{ "id": 8916132, "name": "STATE OF NORTH CAROLINA v. PHILIP RAY DAWKINS, JR.", "name_abbreviation": "State v. Dawkins", "decision_date": "2004-01-20", "docket_number": "No. COA02-1637", "first_page": "231", "last_page": "240", "citations": [ { "type": "official", "cite": "162 N.C. App. 231" } ], "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": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "holding that \"evidence of an elaborate process\" of removing and disposing of the victim's body was \"evidence from which a jury could infer premeditation and deliberation\"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "year": 2001, "pin_cites": [ { "parenthetical": "holding that \"evidence of an elaborate process\" of removing and disposing of the victim's body was \"evidence from which a jury could infer premeditation and deliberation\"" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "439 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "335 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527119 ], "year": 1994, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0301-01" ] }, { "cite": "553 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "894-95" } ], "opinion_index": 0 }, { "cite": "354 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138504 ], "year": 2001, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0268-01" ] }, { "cite": "411 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "330 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512329 ], "year": 1992, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0557-01" ] }, { "cite": "340 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "year": 1986, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "475 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "212", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "344 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867711 ], "year": 1996, "pin_cites": [ { "page": "267", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0242-01" ] }, { "cite": "514 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "505" } ], "opinion_index": 0 }, { "cite": "350 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132207 ], "year": 1999, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0315-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "548 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "721" } ], "opinion_index": 0 }, { "cite": "353 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135574 ], "year": 2001, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0568-01" ] }, { "cite": "155 L. Ed. 2d 1074", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "pin_cites": [ { "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)" } ], "opinion_index": 0 }, { "cite": "572 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "356 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511176 ], "year": 2002, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0316-01" ] }, { "cite": "392 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "326 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308707 ], "year": 1990, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "429 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "368-69", "parenthetical": "quoting Cummings, 326 N.C. at 313, 389 S.E.2d at 74" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525080 ], "year": 1993, "pin_cites": [ { "page": "147-48", "parenthetical": "quoting Cummings, 326 N.C. at 313, 389 S.E.2d at 74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0138-01" ] }, { "cite": "422 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1992, "pin_cites": [ { "page": "724" }, { "page": "725" }, { "page": "725" } ], "opinion_index": 0 }, { "cite": "332 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507655 ], "year": 1992, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0520-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1990, "pin_cites": [ { "page": "74" }, { "page": "74" }, { "page": "74" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "312-13" }, { "page": "312" }, { "page": "313" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "817-19" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "220-24" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "435 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "301-02" } ], "opinion_index": 0 }, { "cite": "334 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531078 ], "year": 1993, "pin_cites": [ { "page": "636-38" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0627-01" ] }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "927", "parenthetical": "citation omitted" }, { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "76", "parenthetical": "citation omitted" }, { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] }, { "cite": "501 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "634", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996) (citation omitted)" } ], "opinion_index": 0 }, { "cite": "348 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659773 ], "year": 1998, "pin_cites": [ { "page": "392", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996) (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0377-01" ] }, { "cite": "316 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "245" } ], "opinion_index": 0 }, { "cite": "311 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684489 ], "year": 1984, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0222-01" ] }, { "cite": "575 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "quoting State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511409, 1511211, 1511193, 1511143 ], "year": 2002, "pin_cites": [ { "parenthetical": "quoting State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0622-02", "/nc/356/0622-04", "/nc/356/0622-01", "/nc/356/0622-03" ] }, { "cite": "570 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "119", "parenthetical": "quoting