An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-318

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 2004

STATE OF NORTH CAROLINA

v .                         Randolph County
                            No. 00 CRS 22, 23, 690
MARY JANE CARTER

    Appeal by defendant from judgment entered 3 May 2002 by Judge Peter M. McHugh in Randolph County Superior Court. Heard in the Court of Appeals 29 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

    Glover & Petersen, P.A., by James R. Glover and Ann B. Petersen, for defendant.

    LEVINSON, Judge.

    Defendant appeals from convictions and judgments for first degree murder, first degree kidnapping, and common law robbery. We conclude that defendant received a fair trial, free of prejudicial error.
    Defendant (Mary Jane Carter) was indicted for the first degree kidnapping, common law robbery, and first-degree murder of Annie Freeman Wilson by a Randolph County Grand Jury on 21 February 2000. The charges were called for trial at the 22 April 2002 criminal term of Randolph County Superior Court. The murder charge was tried capitally.
    At trial, the State's evidence tended to show the following: On the afternoon of 8 January 2000, the victim's neighbor,Christopher Butcher, observed a dark red car pull into a driveway near the victim's house. A young woman, unfamiliar to Mr. Butcher, wearing a red shirt and jeans, emerged from the car and walked towards the victim's house. Mr. Butcher found this to be unusual, so he continued to watch the victim's property through a window in his house for approximately fifteen minutes. The woman eventually emerged from the dwelling carrying a plastic grocery bag; she entered her car on the passenger side, backed out of the driveway, and drove in the direction of Old Highway 421 in Staley, North Carolina. Several hours later, Mr. Butcher's wife, Christy Butcher, walked over to the victim's house. She found the wooden front door open unlocked and the glass storm door closed and locked. She peered in through the storm door and noticed that the victim's house was “wrecked”. In addition, the victim's legs were protruding from under a coffee table in the living room. The authorities were called to the scene. Christopher Butcher provided the police with a description of the woman he observed at victim's home and the car she had been driving. At trial, he identified defendant as the woman he had seen.
    Upon arrival, paramedics observed that the victim was covered in blood. A skull fracture could be felt on the back of the victim's head. Her right eye was swollen shut, and she had numerous cuts and injuries to her right and left arms and hands. The victim's wrists were bound by panty hose that had been tied in deliberate knots. A length of hose, which was tied to one of the victim's wrists, was also tied to an object located under thecoffee table. Emergency personnel characterized the object as possibly being “a black wrought iron . . . lamp base.” One paramedic testified that “[emergency personnel] cut the things that was [sic] tied to the [the victim's] wrist so [they] could move her . . . without slamming her around.” A bra was tightly stretched and bound around the victim's neck.
    The victim was taken to Chatham Hospital via ambulance. Hospital personnel observed trauma to the victim's face, hands and body. The victim had a depressed skull fracture on the back of her head which an emergency room physician classified as “severe trauma”. There were also lacerations on the back of the victim's hands, and her right middle finger was broken with the bone exposed. The victim was pronounced dead after being transported to UNC Hospital.
    An autopsy revealed approximately fifteen lacerations to the skin of victim's head. There were scrapes and contusions on the face, lip, and eye of the victim, and there were injuries and torn skin on the hands, including a broken finger. The cause of death was determined to be “head trauma, multiple blows, blunt force impact to [the] head.” It was determined that the victim's skull bone had been fractured and driven in towards the brain; a medical examiner testified that this injury was produced by “a blow with considerable force with a hard object.” The wounds on the back of the victim's hands were determined to be defensive wounds.
    An investigation of the victim's home revealed blood throughout the house. There was blood on the living room wall andthe doorknob of the door leading from the living room to the bedroom. A flashlight, still switched on, with blood on it was found on the bedroom dresser. Blood was also found on the telephone in the master bedroom, and the telephone cord wires connected to it had been “split . . . jerked out or pulled loose” from the wall. The fingerprints left by the perpetrator were not of sufficient quality to permit identification. The backdoor, which provided passage to the back porch, did not appear to have been touched. It had a “through-bolt” or “thumb latch” and a dead bolt lock with the skeleton key in it. Passage from the victim's back porch into her yard required use of a storm door. Investigators noticed that the storm door on the back porch was locked, wired shut from the inside, and further secured by a screwdriver placed through the lock. Cobwebs around the storm door on the back porch indicated that it had not been used recently, and the victim's niece testified that she had observed the door to be in this condition shortly before the crimes. DNA analysis confirmed that a cigarette butt found near the front porch steps had defendant's saliva on it.
