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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-947

NORTH CAROLINA COURT OF APPEALS

Filed: 3 July 2007

STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 05 CRS 84543
KENNETH REYNOLDS MOWERY, JR.

    Appeal by Defendant from judgment entered 1 February 2006 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 22 February 2007.

    Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

    Peter Wood for Defendant.

    STEPHENS, Judge.

    On 19 September 2005, Defendant was indicted by a grand jury on the charge of accessory after the fact to second-degree murder. He was tried by a jury before the Honorable James M. Webb in Guilford County Superior Court between 31 January and 1 February 2006.
    At trial, the State presented evidence tending to show that on the night of 30 November 2003, Jeremy Lee Brantley (“Brantley”) came to the residence of Derek Lee Brown (“Brown”) and Defendant. When Brantley arrived, Brown and Zane Drohan (“Drohan”), an acquaintance of all three men, were at the residence, but Defendant was not home. Drohan and Brown had planned to “fight” Brantley that evening because of prior disagreements between the men. Laterthat evening, Brown and Drohan lured Brantley to a building behind the residence so they could “fight” him. Once they arrived, there was an argument, Brown and Drohan fought Brantley, and they beat him to death. After Brantley died, Brown and Drohan stripped the room of all evidence, including anything containing Brantley's blood. Then, Brown and Drohan used heavy duty plastic to cover the trunk of a Cadillac owned by Brown and Defendant. Finally, Brown and Drohan wrapped Brantley's body in a blanket and placed it in the trunk.
    The next morning, after Defendant arrived home around 9:00 or 10:00 a.m., Brown told Defendant that Brantley had been killed. However, Brown testified that he did not tell Defendant any “details” of the killing. Once he was told of the killing, Defendant volunteered to help Brown bury Brantley's body. Defendant and Brown found a location and then transported the body to a farm off Groometown Road. At the farm, Defendant and Brown worked together to bury the body and conceal the burial site. Finally, they unloaded and burned the bloody evidence. Brown testified that he told Defendant the materials they were burning were from the crime scene.
    During the State's case, Defendant introduced two exhibits in evidence, and the trial court ruled that this constituted a presentation of evidence on behalf of Defendant. Defendant made a motion to dismiss at the end of the State's case, which was denied. Defendant offered no additional evidence, and renewed his motion todismiss at the close of all evidence. Judge Webb also denied this motion.
    The jury found Defendant guilty of accessory after the fact to second-degree murder. Based on this verdict and Defendant's prior record level, Judge Webb sentenced Defendant to a minimum term of 77 months and a maximum term of 102 months imprisonment. On 1 February 2006, Defendant appealed his conviction to this Court. For the reasons stated, we conclude Defendant received a fair trial, free of error.

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    Defendant first argues the trial court erred when it proceeded to trial because the indictment against him was insufficient on its face. We disagree.
    An indictment insufficient on its face deprives the trial court of subject matter jurisdiction. N.C. Gen. Stat. § 15A-1446(d) (2005); State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). A challenge to an indictment's sufficiency can be made at any time, even if the issue was not raised during trial. Id. The standard of review for insufficiency of an indictment is de novo. See State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981). Under the de novo standard of review, we consider the issue “anew[.]” State v. Sanders, 171 N.C. App. 46, 55, 613 S.E.2d 708, 714, aff'd per curiam, 360 N.C. 170, 622 S.E.2d 492 (2005). When considering the matter “anew,” we freely substitute our own judgment for that ofthe trial court. See Sutton v. North Carolina Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999).
    Defendant alleges that the indictment was insufficient because it did not contain the elements of second-degree murder. The indictment states:
        The jurors for the State upon their oath present that on or about the date of offense and in the county named above the defendant named above unlawfully, willfully, and feloniously did become an accessory after the fact to a felony of Second Degree Murder that was committed by Derek Lee Brown, Zane Matthew Drohan and/or others against Jeremy Lee Brantley on November 30, 2003, in that the defendant, knowing that Derek Lee Brown, Zane Matthew Drohan and/or others had committed that felony, did knowingly assist them in attempting to escape and in escaping detection, arrest, and punishment by disposing of evidence and by burying the body of Jeremy Lee Brantley.