State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984)" }, { "page": "119" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250424 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "466", "parenthetical": "quoting State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984)" }, { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0462-01" ] }, { "cite": "548 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "353 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135851 ], "year": 2001, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0599-01" ] }, { "cite": "554 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "416", "parenthetical": "holding \"a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review\"" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377955 ], "year": 2001, "pin_cites": [ { "page": "74", "parenthetical": "holding \"a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0069-01" ] }, { "cite": "420 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "101" } ], "opinion_index": 0 }, { "cite": "332 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507321 ], "year": 1992, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0409-01" ] }, { "cite": "430 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "892-93" }, { "page": "893" } ], "opinion_index": 0 }, { "cite": "333 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548343 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "727-28" }, { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0719-01" ] } ], "analysis": { "cardinality": 1046, "char_count": 23189, "ocr_confidence": 0.77, "pagerank": { "raw": 7.019690665961566e-08, "percentile": 0.42382509559437637 }, "sha256": "0c05288726c9c1601d115c9d3e80a757ccc3e00b49aaa20d911b1c8da152a096", "simhash": "1:87665200367a5cc2", "word_count": 3734 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PHILIP RAY DAWKINS, JR." ], "opinions": [ { "text": "CALABRIA, Judge.\nPhilip Ray Dawkins, Jr. (\u201cdefendant\u201d) seeks review of a judgment entered on a jury verdict of guilty for first-degree murder. We find no error.\nThe State\u2019s evidence at trial tended to show the following: on 13 April 1995, Robert Beck (\u201cBeck\u201d) discovered a body wrapped in a trash bag, towel, and blanket floating in the Blewett Falls Lake area. The body was also encircled with chains and ropes to which were attached weights and an anchor. The authorities retrieved the body from the water and subsequently determined the body was that of Wendy Dawkins (\u201cvictim\u201d), defendant\u2019s wife. The autopsy revealed the victim had died as a result of a gunshot wound to the back of the head.\nDefendant was indicted by the Richmond County Grand Jury for murder. The jury was given the option of finding defendant guilty of first-degree murder or not guilty. The jury found defendant guilty of first-degree murder, and the trial court sentenced defendant to life imprisonment without parole. Defendant argues the trial court (I) committed plain error by failing to submit second-degree murder; (II) improperly allowed hearsay evidence; (III) erred in denying defendant\u2019s motion to dismiss; and (IV) committed plain error in submitting first-degree murder to the jury when the bill of indictment did not allege all the elements of the offense.\nI. Second-Degree Murder Charge\nDefendant asserts the trial court committed plain error by failing to submit the charge of second-degree murder to the jury after acknowledging that the evidence at trial could support either first- or second-degree murder.\nIn State v. Williams, 333 N.C. 719, 727-28, 430 S.E.2d 888, 892-93 (1993), our Supreme Court considered the effect of a defendant unequivocally indicating that he did not wish for the jury to be instructed on second-degree murder in response to the trial court\u2019s inquiry as to the parties\u2019 position on lesser-included offenses. In response, the trial court stated it would instruct only on first-degree murder and not submit second-degree murder to the jury. Id. In approving the trial court\u2019s response, the Supreme Court cited N.C. Gen. Stat. \u00a7 15A-1443(c) and Stale v. Patterson, 332 N.C. 409, 415, 420 S.E.2d 98, 101 (1992), and held the defendant was \u201cnot prejudiced by error resulting from his own conduct . . . [and] foreclosed any inclination of the trial court to instruct on the lesser-included offense of second-degree murder.\u201d Id., 333 N.C. at 728, 430 S.E.2d at 893. As a result, the defendant was \u201cnot entitled to any relief and [would] not be heard to complain on appeal.\u201d Id.\nThe facts of the present case dictate the same outcome. The following exchange between the court and counsel for defendant took place during the charge conference:\nThe Court: Appears to me from the evidence that the jury could find either [first-degree murder or second-degree murder],\n[Attorney]: At the direction of the defendant in this case, I move the court not to charge down.\nLater, the court clarified with the additional exchange:\nThe Court: Do you ... share the same view ... as the State, that it ought to be first degree or not guilty?\n[Attorney]: Yes, sir. The \u2014 the reasoning may be on a different plane, different plateau for different reasons. But we have had the opportunity to \u2014 to discuss that. . . . We\u2019ve talked about that in connection with this case. We spent nine weeks in Richmond County in a motel down there. And that was the subject matter of a lot of conversation.\nThe Court: Your client is in agreement with you with respect to the issues [of first-degree or not guilty]?\n[Attorney]: He is. I believe he would say so.\nIn an abundance of caution, the trial court finally addressed defendant directly and asked him if his counsel\u2019s statements were true, and defendant responded, \u201cYes, sir. We have discussed it, and I am in full agreement with [him].