227.1Motion to Dismiss: Insufficient Evidence
- The defendant’s motion to dismiss for insufficient evidence challenges whether there is substantial evidence of each element of the offense and of the identity of the defendant as the perpetrator -- if not, the case is dismissed rather than going to the jury.
- The judge decides the motion by viewing all the evidence in the light most favorable to the state, and he or she should deny the motion as long as a reasonable inference of defendant’s guilt can be drawn from the circumstances.
- If the motion to dismiss is granted, the state will likely be barred from prosecuting the defendant again for the same offense due to double jeopardy.
Content and Timing
Pursuant to G.S. 15A-1227, the defendant may make a motion to dismiss the case on the grounds that there is insufficient evidence to sustain a conviction. This motion can be made: (i) at the close of the state’s evidence; (ii) at the close of all the evidence; (iii) after a guilty verdict has been returned and before the court enters judgment; or (iv) after discharging the jury without a verdict and before the end of the court session. G.S. 15A-1227(a). Failure to make a motion to dismiss at the close of the state’s evidence or at the close of all the evidence does not bar the defense from making a motion at either of the other two later times. The judge “must rule on a motion to dismiss for insufficiency of the evidence before the trial may proceed.” G.S. 15A-1227(c).
The motion to dismiss referenced in G.S. 15A-1227 is fundamentally the same as the motion described in G.S. 15-173 (“Demurrer to the evidence,” allowing defendant to “move to dismiss the action, or for judgment as in case of nonsuit” after the state has rested its evidence). There is little or no practical difference between the two. See State v. Mendez, 42 N.C. App. 141 (1979); see also G.S. 15A-1414 (motion to dismiss after verdict or set aside verdict). Regardless of whether it is styled as a motion to dismiss, motion for nonsuit, or motion for directed verdict, the legal effect is substantially the same. See State v. Bruce, 315 N.C. 273 (1985); State v. Mize, 315 N.C. 285 (1985); State v. Vietto, 297 N.C. 8 (1979).
Upon a defense motion to dismiss for insufficient evidence, the question to be decided by the judge is whether there is “substantial evidence” of: (i) each essential element of the offense (or lesser-included offense); and (ii) the identity of the defendant as the perpetrator of that offense. See State v. Hill, 365 N.C. 273 (2011); State v. Scott, 356 N.C. 591 (2002). “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71 (1980). As long as there is substantial evidence as to both issues, the motion to dismiss should be denied; if the evidence only raises a suspicion or conjecture as to either or both elements, the motion should be granted. Id.; State v. Fleming, 350 N.C. 109 (1999).
The evidence must be viewed in the light most favorable to the state, and giving the state the benefit of all reasonable inferences. Hill, 365 N.C. at 275; Scott, 356 N.C. at 596; Fleming, 350 N.C. at 142. This also means that the motion is:
- Evaluated without regard to the defendant’s evidence (unless that evidence is favorable to the state);
- Any contradictions or discrepancies in the evidence are left to the jury to resolve; and
- The court should consider all the evidence actually admitted, whether competent or not, that is favorable to the state.
Hill, 365 N.C. at 275; Scott, 356 N.C. at 596; Fleming, 350 N.C. at 142. Furthermore, the court should only evaluate whether sufficient evidence exists for the jury to consider the charge, not the weight of the evidence. See State v. Mercer, 317 N.C. 87 (1986). The ultimate question for the judge is “whether a reasonable inference of defendant’s guilt may be drawn from the circumstances.” State v. Lee, 348 N.C. 474 (1998). The same standard for evaluating a motion to dismiss for insufficient evidence applies regardless of when the motion is made, and regardless of the type of evidence (i.e., direct or circumstantial) offered by the state. See Scott, 356 N.C. at 595-6; Mercer, 317 N.C. at 97.
