An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-998
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Filed: 17 May 2005


v .                         Randolph County
                            No. 01 CRS 56902

    Appeal by defendant from judgment entered 18 March 2004 by Judge Russell G. Walker, Jr., in Randolph County Superior Court. Heard in the Court of Appeals 9 March 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert J. Blum, for the State.

    Thomas K. Maher for defendant.

    LEVINSON, Judge.

    Tyrone Cheek (defendant) appeals from judgment entered upon his conviction of first degree murder. We affirm.
    Defendant was indicted on 4 March 2002 for the first degree murder of Willie Dee Tinnin, Jr. (Tinnin), and was tried by a jury on 15 March 2004. The State's evidence at trial is summarized, in relevant part, as follows: Defendant and Tinnin had an ongoing conflict over defendant's contact with Tinnin's girlfriend. On 19 December 2001 both men were at Asheboro's Eastside Park, a public park with playground equipment and a picnic shelter. Tinnin had driven there with Clarence Hill, and defendant was with his cousin, Travis Cassidy. Also present was Falcaro Hooker, who was friendswith both defendant and Tinnin. Hooker testified that when he first got to the park he sat in his car, talking with Tinnin and Hill in the other car. When defendant arrived and walked towards the picnic shelter, Tinnin got out of his car and approached defendant. Tinnin and defendant argued about whether or not defendant had been calling Tinnin's girlfriend. During the argument, defendant made a movement or gesture, in response to which Tinnin pulled out his gun. Tinnin kept the weapon by his side, did not point it at anyone, and asked defendant to back up, saying “it ain't going to be like that” and “you know we hung together.” When defendant would not retreat, Hooker and Hill got out of their cars and urged both men to calm down. Tinnin then said “I'm going to show you what kind of man I am,” and he put his gun in the car and shut the car door. A few seconds after Tinnin placed his gun in the car, defendant pulled a gun from behind his back, saying “you should have shot me.” Defendant immediately fired several shots at Tinnin from about four or five feet away, and continued to shoot even after Tinnin fell to the ground. Defendant then got into his car and drove away.
    Clarence Hill testified that on 19 December 2001 he drove Tinnin to the park, where they saw Hooker. Shortly after defendant arrived, he heard defendant and Tinnin arguing, and noticed that Tinnin was holding a gun. The men had a pre-existing conflict over defendant's interaction with Tinnin's girlfriend. They argued for a few minutes before Tinnin said that he didn't need a gun, and puthis gun on the car seat. A few seconds later, defendant said “you should have shot me, bi---” and fired four to six shots at Tinnin.
    Detective Ron Nicholson of the Asheboro Police Department interviewed defendant on 19 December 2001, after his arrest. He testified that defendant waived his Miranda rights and made a statement. Defendant's statement was recorded and transcribed, and at trial the jurors were given typed copies of the transcript. In his statement, defendant admitted to being at the park on 19 December 2001, and to arguing with Tinnin about calling Tinnin's girlfriend. Defendant described earlier conflicts between them, including an occasion when Tinnin threatened to kill defendant. Defendant also confessed that he shot and killed Tinnin after Tinnin had placed his gun in the car. After shooting Tinnin, defendant left the park and drove around until he was arrested at a license checkpoint. Just before his arrest, defendant threw his gun out of the car.
    Defendant's statement generally corroborated the testimony of Hill and Hooker as regards the events of 19 December 2001. However, unlike these witnesses, defendant said in his statement that Tinnin pointed his gun at defendant, and that, because he believed he was “fighting for [his] life,” he had shot Tinnin as soon as an “opportunity gave itself.” Defendant said several times that the reason he shot Tinnin was that he was afraid for his life.
    Testimony from other witnesses established that: Tinnin was shot five times, including two shots that would have been “rapidly fatal”; Tinnin died a few minutes after being shot; defendant's gunwas recovered in the location where he had discarded it; bullets and shell casings were also recovered; and testing showed the bullets were fired by defendant's gun.
    Defendant did not present evidence. The jury was instructed on first degree murder, second degree murder, and manslaughter. On 18 March 2004 defendant was convicted of first degree murder and sentenced to life imprisonment without parole. From this judgment and sentence defendant appeals.

    Defendant first argues that the trial court erred by denying his motion to dismiss the charge of first degree murder, on the grounds that evidence of premeditation or deliberation was insufficient as a matter of law. We disagree.
    At trial, defendant sought dismissal of the first degree murder charge for insufficiency of the evidence. “When such a motion is made, the only issue for the trial court is '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. Lucas, 353 N.C. 568, 580, 548 S.E.2d 712, 721 (2001) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Leary, 344 N.C. 109, 120, 472 S.E.2d 753, 760 (1996). “When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. If substantialevidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citations omitted). Thus, “evidence for the state considered in the light most favorable to it is deemed to be true, and inconsistencies or contradictions therein are disregarded. The credibility of the witnesses and the weight to be given their testimony is exclusively a matter for the jury.” State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988) (citation omitted). And, when “reviewing the trial court's ruling on a defendant's motion to dismiss a charge of first-degree murder, this Court evaluates the evidence presented at trial in the light most favorable to the State.” State v. Chapman, No. 146A02, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (N.C. filed 7 April 2005) (citation omitted).
    “The elements of [premeditated] first-degree murder are: (1) the unlawful killing, (2) of another human being, (3) with malice, and (4) with premeditation and deliberation.” State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (citation omitted). In the instant case defendant challenges the sufficiency of the evidence of premeditation or deliberation.
        Premeditation is defined as thought beforehand for some length of time no matter how short. Deliberation means an intention to kill executed by the defendant in a cool state of blood[.] . . . Cool state of blood as used in connection with premeditation and deliberation does not mean absence of passion and emotion but means that an unlawful killing is deliberate and premeditated if executed with afixed design to kill notwithstanding defendant was angry or in an emotional state at the time.

