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No. COA06-947                         JUDICIAL DISTRICT 18

                 NORTH CAROLINA COURT OF APPEALS

              * * * * * * * * * * * * * * * * * * *


STATE OF NORTH CAROLINA          )
                                 )
     v.                          )         From Guilford County
                                 )         05CRS84543
KENNETH REYNOLDS MOWERY, JR.     )

                * * * * * * * * * * * * * * * * * *
          ______________________________________________


           BRIEF FOR DEFENDANT-APPELLANT KENNETH MOWERY




                  QUESTIONS PRESENTED FOR REVIEW



1.   Did the trial court commit plain and prejudicial error

     when it proceeded to trial when the indictment against

     appellant was insufficient on its face and therefore

     the trial court lacked proper subject matter

     jurisdiction?

2.   Did the trial court commit plain and prejudicial error

     when it failed to grant appellant’s motion to dismiss

     the charges against appellant at the close of state’s

     evidence when the evidence was insufficient to

     establish every element of accessory after the fact to

     second degree murder?
                             2


3.   Did the trial court commit plain and prejudicial error

     when it failed to grant appellant’s motion to dismiss

     the charges against appellant at the close of all

     evidence when the evidence was insufficient to

     establish every element of accessory after the fact to

     second degree murder?

4.   Did the trial court commit plain and prejudicial error

     when it failed to instruct the jury on accessory after

     the fact to voluntary manslaughter and accessory after

     the fact to involuntary manslaughter?


                        JURISDICTION



          Pursuant to Appellate Rule of Procedure 28(b)(4),

jurisdiction for this appeal is granted from N.C.G.S. 15A-

1444. This Court has jurisdiction over this appeal by virtue

of 7A.27(b) and 15A-1441. Oral notice of appeal to the North

Carolina Court of Appeals was given in open court on

February 1, 2006. (T. p. 228).

                    PROCEDUREAL HISTORY

     Kenneth Mowery, Jr. was indicted on the charge of

accessory after the fact to second degree murder on

September 19, 2005 in Guilford County Superior Court in

05CRS84543. (R. p. 8). The Honorable James Webb presided

over a jury trial during the January 30, 2006 session of

Superior Court. On February 1, 2006 after a two day trial,
                               3


Kenneth Mowery was found guilty of accessory after the fact

to second degree murder. (R. p. 19).

    He received an active sentence of seventy seven to one

hundred and two months in the North Carolina Department of

Corrections, that sentence being in the presumptive range.

He had a prior record level of II. (R. p. 24).

    He appealed his conviction to the North Carolina Court

of Appeals in open court on February 1, 2006. (T. p. 228).

Peter Wood was appointed as appellate counsel on February

15, 2006. (R. p. 30)

    The time for preparing the transcript of trial was

extended several times. (R. p. 31-32). The proposed record

on appeal was mailed to all parties on June 7, 2006. (R. p.

37). It was settled on July 17, 2006. (R. p. 35)



                       STATEMENT OF FACTS

    Derek Lee Brown murdered Jeremy Lee Brantley. Brown and

Zane Drohan late the night of November 30, 2003 beat

Brantley to death in Brown’s residence.

    The only evidence that Mowery was involved in the

homicide was the testimony of Derek Brown. Kenny Mowery was

not present when Justin Brantley was murdered. Zane Drohan

and Derek Brown alone beat Justin Brantley to death the

night of November 30, 2003 at the residence shared by Brown

and Mowery. (T. p. 121-122)
                             4


    After the murder Brown and Drohan stripped the room

where Brantley had been killed of any evidence, specifically

objects that had blood on them from the killing. (T. p.

133). They then hid Jeremy Brantley’s body in the trunk of a

Cadillac that Brown and Mowery owned together. The body was

first “wrapped into a blanket (and then laid in a)… trunk

(that) was covered in heavy duty plastic.”. Mowery was not

present at this point. (T. p. 125)

    At this point there is some disagreement about what

happened next. Brown claimed that he told Mowery about the

crime. Mowery denies any knowledge.