\u201d These exchanges make clear defendant sought to prevent the submission of the issue of second-degree murder to the jury. We will not entertain defendant\u2019s complaint that the granting of his request prejudiced him, and this assignment of error is overruled. See State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001) (holding \u201ca defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review\u201d).\nII. Hearsay\nDefendant asserts the trial court erred in allowing certain portions of testimony by witnesses for the State because they were hearsay and violated defendant\u2019s right to confront his accusers because there was an absence of trustworthiness with respect to the hearsay statements at issue. Of course, where testimony falls within a \u201cfirmly rooted\u201d hearsay exception, reliability is presumed. State v. Fowler, 353 N.C. 599, 615, 548 S.E.2d 684, 696 (2001). We examine each of the hearsay statements challenged.\nA. Bonnie Thomas\u2019 Testimony\nDefendant asserts the trial court improperly allowed certain portions of Bonnie Thomas\u2019 (\u201cThomas\u201d) testimony. Thomas, the victim\u2019s aunt, testified defendant and the victim had obtained a new bedroom Suite to replace the old one defendant and Laurie Harrington (\u201cHarrington\u201d), defendant\u2019s current wife, had shared because the victim would not sleep on the old one. Moreover, Thomas testified the victim stated she and defendant were not getting along because Harrington continued to call defendant.\n\u201c[0]ur Supreme Court has long held that when \u2018evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u2019 \u201d State v. Reed, 153 N.C. App. 462, 466, 570 S.E.2d 116, 119, disc. rev. denied, 356 N.C. 622, 575 S.E.2d 521 (2002) (quoting State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984)). Defendant admitted he bought a new bed to satisfy the victim because the fact that he and Harrington had slept on it angered her. Defendant further admitted that continuing calls from Harrington caused tension between he and the victim, and the victim wanted defendant to force Harrington to stop calling, but defendant refused. In light of this testimony, we hold defendant waived his objection to this testimony.\nThomas further testified that the victim gave her photographs showing the victim with a black eye. When the victim gave the photographs to Thomas, she told her \u201cto keep them and if anything should happen, to give them to the police.\u201d Rule 803 states, in pertinent part, as follows: \u201c[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) ... A statement of the declarant\u2019s then existing state of mind, emotion, sensation, or physical condition . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803(3) (2001). \u201cWhere a state of mind, such as fear or alienation, is declared, the courts have consistently admitted statements made by the victim, usually reasoning that such a state of mind shows the relationship between the victim and the accused and is therefore relevant to the accused\u2019s possible motive.\u201d 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 217 (5th ed. 1998).\nThe victim\u2019s statements, accompanied by pictures showing her with a black eye, reflect the victim\u2019s fear of her uncertain future and her then-existing intent to plan for that future should \u201csomething happen.\u201d While the statement itself contains no express declaration of fear, we hold that the attendant circumstances give context to the victim\u2019s statement and clearly reflect the victim\u2019s fearful state of mind. Moreover, we note the victim went to her aunt and not her husband to ensure that photographs depicting her as physically abused reached the police. Under the circumstances, there was a sufficient relation to both the victim\u2019s state of mind and the status of her relationship with her husband to be admissible under the state of mind hearsay exception. Accordingly, this assignment of error is overruled.\nB. Angie Wiggins\u2019 Testimony\nDefendant asserts the trial court improperly allowed certain portions of Angie Wiggins\u2019 (\u201cWiggins\u201d) testimony. Wiggins was permitted to testify that the victim and defendant \u201cgot the bedroom suite because she was not going to sleep on the bed that was in the house previously because Philip\u2019s girlfriend Laurie had slept on it.\u201d As with Thomas\u2019 statements eliciting substantially the same facts, we need not address this argument since defendant testified to these facts, thereby waiving any objections to this testimony. Reed, 153 N.C. App. at 466, 570 S.E.2d at 119. This assignment of error is overruled.\nC. Michelle Gardner\u2019s Testimony\nMichelle Gardner (\u201cGardner\u201d) was allowed to testify that the victim told her she \u201cthought [defendant] was going to kill her.\u201d Our Supreme Court has consistently held that \u201ca murder victim\u2019s statements that she fears the defendant and fears that the defendant might kill her are statements of the victim\u2019s then-existing state of mind and are \u2018highly relevant to show the status of the victim\u2019s relationship to the defendant.\u2019 \u201d State v. Hipps, 348 N.C. 377, 392, 501 S.E.2d 625, 634 (1998) (quoting State v. Crawford, 344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996) (citation omitted)); see also State v. McHone, 334 N.C. 627, 636-38, 435 S.E.2d 296, 301-02 (1993); State v. Lynch, 327 N.C. 210, 220-24, 393 S.E.2d 811, 817-19 (1990); State v. Cummings, 326 N.C. 298, 312-13, 389 S.E.2d 66, 74 (1990). This assignment of error is overruled.\nD. Samuel Hamilton\u2019s Testimony\nDefendant asserts the trial court erroneously allowed Samuel Hamilton (\u201cHamilton\u201d) to testify the victim told him that the defendant had told her he \u201chad killed [a girl] in Rockingham, and buried her in a barn on his mother\u2019s property ... in Rockingham.\u201d Hamilton further testified the victim told him when she later brought up the killing, defendant tried to throw her out of a moving vehicle and \u201ctold her if she ever mentioned [the killing] again, he\u2019d kill her and put her in that same barn.