State v. Burgess, 345 N.C. 372, 386-87, 480 S.E.2d 638, 645-56 (1997) (quoting State v. Saunders, 317 N.C. 308, 312, 345 S.E.2d 212, 215 (1986) (internal quotation marks omitted)).
        Premeditation and deliberation are mental processes which are ordinarily not susceptible to proof by direct evidence. In a majority of cases, they must be proved by circumstantial evidence. Some of the circumstances from which premeditation and deliberation may be implied are:

        (1) absence of provocation on the part of the deceased, (2) the statements and conduct of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds.

State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992) (citation omitted).
    Defendant herein contends that “all of the evidence revealed” that defendant's ability to premeditate or deliberate was overwhelmed by passion or fear caused by the argument with Tinnin. We disagree.
    The trial evidence, if viewed in the light most favorable to the State and giving the State the benefit of all reasonable inferences, shows that: (1) Tinnin got out his gun in response to a movement made by defendant; (2) Tinnin indicated he wanted to avoid violence by asking defendant to back up, and by makingstatements such as “you know we hung together” and “it ain't going to be like this”; (3) Tinnin did not point his gun at defendant or anyone else; (4) when defendant would not back away, Tinnin tried to defuse the situation by placing his gun in his car and shutting the car door; (5) after Tinnin had put down his gun and secured it in his car, defendant pulled a gun from behind his back and said “You should have shot me,” implying the unstated “while you had the chance”; (6) defendant then fired five shots at the unarmed Tinnin, continuing to shoot after Tinnin fell to the ground; (7) after shooting Tinnin, the defendant left the park and did not call for help or try to assist Tinnin; and (8) in his statement, defendant admitted shooting Tinnin as soon as “an opportunity [presented] itself,” suggesting a calculated strategy to minimize his risk.
    Defendant cites State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981), for the proposition that when evidence shows that a killing “grew out of a quarrel, and that the defendant had neither planned the killing prior to the quarrel nor had time after the end of the quarrel to cool down, it is error to submit the charge of first degree murder to the jury.” However, Corn was decided on the basis of the facts therein, and did not create any per se or bright line rule. “Deliberation may occur during a scuffle or a quarrel between the defendant and the victim if the emotions produced by the scuffle or quarrel have not overcome the defendant's faculties and reason.” State v. Harden, 344 N.C. 542, 555, 476 S.E.2d 658, 664 (1996) (citations omitted).     In the instant case, there was evidence that defendant was capable of both premeditation and deliberation. There was clear evidence of prior ill-will between Tinnin and defendant. Further, “the fact that defendant carried a loaded gun . . . supports an inference that he anticipated the need to use deadly force in a possible confrontation.” State v. Larry, 345 N.C. 497, 514, 481 S.E.2d 907, 916-17 (1997). After Tinnin put his gun away, defendant taunted him by saying “[y]ou should have shot me.” Additionally, defendant's patience in waiting till “an opportunity” arose to shoot Tinnin is strong evidence of the ability to deliberate. Finally, “[d]efendant's actions after the attack are also indicative of premeditation and deliberation. Defendant did not seek help or medical assistance for the victim and did not call the police.” State v. Laws, 345 N.C. 585, 594, 481 S.E.2d 641, 645 (1997).
    We conclude that the evidence (1) was sufficient for a reasonable jury to find premeditation and deliberation, and (2) did not establish as a matter of law that defendant's ability to premeditate and deliberate was overcome by passion. Accordingly, the trial court did not err by submitting the charge of first degree murder to the jury. This assignment of error is overruled.
    Defendant next argues that the trial court committed plain error by giving the jury “an unconstitutional instruction” that “allowed the jury to reject the defense of self-defense and the defense of imperfect self-defense merely on the basis that thekilling was accomplished by means of a gun.” Defendant's argument is addressed to the following sentence in the jury instructions:
        If the State proves beyond a reasonable doubt that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the victim's death, you may infer, first, that the killing was unlawful; and second, that it was done with malice, but you are not compelled to do so.

    Preliminarily, we note that defendant failed to object to the court's instructions during the trial. Under N.C.R. App. Proc. 10(b)(2), a defendant “may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection[.]” “Thus, as defendant did not object to the instruction at trial, he has failed to properly preserve the issue for review by this Court.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 102-03 (2002).
    “Because defendant failed to properly preserve this issue on appeal, we may review it only for plain error.” State v. Walters, 357 N.C. 68, 91, 588 S.E.2d 344, 358 (2003). “Plain error is error 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” Chapman, __ N.C. at __, __ S.E.2d at __ (quoting State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999)).
    Defendant's argument focuses on a sentence taken from the trial court's instructions to the jury. “An instruction to a jury willnot be viewed in isolation, but rather must be considered in the context of the entire charge. Instructions that as a whole present the law fairly and accurately to the jury will be upheld.” State v. Roache, 358 N.C. 243, 303, 595 S.E.2d 381, 419 (2004) (citations omitted). We conclude that, considered as a whole, the jury instructions placed the burden on the State to prove all the elements of first degree murder, including malice, beyond a reasonable doubt, and that the court's instruction to the jury did not constitute plain error. This assignment of error is overruled.     We have considered defendant's remaining assignment of error and conclude it is without merit.
    No Error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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