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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-629


Filed: 15 May 2007


    v .                         Randolph County
                                No. 04 CRS 52054

    Appeal by defendant from judgment entered 14 October 2005 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 14 December 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General L. Michael Dodd, for the State.

    Paul F. Herzog for defendant-appellant.

    CALABRIA, Judge.

    Gwendolyn L. Moorehead (“defendant”) appeals a judgment entered upon a jury verdict finding her guilty of first-degree murder. We find no error.
    On 25 March 2004, following an argument, the defendant stabbed Shelton Little (“the victim”), her live-in boyfriend. Specifically, defendant stabbed the victim twice _ once in the lower right calf and once in the chest. As a result, the knife wound to the victim's chest perforated his heart and he died a short time later. The defendant and victim had been engaged in a stormy relationship for approximately one year prior to the victim's death, and during that time had fought on a number of occasions.    At trial, the State presented evidence that the victim planned to move from an apartment he shared with defendant because he was tired of the constant fighting between them. The victim told the apartment manager he was moving out, and arranged to be picked up by a friend. On the day he was killed, the victim hosted a dinner for his twin five-year old grandsons at the apartment. Defendant arrived home between 3:00 p.m. and 3:30 p.m. and consumed one beer and one Canadian Mist drink. The victim had been drinking during the day and had cooked a spaghetti dinner. After the defendant arrived home, Vidal Sowers (“Sowers”) and Keisha Coble (“Coble”) arrived to visit the victim and show him their new baby. The victim's daughter, Bridgette, arrived shortly thereafter.
    Defendant testified that she went into the bathroom after Bridgette arrived and that the victim followed her there. She stated that the two argued over the victim's guests. She stated that the victim accused her of paying too much attention to Sowers. “I was using the bathroom, and he just kind of, you know, hit me in the head, just pushed my head back,” defendant stated. Defendant testified that she then walked out onto the back porch and remained there until the guests left. She and the victim began arguing again, and the victim announced he was moving out of the apartment. Defendant demanded the victim's house key, and he refused to turn it over. She then said, “[Y]ou ain't going no mother-fucking- where.” Defendant testified that the victim began beating her, and that she stabbed him twice in self-defense. Defendant stated that she then called 911, but hung up at the victim's request. She thendisposed of the victim's bloody clothes. When she returned, the phone rang, and it was the 911 operator calling her back. “. . . I told them . . . I meant to call 411,” she stated. Defendant then went to the bathroom intending to take a bath, but returned to the bedroom before turning the water on in the bath tub. There, she found the victim gasping. Defendant again called 911, but this time she told the operator that a group of Mexicans had stabbed the victim. When paramedics arrived, the victim was dead.
    Tammy Locklear (“Locklear”), who lived next door to the defendant and the victim, testified that she observed defendant sitting on her back porch on the evening of 25 March 2005. She reported hearing an argument between defendant and the victim. She stated that was not unusual because, “[T]hey fussed a lot. But this time it was a bit louder,” Locklear stated. Locklear testified that she heard defendant shouting at the victim in a “hateful” tone, telling the victim that he was not going anywhere. Locklear then heard the back door slam. She went inside to check on some food she was cooking, and when she returned, defendant was sitting on the back porch. “[N]ormally, it didn't matter how much they argued, [defendant] always spoke to me or my daughter Joanne, because my daughter Joanne always spoke to [defendant]. She didn't even acknowledge we were even in the world, even that the kids were out even playing.”
    Following her trial in Randolph County Superior Court, a jury found defendant guilty of first-degree murder. Judge V. Bradford Long entered judgment upon the jury verdict, sentencing defendantto life imprisonment without parole in the custody of the North Carolina Department of Correction. From the judgment entered upon the guilty verdict, defendant appeals.
    On appeal, defendant initially argues that the court erred in denying defendant's motion to dismiss the indictment on the grounds that the indictment was constitutionally defective, thereby depriving the court of jurisdiction to try and sentence defendant. Specifically, defendant argues that the indictment was insufficient in that it failed to allege the elements of first-degree murder. Defendant concedes that this issue is brought forth on appeal as a preservation issue, as our courts have consistently upheld the validity of short-form indictments.
    The bill of indictment returned by the grand jury in this case stated: “The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously and of malice aforethought did kill and murder Shelton Henry Little.” This indictment complies with the statutory demands for a murder indictment as set out in N.C. Gen. Stat. . 15-144 (2005), which states:
        In indictments for murder and manslaughter, it is not necessary to allege matter not required to be proved on the trial; but in the body of the indictment, after naming the person accused, and the county of his residence, the date of the offense, the averment “with force and arms,” and the county of the alleged commission of the offense, as is now usual, it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed),and concluding as is now required by law; and it is sufficient in describing manslaughter to allege that the accused feloniously and willfully did kill and slay (naming the person killed), and concluding as aforesaid; and any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for murder or manslaughter, as the case may be.

