An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1268
            
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NORTH CAROLINA COURT OF APPEALS
        
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Filed: 20 September 2005



STATE OF NORTH CAROLINA

v .                         Alamance County
                            No. 03 CRS 53451
TERRY LEE THOMPSON

    Appeal by defendant from judgment entered 2 February 2004 by Judge J. B. Allen, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 16 August 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Teresa H. Pell, for the State.

    Hardison & Leone, LLP, by Richard B. Glazier, for defendant.

    LEVINSON, Judge.

    Defendant (Terry Lee Thompson) appeals from conviction and judgment for first degree murder. We hold that defendant received a fair trial, free of prejudicial error.
    The evidence presented at trial may be summarized as follows:
Harold Stone was found dead in the living room of his home on the morning of 2 April 2003. Police and EMS personnel were called to the scene immediately. The EMS team noted knife wounds to Stone's neck and puncture wounds to his skull. The investigating officers observed Stone's body lying face down with blood all about the room. Detective Pat Ingram noted a large amount of blood where the victim lay and blood on the legs of a brass table stand, on a glass table top, and on the wall behind the couch. No blood was found inany of the other rooms in the house. SBI Agent Duane Deaver, an expert in blood stain pattern analysis, testified that, based on his investigation, the blood stains were the result of impacts to the victim's head and body. In Agent Deaver's opinion, there were at least three separate and distinct impacts to the victim. The first occurred when the victim was in an upright position, the second occurred when the victim was at the height of the coffee table, and the third occurred when the victim was on the floor or extremely close to the floor. Based on the blood spatter analysis, Agent Deaver explained, the person who struck the victim was exerting a significant amount of force.
    Dr. Thomas Clark, an expert in forensic pathology, conducted an autopsy on 3 April 2003. Dr. Clark observed thirty-one wounds on Stone's body. These were caused by a “knife or a knife[-]like object.” There were cuts on the back and front of Stone's body, including his chest, neck and head. There were many surface injuries that were one-to-five inches in length. These did not penetrate deeply. Also, on the neck, there were seven wounds from a “knife[-]like” object, again one-to-five inches in length on the surface. On the head, there were fourteen wounds from a “knife[- ]like” object; of these, four were significant “in that they cause[d] damage to underlying areas.” Two blows cut the bone of the skull and two others “were deep enough to go through the skull and into the brain.” In Dr. Clark's opinion, two of the knife wounds which penetrated Stone's skull would have been capable of causing death. Dr. Clark concluded that Stone died as a result ofmultiple stab wounds, specifically the stab wounds to the top of the head.
    James Oldham testified that he and his wife occasionally smoked crack cocaine with defendant and his wife, Jamie Wall. At the time of Stone's death, defendant and Wall were staying with the Oldhams in a boarding house. Oldham knew that defendant was in the habit of carrying a knife. On Sunday 30 March 2003, Oldham, defendant, and Wall went to Stone's house so Oldham could borrow money from Stone. Stone gave Oldham $20.00. On 1 April 2003 after smoking crack cocaine all day, at approximately 10:00 p.m., defendant, Wall, and Oldham drove to Stone's house so that Oldham could borrow money again from Stone. Jamie Wall was driving, defendant was seated in the front seat, and Oldham sat in the back seat. Oldham went inside Stone's residence. Oldham asked Stone whether he could borrow money. Stone said he only had $2.00, but that if Oldham came back the next day, he would give him more. As Oldham and Stone walked to the front door, Stone made a remark and pulled Oldham towards him. Stone kissed Oldham on the mouth. Oldham pushed Stone away. Stone reached for Oldham again, and Oldham pushed him off. Oldham hit Stone in the eye and Stone fell over the corner of the couch onto the floor. While Stone was face down on the floor, defendant ran in through the front door and started hitting Stone. Defendant straddled Stone and continued to hit him in the head. Oldham told defendant to leave Stone alone. Oldham said, “[C]ome on, let's go.” Oldham went out the front door to the car and got in the back seat. Oldham did not see defendantwith any weapons; he only saw defendant hit Stone with his fist. As Oldham was going out the front door, he heard a “thud” or a “crack” _ “a sound [he had] never heard before.” Stone was alive when Oldham left the house. Once inside the car, Oldham told Jamie Wall she needed to go inside and get defendant because Oldham had not been able to stop defendant from beating Stone. Jamie Wall did not go inside. Within approximately one and one half minutes, defendant came outside and got in the car, saying, “I knocked the m--- f--- out.” Defendant had something cupped in his shirt when he came outside, but Oldham could not tell what it was. Defendant looked “pissed off.” His voice was high and loud and his eyes were big. Defendant told Wall to “get the hell out of there.” At one point, defendant told Wall to stop the car. Defendant got out, leaned over a drain, and dropped what he had in his shirt in the drain. Wall then drove to the boarding house. During the drive, defendant was making remarks such as “a faggot and queer.” Later that day, defendant and Wall left the boarding house. When they returned the next day, defendant said he had been by Stone's house and had seen yellow tape. He turned on the television to see if there were any reports about what had happened to Stone. Defendant told Oldham that he did not want Oldham to say anything about defendant being over at Stone's house. Oldham further testified that he did not stab Stone in the head, and that he did not hit Stone with anything other than his fist.