An indictment must contain “[a] plain and concise factual statement in each count which . . . asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.” N.C. Gen. Stat. § 15A-924(a) (2005). In general, the indictment must give the defendant the “nature and cause” of the charge against him as well as the “essential particulars of the offense.” Wallace, 351 N.C. at 507, 528 S.E.2d at 343.
    North Carolina does not require that an indictment state the elements of the underlying felony that forms the base of the crime with which a defendant is charged. The indictment must only state the elements of the actual offense being charged. Our SupremeCourt has stated that the underlying felony “need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is enough to state the offense generally and to designate it by name.” State v. Norwood, 289 N.C. 424, 429-30, 222 S.E.2d 253, 257 (1976).
    An indictment is sufficient for accessory before the fact to a felony when it contains only the elements for the accessory charge, and none of the elements of the underlying felony. See State v. Saults, 294 N.C. 722, 242 S.E.2d 801 (1978) (holding that an indictment for accessory before the fact to felony arson need only state the elements for the accessory charge, and none of the elements of arson). In Saults, the defendant argued that because the indictment did not require any finding of malice (an element of arson), it was insufficient on its face. Id. Our Supreme Court held that the indictment was sufficient because it served the purposes of identifying the offense with which the defendant was charged, protecting the accused from double jeopardy, enabling the accused to prepare for trial, and enabling the trial court to pronounce a sentence. Id.
    These cases establish that it is not necessary for an indictment to allege the elements of the felonies underlying the offenses charged, and that all that is required is for the indictment to identify the elements of the offense for which the defendant is expected to stand trial. In this case, the indictment did not contain any of the elements of the underlying offense of second-degree murder, but did include all the elements of accessoryafter the fact to second-degree murder. This is the only offense with which Defendant was charged. Under well-settled law in this State, the indictment is sufficient. Therefore, Defendant's first assignment of error is overruled.
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    Next, Defendant argues the trial court committed prejudicial error when it failed to grant his motion to dismiss the charge because the evidence was insufficient to establish every element of accessory after the fact to second-degree murder.   (See footnote 1)  We disagree.
    When reviewing a defendant's motion to dismiss, this Court examines “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). Substantial evidence is the “amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002). When reviewing a motion to dismiss, this Court considers the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. See Powell, 299 N.C. 95, 261 S.E.2d 114. Contradictions ordiscrepancies are to be resolved by the jury and are not grounds for dismissal. Id. The elements of accessory after the fact to a felony are as follows: (1) the principal committed the felony; (2) the defendant personally helped the principal escape detection, arrest, or punishment; and (3) the defendant knew the principal committed the felony. See State v. Barnes, 116 N.C. App. 311, 447 S.E.2d 478 (1994).
    As Defendant admits, evidence was offered at trial from which a jury could find that the underlying felony of second-degree murder was clearly committed and that Defendant provided aid to the felons who committed it. The sole issue on appeal is whether Defendant knew how Brantley died, and if his conviction as an accessory required that he know the homicide constituted second-degree murder. Defendant argues there was no evidence that he knew Brown committed second-degree murder, and that he was only disposing of a body under very suspicious circumstances. Defendant concludes that because he did not know Brown committed second-degree murder, it is impossible to convict him as an accessory after the fact to that crime.
    We find this Court's holding in Barnes, supra, to be instructive. In Barnes, the defendant drove the perpetrator to the house of the victim and waited outside while the perpetrator went into the house. Id. After the defendant heard five or six loud pops, the perpetrator emerged from the home and ordered the defendant to drive him away. When the perpetrator entered the car, the defendant noticed blood on his shoes and a small child comingtoward the car from the home. Id. This Court concluded that even though the defendant had not seen the actual murder, there was sufficient evidence to survive a motion to dismiss on her charge of accessory after the fact to first-degree murder. In so holding, the Court determined that although the defendant was not present at the scene of the shooting, she knew the killing had taken place because of the loud pops and the blood on the perpetrator's shoes. Id.