Id. Our Supreme Court “has consistently held that indictments for murder based on the short-form indictment statute are in compliance with both the North Carolina and United States Constitutions.” State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000). In Braxton, the Court rejected the argument that an indictment for first-degree murder must specifically allege premeditation and deliberation, determining that N.C. Gen. Stat. . 15-144 did not violate the constitutional commands articulated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt). In doing so, the Court rejected the exact argument being advanced by defendant in the case sub judice. Accordingly, this assignment of error is overruled.
    Defendant lastly argues that the trial court erred in failing to dismiss the charge of first-degree murder at the close of all evidence due to insufficiency of evidence. Our courts have established the following practice in reviewing a trial court's denial of a motion to dismiss:
        In ruling upon a motion to dismiss, the trial court must examine the evidence in the lightmost favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Hodge, 112 N.C. App. 462, 465, 436 S.E.2d 251, 253 (1993). The court must determine whether substantial evidence supports each essential element of the offense and the defendant's perpetration of that offense. State v. McCullers, 341 N.C. 19, 29, 460 S.E.2d 163, 168 (1995). If so, the motion must be denied and the case submitted to the jury. State v. Styles, 93 N.C. App. 596, 602, 379 S.E.2d 255, 260 (1989). 'Substantial evidence' is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981).

State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 30 (2000).
    North Carolina defines first-degree murder as follows, in relevant part:
        A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14-288.21, poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000, except that any such person who was under 17 years of age at the time of the murder shall be punished with imprisonment in the State's prison for life without parole.

N.C. Gen. Stat. . 14-17 (2005).    Here, defendant contends that the evidence, viewed in the light most favorable to the State, does not support the jury's finding that she killed the victim after premeditation and deliberation. We disagree.
    Defendant argues that the cases of State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981), and State v. Williams, 144 N.C. App. 526, 548 S.E.2d 802 (2001) require this Court to reverse her conviction. In both cases, the Courts reversed defendant's first- degree murder conviction after determining that the killings resulted from emotional volatility and mutual combat. Defendant in the instant case contends that she too killed her victim in a highly emotional state and during mutual combat, and that the evidence viewed in the light most favorable to the State cannot support a conviction for first-degree murder. Defendant's reliance on Corn and Williams is misplaced, in that both cases involved defendants who had no significant history of ill will toward their victims.
    In State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984), our Supreme Court enumerated six factors that are to be considered in determining whether there was substantial evidence to support a finding of premeditation and deliberation:
        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. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). 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 occurrence giving 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.

Id. at 170, 321 S.E.2d at 843.
    Here, there was evidence that defendant made statements before and after the killing that could lead a finder of fact to conclude that she killed with premeditation and deliberation. This evidence includes defendant's statement immediately preceding the murder that the victim was not free to leave and her statements afterwards when she lied about her role in the killing and blamed it on Mexicans. Defendant's conduct before and after the killing could also point to premeditation and deliberation. She admitted to disposing of evidence, including disposition of the victim's bloody clothes and wiping blood from the knife.
    There was also abundant evidence of significant ill will or previous difficulty between the parties. Defendant herself testified that the couple had a history of fighting. This evidence, when viewed against the six factors set forth in Hamlet, could support a jury finding that defendant acted after premeditating and deliberating. As such, this assignment of error is overruled.
    No error.
    Judges GEER and JACKSON concur.
    Report per Rule 30(e).    

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