    Oldham's testimony at trial corresponded, in large measure, with statements he made to the police. According to Detective JeffSaunders of the Burlington Police Department, however, Oldham had stated that he called for defendant's assistance after he pushed Stone away from him. In early April 2003, Oldham was arrested. He later pled guilty to second degree murder and, at the time of defendant's trial, was waiting to be sentenced to a term of fourteen to seventeen years imprisonment.
    Jamie Wall, defendant's wife, testified that she and defendant smoked crack cocaine. At the time of Stone's death, she and defendant were living with the Oldhams in a boarding house. The two couples smoked crack together whenever they had money. On the Sunday afternoon before 1 April 2003, Oldham wanted to borrow money to buy crack. Wall and defendant drove Oldham to Stone's house. Oldham went inside the house; Wall and defendant stayed in the car. They bought crack with the money Oldham received from Stone.
    Wall further testified that, on Tuesday 1 April 2003, after smoking crack cocaine during the day, Oldham suggested they go back to Stone's house to borrow more money. Wall drove back to Stone's house. Defendant sat in the front passenger seat and Oldham sat in the back seat. When they arrived at Stone's house, Oldham got out and went inside. After approximately thirty to forty-five minutes, Oldham came out on the front porch and yelled “hey.” Defendant got out of the car. Oldham went back inside and defendant walked up to the house. Later, Oldham and defendant came out the front door together. Wall drove away. When she stopped for a stop sign, Oldham got out of the back seat and then got back in. When she stopped at a stop light, defendant got out of the car and then gotback in. They drove to Tommy's Minimart. Oldham gave Wall $10.00 to purchase beer and cigarettes. When Wall came out of the store, defendant and Oldham had on different shirts. They bought crack and returned to the boarding house. Wall and defendant did not stay at the apartment that night. When first interviewed by the police, Wall said she did not know anything about what had happened to Stone. Wall testified that she had lied for defendant because she was afraid he would hurt her because he had done so in the past. Defendant had hit her in the jaw, stomped on her, and pulled her hair.
    SBI Agent Neil led the interview of defendant on 5 April 2003 at the Burlington Police Station. Defendant stated that he met Oldham while living at Gracebrook Apartments. Thereafter, he and Wall shared a room with Oldham and his wife at the boarding house. Defendant stated he had made two trips with Oldham and Wall to Stone's house, first on 30 March 2003 and again on 31 March 2003. Both trips were made so that Oldham could borrow money from Stone, and during both occasions he and Wall remained in the car.
    Defendant gave the boots he was wearing during his interview with Neil to the police. Defendant stated the boots originally belonged to Oldham, but that he had obtained them “about a week or so before [the date of the interview].” The blood found on defendant's boots was a genetic match to Stone's blood. Likewise, the blood found on Oldham's jacket and on one of Oldham's shoes matched Stone's blood. Finally, blood samples taken from theinside of the vehicle driven the night of Stone's death matched defendant's blood.
    Defendant did not present any evidence at trial.
    The jury convicted defendant of first degree murder, and the trial court sentenced him to life imprisonment. Defendant appeals.
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    Defendant argues the trial court erred by denying his motion to dismiss for insufficiency of the evidence made at the close of the State's evidence and again at the close of all the evidence. Defendant contends there was insufficient evidence identifying him as the perpetrator, and insufficient evidence of premeditation and deliberation necessary to support a conviction of first degree murder. We disagree.
    “In ruling on a motion to dismiss a first-degree murder charge, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom.” State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995) (citation omitted). “[T]he 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 (2002) (internal quotation marks and citations omitted). “The trial court does notweigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.” Id. “'Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.'” State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994) (quoting State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)). “Courts making such determinations may resort to circumstantial evidence of motive, opportunity and capability to identify the accused as the perpetrator of the crime.” Id. (citation omitted).
        Murder in the first degree is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. Premeditation means that the act was thought out beforehand for some length of time, however, short; but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill carried out by the defendant in a cool state of blood in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. The phrase “cool state of blood” means that the defendant's anger or emotion must not have been such as to overcome the defendant's reason.
        Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrencegiving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. We have also held that the nature and number of the victim's wounds are circumstances from which premeditation and deliberation can be inferred.

