dissenting.
I concur with the majority that the trial court properly excluded evidence that prohibited Keith Donnell Miles (“defendant”) from questioning Rachel Whitmore (“the victim’s wife”) on certain issues by granting the State’s motion in limine. I also concur with the majority that the court did not err by denying defendant’s requested jury instruction on the lesser included offense of second-degree murder. However, I find that the trial court erred by denying defendant’s motion to dismiss the first-degree murder charge. Therefore, I respectfully dissent.
At the close of the State’s evidence, and again at the close of all the evidence, the trial court denied defendant’s motion to dismiss. When the defendant makes a motion for dismissal, “ ‘the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator of such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted).
The majority correctly states that the only evidence adduced at trial tending to show defendant murdered Jonathan Whitmore (“the victim”) was circumstantial. While “[circumstantial evidence may withstand a motion to dismiss[,]” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988), “ ‘[i]f the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant’s guilt may be drawn from the circumstances.’ ” Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation omitted). “The law will not allow a conviction on evidence that merely gives rise to suspicion or conjecture that the defendant committed the crime.” State v. Lambert, 341 N.C. 36, 42, 460 S.E.2d 123, 127 (1995).
“[E]vidence of either motive or opportunity alone is insufficient to carry a case to the jury.” State v. Bell, 65 N.C. App. 234, 238-39, 309 *613S.E.2d 464, 467 (1983), aff’d per curiam, 311 N.C. 299, 316 S.E.2d 72, 73 (1984). “When the question is whether evidence of both motive and opportunity will be sufficient to survive a motion to dismiss, the answer . . . [depends on] the strength of the evidence of motive and opportunity, as well as other available evidence, rather than an easily quantifiable ‘bright line’ test.” Id. at 239, 309 S.E.2d at 468.
I agree with the majority that there was sufficient evidence of motive to overcome defendant’s motion to dismiss. Defendant had a financial motive and repeatedly made threatening phone calls to the victim, visited his home, and indicated to Alfreddie Roberson (“Roberson”) that he would kill the victim if he did not receive the money that the victim owed him. However, evidence of motive alone is insufficient to carry a case to the jury. Id. at 238-39, 309 S.E.2d at 467.1 find that the State produced evidence of motive, suspicion and conjecture but failed to produce sufficient evidence of opportunity to identify defendant as the perpetrator.
The State and the majority rely on cases where some physical evidence or eyewitness testimony linked the defendant to the crime scene and therefore created a reasonable inference that defendant was the perpetrator. In State v. Carver, which the majority finds controlling, the victim was found dead on the shore of a river beside her car._N.C. App._,_, 725 S.E.2d 902, 903 (2012). The only evidence that showed the defendant committed the murder was circumstantial. Id. at_, 725 S.E.2d at 904. The Court held that there was sufficient evidence to deny the defendant’s motion to dismiss where there was evidence that the defendant was fishing near the victim’s car, close to the time of the victim’s murder and despite the defendant’s claims that he had not seen or touched the victim or the victim’s car, positive DNA analysis found on the victim’s vehicle was “sufficient to establish that the DNA could only have been left at the time the offense was committed.” Id. at_, 725 S.E.2d at 904-05.1; see also State v. Barnett, 141 N.C. App. 378, 384, 540 S.E.2d 423, 428 (2000) (finding sufficient evidence to survive a motion to dismiss where the defendant admitted to being at the scene and touching various items and the State also presented evidence that shoe prints on the floor and the victim’s shirt were consistent with the shoes defendant admitted to wearing on the day of the murder); State v. Ledford, 315 N.C. 599, 613-14, 340 S.E.2d 309, 318-19 (1986) (finding sufficient *614evidence to survive a motion to dismiss where there was evidence of defendant’s boot print in the victim’s home, a cigarette butt consistent with the defendant’s blood type and brand in the home, eyewitness testimony placing the defendant outside the victim’s home at 2:00 a.m. the night of the murder and evidence defendant had in his possession approximately the same amount of money that was taken from the victim); State v. Parker, 113 N.C. App. 