    Brown testified at trial that Mowery did not arrive

until the next morning at nine or ten a.m. Mowery was only

told that Brantley had been killed. He was not told how or

why. (T. p. 126-127)

    The information available to Mowery at the time he

helped Brown was far less than what was presented to the

jury at trial.

    There was evidence at trial from which the jury could

have convicted Mowery of helping Brown dispose of the body

and evidence of the crime. Brown testified at length about

how Mowery helped him destroy evidence of the crime,

including wood that had been splattered with blood.

  Brown told Mowery no details of the murder. Brown

testified that Mowery helped him dispose of evidence that
                              5


was covered in blood by burning it. Brown testified that

Mowery was told he was destroying evidence. Brown did not

testify that Mowery was told how Brantley died. (T. p. 133).

  By the time Mowery began helping Brantley’s body had

already been wrapped and stowed in the trunk of the

Cadillac. Brown had wrapped the body up so that onlookers

could not tell what it was. Brown described the body at this

point as “a big wrapped-up object that they might call a

body.”. (T. p. 173)

    Further facts will be presented in the argument portion

of this brief.



                           Argument



    I. The trial court committed plain and prejudicial
       error when it proceeded to trial when the indictment
       against t appellant was insufficient on its fact and
       the court lacked subject matter jurisdiction.
    (Assignment of Error Number 1, R. p. 36)


                      Standard of Review

    This issue is reviewable de novo as a question of
    law by this Court. Since this argument challenges
    the validity of an indictment, it is a
    jurisdictional challenge and, therefore, it is
    automatically preserved for appeal. Any error
    requires reversal, without regard to prejudice.
    State v. Wallace, 351 N.C. 481, 528 S.E.2d 326,
    cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498
    (2000). N.C. Gen. Stat. 15A-1446 (d) (1)(2)& (4)
    (2004) N.C. Gen. Stat. 15A-1446 (d) (1)(2)& (4)
    (2004)
                             6


    The indictment against appellant was insufficient on

its face. It stated in its entirety:

         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.
    (R. p. 8)


The indictment did not give appellant proper notice of the

charges against him, because it did not contain the elements

of second degree murder.

    Second degree murder occurs when “an individual kills

another living human being with malice.” State v. Bunn, 283

N.C. 444,457, 190 S.E.2d 777,786 (1973). None of the

elements of second degree murder were present in the

indictment.

    An indictment must allege every essential element of

the criminal offense. State v. Jerrett, 309 N.C. 239,259,

307 S.E.2d 339,350 (1983). An indictment that does not

properly allege each element is insufficient as a matter of

law. State v. Coker, 312 N.C. 432,434-435, 323 S.E.2d

343,346 (1984). Without a proper bill on indictment the
                             7


trial court does not have jurisdiction to try the accused.

State v. Snyder, 343 N.C. 61,65, 468 S.E.2d 221,224 (1996).

    The indictment in the instant case was invalid on its

face. It did not properly allege every element of second

degree murder. It did not properly put Mowery on notice of

the charges against him. The trial court erred by trying

appellant under an invalid bill of indictment.



     II. The trial court committed prejudicial error when it
        failed to grant appellant’s motion to dismiss the
        charges against appellant at the close of state’s
        evidence when the evidence was insufficient to
        establish every element of accessory after the fact
        to second degree murder.
     III. The trial court committed prejudicial error when
        it failed to grant appellant’s motion to dismiss the
        charges against appellant at the close of all
        evidence when the evidence was insufficient to
        establish every element of accessory after the t
        fact to second degree murder.
(Assignments of Error #2 and 3, R. p. 36)

  Both Assignments of Error Will Be Argued Simultaneously


                       Standard of Review

    The standard of appellate review in reviewing a
    trial court’s denial of a motion to dismiss is
    twofold. “The question for the (appellate) court
    is whether there is substantial evidence of each
    essential element of the offense charged, or of a
    lesser offense, including therein and (2) of
    defendant'’ being the perpetrator of such
    offenses. If so the motion is properly denied" The
    evidence is reviewed at the appellate level de
    novo. State v. Barnes, 334 NC 67,75, 430 S.E.2d
    914,918 (1993).
                             8


    There was evidence at trial that Kenneth Mowery, Jr.

had helped Derek Brown dispose of the body of Jeremy

Brantley after Brantley had been murdered by Brown.

