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2008-UP-063 - State v. Gambrell

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State, Respondent,

v.

Johnny Ray Gambrell, Appellant.


Appeal From Anderson County
 J. C. Buddy Nicholson, Jr., Circuit Court Judge


Unpublished Opinion No. 2008-UP-063
Submitted January 2, 2008 – Filed January 22, 2008


AFFIRMED


Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry D. McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Donald J. Zelenka; Assistant Attorney General J. Anthony Mabry, of Columbia; and Solicitor Christina Theos Adams, of Anderson, for Respondent.

PER CURIAM:  Johnny Ray Gambrell appeals his murder conviction.  We affirm.

FACTS

Gambrell and Lois Gambrell were married and lived in a rental house on Mahaffey Street in Belton.  Their marriage was tumultuous and Lois was allegedly hospitalized after Gambrell beat her.  The parties separated on at least one occasion.  On another occasion, Lois asked Shane Garner, the landlord, to change the locks as Gambrell would be vacating the house.  One day in June of 2004, Gambrell told Garner he believed Lois was “running around” on him.  The following night, Gambrell allegedly told Garner he had severely beat Lois.  After each incident, the parties reconciled. 

On July 12 and 13 of 2004, Lois visited her mother, who was recuperating from surgery, but Lois did not show up to visit her mother, as expected, on July 14, 2004.  The Gambrell’s neighbors and Garner testified they last saw Lois at the marital home approximately July 15, 2004.  On July 16, 2004, Garner visited the house to collect rent at approximately 9:30 or 10:00 p.m.  Gambrell did not answer the door but eventually came around the side of the house.  Garner testified Gambrell appeared nervous and sweaty.  That same evening, Gambrell built a large bonfire.  One neighborhood teenager estimated Gambrell started the fire at approximately 8:00 or 9:00 p.m.  Another neighborhood teenager noticed the fire after he got off work at either 9:00 or 10:00 p.m. that evening.  Garner did not notice the fire when he visited Gambrell.  He testified, however, he saw Gambrell at approximately 4:00 a.m. the following morning, tending the large bonfire. 

Gambrell moved out of the house the following day.  Garner testified Gambrell told him that Lois had come to the house, taken all of her things, and left.  Gambrell told Garner he thought Lois was staying in a hotel in Anderson.  Garner testified the inside of the house was trashed with debris and evidence of a fight.  There was also a spot on the carpet that looked like blood.  Garner and his family cleaned the house and shampooed the carpet.  There were numerous personal items left in the house including “woman’s baloney . . . [such as] clothes, women’s deodorant, razors, [and] women’s products.  Stuff like that.”  Garner and his family members also cleaned the bonfire debris, taking most of it to a landfill.  When Garner ran out of garbage bags, he shoveled the remaining debris into garbage barrels in the back yard.  Garner found numerous articles in the debris including Lois’s birth certificate and Social Security card. 

Lois’s mother and sister reported Lois missing on or about August 23, 2004.  City of Anderson Detective James Stewart investigated the missing person’s report.  Stewart testified Gambrell reported he had not seen Lois in three months.  Officer Jamie Brothers also testified Gambrell told him he had not seen Lois in three months.  Brothers further testified Gambrell said he thought Lois was in Texas with a family member. 

The police investigated and recovered bone fragments in the garbage barrels.  Around the burn area, the police also found Lois’s jewelry and glasses and other metal items such as car keys, zippers, and buttons.  Inside the house, the police found the blood stain but were unable to identify the blood as human blood. 

The bone fragments were identified by a forensic anthropologist as belonging to a woman approximately forty years old and five foot four inches in height.  Lois’s mother testified Lois was approximately 43 years old at the time she disappeared.  The bone fragments were also identified, through DNA comparison of Lois’s mother, as belonging to an offspring of Lois’s mother. 

