{ "id": 11079267, "name": "STATE OF NORTH CAROLINA v. TERRY FRANKLIN LATHAN", "name_abbreviation": "State v. Lathan", "decision_date": "2000-06-06", "docket_number": "No. COA99-411", "first_page": "234", "last_page": "243", "citations": [ { "type": "official", "cite": "138 N.C. App. 234" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "261 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "794" } ], "opinion_index": 0 }, { "cite": "299 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574152 ], "year": 1980, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0151-01" ] }, { "cite": "317 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684892 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0391-01" ] }, { "cite": "308 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765436 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0512-01" ] }, { "cite": "527 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155839 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0386-01" ] }, { "cite": "185 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "135", "parenthetical": "Sharp, J., dissenting" } ], "opinion_index": 0 }, { "cite": "279 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571995 ], "year": 1971, "pin_cites": [ { "page": "687", "parenthetical": "Sharp, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0676-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "916", "parenthetical": "quoting State v. Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129, 135 (1971) (Sharp, J., dissenting)" }, { "page": "917" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "578-79", "parenthetical": "quoting State v. Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129, 135 (1971) (Sharp, J., dissenting)" }, { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "512 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "450", "parenthetical": "quoting State v. Wilkerson, 295 N.C. 559, 578-79, 247 S.E.2d 905, 916 (1978) (quoting State v. Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129, 135 (1971) (Sharp, J., dissenting))" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238512 ], "year": 1999, "pin_cites": [ { "page": "452", "parenthetical": "quoting State v. Wilkerson, 295 N.C. 559, 578-79, 247 S.E.2d 905, 916 (1978) (quoting State v. Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129, 135 (1971) (Sharp, J., dissenting))" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0440-01" ] }, { "cite": "181 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "398", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "279 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565707 ], "year": 1971, "pin_cites": [ { "page": "81", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0073-01" ] }, { "cite": "264 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "353", "parenthetical": "quoting State v. Duboise, 279 N.C. 73, 81, 181 S.E.2d 393, 398 (1971) (citation omitted)" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550279 ], "year": 1980, "pin_cites": [ { "page": "579", "parenthetical": "quoting State v. Duboise, 279 N.C. 73, 81, 181 S.E.2d 393, 398 (1971) (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0574-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "508 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11201411 ], "year": 1998, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0465-01" ] }, { "cite": "309 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "235-36", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4764212 ], "year": 1983, "pin_cites": [ { "page": "766", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0763-01" ] }, { "cite": "321 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "586-87", "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523828 ], "year": 1984, "pin_cites": [ { "page": "66", "parenthetical": "alterations in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0063-01" ] }, { "cite": "488 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 182", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11793462 ], "year": 1997, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0182-01" ] }, { "cite": "511 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132085 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0079-01" ] }, { "cite": "502 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "130 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466006 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/130/0154-01" ] }, { "cite": "526 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571553, 571612, 571485, 571607 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0532-03", "/nc/349/0532-01", "/nc/349/0532-04", "/nc/349/0532-02" ] }, { "cite": "502 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "130 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467166 ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0303-01" ] }, { "cite": "460 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "victim's statements that his marriage \"wasn't getting along like it should\" and that he was leaving held admissible statements of victim's then-existing state of mind" } ], "opinion_index": 0 }, { "cite": "341 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793072 ], "year": 1995, "pin_cites": [ { "parenthetical": "victim's statements that his marriage \"wasn't getting along like it should\" and that he was leaving held admissible statements of victim's then-existing state of