    There was no evidence that Mowery knew that Brown had

committed second degree murder. The evidence showed only

that Mowery knew that he was disposing of a body under very

suspicious circumstances.

    No evidence was presented at trial that Mowery ever

knew how Brantley died. Brown did not tell him. Mowery

didn’t ask and Mowery never found out on his own.

    Appellant does not admit his guilt to accessory after

the fact to second degree murder. He does acknowledge that

there was plenary evidence at trial from which a jury could

find him guilty of accessory after the fact to a lesser

included offense, but not the charge submitted to the jury.

He also admits that there was evidence at trial from which a

jury could have found that Derek Brown committed second

degree murder. Brown had confessed and plead guilty to

murdering Jeremy Brantley, after all. (R. p. 15-16)

    At the close of the State’s evidence appellant made a

timely motion to dismiss all charges. This motion was

renewed at the conclusion of all evidence, again in a timely

manner. Both motions were denied. (T. p. 197-198).

    Kenneth Mowery was not present when Justin Brantley was

murdered. Zane Drohan and Derek Brown alone beat Justin
                              9


Brantley to death the night of November 30, 2003 at the

residence shared by Brown and Mowery. (T. p. 121-122)

    After the murder Brown and Drohan stripped the room

where Brantley had been killed of any objects that had blood

on them from the killing, objects that could be used as

incriminating evidence at trial. (T. p. 133). They then hid

Jeremy Brantley’s body in the trunk of a Cadillac that Brown

and Mowery owned together. The body was first “wrapped into

a blanket……..The trunk was covered in heavy duty plastic.”.

Mowery was not present at this point. (T. p. 125)

    Mowery did not arrive until the next morning at nine or

ten a.m. Following is the complete testimony from Brown

about what Mowery was told:

         Kenny Mowery showed up the next morning
    around nine or ten. They had went over to a girl
    Michelle’s house. Him and Zane and Michelle. Then
    when Kenny came, I told him about what happened.
         Q: What was his reaction?
         A: A lot of crazy things go on at that house.
         Q: You said you told him what had happened.
    What did you tell him?
         A: Told him basically that Jeremy was dead.
         THE COURT: Say that again?
         THE WITNESS: I told him that Jeremy was dead.
    That he had been killed.
         Q: Where were you finished? I’m sorry. Didn’t
    mean to cut you off.
         A: Didn’t really say any details on it.
         Q: Okay. Now, when you told him that Jeremy
    was dead at that point, did you tell him where
    Jeremy was at that point?
         A: Yes.
         Q: What was his reaction?
         A: That he would help bury him. (T. p. 126-
    127)
                             10


Mowery was only told that Brantley had been killed. He was

not told how or why. Brown did not give him “any details”.

    The information available to Mowery at the time he

helped Brown was far less than what was presented to the

jury at trial.

    There was evidence at trial from which the jury could

have convicted Mowery of helping Brown dispose of the body

and evidence of the crime. Brown testified at length about

how Mowery helped him destroy evidence of the crime,

including wood that had been splattered with blood from the

murder.

  Even if Mowery did burn evidence, however, there was

still no proof at trial that Brown told him any details.

Brown testified that Mowery helped him dispose of evidence

that was covered with blood by burning it. Brown testified

that Mowery was told he was destroying evidence. Brown did

not testify that Mowery was told how Brantley died. (T. p.

