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Evidence lost, murder case dismissed

The News Herald, Morganton, NC,

Burke County, NC

Timothy Paul Bumgarner

The superior court case involving a Morganton man charged with his stepfather’s 2010 murder was dismissed Monday after a key piece of evidence went missing.

On Thanksgiving Day in 2010, Filiberto Rubio, 40, was found dead from a gunshot wound at his home on Rhodhiss Road in Connelly Springs. The Burke County Sheriff’s Office told The News Herald then that Rubio and his stepson of nine years, Timothy Paul Bumgarner, then 28, had been drinking and got into an argument. Rubio tried to throw a snow globe at Bumgarner, who then picked up a gun and shot his stepfather, killing him.

Bumgarner was taken into custody that afternoon and charged with murder.

Assistant Capital Defender Victoria Jayne, who represents Bumgarner, said the defense was contending that her client shot Rubio in self defense just as he was about to throw the glass ball. The snow globe, referred to in court as a glass ball, then became an essential part of the defense. But because the glass ball cannot be found in the evidence labs of the BCSO or the State Bureau of Investigation, Jayne said the case was dismissed.

“The glass ball is something we’ve been trying to get our hands on, literally, for four years, so that our pathologist could evaluate it and testify that it was a deadly weapon, which we believe that it was,” Jayne said. “The motion to dismiss was based on the fact that a piece of very relevant evidence, what we would call exculpatory evidence, is lost."

Jayne said she does not believe that the glass ball was intentionally destroyed and that the SBI claims it was returned to the BCSO, although it cannot be found there, either.

“The BCSO has scoured their evidence room and it just simply is not there,” Jayne said.

Jayne said the judge had no choice but to dismiss the case because to move forward with litigation would be a violation of Bumgarner’s due process rights.

“There was a history of abuse between my client and the stepfather. I do not think my client got away with murder,” said Jayne. “The gun had gone off in self defense. I’m not even sure he meant to fire the gun, but it went off when he saw that the glass ball was about to be thrown at him.”

Of all the cases she has tried in Burke, Caldwell and Catawba counties, Jayne said that she has never experienced a case being dismissed on these grounds.

“A very important piece of evidence just disappeared,” she said. “That does not happen a lot.”

Jayne insisted that local authorities were not at fault for the missing evidence and emphasized that she appreciates the honesty of the BCSO detectives and the district attorney’s office.

“I don’t think this says anything disparagingly about the Burke County evidence room, and I don’t want to suggest that it does,” she said. “It either got lost in transit or delivered somewhere else, but I don’t think (the glass ball) ever found its way back to the BCSO.”

Bumgarner’s previous criminal record includes a list of charges filed throughout 2010, including simple assault in January, possession of drug paraphernalia, open container after consuming and driving during revocation in May, possession of drug paraphernalia in July and three counts of failure to appear or comply in October.

Just three days before he shot his stepfather, Bumgarner was charged with communicating threats and damage to personal property. He currently is serving time in Buncombe County on other misdemeanor charges. The Buncombe County Sheriff's Office Police to Citizen website lists Sept. 26 of this year as his estimated release date.

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