mind" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0036-01" ] }, { "cite": "501 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "statement that if victim left, defendant would kill her was \"admissible to show the victim's fear at the time of the conversation with [witness] and to demonstrate the basis for her fear, namely, the threat to her life\"" }, { "page": "66", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "348 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659821 ], "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "statement that if victim left, defendant would kill her was \"admissible to show the victim's fear at the time of the conversation with [witness] and to demonstrate the basis for her fear, namely, the threat to her life\"" }, { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0510-01" ] }, { "cite": "145 L. Ed. 2d 87", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 838", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9491360, 9491196, 9491302, 9490951, 9491111, 9491148, 9490991, 9491248, 9490835, 9491028, 9490934, 9490871, 9491065, 9490908 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0838-14", "/us/528/0838-11", "/us/528/0838-13", "/us/528/0838-05", "/us/528/0838-09", "/us/528/0838-10", "/us/528/0838-06", "/us/528/0838-12", "/us/528/0838-01", "/us/528/0838-07", "/us/528/0838-04", "/us/528/0838-02", "/us/528/0838-08", "/us/528/0838-03" ] }, { "cite": "509 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "testimony regarding voice-activated records and statements from victim indicating her intent to end the marriage reflected her state of mind; but testimony that bruise resulted from defendant throwing victim into wall held inadmissible as mere recitation of fact" } ], "opinion_index": 0 }, { "cite": "349 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571595 ], "year": 1998, "pin_cites": [ { "parenthetical": "testimony regarding voice-activated records and statements from victim indicating her intent to end the marriage reflected her state of mind; but testimony that bruise resulted from defendant throwing victim into wall held inadmissible as mere recitation of fact" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0573-01" ] }, { "cite": "513 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "expression of concern about financial conditions and statement that marriage was troubled held admissible" } ], "opinion_index": 0 }, { "cite": "350 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132086 ], "year": 1999, "pin_cites": [ { "parenthetical": "expression of concern about financial conditions and statement that marriage was troubled held admissible" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0193-01" ] }, { "cite": "491 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "550" }, { "page": "655" } ], "opinion_index": 0 }, { "cite": "347 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551097 ], "year": 1997, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0143-01" ] }, { "cite": "497 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "103", "parenthetical": "citation omitted" }, { "page": "103", "parenthetical": "alterations in original" }, { "page": "103", "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656401 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "654", "parenthetical": "citation omitted" }, { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0647-01" ] }, { "cite": "470 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "5", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "343 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798943 ], "year": 1996, "pin_cites": [ { "page": "246", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0240-01" ] }, { "cite": "471 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "618", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "343 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798758 ], "year": 1996, "pin_cites": [ { "page": "335", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0313-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] }, { "cite": "451 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "612", "parenthetical": "quoting 6 John H. Wigmore, Evidence \u00a7 1714 (James H. Chadbourn rev. 1976)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558332 ], "year": 1994, "pin_cites": [ { "page": "229", "parenthetical": "quoting 6 John H. Wigmore, Evidence \u00a7 1714 (James H. Chadbourn rev. 1976)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0207-01" ] }, { "cite": "422 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "725", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "332 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507655 ], "year": 1992, "pin_cites": [ { "page": "535", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0520-01" ] } ], "analysis": { "cardinality": 1047, "char_count": 21550, "ocr_confidence": 0.771, "pagerank": { "raw": 2.2367831286145413e-07, "percentile": 0.779666884053858 }, "sha256": "1fba208246e4491abcc14273beaebcc57770e196435aa1086365ba8bd39a0756", "simhash": "1:c325e1a7c7ce2d33", "word_count": 3523 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY FRANKLIN LATHAN" ], "opinions": [ { "text": "EDMUNDS, Judge.\nDefendant Terry Franklin Lathan appeals his conviction of second-degree murder. We find no error.