216, 223, 438 S.E.2d 745, 750 (1994) (finding sufficient evidence to survive a motion to dismiss where the State presented eyewitness testimony that the defendant was in the area on the morning of the victim’s death and where the “defendant’s brand of cigarette package” was found at the scene) (emphasis added); State v. Patel,_N.C. App._,_, 719 S.E.2d 101, 107 (2011), disc.. review denied,_N.C._, 720 S.E.2d 395, 396 (2012)(finding evidence of opportunity where the State’s evidence showed that the victim called the defendant twice the day of the murder and told others she was going to his apartment, the defendant avoided other activities and his alibi was unsupported, the victim’s car was located at the defendant’s apartment complex, and a fiber found in defendant’s tmick was consistent with fibers found under the victim’s body); Stone, 323 N.C. at 452-53, 373 S.E.2d at 434 (finding sufficient evidence of opportunity where the defendant “had access to a weapon and bullets which could have caused the death of the victim, had the time and opportunity to commit the murder, and drove a car which could have made the tire tracks found at the dump site.”)(emphasis added). In State v. Bostic, also relied on by the State, there was no physical evidence linking the defendant to the crime scene, but there was eyewitness testimony that confirmed that the defendant assaulted the victim at the scene on the morning of the victim’s death and a subsequent statement by the defendant that he killed the victim. 121 N.C. App. 90, 99, 465 S.E.2d 20, 24 (1995).
In the instant case, the State failed to produce any physical evidence or eyewitness testimony linking defendant to the murder scene. When law enforcement arrived, they found the victim’s body at a distance of approximately three feet from the side of the road, and approximately one hundred feet from the victim’s residence. According to Dr. Patrick Eugene Lantz, a forensic pathologist who performed the victim’s autopsy, the victim died as a result of a gunshot wound to the back of the head. The gunshot residue on the victim’s head indicated “that the wound was near contact or close range, not quite pressed up hard against the skin’s surface, but off of it just a little bit, but definitely not more than an inch away.” The State’s theory at trial was that defendant was waiting at the victim’s home, the *615victim approached defendant’s R.V. and when the victim failed to pay defendant, defendant shot him. However, there was no evidence that anyone heard a gunshot fired near the victim’s home. The State claimed that the roar of defendant’s R.V. masked the sound of the gunshot. However, the State’s evidence also indicated that the victim’s wife and daughter only heard the vehicle one time and that it was moving fast enough that the victim’s wife was unable to reach the window in time to see the vehicle. Therefore, the State’s theory suggests that defendant shot the victim one inch from his skull as he was driving the R.V. by the victim’s house. This seems highly improbable to create a reasonable inference that defendant was the perpetrator.
A .40 caliber shell casing was also found, but there was no evidence that defendant’s DNA and fingerprints were found on the shell casing recovered near the victim’s body. No weapons were recovered at the scene, but the victim’s wallet containing identification and cash and the victim’s two cell phones were recovered. The State produced no evidence that defendant’s DNA and fingerprints were found on the victim’s wallet or cell phones either.
The majority contends that Carver controls the instant case because in both cases the defendants denied their presence at the scene, but later evidence placed them in the vicinity of the murder. However, Carver is distinguishable because in Carver, DNA was discovered linking the defendant to the victim’s car. Carver,_N.C. App. at_, 725 S.E.2d at 904. In the instant case, unlike Carver, there was no DNA or any other physical evidence linking defendant to the crime scene. In contrast to the cases the State relied on, in the instant case there was absolutely no physical evidence of defendant’s presence at the murder scene: no DNA, no fingerprints, no footprints, no cigarette butts, no fibers and no tire tracks.
Furthermore, there were no traces of the victim found in defendant’s possession or in his residence. When detectives searched defendant’s residence, they did not find a murder weapon or a gun registered to defendant or anything of evidentiary value pertaining to the case. Although blood was later discovered in defendant’s wife’s R.V., it was confirmed that the blood did not match the victim’s blood.