Two common versions
The specific basis for a defendant’s motion to dismiss will obviously depend on the unique facts of each case, but most of them tend to fall into two categories:
1. General motion: Defense attorneys often make a blanket assertion that “the state has not met its burden in the case” without offering specific reasons. The attorney may even acknowledge that he or she is just making the motion “for the record” and “we don’t need to be heard further.” This type of general motion is usually sufficient for appellate purposes. See State v. Mueller, 184 N.C. App. 553 (2007). The state’s response to such a motion can be fairly short as well, but the prosecutor should still briefly summarize the favorable evidence that supports the elements of the offense, and ask that the case be submitted to the jury.
2. One specific element: Alternatively, the defense may argue that the state failed to offer sufficient proof as to one specific fact or detail, and try to use that to limit the charges that can go to the jury. For example, the defense might argue that the state offered insufficient evidence to show that the defendant used a weapon, so the jury should only be charged on common law robbery instead of armed robbery. The prosecutor should be very specific in his or her response, and point out exactly what evidence establishes that element, remembering that all the evidence is viewed in the light most favorable to the state and with all inconsistencies resolved in the state’s favor. For example, if one witness said defendant had a weapon and one witness said he didn’t, that discrepancy should be resolved in the state’s favor. The motion should be denied, and the court should let the jury decide the facts.
Effect of Ruling and Right to Appeal
If the judge grants a motion to dismiss for insufficiency of the evidence, it has the same force and effect as a “not guilty” verdict, so double jeopardy will typically bar the state from trying the defendant again for the same offense. See Smalis v. Pennsylvania, 476 U.S. 140 (1986); State v. Ausley, 78 N.C. App. 791 (1986); State v. Murrell, 54 N.C. App. 342 (1981). This principle applies even if the judge’s decision to grant the motion to dismiss was clearly erroneous. See Smith v. Massachusetts, 543 U.S. 462 (2005); State v. Morgan, 189 N.C. App. 716 (2008). But remember that if the dismissal is based on grounds other than a determination of factual guilt or innocence (e.g., pre-indictment delay), that does not constitute a double-jeopardy bar to a second prosecution. See State v. Priddy, 115 N.C. App. 547 (1994). For more information, see the related entry on Double Jeopardy: Mistrial, Retrial and Appeal.
If the trial judge grants the motion to dismiss for insufficient evidence, the state has very limited ability to seek appellate review. As noted above, jeopardy has already attached by the time the motion is made, so a reversal of the motion and reinstatement of the charges for a new/second trial would be double jeopardy. See State v. Scott, 146 N.C. App. 283 (2001), rev’d on other grounds, 356 N.C. 591 (2002). However, there are two important exceptions to this rule:
- First, if the court grants a motion to dismiss made after the verdict has been returned, then the state can appeal the ruling because if the dismissal is found to be error, the original verdict can be reinstated without subjecting the defendant to a second trial. See State v. Hernandez, 188 N.C. App. 193 (2008); see also United States v. Jenkins, 420 U.S. 358 (1975). However, the court is not allowed to simply “withhold” giving a ruling on a timely-made motion to dismiss until after the jury returns with a verdict. See State v. Kiselev, 241 N.C. App. 144 (2015).
- Second, if the defendant’s motion to dismiss is based on a fatal variance between the charge alleged in the indictment and the evidence presented at trial, then a dismissal will bar the state from further prosecution of the charged offense, see State v. Faircloth, 297 N.C. 100 (1979); State v. Bell, 270 N.C. 25 (1967), but it does not prevent the state from seeking new charges against the defendant for the offense that actually occurred as shown by the evidence which came out at trial. See State v. Stinson, 263 N.C. 283 (1965); State v. Wall, 96 N.C. App. 45 (1989); State v. Johnson, 9 N.C. App. 253 (1970). In other words, the defendant has not been put on trial for the “correct” charge yet, so double jeopardy does not apply to that charge.
