in the community, including Mr. Davis, and failed to pay them back.
¶ 6 After the investigation at Mr. Davis's mobile home concluded, some officers went to locate the other possible suspects. Contemporaneously, other officers went by Defendant's house, located in China Grove, "to kind of get a feel of where [he] lived at." As the officers were leaving the area, they saw Defendant "pull in, driving." The officers knew Defendant previously had his driver's license revoked and contacted the Rowan County Sheriff's Office to advise them Defendant was driving without a license. The Rowan County Sherriff's Office took out a warrant for Defendant for driving while license revoked, but service of the warrant was held off.
¶ 7 That same day, officers returned to Defendant's house. Defendant and his girlfriend, Carol Carlson, who Defendant lived with, came outside the house to speak with the officers. Defendant and Carlson agreed to let the officers search their house. As a result of the search, an officer seized two shirts and a pair of blue jeans located in the back bedroom of Defendant's house. According to the officer, these items were seized "[b]ecause they had blood stains or what appeared to be blood stains on the shirts and on the back of the blue jeans." Blood DNA tests were done comparing the blood stains on the clothing seized from Defendant's house and the blood at the scene of the crime with Defendant's blood and Mr. Davis's blood. Forensic biologists testified there was no connection between Defendant's DNA profile and the scene of the crime, and no connection between the blood stains on Defendant's clothes and Mr. Davis's DNA profile.
¶ 8 After the officers finished searching the house, Defendant agreed to go to the Kannapolis police department to talk about Mr. Davis's death. As they were leaving, Carlson asked Defendant for money because she was hungry, and Defendant gave her $20.00 from cash that he had in his pocket at the time.
¶ 9 Defendant's interview at the police department was video recorded and played for the jury. When asked about his whereabouts on the evening of 9 May 2016, Defendant stated he returned home at about 8:00 or 9:00 p.m. and did not leave his house for the remainder of the evening. Later during the interview, Defendant changed his story and stated that on 9 May 2016, he purchased "a dime" of crack cocaine, brought it back to Terry's Auto Sales, and smoked it before he did more work and later went home. He also stated he tried to call Mr. Davis two or three times to borrow $20.00 at about 10:00 p.m., but Mr. Davis never picked up the phone. Defendant told the officers that occasionally, Mr. Davis tells him he isn't going to loan him any more money, but Mr. Davis recently loaned him $20.00 on the previous Sunday.
¶ 10 Defendant gave the interviewing officers permission to inspect his cell phone in an attempt to corroborate his story. Officers attempted to retrieve data from Defendant's cell phone using a Cellebrite forensic device, but due to the age of the phone, the data could not be retrieved. Instead, the officers manually searched the cell phone's contents. The manual search revealed the only calls in the cell phone's call history were those made after Defendant had been in the presence of the officers, and the only text message history was one text message received from Carlson on 10 May 2016.
¶ 11 The State also presented location records of Defendant's cell phone on the night of 9 May 2016. According to expert testimony from Special Agent Michael Sutton, Defendant's cell phone records were assessed to determine which cell towers and sectors were utilized by his phone in order to map its location. Because "[m]ost towers are sectorized to increase the number of customers it can serve[,]" cell phone carriers put "three towers on one pole, pointing in different directions." Special Agent Sutton looked at "the topography of the area, the layout of the area, as well as associating the other towers to come up with an estimated service area of [a] particular tower," and determined the general area and sector of where Defendant's phone was when it was being used.
¶ 12 The cell tower records showed Defendant made calls at 9:46 p.m., 10:21 p.m., 10:22 p.m., and 10:23 p.m. on 9 May 2016 from a sector that included his residence in China Grove. The cell tower records also showed Defendant made calls at 11:22 p.m., 11:30 p.m., 11:31 p.m., and 11:32 p.m. on 9 May 2016 from a sector that included both Mr. Davis's mobile home and Terry's Auto Sales. On 10 May 2016, the cell tower records showed Defendant made calls at 12:00 a.m., 12:11 a.m., and 12:12 a.m. from a sector that included the home of Defendant's drug dealer. Also, on 10 May 2016, Defendant again made calls between 12:49 a.m. and 1:29 a.m. from the sector that included his residence in China Grove.
¶ 13 Officers asked Defendant where he obtained the money he gave to Carlson prior to the interview. He stated he had $300.00 or $400.00 from a customer whose car he put a transmission in, but it was Bunn's money since Bunn gave him an advance on the money Defendant was to receive for the transmission work.
¶ 14 After the interview concluded, Defendant went outside the Kannapolis Police Department and waited to be transported back to his house. While waiting, Defendant was arrested on the outstanding warrant for driving while license revoked. Defendant was transported to jail where he declined to be interviewed a second time.
¶ 15 While in jail, Defendant made a telephone call to Carlson on a monitored phone line. The audio recording of this phone call was played for the jury. While on the phone, Defendant instructed Carlson to look in a trash can for a stack of approximately $3,000.00 in cash, inside a work glove, which was in turn inside a McDonald's bag, and instructed her to use the cash to pay his bail. Carlson located the money and used $1,000.00 of it for Defendant's bail money. Officers recovered the remainder of the money, $1,724.00, from a wallet in Carlson's purse. The majority of the cash was in one-hundred-dollar bills. Officers were later able to recover the McDonald's bag and the empty work glove inside of it from a garbage can across the street from Defendant's house, at Carlson's mother's house.
¶ 16 At the close of the State's evidence, Defendant made a motion to dismiss all charges "for failure to provide evidence as to each element of each crime[.]" The trial court denied the motion to dismiss. At the close of all evidence, Defendant renewed the motion to dismiss all charges, citing "insufficiency of the evidence" as the basis for the motion. The trial court denied the renewed motion.
¶ 17 During closing arguments, the State argued to the jury:
To continue reading
Request your trial
-
State v. Dover
...defendant argued the trial court erred by denying his motion to dismiss. State v. Dover , 278 N.C. App. 723, 2021-NCCOA-405, ¶ 19, 862 S.E.2d 696. Specifically, defendant argued that " ‘[t]he State failed to present any evidence that [Defendant] entered the trailer of [Mr. Davis] and commit......