Gary Bean, an arson investigation expert, visited the site and testified he noticed the smell of a burned body.  Bean opined the bonfire burned between 10 and 12 feet in diameter at a temperature, between 1000 and 1300 degrees Fahrenheit, sufficient to burn a human body.  A forensic chemist testified a heavy petroleum accelerant such as kerosene or diesel fuel started the fire.  Neighbors testified Gambrell fed the fire with books and clothes.  In the debris after the fire, there was evidence that tires, a mattress, and living room furniture were also burned.    

Christopher Wickware, a car salesman, testified he sold Lois a Chevrolet Cavalier and later hired a company to repossess the vehicle.  The payments were subsequently made and the car returned to Wickware’s dealership lot between 10:00 p.m. and 6:00 a.m. one night in August of 2004.  The car was trashed, as if it had been outside for a period of time with the windows down. 

The jury convicted Gambrell of murder and the trial court sentenced Gambrell to life imprisonment.  This appeal follows.

LAW/ANALYSIS

I. Directed Verdict

Gambrell argues the trial court erred in denying his motion for a directed verdict.  We disagree.

When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Gaster, 349 S.C. 545, 555, 564 S.E.2d 87, 92 (2002).  This court must review the denial of a directed verdict by reviewing the evidence and all reasonable inferences in the light most favorable to the State.  State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999).  This court must affirm the denial of an accused’s motion for a direct verdict if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused.  State v. Harris, 351 S.C. 643, 653, 572 S.E.2d 267, 273 (2002).  The standard of review is the same where the State relies exclusively on circumstantial evidence.  State v. Cherry, 361 S.C. 588, 593-94, 606 S.E.2d 475, 477-78 (2004).

In this case, the State presented substantial circumstantial evidence of Gambrell’s guilt.  Murder is defined as the “killing of any person with malice aforethought, either express or implied.”  S.C. Code Ann. § 16-3-10 (2003).  There are numerous facts supporting the trial court’s denial of the motion for a directed verdict.

Gambrell and Lois had a stormy relationship and Gambrell physically harmed Lois on prior occasions.  Garner and other witnesses observed Lois at the marital home within a day or two of the bonfire.  Gambrell made conflicting statements as to the last time he had seen Lois.  Witnesses observed Gambrell at or near the bonfire at various times as it burned.  Bones found in the bonfire debris were identified as belonging to an offspring of Lois’s mother.  See State v. Al-Amin, 353 S.C. 405, 411-13, 578 S.E.2d 32, 34-36 (Ct. App. 2003) (Concealment or attempted destruction of the body of a murdered person is a probative fact tending to show guilt.).  Other items belonging to Lois were found near the burn site.  Lois’s vehicle was mysteriously returned to the car dealership near the time the investigation into Lois’s disappearance began.  Taken together, these facts constitute substantial circumstantial evidence presented by the State to warrant submission of the case to the jury.  The motion for a directed verdict was properly denied.

II. Motion for Mistrial

Gambrell next argues the trial court erred in refusing his motion for a mistrial based on Officer Stewart’s statement on cross-examination.  We disagree. 

During cross-examination, defense counsel questioned Stewart about Gambrell’s alleged statement that he had not seen Lois in three months.  Defense counsel asked:  “Could it have been that he said [he] hadn’t seen her in three or four weeks . . . ?”  Stewart replied:  “No, sir.  I am certain on that.  I was walking back to the control booth at the Anderson County Detention Center.”  The State briefly redirected and defense counsel moved for a mistrial.  Defense counsel declined the trial court’s offer of a curative instruction. 

We find Gambrell waived this issue by declining the curative instruction.  See State v. Watts, 321 S.C. 158, 164-65, 467 S.E.2d 272, 276 (Ct. App. 1996) (finding defendant waived issue by rejecting offer by trial court to give a curative instruction).

CONCLUSION

Accordingly, Gambrell’s conviction is

AFFIRMED.

ANDERSON, SHORT, and WILLIAMS, JJ., concur.