The defendant can appeal the denial of a motion to dismiss, assuming there is a conviction, but only if the defense made a timely and specific motion at trial. According to the statute, the “sufficiency of all evidence” introduced in the case is reviewable on appeal by the defendant, regardless of whether the defense made a motion to dismiss during trial or not. See G.S. 15A-1446(d)(5) (even without objection or motion at trial, appellate court may review whether “the evidence was insufficient as a matter of law”). However, this statute conflicts with the rule of appellate procedure that requires the defendant to move to dismiss at trial in order to raise the issue on appeal. See N.C. R. App. P. 10(a)(3) ("if a defendant fails to move to dismiss the action, or for judgment as in case of nonsuit, at the close of all the evidence, defendant may not challenge on appeal the sufficiency of the evidence to prove the crime charged"). Case law has established that the appellate rules trump the statute, and therefore the defendant may not raise the issue on appeal if the motion was not timely made at trial. See State v. Stocks, 319 N.C. 437 (1987) (“To the extent that N.C.G.S. 15A-1446(d)(5) is inconsistent with N.C.R.App.P. 10(b)(3), the statute must fail.”); State v. Blackmon, 208 N.C. App. 397 (2010) (“Although Rule 10 contradicts North Carolina General Statutes, section 15A–1446(d), which provides that some errors “may be the subject of appellate review even though no objection, exception or motion has been made in the trial division[,]” our Supreme Court has held that Rule 10 controls.”); State v. O’Neal, 77 N.C. App. 600 (1985) (“Where there have been conflicts between subsections of G.S. 15A-1446 and Rule 10, the North Carolina Supreme Court has unequivocably stated that the Rules of Appellate Procedure should control.”).
Special Topic – “Corpus Delicti” Rule
A particular type of motion to dismiss for insufficient evidence is based on the principle of “corpus delicti,” or “the body of the crime.” See State v. Smith, 362 N.C. 583 (2008). Under the corpus delicti rule, the state may not rely solely on the extrajudicial confession of the defendant to obtain a conviction; instead, the state must introduce substantial independent evidence to corroborate and support the facts underlying the confession. See State v. Trexler, 316 N.C. 528 (1986); State v. Parker, 315 N.C. 222 (1985).
In capital cases, the corroborative evidence must go to establishing that the crime did occur. Id. But in non-capital cases, the “substantial evidence” offered to corroborate the confession can be either of two types:
- Corroboration of the Crime That Occurred
First, the state may corroborate the confession with other evidence indicating that the crime did occur. See State v. Sloan, 316 N.C. 714 (1986) (rape confession corroborated by victim’s ripped clothing and presence of semen); State v. DeJesus, 265 N.C. App. 279 (2019) (defendant's confession to multiple counts of statutory sex offense was corroborated by substantial independent evidence including victim's resulting pregnancy and defendant's opportunities to commit the crime); State v. Sims, 174 N.C. App. 829 (2005) (defendant’s confession to purchasing cocaine corroborated by cocaine and paraphernalia found in his possession, and a past purchase from defendant by informant); State v. Blue, 207 N.C. App. 267 (2010) (robbery confession supported by the weapons found at the scene, consistent injuries found on the victim, and use of bleach and blue tarp to wrap body); .
- Strong Corroboration of the Confession
Alternatively, the state may offer "strong" corroboration of the confession itself, such as by establishing the trustworthiness and accuracy of the confession. See State v. Sweat, 366 N.C. 79 (2012) (defendant’s confession contained details likely known only by perpetrator, fit a pattern of other offenses, and matched victim’s description); State v. Brown, 87 N.C. App. 13 (1987) (defendant’s admission to being intoxicated supported by evidence he was an experienced drinker who drank often); but see State v. Smith, 362 N.C. 583 (2008) (opportunity to commit the offense, standing alone, was insufficient corroboration of confession in sex offense case where victim denied that the conduct occurred).
The corroboration requirement does not mean that the state is required to corroborate every single element of the offense – one or more individual elements can be proved by the confession alone. See State v. Cruz, 173 N.C. App. 689 (2005) (“it would not be fatal to the State's case if some elements of the crime were proved solely by the defendant's confession”), quoting Parker, 315 N.C. at 232.