STATE OF NORTH CAROLINA v.
THOMAS HENRY MYERS
The trial court did not err in a second-degree murder case by granting defendants'
motions to dismiss, because: (1) while the State's evidence raises a strong suspicion of
defendants' guilt, it does not permit a reasonable inference that defendants were responsible for
the death of the victim; (2) the evidence established at most that defendants had the opportunity
to commit the crime; (3) none of the State's witnesses identified the victim as the man involved
in the struggle with defendants, or as the man a witness saw in the road near the pertinent
residence; and (4) there was testimony indicating there were other unidentified males in the area
around the same time the murder allegedly occurred.
On remand by order of the Supreme Court of North Carolina
filed 17 November 2006 to reconsider the unanimous decision of the
Court of Appeals, State v. Myers and Coleman
, 174 N.C. App. 526,
621 S.E.2d 329 (2005) for reconsideration on the issue of
sufficiency of the evidence in light of State v. Childress
N.C. 226, 362 S.E.2d 263 (1987). Appeal by the State from Order
entered 20 November 2003 by Judge Robert F. Floyd, Jr., in
Superior Court. Originally heard
in the Court of
Appeals 1 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General
William B. Crumpler, for the State
Daniel Shatz, for defendant-appellee Myers.
Brian Michael Aus, for defendant-appellee Coleman.
Defendants were tried for second-degree murder on 10 November
2003. At the close of the State's evidence and again at the close
of all the evidence, defendants moved to dismiss, which motions the
court denied. On 20 November 2003, the jury returned a verdict of
guilty against both defendants. Before entry of judgment,
defendants again moved to dismiss and the court granted their
motion. The State appealed to this Court, and in an opinion issued
15 November 2005
, we affirmed the trial court's dismissal.
v. Myers and Coleman
, 174 N.C. App. 526, 621 S.E.2d 329 (2005).
The State appealed to the North Carolina Supreme Court, and on 17
November 2006, that Court remanded the case to us for
reconsideration in light of State v. Childress
, 321 N.C. 226, 362
S.E.2d 263 (1987).
We affirm the trial court's dismissal.
Defendants were tried for the murder of Tommy Lee Barrow. The
State introduced evidence that Mary Ann Essell was delivering
newspapers around 3:00 a.m. on 10 July 2001 when she noticed a
black male lying in the middle of Hopedale Road near the residence
of May and Damon Herring. The man was propped up on one elbow and
held up his hand. Ms. Essell thought the man was drunk and
homeless. The man was wearing long dark pants, a dark shirt, and
an Army jacket. She did not see any blood. After looking around
for police assistance, Ms. Essell left the scene to get help. She
returned to the area fifteen to twenty minutes later, accompaniedby her son, to look for the man, but he was gone. Ms. Essell and
her son looked in the Herrings' yard and the surrounding area, but
could not find him. Ms. Essell never identified Barrow as the man
she saw in the road. She also testified that she saw an
unidentified man in a white t-shirt riding a bicycle in the area.
Evidence also showed that during the early morning of 10 July
2001, the Herrings heard a noise outside of their home that sounded
like someone or something had hit their aluminum carport. Mr.
Herring turned on the outside light and saw nothing. Around 6:00
a.m., he went out to get the newspaper and noticed nothing unusual.
However, later in the morning when he went outside to do yard work,
he saw a black male, later identified as Tommy Lee Barrow, lying on
the ground near his carport. The man had on muddy socks, boxer
shorts, and a white t-shirt covered in blood on the back. His
sneakers and jean shorts were on the ground nearby, as was a
wallet, some scattered change, keys, a crack pipe, and a bag. No
jacket was found at the scene. Mrs. Herring called the police. A
deputy from the Cumberland County Sheriff's Department arrived and
found no vital signs.
An autopsy of Barrow's body revealed a stab wound in the right
back, from a blow which struck his right lung and damaged the
liver. Barrow died as a result of both internal and external
bleeding. The stab wound would not have caused instantaneousdeath; Barrow could have moved some distance for an unspecified
period of time after being stabbed. North Carolina's Chief Medical
Examiner, Dr. John Butts, opined that the injury was caused by a
knife or knife-like object. The autopsy also revealed a cut on the
left side of Barrow's face, as well as some blunt force injuries
with scraped skin adjacent to the nose.