    A detective with the Randolph County Sheriff's Office broadcast a description of the woman seen at victim's house and the car she was driving. During the early morning of 9 January 2000, Sergeant Rick Merritt, who had heard the broadcast, noticed a small red car traveling at a high rate of speed. Upon stopping the car, Sgt. Merritt immediately recognized defendant, who was dressed only in a “slip”, from prior dealings. Sgt. Merritt asked defendant toreturn to his patrol car to talk. During their discussion, the sergeant noticed that defendant was acting strangely. He also realized that, except for her age, defendant and her car fit the description that had been broadcast, so he called for back-up. While waiting for back-up to arrive, defendant asked Sgt. Merritt if she could retrieve her pants from her car. Defendant then went to her car and took out a pair of jeans, which were inside-out; she folded the jeans, and placed them on her lap when she returned to sit in the sergeant's car. Sgt. Merritt noticed several stains on the jeans which appeared to be blood. Defendant's jeans were subsequently analyzed and found to be saturated with the blood of the victim.
    Following an attempted escape by defendant, Sgt. Merritt and several officers who had arrived as back-up subdued defendant. Defendant was escorted to the Randolph County Sheriff's Office, where she waived her rights and gave a statement, which was introduced at trial. In the statement, defendant told officers that on the afternoon of the murder, she was with a person named Tammy Brady, with whom she had been smoking crack cocaine. According to defendant, Tammy claimed to know the victim and was “a good lock pick and could get in [the victim's home] real easy.” By defendant's account, Tammy went in first, and defendant drove around for approximately five minutes before entering the victim's house; once both of them were in the house, Tammy told defendant that they should rob the victim because they needed some money for “dope”. Defendant stated that Tammy took some money and placed itin her (Tammy's) pocket. Defendant insisted that Tammy helped her use a stocking to attempt to tie the victim's hands as the victim was struggling and that she and Tammy “never could get [the victim's hands] tied up.” According to defendant, Tammy then pulled the telephone lines from the wall and exited through the backdoor with defendant's help. Defendant admitted that, once she was alone inside, she again tried to tie the victim's hands and that she struck the victim with a glass object and possibly a “brass thing with a clock.” Defendant did not remember how many times she struck the victim. Defendant stated that the victim fought as she was being struck and was screaming “stop hitting me, stop hitting me, get out of my house.” Defendant explained that she then exited the house carrying a grocery bag that Tammy had placed beside the door. Defendant claimed not to know the contents of the bag. According to defendant, she then picked up Tammy, who pulled out $175 and gave $20 to defendant. Defendant stated that neither she nor Tammy had any money before the crimes occurred. Though Tammy Brady was arrested in connection with the murder of the victim, the State's theory of the case at defendant's trial was that defendant committed the alleged crimes alone. Indeed, the prosecution made a specific request that the jury not be instructed on the theory of acting in concert, and such instruction was not given.
    While awaiting trial, defendant spoke with another prisoner, Roberta Aherne, during a van transfer. Aherne testified that she asked defendant why she was going to prison and that defendantresponded that she had “killed a lady.” When asked about defendant's demeanor, Aherne testified: “She said it like[,] [']I killed a lady[']. That's all she said. And there was no smile, there was no--I mean there was just no expression. There was no--I did not see any remorse, I did not see any anxiety, I didn't see anything. It was just that bland statement.”
    Defendant presented the expert testimony of a clinical psychologist who had evaluated defendant and concluded that defendant was carrying out a strictly impulsive act as a result of her cocaine use when she killed the victim and that defendant was not capable of considering the consequences of her actions. Both at the close of the State's case and at the close of all the evidence, defendant moved to dismiss the charges against her. The trial court denied these motions.
    The jury convicted defendant of first degree murder, common law robbery, and first degree kidnapping. The trial court imposed a sentence of life imprisonment without parole for the first degree murder. Defendant was further sentenced to imprisonment for a term of sixteen to twenty months for the common law robbery and a term of 116 to 149 months for the first degree kidnapping. From these convictions and judgments, defendant appeals to this Court, contending (1) the short-form murder indictment used to charge her with first degree murder does not allege all of the elements of that offense such that her conviction for this crime is in violation of the State and Federal Constitutions, and (2) the evidence presented at trial was insufficient to permit her to beconvicted of first-degree murder, common law robbery, and first- degree kidnapping.