\nAt approximately 12:15 a.m. on 13 July 1996, the Hoffman Fire and Rescue unit received a call reporting a shooting. When volunteers arrived at the scene, defendant was standing beside his truck; his girlfriend, Lisa Barber, was dead inside the truck. When asked what happened, defendant stated: \u201cI accidentally shot her. We were messing around with guns, and she reached for the barrel of the gun, and when she pulled it the gun went off.\u201d The body was slumped over in the passenger side of the truck cab; it was wrapped in a quilt and had a single gunshot wound to the left breast area. Bruises consistent with attempted strangulation were found on her neck although other signs of strangulation were absent. The victim also was bruised about other parts of her body.\nDefendant was indicted for first-degree murder. A jury returned a verdict of second-degree murder, and the trial court sentenced defendant to 141 to 179 months imprisonment.\nI.\nDefendant contends the trial court erred by admitting hearsay evidence. Several witnesses testified as to statements the victim made prior to her death. After conducting a voir dire hearing and considering arguments of counsel, the trial court admitted the statements pursuant to the state of mind exception to the hearsay rule. See N.C. Gen. Stat. \u00a7 8C-1, Rule 803(3) (1999). Defendant contends that the admission of these hearsay statements violated his Confrontation Clause rights as set forth in the Sixth and Fourteenth Amendments to the United States Constitution.\nUnder Rule 803(3), hearsay evidence may be admitted to show the declarant\u2019s \u201cthen existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).\u201d This exception permits the introduction of hearsay evidence that tends to \u201cindicate the victim\u2019s mental condition by showing the victim\u2019s fears, feelings, impressions or experiences,\u201d so long as any prejudicial effect of such evidence is not outweighed by its probative value under N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1999). State v. Walker, 332 N.C. 520, 535, 422 S.E.2d 716, 725 (1992) (citations omitted). Our Supreme Court has stated that the underlying policy supporting Rule 803(3) is the \u201c \u2018fair necessity, for lack of other better evidence, for resorting to a person\u2019s own contemporary statements of his mental or physical condition.\u2019 \u201d State v. Hardy, 339 N.C. 207, 229, 451 S.E.2d 600, 612 (1994) (quoting 6 John H. Wigmore, Evidence \u00a7 1714 (James H. Chadbourn rev. 1976)).\nTo be admissible under Rule 803(3), the testimony also must be relevant. See State v. Bishop, 346 N.C. 365, 379, 488 S.E.2d 769, 776 (1997). \u201cIt is well established in North Carolina that a murder victim\u2019s statements falling within the state of mind exception to the hearsay rule are highly relevant to show the status of the victim\u2019s relationship to the defendant.\u201d State v. Scott, 343 N.C. 313, 335, 471 S.E.2d 605, 618 (1996) (citations omitted). A victim\u2019s state of mind also is relevant \u201cif it relates directly to circumstances giving rise to a potential confrontation with the defendant.\u201d State v. McLemore, 343 N.C. 240, 246, 470 S.E.2d 2, 5 (1996) (citation omitted).\nHowever, North Carolina courts have recognized limits to the reach of this hearsay exception. \u201cStatements merely relating factual events do not fall within Rule 803(3) because, in contrast to statements of mental or physical condition, factual circumstances are provable by better evidence, such as the testimony of those who witnessed the events.\u201d State v. Exum, 128 N.C. App. 647, 654, 497 S.E.2d 98, 103 (1998) (citation omitted). Defendant contends that the challenged testimony provided by the following witnesses consists of inadmissible \u201crecitation of fact\u201d by the victim, rather than expression by the victim of her state of mind.\nNellie Stubbs\nNellie Stubbs, the victim\u2019s mother, testified that the victim had told her: (1) that the victim had to be home by a certain time, and if she was late, defendant \u201cwould be standing in the door waiting on her\u201d; (2) that defendant opposed the victim\u2019s use of the Stubbs\u2019 vehicle; (3) that defendant opposed people coming to his house to visit the victim; and (4) that the victim had prepared to leave defendant, but that she had stayed with him after he apologized.\nRosalie Webb\nMs. Webb worked with the victim and had known the victim most of her adult life. Ms. Webb testified that the victim told her that defendant was \u201cvery, very jealous\u201d of the victim.\nCarolyn Rainwater\nMs. Rainwater was the wife of the victim\u2019s former stepfather. Ms. Rainwater offered testimony that three weeks prior to the victim\u2019s death, the victim visited the witness but had to hurry home. The victim told Ms. Rainwater that she had to be home when defendant arrived \u201cor he\u2019d whip her ass.\u201d The witness stated: \u201cI could see the fear there that if she didn\u2019t go she was going to be in trouble.\u201d Ms. Rainwater also testified that defendant \u201cwas jealous.\u201d\nOllie Green\nMs. Green was a co-worker of the victim. She testified that one day the victim arrived at work with a mark on her face. When she inquired as to how it happened, the victim told her that defendant and the victim had argued and that defendant had touched to her face a hot gun barrel.\nBarbara Beachum\nWhile school was in session, Ms. Beachum regularly babysat for the victim\u2019s son. Shortly after she began working for the victim, Ms. Beachum noticed bruises on the victim\u2019s face. When asked what caused the bruising, the victim responded that she and defendant \u201cgot into it.