An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-554


Filed: 20 April 2004


         v.                        Gaston County
                                No. 01 CRS 61912

    Appeal by defendant from judgment entered 14 November 2002 by Judge Thomas W. Seay, Jr. in Superior Court, Gaston County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    The Phillips Law Firm, PLLC, by David A. Phillips, for defendant-appellant.

    WYNN, Judge.
    By this appeal, Defendant, Bernice [Bernis] Allen Williamson, presents the following pertinent issues for our consideration: (I) Whether the trial court erroneously admitted testimony by a witness who was uncertain of what was allegedly said by Defendant and (II) Whether the trial court erroneously denied Defendant's motions to dismiss or set aside the verdict for want of sufficient evidence. After careful review, we affirm the judgment below.
    Defendant was charged with the 25 August 2001 shooting death of Marcus Hoover in Lowell, North Carolina. An autopsy revealed that Marcus “bled to death as a result of a gunshot wound to the upper right leg.” The bullet entered the outside rear of histhigh, passed in an upward direction through the femoral vein and artery, and exited his inner thigh approximately two inches above the entrance wound.
    The State's evidence tended to show that on 14 July 2001, Defendant reported the theft of his 1973 Volkswagon Superbeetle to Lowell Police Officer J.W. Long. Gastonia City Police recovered Defendant's automobile a couple of days later, but no arrests were made.
    Just after noon on 25 August 2001, Marcus Hoover's sister, Fredia Hoover, saw Defendant one-half block from his house on Main Street. Defendant asked if Fredia knew where her brother was and told her that he was going to kill her brother. Frightened, Fredia went home to Reed Street and waited for Marcus to return from work. When he arrived, Fredia told Marcus what Defendant had said and suggested that he remain at home. Marcus left the house to buy cigarettes.
    Marcus's father, Freddie Hoover, arrived home from work just after 3:00 p.m. on 25 August 2001, and cooked some food for Marcus and Fredia. Freddie told Marcus to stay in the yard, because he had heard “something was going on.” Later, a police officer came to the house looking for Marcus after hearing that he had been shot. Unable to find his son, Freddie drove to Defendant's house and asked Defendant if he had shot Marcus for driving Defendant's car. Defendant said, “Yeah, I've shot him[,]” but stated that he shot Marcus “low[.]”
    Phillip Johnson, who lived on Reed Street, was walking to thepark near the intersection of Reed and Main when he heard a gunshot from the direction of the park. He looked up and saw Defendant getting in his car. Johnson heard Defendant say to Sissy Wales, “'I just shot Marcus,' or something like that.” Wales asked Defendant, “Did you hit him?” and Defendant replied, “I think so.” Johnson also saw a black male running through the park toward Main Street but lost sight of him. Johnson then observed Defendant leaving the park area in his car. Johnson had consumed “pretty much” alcohol at the time of the incident, including vodka, bourbon, and a twelve-pack of beer.
    While he was being held in Gaston County Jail, Defendant told Tyrone McCree that he shot and killed Marcus Hoover for stealing his car and that police had no evidence against him, because he gave the murder weapon to a family member.
    At 6:00 p.m. on 25 August 2001, police responded to a report of the shooting. A police dog followed a blood trail approximately fifteen yards down South Main Street across a driveway to the back yard of a residence, where he found Marcus's body. Lowell Police Captain Mark Buchanan observed several people sitting on the porch of Defendant's residence at 319 South Main Street. Buchanan walked toward the residence, and Defendant came off of the porch to meet him. Defendant stated to Buchanan that he and Marcus were in the park, and that Marcus told Defendant that he did not steal his car. Defendant replied that he had not accused Marcus of stealing the car. Marcus then swung at Defendant with his fist. Defendant fired his Glock nine-millimeter handgun at Marcus, who “took offrunning.” Believing he had missed Marcus with the shot, Defendant chased Marcus across the park before returning to his house.
    Defendant testified that he was walking home near the park on 25 August 2001, when Marcus called his name and threatened to “kick [his] ass.” Defendant ignored the taunts, but Marcus ran up and stepped in front of him. Marcus told Defendant that he did not steal his car. Defendant said he had not accused Marcus, who replied that his neighbor, Sam Odom, was talking about it. When Defendant said he had not seen Odom, Marcus drew a black .380 caliber handgun from his right front pants' pocket. Defendant pulled his own gun and fired at Marcus, aiming “[a]t an angle . . .  toward the ground.” Marcus “sat there” looking at Defendant for fifteen seconds before running away. Defendant explained that he chased Marcus, “[b]ecause I had fired and I didn't know if I had hit him or he were wounded or what.” Unable to catch Marcus, Defendant ran back to his car and drove home. He claimed he fired his weapon out of fear, intending to stop Marcus but not kill him. On cross-examination, Defendant admitted he intended to shoot Marcus.
    Police found a crack pipe, a pocket knife, and other personal effects on Marcus Hoover's person, but no gun. Moreover, Defendant never told Captain Buchanan that Marcus had a gun.
    A jury found Defendant guilty of first degree murder. The trial court entered judgment imposing a mandatory sentence of life imprisonment without parole. Defendant appealed.
    In his first assignment of error, Defendant claims the trialcourt erred in allowing State's witness Phillip Johnson to testify, over objection, that he heard Defendant say something that “sounded like” an admission to the shooting, as follows:
        Q. Okay. What did [Defendant] say?
        A. It sounded likes he said --
        [DEFENSE COUNSEL]: Objection.
        THE COURT: Overruled. Go ahead.
        THE WITNESS: Sounded like I heard, “What happened?” Somebody was asking [defendant], “What happened?” He said, like, “I just shot Marcus,” or something like that. He said, “Did you hit him?” And sounded like he said, “I think so.”

