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Unpublished Opinion No. 2008-UP-063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.