133).

  By the time Mowery began helping, Brantley’s body had

already been wrapped and stowed in the trunk of the

Cadillac. It was impossible to tell any details of how

Brantley had died by examining Brantley’s disguised corpse.

Brown had wrapped the body up so that onlookers could not

tell what it was. Brown had deliberately disguised the body

so that his neighbors would not get suspicious and contact
                             11


the police. Brown described the body at this point as “a big

wrapped-up object that they might call a body.”. (T. p. 173)

  To be guilty of accessory after the fact three things

must be proven:

    1. the principal committed the felony;
    2. the principal was aided by the defendant in
       avoiding capture or detection after the felony
       has been committed; and
    3. the defendant had knowledge that the principal
       has committed the felony. N.C.G.S. 14-7.,
       State v. Squire, 292 N.C. 494,505, 234 S.E.2d
       563,569 (1977).

  Appellant concedes that there was evidence at trial from

  which a jury could find Derek Brown had committed second

  degree murder by killing Jeremy Brantley and that Mowery

  aided Brown by helping him destroy evidence and conceal

  Brantley’s body.

    However, there was no evidence at trial that Mowery

  ever knew that second degree murder had been committed.

  With no knowledge that Brown had committed second degree

  murder it was a legal impossibility for Mowery to be

  convicted of accessory after the fact to second degree

  murder. Being aware of suspicious circumstances alone is

  not equal to being aware that a serious crime has been

  committed. Mowery may have thought that Brown had

  committed voluntary manslaughter or involuntary
                                                          12


       manslaughter or that Brown was trying to dispose of a

       person he had killed in self defense.1

             The trial court erred by not dismissing the charges

       against appellant.

       IV. The trial court committed plain and prejudicial error
         when it failed to instruct the jury on lesser included
         offenses to accessory after the fact to second degree
         murder.

(Assignment of Error 4, R. p. 36)

                                          Standard of Review

           When a necessary jury charge is not given the
           standard or review is whether the State can prove
           beyond a reasonable doubt that the defendant was
           not prejudiced by the error. The evidence is
           reviewed de novo. State v. Ross, 322 N.C. 261,
           265, 266, 367 S.E.2d 889,891,892 (1988). State v.
           Pakulski, 319 N.C. 562, 575, 356 S.E.2d 319, 327
           (1987). N.C.G.S. 15A-1443(b).



           The jury in the instant case was misled by the trial

court. The jury had a duty to determine the criminal state

of the mind of Kenneth Mowery. If the jury determined that

Derek Brown had committed second degree murder the jury had

a duty to determine what crime, if any, Mowery thought he

was helping Brown conceal.

           It was immaterial to the jury what crime the state

could prove Brown had committed. All that mattered was what

crime did Kenneth Mowery have reason to think Brown had

committed.

1
    Appellant incorporates by reference in its entirety the portion of his brief dealing with the trial court
                                                      13


         Appellant concedes that there was evidence from which

the jury could determine he had aided Derek Brown in

disposing of Jeremy Brantley’s body. However, he does not

concede that there was evidence from which the jury could

determine that he had knowingly helped Brown after Brown

committed second degree murder.

         The trial court should have instructed the jury to

determine what crime Mowery committed based on the

information available to Mowery at the time he agreed to

help Brown dispose of Brantley’s body.

         Mowery only knew that he was disposing of a body. He

did not know the circumstances of Brantley’s death. For all

he knew, Brantley could have been the victim of second

degree murder, voluntary manslaughter or involuntary

manslaughter or justifiable homicide.

         The trial court unfairly took away those considerations

from the jury. The jury’s options were limited.

         Failure to “declare and explain the law arising on the

evidence given in the case..is error for which the injured

party is entitled to a new trial.” State v. Jones, 254 N.C.