________________________

    Defendant concedes that our Supreme Court, in State v. Braxton, 352 N.C. 158, 175, 531 S.E.2d 428, 438 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001), rejected the argument she makes to this Court with respect to the alleged insufficiency of her first degree murder indictment. Accordingly, this assignment of error is overruled.
    In her remaining argument on appeal, defendant contends that the trial court erred in denying her motions to dismiss because the evidence at trial was insufficient to permit her to be convicted of first degree murder, common law robbery, or first degree kidnapping. We disagree.
    When ruling on a motion to dismiss, “the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996) (citation omitted). “Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (citation omitted), cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002). “In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence.” Id. (citation omitted). “The trial court must also resolve any contradictions in the evidence in the State's favor.” Id. (citation omitted). “The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.” Id. (citation omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981) (citation omitted).
    With respect to her conviction for first degree murder, defendant concedes that all of the elements of the offense are satisfied except for the premeditation and deliberation element, such that we should remand for imposition of a sentence for second degree murder. We conclude, however, that sufficient evidence of premeditation and deliberation existed to permit a conviction for first degree murder.
    “First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Trull, 349 N.C. 428, 448, 509 S.E.2d 178, 191 (1998) (citation omitted); see also N.C.G.S. § 14-17 (2003). “Premeditation means that the act was thought over beforehand for some length of time; however, no particular amount of time is necessary for the mental process of premeditation.” Trull, 349 N.C. at 448, 509 S.E.2d at 191 (citation omitted). “Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish anunlawful purpose and not under the influence of a violent passion, suddenly aroused by legal provocation or lawful or just cause.” Id. (citation omitted). “[W]ant of provocation on the part of the deceased, the conduct of and statements of the defendant before and after the killing, the brutality of the murder, and attempts to cover up involvement in the crime are among other circumstances from which premeditation and deliberation can be inferred.” Id. at 448, 509 S.E.2d at 191-92 (citation omitted). In addition, “[p]hotographs depicting the condition of the victim's body, the nature of the wounds, and evidence that the murder was done in a brutal fashion provide the circumstances from which premeditation and deliberation can be inferred.” State v. Hyde, 352 N.C. 37, 54, 530 S.E.2d 281, 293 (2000) (citation and internal quotation marks omitted), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001).
    In the instant case, defendant's statement permits reasonable inferences that she went to the victim's house with the intent to take money to buy drugs, that she tied the victim's hands and hit the victim with a heavy object, that she then used a second heavy object to beat the victim, and that she continued to strike the victim despite the victim's struggling and screaming for the attack to cease. The State presented documentary and photographic evidence showing that the attack was both bloody and brutal and was the cause of the victim's demise. From evidence that the victim was precluded from seeking assistance after the attack, the jury could reasonably infer that the perpetrator of the offense intended for the victim to die, to wit: the victim was restrained; thetelephone cord was pulled from the wall; and the perpetrator left the storm door locked. A neighbor of the victim testified that he saw defendant after she came out of the house, and that, except for the fact that she was now carrying a grocery bag, the neighbor did not notice anything unusual about defendant; this evidence permits an inference that defendant was calm after the murder. A prisoner who shared a van with defendant testified that, while awaiting trial, defendant spoke of the murder bluntly.
    This evidence of defendant's conduct before, during, and after the crime, taken in the light most favorable to the State, was sufficient to permit a jury to find premeditation and deliberation. As such, the trial did not err in denying defendant's motion to dismiss with respect to first degree murder.
    With respect to her conviction for common law robbery, defendant argues that “[t]he only evidence that any money was taken from the person or presence of the victim came from [defendant's post-arrest] exculpatory statement” in which she indicated that Tammy committed the robbery. Defendant insists that the State is bound by her exculpatory statements because these are “statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence[.]” State v. Rannels, 333 N.C. 644, 661-62, 430 S.E.2d 254, 263-64 (1993) (citation omitted). We do not agree.
    “[T]he State is not bound by the exculpatory portions of a confession which it introduces, if there is other evidence tending to throw a different light on the circumstances of the [crime].” Id. (citation and internal quotation marks omitted). In the instant case, the State presented evidence which contradicted certain information in defendant's post-arrest statement. Specifically, though defendant alleged that Tammy exited the victim's dwelling through the back door, the back door was locked and wired shut, had cobwebs around it, and had not been recently disturbed. In addition, defendant admitted that only she had beaten the victim, and the State's evidence showed that whomever ransacked the victim's house looking for money had blood on her hands. Therefore, despite the exculpatory elements of defendant's statement, the jury could reasonably infer that defendant committed the crimes for which she was convicted without assistance, including the common law robbery.
    Conviction for common law robbery requires proof of four elements: (1) felonious, non-consensual taking of (2) money or other personal property (3) from the person or presence of another (4) by means of force. State v. Robertson, 138 N.C. App. 506, 508, 531 S.E.2d 490, 492 (2000). We conclude that sufficient evidence existed to satisfy each of these elements.
    In the instant case, defendant admitted to hitting the victim with one or more heavy objects, and the evidence tended to show that a person with bloody hands and a flashlight had apparently been looking for something in the victim's house. The victim's neighbor witnessed defendant leaving the crime scene with a grocery bag. Defendant's statement reveals that she possessed no money prior to entering the victim's house and that she obtained money asa result of the events which transpired in the victim's house. This evidence, taken in the light most favorable to the State, was sufficient to permit the jury to convict defendant of common law robbery. Accordingly, the trial court did not err in denying defendant's motion to dismiss with respect to this offense.
    With respect to her conviction for first degree kidnapping, defendant contends that the State did not present sufficient evidence of restraint or serious injury to warrant submission of this offense to the jury. We disagree.
    First-degree kidnapping is defined by N.C.G.S. § 14-39 (2003) as follows:
        (a) Any person who shall unlawfully . . . restrain. . . any other person. . . without the consent of such person, shall be guilty of kidnapping if such . . . restraint . . . is for the purpose of: . . . (2) Facilitating the commission of any felony . . . .