The State's primary witness, Lisa Beeler, testified that on
the afternoon of 9 July 2001, and the night of 10 July 2001, she
was at the Lady Slipper trailer park, where she bought crack from
defendant Coleman and got high with defendant Myers. She testified
that Myers cut the crack into smaller pieces with a big knife that
had brass knuckles. According to Beeler, Barrow visited the
trailer where Beeler was using crack several times that evening and
left about 1:00 a.m. after speaking with defendant Coleman. She
testified that she left the trailer park with both defendants
around 3:00 or 4:00 a.m. to get more drugs. She stated that
defendant Coleman told her that they were going to meet a man
nearby and pick up more crack and that in the vicinity of Hopedale
Road, Coleman told Myers, There he is. There he is. Go over
there and get the stuff, go talk to him. Ms. Beeler testified
that she looked and saw a black man walking up the street, but she
did not identify this man as Barrow, as she said she could not see
him well enough to tell who it was. She and Coleman waited by abush near the corner where the Herrings live. Beeler testified
that she heard loud arguing coming from the direction where Myers
and the other man were located and that Coleman turned her around
and told her not to look that way, saying You don't want to see
this. According to Beeler, while they were still waiting, a light
came on in the Herrings' house and Coleman said he was going to go
see what was taking so long. Beeler testified that after a minute
or so, she heard a loud groan coming from a struggle and then
silence. She began to leave when defendants ran up to her about
five minutes later. When she asked what was going on, Coleman told
her to shut up and be patient.
Beeler testified that when she and defendants reached an
intersection with a street light, Beeler saw that Myers had dirt
and what appeared to be blood on him. Coleman told Myers he better
remove the bloody clothes, to go home and shower. According to
Beeler, Myers told Coleman, I got him good, didn't I cuz?, to
which Coleman responded that Myers should shut his mouth and be
quiet, that he needed to think. Beeler stated that as they walked,
Myers was going through something that appeared to be like a wallet
and that one of the defendants commented that the there was no
money in the wallet. When Beeler again asked what was going on,
she said that Coleman told her, Don't you want to get high? Just
keep your mouth shut, or you're in like Tommy. However, Beelertestified that she believed that Coleman was referring to Tommy
Myers and how dirty he was from the struggle. Coleman and Beeler
returned to a friend's trailer, and when Myers got there about
twenty minutes later, he had showered and changed into clean
clothes. Beeler had made prior inconsistent statements to the
police, but when questioned about this at trial, she stated that
after she learned of the victim's death and realized what had
happened, that she came forward.
Our review of a trial court's ruling on a motion to dismiss is
the same regardless of whether the motion is made at the close of
the State's evidence, at the close of all the evidence, after
return of a verdict of guilty and before entry of judgment, or
after discharge of the jury without a verdict and before the end of
the session. State v. Scott
, 356 N.C. 591, 595-96, 573 S.E.2d 866,
868 (2002). In reviewing the trial court's ruling, we must
evaluate the evidence in the light most favorable to the State.
State v. Molloy,
309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
All contradictions must be resolved in favor of the State. Id.
The ultimate question is whether a reasonable inference of the
defendant's guilt may be drawn from the circumstances. State v.
348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). As long as the
evidence supports a reasonable inference of defendant's guilt, it
is up to the jury to decide whether there is proof beyond areasonable doubt. State v. Trull
, 349 N.C. 428, 447, 509 S.E.2d
178, 191 (1998). This is true regardless of whether the evidence
is direct or circumstantial. Id.
However, 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, the motion to dismiss must be allowed. Molloy,
309 N.C. at 179, 305 S.E.2d at 720 (internal citation omitted).
This is true even though the suspicion aroused by the evidence is
(internal citation omitted).
As noted by other courts faced with this issue, the rules
regarding a determination of sufficiency of the evidence are easier
to state than to apply and require a case-by-case analysis. See,
e.g., State v. Bell,
65 N.C. App. 234, 236, 309 S.E.2d 464, 466
, 311 N.C. 299, S.E.2d 72 (1984); State v. Cutler
N.C. 379, 383, 156 S.E.2d 679, 682 (1967). In our opinion issued
15 November 2005
, affirming the trial court's dismissal of this
case, we cited several cases for the proposition that a conviction
cannot be sustained if it
impermissibly stacks inferences.