Defendant characterizes this testimony as “vague and uncertain yet highly prejudicial” and contends it was inadmissible under N.C.R. Evid. 403. He notes Johnson was intoxicated on the day in question, and by his own account “could not even hear it clearly[.]”
    Relevant evidence is generally admissible under N.C.R. Evid. 401. As Defendant notes, however, N.C.R. Evid. 403 provides that otherwise relevant evidence may be excluded at trial if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rulings on the exclusion of otherwise relevant evidence under Rule 403 are reviewed only for abuse of discretion. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
    We find no abuse of discretion here. Evidence that Defendantacknowledged shooting Marcus Hoover on 25 August 2001 was obviously relevant to the issue of Defendant's guilt or innocence. See State v. Richmond, 347 N.C. 412, 428, 495 S.E.2d 677, 685, cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88, 119 S. Ct. 110 (1998)(stating “this Court has held that evidence is relevant if it tends to shed light upon the circumstances surrounding the killing”). Johnson's inability to recall Defendant's words with precision and the reasons for this inability did not affect the admissibility of Johnson's testimony but were factors for the jury to consider in assessing the weight and credibility of this evidence. See State v. Moses, 350 N.C. 741, 767, 517 S.E.2d 853, 869 (1999)(in reviewing the admissibility of a Defendant's alleged confession where the witness was uncertain of the exact words used, our Supreme Court stated “such uncertainty goes to the credibility and weight of the testimony, and it is well established that the credibility, probative force, and weight [of the testimony are] matters for the jury”). We further find no possibility of prejudice to Defendant, in light of the similar testimony offered by Freddie Hoover, Captain Buchanan and McCree, as well as Defendant's own admission to the shooting on the witness stand. See State v. Lloyd, 354 N.C. 76, 105, 552 S.E.2d 596, 618 (2001).
    Defendant next contends the trial court erred in denying his motion to dismiss the charge of first-degree murder at the conclusion of the State's evidence and at the conclusion of all the evidence. By introducing evidence at trial, however, Defendant waived review of the denial of his motion to dismiss at theconclusion of the State's case-in-chief. N.C.R. App. P. 10(b)(3). Therefore, we review only the denial of his motion to dismiss at the conclusion of all the evidence.
    A motion to dismiss is properly denied when the evidence, viewed in the light most favorable to the prosecution, would allow a reasonable juror to find the Defendant guilty of the essential elements of the charged offense beyond a reasonable doubt. See State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619-20 (1988). The North Carolina Supreme Court has explained the essential elements of first-degree murder as follows:
        First-degree murder is the unlawful killing of a human being with malice, premeditation, and deliberation. The element of premeditation requires the state to show that the accused formed the specific intent to kill at some time, however brief, before the killing took place. Deliberation is the intention to kill, and it must be formed not in the heat of passion, but while defendant is in a cool state of blood.

State v. Nicholson, 355 N.C. 1, 37, 558 S.E.2d 109, 134, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002)(citations and internal quotation marks omitted). Malice, premeditation and deliberation are “ordinarily are not susceptible to proof by direct evidence” and may thus be shown circumstantially. State v. Laws, 345 N.C. 585, 593-94, 481 S.E.2d 641, 645 (1997); State v. Richardson, 328 N.C. 505, 513, 402 S.E.2d 401, 406 (1991).
    We find substantial evidence to show Defendant killed Marcus Hoover with malice, premeditation and deliberation. Hours before the shooting, Defendant announced his intention to kill Marcus to Fredia Hoover. This evidence alone was sufficient to establishthat he acted with deliberation and premeditation. Defendant's intentional shooting of Marcus with a handgun created a presumption that the killing was malicious. State v. Hankerson, 288 N.C. 632, 650, 220 S.E.2d 575, 588 (1975), rev'd on other grounds, 432 U.S. 233, 53 L. Ed. 2d 306 (1977). Furthermore, evidence of Defendant's motive for the killing and his conduct and demeanor after the fact, supported the guilty verdict.
    In a related claim, Defendant avers without citation to authority that the trial court abused its discretion in entering judgment upon the jury's verdict. The transcript reflects the trial court's denial of Defendant's motion to set aside the verdict. As discussed above, the State's evidence was sufficient to support the jury's finding of guilt. Accordingly, we find no abuse of discretion in the trial court's entry of judgment consistent with the verdict.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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