        (b) . . . If the person kidnapped . . . had been seriously injured . . . the offense is kidnapping in the first degree . . . .

    In the instant case, a paramedic testified that the victim was bound by panty hose to a “black wrought iron . . . lamp base” and that emergency medical personnel cut the victim free from the panty hose in order to move her. Moreover, there was testimonial and photographic evidence which illustrated that defendant inflicted multiple wounds upon the victim's body, including several non-fatal lacerations to her arms and hands and a broken finger with the bone exposed. Accordingly, there was sufficient evidence of both restraint and serious injury to permit a jury to convict defendantof first degree kidnapping, and the trial court did not err in denying defendant's motion to dismiss this charge.
    Defendant further contends that any restraint of and/or serious injury to the victim was necessarily incidental to the commission of the common law robbery and first degree murder such that defendant could not be separately convicted of first degree kidnapping. We note that, even if this argument were availing, defendant would only be entitled to have judgment arrested on the first degree kidnapping conviction. State v. Thomas, 350 N.C. 315, 344-45, 514 S.E.2d 486, 504-05 (1999) (declining to arrest judgment where there was evidence of kidnapping separate and apart from another crime for which a defendant was convicted). However, in the instant case, there was evidence of restraint of and serious injury to the victim, neither of which was necessarily incidental to the commission of common law robbery or first degree murder. This assignment of error is overruled.
    No error.
    Judges TIMMONS-GOODSON and THORNBURG concur.
    Report per Rule 30(e).

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