N.C. App. at 530-31, 621 S.E.2d at
-33 (citing Bell,
App. at 236, 309 S.E.2d at 466; State v. Chapman,
293 N.C. 585,
586, 238 S.E.2d 784, 785 (1977); State v. Davis
, 74 N.C. App. 208,
213, 328 S.E.2d 11, 15, disc. review denied
, 313 N.C. 510, 329
S.E.2d 406 (1985
)). However, our Supreme Court has directed ourattention to
State v. Childress
which held that a jury could
properly base inferences on inferences, and that [i]nsofar as
Holland, Byrd, LeDuc
and other cases hold that in considering
circumstantial evidence an inference may not be made from an
inference, they are overruled.
321 N.C. at 233,
at 267. Without addressing whether
, and Bell,
overruled by Childress
or are distinguishable, we conclude, as we
did before, that while the State's evidence raises a strong
suspicion of defendants' guilt, it does not permit a reasonable
inference that defendants were responsible for the death of the
Although our analysis of sufficiency of the evidence must be
based on the evidence introduced in each case, as a whole, and
adjudications in prior cases are rarely controlling as the evidence
differs from case to case, Cutler
, 271 N.C. at 383, 156 S.E.2d at
682, our conclusion is guided, in part, by instructive cases. In
State v. Cutler
, the State offered evidence that on the same day as
the murder, a truck similar to defendant's was seen at the victim's
house and defendant was seen drunk and bloody as a hog with a
large gash on his head about 500 yards from the victim's house.
271 N.C. at 381, 156 S.E.2d at 681
. Defendant was also found in
possession of a knife with both human blood and a hair similar to
the chest hair of the victim on it. Id
. at 384, 156 S.E.2d at 682. Nevertheless, the Court held that the evidence was insufficient,
noting that the State's evidence did not show any blood from the
deceased on the person, clothing, knife or vehicle of the
defendant and that the testimony regarding the chest hair was
. at 384, 156 S.E.2d at 682.
[The evidence was] sufficient to raise a
strong suspicion of the defendant's guilt but
not sufficient to remove that issue from the
realm of suspicion and conjecture. It may
reasonably be inferred that the defendant was
at the home of the deceased when the deceased
came to his death, or shortly thereafter.
However, it is not enough to defeat the motion
for nonsuit that the evidence establishes that
the defendant had an opportunity to commit the
Similarly, in State v. White
, the Court held that there was
insufficient evidence to support that defendant was the perpetrator
of second-degree murder. 293 N.C. 91, 235 S.E.2d 55 (1977). In
the victim lived in a mobile home adjacent to the motel
where defendant lived, defendant frequently visited the victim,
defendant was a black male and a black male was seen running away
from the mobile home on the evening of the killing, there was blood
on the carpet of defendant's motel room, and a knife similar to the
murder weapon was found in defendant's room. In holding that the
trial judge should have allowed defendant's motion for non-suit,
the Court stated that: [t]he State has shown that the defendant was
in the general vicinity of the deceased's home
at the time of the murder and that he made
several arguably contradictory statements
during the course of the police investigation.
It may even reasonably be inferred that the
defendant was at the home of the deceased when
the deceased came to her death, or shortly
thereafter. Thus, the State has established
that the defendant had an opportunity to
commit the crime charged. Beyond that we must
sail in a sea of conjecture and surmise. This
we are not permitted to do.
. at 96, 235 S.E.2d at 59 (internal citations and quotation marks
We conclude that as in Cutler
the evidence here
establishes at most that defendants had the opportunity to commit
the crime. Taking the testimony in the light most favorable to
the State, the evidence tends to establish that: defendants were
in the vicinity of the Herring residence sometime in the early
morning of 10 July 2001, that Barrow's body was found in this
vicinity several hours later, that defendants argued and struggled
with an unidentified individual who groaned at one point during the
struggle, and that defendant Myers appeared to have blood and dirt
on his shirt after the struggle. We note that none of the State's
witnesses identified Barrow as the man involved in the struggle
with defendants, or as the man Mary Ann Essell saw in the road near
the Herring residence. Furthermore, there was testimony indicating
that there were other unidentified males in the area around thesame time the murder is alleged to have occurred. Although the
evidence here arouses strong suspicion, we conclude that it 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, and thus the trial court correctly granted
defendants' motions to dismiss. Molloy,
309 N.C. at 179, 305
S.E.2d at 720.
Judges WYNN and STEELMAN concur.
The judges participated and submitted this opinion for filing
prior to 1 January 2007.
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