\u201d Later, Ms. Beachum noticed that the victim had a \u201cbusted lip.\u201d The victim explained this by saying, \u201cthat fool is at it again.\u201d At some point, Ms. Beachum asked the victim why she stayed with defendant. The victim responded: \u201cHe\u2019s not like that when he\u2019s not drinking.\u201d Additionally, Ms. Beachum testified that during one of her last visits with the victim, the victim spoke of leaving defendant and going to live with her brother.\nCathy Preslev\nMs. Presley, another former co-worker of the victim, testified that the victim told her that defendant did not permit her to wear shorts to work. She also testified that although she never saw the victim come to work in shorts, the victim occasionally changed into shorts after she arrived at work and then changed back into pants prior to going home. Ms. Presley testified that the victim told her that \u201cif she left him he would kill her.\u201d Additionally, when asked about bruises and a burn mark on her cheek, the victim told Ms. Presley that defendant caused them after becoming jealous of a man who made a pass at the victim.\nJames E. Stubbs\nMr. Stubbs was the victim\u2019s stepfather. While driving the victim to Fayetteville, he asked the victim if defendant beat her. She responded that defendant had slapped her and that when her son was out of school for the summer, she was going to leave defendant.\nRobert Goins\nMr. Goins was the victim\u2019s supervisor at work. He testified to his conversation with the victim about her relationship with defendant. The victim mentioned being beaten by defendant. Mr. Goins also testified to the victim\u2019s demeanor during the conversation, saying that she was \u201c[v]ery quiet, to herself,\u201d and she was \u201cmore introverted.\u201d\nStatements that relate factual events, where those events tend to show the victim\u2019s state of mind at the time the statement is made, \u201care not excluded from the coverage of Rule 803(3) where the facts related \u2018serve ... to demonstrate the basis for the [victim\u2019s] emotions.\u2019 \u201d Exum, 128 N.C. App. at 654, 497 S.E.2d at 103 (alterations in original) (quoting State v. Gray, 347 N.C. 143, 173, 491 S.E.2d 538, 550 (1997)). As this Court has stated:\n\u201cIn the first place, it is in the nature of things that statements shedding light on the speaker\u2019s state of mind usually allude to acts, events, or conditions in the world, in the sense of making some kind of direct or indirect claim about them. . . .\nIn the second place, fact-laden statements are usually deliberate expressions of some state of mind. . . . [I]t does not take a rocket scientist... to understand that fact-laden statements are usually purposeful expressions of some state of mind, or to figure out that ordinary statements in ordinary settings usually carry ordinary meaning. In the end, most fact-laden statements intentionally convey something about state of mind, and if a statement conveys the mental state that the proponent seeks to prove, it fits the [federal rule 803(3)] exception.\u201d\nId. at 655, 497 S.E.2d at 103 (alterations in original) (quoting 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence \u00a7 438, at 417-18 (2d ed. 1994) (explaining the federal courts\u2019 broad reading of federal rule 803(3))).\nA review of cases indicates that North Carolina appellate courts have recognized tacitly that statements in which a victim\u2019s state of mind is explicated by attendant facts may be admissible pursuant to Rule 803(3). See State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999) (expression of concern about financial conditions and statement that marriage was troubled held admissible); State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998) (testimony regarding voice-activated records and statements from victim indicating her intent to end the marriage reflected her state of mind; but testimony that bruise resulted from defendant throwing victim into wall held inadmissible as mere recitation of fact), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999); State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998) (statement that if victim left, defendant would kill her was \u201cadmissible to show the victim\u2019s fear at the time of the conversation with [witness] and to demonstrate the basis for her fear, namely, the threat to her life\u201d); Bishop, 346 N.C. 365, 488 S.E.2d 769 (statements expressing the victim\u2019s concern about defendant\u2019s handling of her real estate transactions and her intent to document defendant\u2019s debt, to seek repayment, and to confront defendant about her concern that defendant had stolen from her \u201cbore directly on the relationship between the victim and defendant at the time of the killing and were relevant to show a motive for the killing\u201d); State v. Lambert, 341 N.C. 36, 460 S.E.2d 123 (1995) (victim\u2019s statements that his marriage \u201cwasn\u2019t getting along like it should\u201d and that he was leaving held admissible statements of victim\u2019s then-existing state of mind); State v. Marecek, 130 N.C. App. 303, 502 S.E.2d 634 (statements that defendant was having an affair, that he didn\u2019t touch victim anymore and they no longer had sexual relations, and that defendant had bought a life insurance policy held inadmissible hearsay), disc. review denied, 349 N.C. 532, 526 S.E.2d 473 (1998); State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853 (1998) (testimony regarding defendant\u2019s threats to kill victim, defendant\u2019s statement to victim that she would be the next \u201cNicole Simpson,\u201d and defendant\u2019s urinating on the kitchen floor and wiping victim\u2019s hair in the urine \u201cshed light on her state of mind, her emotions and her physical condition\u201d), aff\u2019d as modified in part, disc. review improvidently allowed in part, 350 N.C. 79, 511 S.E.2d 302 (1999).