The majority concludes that the cases defendant cites, State v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978), and State v. Furr, 292 N.C. 711, 235 S.E.2d 193 (1977), are inapplicable because in those cases “the State presented evidence of motive, but not opportunity.” State v. Lowry, 198 N.C. App. 457, 467, 679 S.E.2d 865, 871 (2009). However, *616Lowry’s interpretation of Lee conflicts with the actual language of Lee. The Court in Lee specifically found that “[t]he State’s evidence in this case establishes a murder; and considered in the light most favorable to the State, shows that the defendant had the opportunity, means and perhaps the mental state to have committed this murder.” Lee, 294 N.C. at 303, 240 S.E.2d at 451 (emphasis added). Therefore, we will follow the language set out in Lee in examining its applicability to the instant case. See Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985) (holding that the Court of Appeals lacked the authority to overrule decisions of the Supreme Court of North Carolina and has, instead, a “responsibility to follow those decisions, until otherwise ordered by the Supreme Court”).
In addition, the majority determines that the Court in Furr “decided the defendant’s guilt by an entirely different body of law.” However, in both the instant case and in Furr, the issue was whether there was sufficient evidence to convict the defendant of murder. Furr, 292 N.C. at 719, 235 S.E.2d at 198.
In Lee, the Court held that the evidence showed “a brutal murder and raise [d] a strong suspicion of [the] defendant’s guilt, but” that “the State failed to offer substantial evidence that the defendant was the one who shot [the victim].” Lee, 294 N.C. at 303, 240 S.E.2d at 451. Lee has been recently examined by this Court in Patel, where the Court recognized that in Lee the State was unable “to present any evidence placing the defendant with the murdered victim at the time of the murder...[and] there was no evidence linking either [the] defendant to the murder scene or tying him to the means by which the victim was killed.” Patel,_N.C. App. at__, 719 S.E.2d at 108. Similarly, in Furr, the Court found that there was insufficient evidence that the defendant killed his wife where there was no murder weapon in the defendant’s or victim’s home, none of the fingerprints from the scene matched the defendant, and the defendant was only seen in the vicinity of the victim’s home for a short window of time on the morning of the victim’s death. Furr, 292 N.C. at 717-18, 235 S.E.2d at 197-98. Just as the evidence in Lee and Furr was insufficient, the State’s evidence in the instant case was also insufficient because the State presented no physical evidence linking defendant to the murder scene.
The majority contends the instant case is distinguishable from Lee because here there is evidence of defendant’s “exact whereabouts around the time of the murder” based on Raven Whitmore’s (“the victim’s daughter”) report that she saw vehicle similar to defendant’s *617wife’s R.V. around the time of the victim’s death and defendant’s phone records placing him in Wilkesboro around the time of the murder. I disagree.
Initially, I note that the majority contends that “[t]he victim’s wife and daughter...observed a vehicle similar to an R.V. owned by defendant’s wife in front of their home....” However, the majority is mistaken. The victim’s wife never testified that she saw an R.V. She testified that she heard a loud noise, but not that she actually saw the vehicle. Furthermore, the victim’s daughter did not initially describe the vehicle as an R.V., but rather she saw what she described as a boxlike vehicle that looked like a U-haul. At trial she testified about what she saw
[State]: And what did you see?
[The victim’s daughter]: I seen [sic] what looked like a big tour bus. It was big, with lights around it.
[State]: And how would you describe the lights?
[The victim’s daughter]: They were orange. They were at the top and the bottom.
[State]: And where on the vehicle did you see these orange lights?
[The victim’s daughter]: I seen [sic] the back part of it.
[State]: Pardon?
[The victim’s daughter]: I seen [sic] the back part of it, like a side view.
[State]: So the side of the vehicle you saw?
[The victim’s daughter]: Yes, sir.
[State]: And you said it looked like a tour bus?
[The victim’s daughter]: Yes, sir.
[State]: How big was it?
[The victim’s daughter]: Like width and diameter or something?
[State]: How long was it?
*618[The'victim’s daughter]: I only seen [sic] the back part.
[State]: What was it doing when you saw it?
[The victim’s daughter]: It was driving past our mailbox.
[State]: Did you see anything else outside?
[The victim’s daughter]: No, sir.