450,453, 119 S.E.2d 213, 215 (1961). Furthermore,:

         It is obligatory for the trial judge to charge the
         jury as to the law upon every substantial feature
         of the case embraced within the issue and arising
         on the evidence without any special prayer for
         instruction to that effect. State v. Brady, 236
         N.C. 295,297, 72 S.E.2d 675, 677 (1952).

s error in not instructing the jury on lesser included offenses of second degree murder.
                             14



Instructions of lesser included offenses to second degree

murder were mandatory in this case. The jury alone had the

right to decide if the defendant was guilty or accessory

after the fact to second degree murder or to some other

homicide.

    The court did not have the right to take away a valid

consideration from the jury. The jury alone has the right to

weigh the credibility of the witnesses. The court does not

have the authority to decide if evidence is credible. State

v. Holloway, 82 N.C.App. 586, 587, 347 S.E.2d 72,73-74

(1986). If there is evidence of a lesser included offense,

no matter how slight, the jury must be instructed on that

offense. State v. Joyner, 312 N.C. 779, 324 S.E.2d 841

(1985).

    Second degree murder occurs when a person kills another

person with malice. State v. Propst, 274 N.C. 62,70,71, 161

S.E.2d 560,567 (1968). Mowery did not know the circumstances

of Brantley’s death. He only knew that Brantley was killed

by Brown. Brown neglected to give Mowery any details

whatsoever of the killing. There was no evidence of malice

before the jury.

    The jury should have been instructed on voluntary

manslaughter. Voluntary manslaughter occurs when a person

kills another human being without malice, premeditation or

deliberation. State v. Benge, 272 N.C. 261, 158 S.E.2d 70
                              15


(1967). The jury, with no evidence of malice before it,

could have found this as a verdict if they were given that

option.

    The jury also should have been instructed on

involuntary manslaughter. Involuntary manslaughter occurs

when a person kills another unlawfully:

    1. by an unlawful act that does not amount to a
       predicate felony for felony murder or is not
       inherently dangerous to life; or
    2. by engaging in any other conduct in such a
       reckless and careless manner as to show a
       thoughtless disregard for consequences or a
       needless indifference to the rights and safety
       or others; or
    3. by culpable omission to perform a legal duty.
       State v. Honeycutt, 250 N.C. 229, 108 S.E.2d
       485 (1959).

The jury had no evidence of malice before it. The evidence

before them showed only that Mowery helped dispose of a body

under suspicious circumstances. Mowery may have thought he

was helping Brown avoid capture after committing involuntary

manslaughter.

    The burden is on the state to prove beyond a reasonable

doubt that the trial court’s erroneous instruction was

harmless error. The State cannot meet this burden. Appellant

is entitled to a new trial.




                         CONCLUSION

    Based on the trial court’s error in proceeding to trial

when the indictment was defective, appellant’s conviction
                             16


should be vacated and the case should be remanded back to

the trial level with instructions to dismiss the indictment.

Based on the trial court’s error in not dismissing the

charges at the close of state’s evidence and at the close of

all evidence, the decision of the trial court should be

vacated and the case should be remanded back to the trial

court with instructions to dismiss the indictment. Based on

the trial court’s error in not properly instructing the

jury, defendant’s conviction should be reversed and the case

should be remanded back to the trial level with instructions

to grant appellant a new trial with a properly instructed

jury.

Respectfully submitted this the ___________day of

                                 ___________________________
                                 Peter Wood, Attorney for
                                 Defendant-Appellant-K. Mowery
                                 P.O. Box 3035
                                 Raleigh, NC 27602
                                 (919) 821-1083
                                 State Bar No. 19630.


                   CERTIFICATE OF SERVICE

This is to certify that the undersigned has served the
foregoing BRIEF FOR APPELLANT KENNETH MOWERY on all parties
by U.S. mail to:

Roy Cooper
Office of the Attorney General
Post Office Box 629
Raleigh, NC 27602


    This the

                                 __________________________
17


 Peter Wood
 Attorney for
 Defendant-Appellant-K. Mowery

				
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