\nThus, where a statement was made in isolation, unaccompanied by a description of emotion, courts have tended to find that hearsay testimony relating that statement falls outside the scope of Rule 803(3). Conversely, where the witness described the victim\u2019s demeanor or attitude when making the statement, the courts have tended to admit the testimony pursuant to 803(3).\nApplying this principle to the case at bar, we observe that the challenged testimony of Ms. Webb, when viewed as a whole, described the victim\u2019s emotions by relating episodes where the victim was crying when she called her. Therefore, this testimony was properly admitted. Next, Ms. Rainwater\u2019s testimony also fits the pattern recognized by our courts. She stated that the victim appeared to be afraid when telling Ms. Rainwater that she had to be home on time or else defendant would \u201cwhip her ass.\u201d Mr. Stubbs\u2019 testimony that the victim planned to leave defendant once her son was out of school indicated the victim\u2019s state of mind prior to the murder. Similarly, Mr. Goins\u2019 testimony as to the victim\u2019s demeanor and change in personality when she discussed her recurrent beatings by defendant fell within the ambit of Rule 803(3).\nBy contrast, the testimony of Ms. Stubbs, Ms. Green, Ms. Beachum, and Ms. Presley was inadmissible. Their testimony was unaccompanied by descriptions of the victim\u2019s emotions or mental state, but were instead only statements regarding past factual events. However, we see no prejudice to defendant. The trial court\u2019s failure to admit or exclude evidence will not be considered prejudicial unless the defendant can demonstrate with a reasonable possibility that \u201chad the error not been committed, a different result would have been reached.\u201d State v. Allen, 127 N.C. App. 182, 186, 488 S.E.2d 294, 297 (1997). No such showing has been made here, nor do we perceive any likelihood that a different verdict would have resulted had the improper testimony not been heard by the jury. There was sufficient evidence to support defendant\u2019s conviction without the improperly admitted statements. Defendant\u2019s assignments of error relating to admission of hearsay evidence are overruled.\nII.\nDefendant also contends the trial court erred by denying his motion made at the conclusion of the State\u2019s case and renewed at the close of all evidence to dismiss the charge of second-degree murder. The law governing the trial court\u2019s evaluation of a motion to dismiss is well-defined:\n\u201cThe question for the court in ruling upon defendant\u2019s motion for dismissal is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If substantial evidence of both of the above has been presented at trial, the motion is properly denied. ... In considering a motion to dismiss, the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. . . . Contradictions and discrepancies in the evidence are strictly for the jury to decide. . . .\u201d\nState v. Huggins, 71 N.C. App. 63, 66, 321 S.E.2d 584, 586-87 (1984) (alterations in original) (quoting State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 235-36 (1983) (internal citations omitted)), quoted in State v. Childers, 131 N.C. App. 465, 471, 508 S.E.2d 323, 328 (1998). \u201c \u2018Substantial evidence\u2019 is relevant evidence that a reasonable mind might accept as sufficient to support a conclusion.\u201d Gary, 348 N.C. at 522, 501 S.E.2d at 66 (citation omitted).\nSecond-degree murder is defined under N.C. Gen. Stat. \u00a7 14-17 (1999) as the \u201c \u2018unlawful killing of a human being with malice, but without premeditation and deliberation.\u2019 \u201d State v. Mapp, 45 N.C. App. 574, 579, 264 S.E.2d 348, 353 (1980) (quoting State v. Duboise, 279 N.C. 73, 81, 181 S.E.2d 393, 398 (1971) (citation omitted)). \u201c[M]alice necessary to establish second-degree murder may be inferred from conduct evincing \u201c \u2018recklessness of consequences\u2019 \u201d or \u201c \u2018a mind regardless of social duty and deliberately bent on mischief,\u2019 \u201d such as manifests a total disregard for human life.\u201d State v. Rich, 132 N.C. App. 440, 452, 512 S.E.2d 441, 450 (1999) (quoting State v. Wilkerson, 295 N.C. 559, 578-79, 247 S.E.2d 905, 916 (1978) (quoting State v. Wrenn, 279 N.C. 676, 687, 185 S.E.2d 129, 135 (1971) (Sharp, J., dissenting))), aff\u2019d, 351 N.C. 386, 527 S.E.2d 299 (2000). While intent to kill is not an essential element, see State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983), the crime cannot exist without some intentional act in the chain of causation leading to death, see Wilkerson, 295 N.C. at 580, 247 S.E.2d at 917.