All she saw was a side view of the back part of the vehicle as it drove down the street. When asked if the vehicle the victim’s daughter described matched defendant’s wife’s R.V., the investigating detective testified during voir dire that “she said a large vehicle with lights down the side, and the R.V. does have that.” While the majority claims that the victim’s daughter’s testimony establishes “eyewitness testimony” that proves defendant’s whereabouts on the night of the murder, there is no “eyewitness” who actually saw defendant or even a vehicle that was positively identified as belonging to defendant. Contrast Patel,_N.C. App. at_, 719 S.E.2d at 107 (where the victim’s vehicle was parked at the defendant’s apartment complex). The fact that the victim’s daughter briefly glimpsed the back of an unknown vehicle is insufficient to establish that defendant had the opportunity to murder the victim.
The majority determines that, according to phone records, defendant’s presence in Wilkesboro on the night of the murder from 7:23 p.m. to 7:46 p.m. gave him the opportunity to commit the murder. Defendant’s cell phone records indicate he left Wilkes County prior to 8:00 p.m. and the only evidence of the time of the victim’s death was an estimate that the victim died between 8:00 p.m. and 9:00 p.m.
However, there was no evidence presented that defendant and the victim had any plans to meet on the night of the murder. When detectives found the victim’s phone, there were two voicemail messages from defendant, however neither message indicated defendant was going to the victim’s home on 18 October 2007. While defendant told the victim’s wife he would come to the victim’s home to resolve the payment issue, the victim’s wife told defendant that the victim was not at home, but on a job. In fact, the victim’s wife testified that the victim said he was not coming home that night and that she only knew he had come home when he arrived at her gym with their daughters at approximately 7:00 p.m. The State produced no evidence *619indicating that defendant knew the victim would be home on 18 October 2007.
Moreover, the amount of time that defendant had access to the victim is less than the amount recognized by the majority. The majority suggests that defendant had approximately twenty-three minutes to meet and murder the victim. However, additional evidence indicated the victim was not at his home at 7:23 p.m. On the night of his death, the victim drove his two daughters to two different places to pick up fast food. A receipt indicated that the victim left a Wendy’s restaurant at 7:24 p.m. The victim’s daughter testified that the restaurant was approximately ten minutes from their home. She also testified that after arriving home, the victim went inside the house, placed his food on the counter and was inside for a minute. Subsequently, the victim left the house. At the earliest, the victim could not have been outside his home until around 7:35 p.m. The State’s evidence showed that defendant made a series of calls, eight in total, from 7:35 p.m. to 7:46 p.m. Therefore, that amount of time indicates that defendant’s phone was in use almost the entire time defendant was near the victim’s house and the victim was outside.
Furthermore, the victim’s blood alcohol content (“BAC”) was .11 at the time of death. Both the victim’s daughter and his wife testified that the victim had not been drinking prior to returning home. The victim’s daughter also testified that she did not see him consume any alcohol and the victim’s wife stated that he had not been drinking alcohol. Investigators found a 12 pack of beer in the victim’s car. The victim’s BAC of .11 indicated that to register that level he had to consume several beers or a fairly large mixed drink prior to his death.
The scenario proposed by the State, and accepted by the majority, suggests that the victim left his home after 7:30 p.m. and consumed enough alcohol to raise his BAC to .11. Defendant was then waiting on the victim’s street at precisely the time the victim stepped outside. Then the victim walked to defendant’s vehicle, defendant shot the victim one inch from the back of his head, then drove off in his R.V. and all of this happened while defendant was using his cell phone. This scenario, along with several other pieces of evidence including defendant’s phone records, merely raise a suspicion of defendant’s guilt and make it improbable that defendant murdered the victim. See Lee, 294 N.C. at 302, 240 S.E.2d at 451.
Ultimately, there is not “a reasonable inference of defendant’s guilt [which] may be drawn from the circumstances.” Fritsch, 351 *620N.C. at 379, 526 S.E.2d at 455 (citation omitted). The State failed to prove that defendant had sufficient opportunity to commit the crime to identify him as the perpetrator and therefore the trial court should have granted defendant’s motion to dismiss.
. We note that Carver has been appealed to the Supreme Court of North Carolina based on a dissenting opinion.