State v. Earnhardt, 282A82

• Court: United States State Supreme Court of North Carolina
• Citation: 307 N.C. 62,296 S.E.2d 649
• Decision Date: 03 November 1982
• Docket Number: No. 282A82,282A82
• Parties: STATE of North Carolina v. Vickie Ann EARNHARDT and William Carl Keller.

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296 S.E.2d 649 307 N.C. 62 STATE of North Carolina
v.
Vickie Ann EARNHARDT and William Carl Keller. No. 282A82. Supreme Court of North Carolina. Nov. 3, 1982.

Rufus L. Edmisten, Atty. Gen. by Elisha H. Bunting, Jr., Asst. Atty. Gen., Raleigh, for the State.

Robert M. Davis, Salisbury, for defendant.

CARLTON, Justice.

I.

The Court of Appeals' majority and dissenting opinions present an extensive recitation of the facts; reference is made to those opinions. 56 N.C.App. 748, 290 S.E.2d 376 (1982). We present a summary of the facts sufficient to understand the contentions addressed.

Evidence for the State tended to show the following:

On the night of 28 June 1980 Donald Lagree and Walter Horne were drinking wine and beer and smoking marijuana at Horne's house when Linda Basinger, Vickie Earnhardt, and two small children came to Horne's house and asked for assistance with their automobile. After the car was driven to an area with more light, Horne and Lagree were able to get the car "running better." The women then bought Horne and Lagree some more beer and wine and the group went to William Carl Keller's house to drink. Defendant Keller was Linda Basinger's boyfriend. It was [307 N.C. 64] about 11 p.m. when they arrived at Keller's home. One or two hours later, Linda Basinger's husband, Clarence Basinger, knocked on Keller's door and told defendant that he wanted to speak to his wife. Linda Basinger went outside but returned shortly thereafter, stating that her husband had hit her. Earnhardt called the sheriff's department. Defendant then went outside, talked with Clarence Basinger and returned, stating that Clarence Basinger said he was sorry he hit his wife and that he wanted to speak with her again. Linda Basinger went back outside; this time defendant accompanied her. Shortly thereafter, the group heard a scream and went outside. They found that Linda Basinger had been cut on the arm

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and was bleeding profusely. Clarence Basinger then verbally abused Lagree and Horne; the three men then began fighting. Lagree was carrying a belt, Horne had a pocketknife, and Clarence Basinger had a hawkbill knife. When Clarence Basinger fell to the ground he was kicked and stomped. Clarence Basinger started crawling toward the road. He then began yelling that he was going to get his shotgun.

While Clarence Basinger was lying on the road, Lagree and Horne kicked him and stomped him again. Still conscious, he was left on the highway. During this time, defendant was standing in his yard and apparently did nothing.

Horne and Lagree went back into the house. When they returned with Earnhardt they found Clarence Basinger still conscious and moaning. Horne kicked Clarence Basinger again in the head. Within minutes, two cars, approaching from opposite directions, drove towards Clarence Basinger; the Ford Pinto struck him. The driver stopped and called an ambulance and the sheriff's department.

Lagree, testifying pursuant to a plea bargain, and the driver's younger brother stated that defendant told Horne, Lagree and Earnhardt not to tell everything, just the following story: Clarence Basinger had pulled a knife on his wife, Linda Basinger, and was trying to cut her. Defendant then tried to wrestle away the knife. While doing so, he saw two black men, Horne and Lagree, walking up the road and called to them for help. When Clarence Basinger saw the men coming, he ran, but fell down in the road where he was hit by a car. Lagree stated that defendant rehearsed this story about three times. The investigating[307 N.C. 65] officer testified that defendant told him the same story when he talked to defendant about the incident.

Defendant was convicted of being an accessory after the fact of voluntary manslaughter and was sentenced as indicated above. He appealed to the Court of Appeals and that court found no error. Judge Hedrick dissented, believing that the trial court erred in failing to grant defendant's motions to dismiss. Judge Hedrick believed that the evidence was insufficient to show that defendant knew that Horne or Lagree had placed Clarence Basinger on the road or that he knew that they had assaulted Clarence Basinger while he was on or near the road. Hence, Judge Hedrick believed the evidence was insufficient to show that defendant knew that any manslaughter had been committed by anyone. Judge Hedrick also found error in the trial court's instructions.

We agree with the majority that the evidence was sufficient to survive defendant's motions to dismiss. However, we find error in the trial court's instructions, as discussed below, and order a new trial.

II.

We first determine whether the trial court erred in denying defendant's motion to dismiss at the close of the State's evidence and at the close of all the evidence. We first review the salient principles to be applied when testing the sufficiency of the evidence:

(1) A motion for dismissal under G.S. 15A-1227 (1978) is identical to a motion to dismiss the action, or for judgment as in the case of nonsuit, under G.S. 15-173 (1978) in this respect: both statutes allow counsel to make a motion challenging the sufficiency of the evidence at the close of the State's evidence or at the close of all the evidence. Hence, cases dealing with the sufficiency of the evidence to withstand the latter motion made under the older statute, G.S. 15-173, are applicable when ruling on motions made under the more recent statute, G.S. 15A-1227. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). See also State v. Mendez, 42 N.C.App. 141, 146, 256 S.E.2d 405, 408 (1979).

(2) When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included[307 N.C. 66] therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion

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to dismiss is properly denied. State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971).

(3) The issue of whether the evidence presented constitutes substantial evidence is a question of law for the court. State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433 (1956). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The terms "more than a scintilla of evidence" and "substantial evidence" are in reality the same and simply mean that the evidence must be existing and real, not just seeming or imaginary. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion to dismiss should be allowed. State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967). This is true even though the suspicion so aroused by the evidence is strong. State v. Evans, 279 N.C. 447, 453, 183 S.E.2d 540, 544 (1971). In State v. Johnson, 199 N.C. 429, 154 S.E. 730 (1930), Chief Justice Stacy wrote the classic statement of the sufficiency of the evidence test:

It is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury, and a mere scintilla, which only raises a suspicion or possibility of the fact in issue. (Citations omitted.) The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate...