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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 July 2007
STATE OF NORTH CAROLINA
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.
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
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 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
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.
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
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
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.
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)
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.
, 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
, 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.
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.
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.
, 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.
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.
, 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
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
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
, ___ 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.
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.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).
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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