    Barnes is analogous to the present case where Defendant was told a killing had taken place and participated in destroying the evidence of that killing, even though he was not aware of the exact circumstances of the killing. The evidence that Defendant was told the victim was killed, then volunteered to help the principal burn evidence and dispose of the body, provides substantial evidence from which a rational juror could find that Defendant was an accessory after the fact to second-degree murder. Accordingly, Defendant's second assignment of error is overruled.
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    By Defendant's final argument, he asserts the trial court committed plain error when it failed to instruct the jury on lesser-included offenses to accessory after the fact to second-degree murder. Again, we disagree.
    Generally, an alleged error in a jury instruction not objected to during the trial cannot be considered on appeal. See State v. Anderson, 355 N.C. 136, 558 S.E.2d 87 (2002). However, an alleged error not otherwise properly preserved may still be reviewed if thedefendant “specifically and distinctly contended” that it amounted to plain error. N.C. R. App. P. 10(c)(4). The plain error rule only applies in “exceptional cases[,]” wherein the Court is convinced that without the error, the jury probably would have reached a different verdict. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citation omitted).
    During trial, Defendant did not object to the jury instructions. In the record on appeal, Defendant assigns plain error to the jury instructions, but fails to argue in his brief that the trial court's instruction amounted to plain error. The closest Defendant comes to arguing plain error is one sentence where he states that the jury “could have found [voluntary manslaughter] as a verdict if they were given that option.” In order to obtain plain error review, Defendant must have argued specifically and distinctly that the jury would have reached a different verdict if the jury instruction had also included voluntary and involuntary manslaughter. See id. Because Defendant fails to clearly argue in his brief that the trial court's instruction amounted to plain error, Defendant has waived his right to appellate review of this assignment of error. See State v. Scercy, 159 N.C. App. 344, 583 S.E.2d 339 (holding that if a defendant fails to argue plain error in his brief, he waives the right to appellate review of such assignment of error, even if the defendant specifically and distinctly asserts plain error in the assignment of error), appeal dismissed and disc. review denied, 357 N.C. 581, 589 S.E.2d 363 (2003).     However, assuming arguendo that Defendant had sufficiently argued plain error in his brief, there was no error in the jury instructions. A defendant is “'entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)). On the contrary, “if there is no evidence of the lesser-included offense, there is no error in refusing to instruct on the lesser offense.” State v. Howie, 116 N.C. App. 609, 613, 448 S.E.2d 867, 869 (1994) (citation omitted). In the case at bar, there was no evidence to support an instruction on voluntary manslaughter or involuntary manslaughter.
    In a similar case, our Court held that the trial court did not err in refusing to instruct on a lesser-included offense. In State v. Brewington, ___ N.C. App. ___, 635 S.E.2d 512 (2006), the defendant was tried and convicted of accessory after the fact to second-degree murder, and argued on appeal that the trial court committed reversible error when it refused to instruct the jury on the lesser-included offense of voluntary manslaughter. The defendant argued it was possible that the principal felon had acted in imperfect self-defense, thus reducing the underlying crime to voluntary manslaughter. Id. Like the principal in the case at bar, the principal in Brewington pled guilty to second-degree murder before the defendant's trial. This Court held that because there was no evidence the principal committed voluntarymanslaughter, the defendant was not entitled to a jury instruction on that charge. Id.; cf. State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985) (wherein our Supreme Court held that giving a lesser-included instruction was proper because the evidence showed the defendant robbed the victim with an unloaded gun, permitting an instruction for common law robbery as well as for armed robbery). Similarly, in the present case, the principal pled guilty to second-degree murder, and there is no evidence to support a lesser charge. Because there is no evidence of any of the lesser-included offenses, there was no error in the trial court's instruction. Accordingly, Defendant's final assignment of error is overruled.
    NO ERROR.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).


Footnote: 1
    While Defendant introduced evidence during the State's case, thus waiving his right to move for dismissal after the close of the State's evidence, he still preserved his right to make such a motion at the conclusion of all evidence and preserved grounds for appeal on this motion to dismiss. See N.C. Gen. Stat. § 15-173 (2005); State v. Upright, 72 N.C. App. 94, 323 S.E.2d 479 (1984), disc. review denied, 313 N.C. 513, 329 S.E.2d 400, cert. denied, 313 N.C. 610, 332 S.E.2d 82 (1985).

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