State v. Gladden, 315 N.C. 398, 430-31, 340 S.E.2d 673, 693 (1986) (citations omitted).
    We conclude, taking the evidence in the light most favorable to the State, that there was sufficient evidence from which a rational trier of fact could find defendant was the perpetrator of the killing. Stone was not injured when he, Oldham and Wall arrived at Stone's home. Thereafter, defendant was observed beating Stone about the face and head. Defendant was alone in the house for a period of time when Oldham returned to the vehicle. Defendant was known to carry a knife. As defendant was beating Stone, and Oldham was leaving the house, Oldham heard a “thud” or a “crack.” It is reasonable to infer that this sound was caused by defendant striking Stone's skull with a knife. Furthermore, as defendant returned to the car, he stated, “I knocked the m--- f--- out.” Defendant appeared “pissed off” when he came outside and appeared to be “in a rage.” Defendant told Wall, who was driving, to “get the hell out of there.” Defendant had something in his shirt when he exited Stone's house. After they drove away, Wall stopped the car and defendant deposited the object he had been holding in his shirt into a drain by the road. It is reasonable toinfer, given all the facts and circumstances of this case, that this object was a knife. Finally, Stone's blood was found on defendant's boots. We hold that there was substantial evidence that it was defendant who perpetrated the killing of Stone with a knife, and note that this conclusion is in accord with our common law precedent. See, e.g., State v. Clanton, 278 N.C. 502, 180 S.E.2d 5 (1971); State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000); and State v. Hudson, 56 N.C. App. 172, 288 S.E.2d 383 (1982).
    Likewise, we conclude there was substantial evidence from which a rational trier of fact could find that defendant killed Stone with the requisite premeditation and deliberation. Here, defendant inflicted numerous knife injuries to the victim, at least fourteen of which were inflicted about the head. The evidence showed a total of thirty-one wounds on the front and back of Stone's body. A number of wounds were inflicted with a significant amount of force, particularly the two resulting in penetrations of Stone's skull and brain. Two separate actions from a knife cut the bone of the victim's skull. Moreover, again taking the evidence in the light most favorable to the State, there was no provocation as to defendant, and no evidence that Stone was armed. When defendant returned to the car, he stated he had “knocked” Stone out and directed Wall to leave immediately. Soon after leaving Stone's home, defendant and Oldham changed the shirts they had been wearing, and defendant subsequently instructed Oldham not to say that defendant had been at Stone's house. We hold there wassubstantial evidence of premeditation and deliberation on the part of defendant to submit the offense of first degree murder to the jury on account of premeditation and deliberation. Accord State v. Morgan, 359 N.C. 131, 162, 604 S.E.2d 886, 905 (2004).
    The trial court properly denied defendant's motion to dismiss. This assignment of error is overruled.
    No error.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).

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