\nThere was ample evidence that defendant and the victim were embroiled in a tempestuous relationship. Mr. Jessie Locklear testified for the State that defendant described the shooting to him. According to Mr. Locklear, defendant and the victim had words the night of the shooting, and she tried to leave him. Defendant followed her with a high-powered rifle and fired a shot at her legs to frighten her. They returned to the house and continued arguing. Defendant then pointed the rifle at the victim or in her direction and fired. He realized she was hit, but added that he had not intended to kill her. This evidence was sufficient to establish that by shooting at the victim or in her direction, defendant intentionally committed an inherently dangerous act that proximately caused the victim\u2019s death in a reckless and wanton manner manifesting a mind utterly without regard for human life. See State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984). The trial court properly denied defendant\u2019s motion to dismiss.\nDefendant also contends his motion to dismiss should have been granted because the trial court\u2019s second-degree murder instruction required the jury to find that defendant intentionally killed the victim. This argument fails because the court\u2019s decision to deny defendant\u2019s motion to dismiss preceded the final instructions to the jury; therefore, the instructions are irrelevant to the earlier motion to dismiss. Moreover, we perceive no error in the instructions. The record reveals that the able trial judge instructed the jury in accordance with the pattern instruction for second-degree murder. In accordance with the pattern, the judge advised the jury in pertinent part:\nSecond [d]egree [m]urder differs from first degree murder in that neither specific intent to kill, premeditation, nor deliberation are necessary elements. In order for you to find the defendant guilty of second degree murder the State must proof [sic] beyond a reasonable doubt that the defendant unlawfully, intentionally, and with malice killed the victim.\nAs noted in footnote nine to the pattern instruction, the \u201cintent\u201d to which this charge refers is the intent to do the act that results in the death. N.C.P.I., Crim. 206.13, fn. 9; see State v. Ray, 299 N.C. 151, 158, 261 S.E.2d 789, 794 (1980). The instruction was therefore correct. This assignment of error is overruled.\nNo error.\nJudges LEWIS and JOHN concur.", "type": "majority", "author": "EDMUNDS, Judge." } ], "attorneys": [ "Michael F. Easley, Attorney General, by James G. Gulick, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY FRANKLIN LATHAN\nNo. COA99-411\n(Filed 6 June 2000)\n1. Evidence\u2014 hearsay \u2014 state of mind exception\nThe trial court did not err by admitting, under the state of mind exception to the hearsay rule, the testimony of several witnesses describing the victim\u2019s demeanor or attitude when she made statements prior to her death because: (1) the statement relating episodes where the victim was crying when she called one witness, and the statement that the victim appeared to be afraid when telling another witness that the victim had to be home on time or else defendant would \u201cwhip her ass,\u201d both described the victim\u2019s emotions; (2) the statement that the victim planned to leave defendant once the victim\u2019s son was out of school indicated the victim\u2019s state of mind prior to the murder; and (3) the statement concerning the victim\u2019s demeanor and change in personality when she discussed her recurrent beatings by defendant also falls within the ambit of Rule 803(3). N.C.G.S. \u00a7 8C-1, Rule 803(3).\n2. Evidence\u2014 hearsay \u2014 state of mind exception \u2014 no prejudicial error\nAlthough the trial court erred in admitting the hearsay testimony of four witnesses under the state of mind exception since their testimony was not accompanied by descriptions of the victim\u2019s emotions or mental state, but were instead only statements regarding past factual events, there was no prejudice since a different result in the case would not have been reached absent these improperly admitted statements. N.C.G.S. \u00a7 8C-1, Rule 803(3).\n3. Homicide\u2014 second-degree murder \u2014 motion to dismiss\u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of second-degree murder because evidence presented at trial that defendant pointed the rifle at the victim or in her direction and fired was sufficient to establish that he intentionally committed an inherently dangerous act that proximately caused the victim\u2019s death in a reckless and wanton manner manifesting a mind utterly without regard for human life. N.C.G.S. \u00a7 14-17.\n4. Homicide\u2014 second-degree murder \u2014 motion to dismiss\u2014 intent\nAlthough defendant contends his motion to dismiss the charge of second-degree murder should have been granted since the trial court\u2019s instruction required the jury to find that defendant intentionally killed the victim, the instructions are irrelevant to the motion to dismiss because: (1) the trial court\u2019s decision to deny the motion preceded the final instructions to the jury; and (2) the trial court instructed according to the pattern jury instruction, and the \u201cintent\u201d to which the charge refers is the intent to do the act that results in the death.\nAppeal by defendant from judgment entered 24 April 1998 by Judge Sanford Steelman in Richmond County Superior Court. Heard in the Court of Appeals 16 February 2000.\nMichael F. Easley, Attorney General, by James G. Gulick, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, for defendant-appellant." }, "file_name": "0234-01", "first_page_order": 264, "last_page_order": 273 }