\u201d\nIn State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990), our Supreme Court held the trial court correctly permitted a witness to testify about statements made by the decedent concerning several occasions that the \u201cdefendant had beaten her in the past and that [the] defendant had threatened to kill her if she tried to take back her children from him.\u201d Id., 326 N.C. at 312, 389 S.E.2d at 74. The testimony was admissible because (1) it \u201crelated directly to [the decedent\u2019s] existing state of mind and emotional condition^ ]\u201d (2) it was \u201chighly relevant\u201d and directly related to \u201cthe status of her relationship with defendant prior to her disappearance[,]\u201d and (3) the probative value of the evidence outweighed the possible prejudicial effect. Id., 326 N.C. at 313, 389 S.E.2d at 74.\nWe find the statement in the instant case sufficiently similar to that in Cummings to compel the same outcome. Both challenged statements involved defendant inflicting physical abuse and threatening the victim\u2019s life if the victim repeated conduct that was displeasing to defendant. Such testimony was admissible under the holding in Cummings and was properly allowed by the trial court in the instant case. This assignment of error is overruled.\nE. Alden Ford\u2019s Testimony-\nDefendant argues testimony by Alden Ford (\u201cFord\u201d) was improperly admitted. Ford testified he had seen bruises on the victim\u2019s arms, ribs, and legs and had seen the victim with black eyes. Ford then stated the victim had told him defendant \u201cput them on her.\u201d Defendant objected and, after a conference outside the presence of the jury, the trial court allowed the testimony under N.C. Gen. Stat. \u00a7 8C-1, Rule 803(24) (2001).\nIn State v. Walker, our Supreme Court upheld the trial court\u2019s \u201cadmission into evidence of certain hearsay statements concerning defendant\u2019s prior physical assaults on the victim.\u201d State v. Walker, 332 N.C. 520, 534, 422 S.E.2d 716, 724 (1992). The in-court testimony of the victim\u2019s family and friends related \u201cstatements made by the victim to them indicating that defendant had [physically abused] her, causing the injuries they observed.\u201d Id. The Court admitted the testimony under the state of mind exception found in Rule 803(3), which applies to \u201cstatements made by the victim which may indicate the victim\u2019s mental condition by showing the victim\u2019s fears, feelings, impressions or experiences.\u201d Id., 332 N.C. at 535, 422 S.E.2d at 725. The statements were admissible because \u201cthe victim\u2019s explanation of the origin of her cuts and bruises . . . tended to disprove the nonabusive relationship defendant described.\u201d Id., 332 N.C. at 536, 422 S.E.2d at 725.\nMoreover, as we stated in State v. Mixion, our Supreme Court has upheld, under Rule 803(3), the trial court\u2019s admission of \u201chearsay evidence that the victim had stated [the] defendant had previously beaten her and threatened her\u201d despite the fact that \u201c[t]he witnesses did not state that the victim had expressed any fear\u201d because \u201c \u2018the scope of the conversation . . . related directly to [the victim\u2019s] existing state of mind and emotional condition.\u2019 \u201d Id., 110 N.C. App. 138, 147-48, 429 S.E.2d 363, 368-69 (1993) (quoting Cummings, 326 N.C. at 313, 389 S.E.2d at 74). We also observed in Mixion that our Supreme Court has found that a \u201cvictim\u2019s statements to her son that defendant had threatened her \u2018revealed her then-existing fear of the defendant....\u2019\u201d Id. (quoting State v. Faucette, 326 N.C. 676, 683, 392 S.E.2d 71, 74 (1990)). Thus, while the state of mind exception is most easily applicable when the challenged hearsay statement includes an express declaration of fear, such declarations are not absolutely required.\nThe hearsay testimony concerned previous statements by the victim indicating defendant had physically abused her. Defendant testified he had never physically assaulted the victim in any way either before or after they separated. As in Walker the statements explained the victim\u2019s condition as shown in the photographs and tended to disprove \u201cthe nonabusive relationship defendant described.\u201d Moreover, the statements cannot be excluded for want of express declarations of fear. We hold the statement was admissible under the state of mind exception to the hearsay rule because it related directly to the status of the victim and defendant\u2019s relationship and to the vic-itm\u2019s state of mind and emotional condition. This assignment of error, accordingly, is overruled.\nIII. Motion to Dismiss\n\u201cA motion to dismiss on the ground of sufficiency of the evidence raises . . . the issue \u2018whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u2019 \u201d State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131 (2002), cert. denied, \u2014U.S. \u2014, 155 L. Ed. 2d 1074 (2003) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). \u201cThe existence of substantial evidence is a question of law for the trial court, which must determine whether there is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d Id. \u201c \u2018The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence.\u2019 \u201d Id. (quoting State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). Evidence may be direct, circumstantial, or both. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).\n\u201cFirst-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.\u201d State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486, 505 (1999). Defendant asserts there was insufficient evidence that he was the perpetrator of the crime or that he acted with premeditation and deliberation.\nConcerning defendant\u2019s first argument, that there was not sufficient evidence that defendant was the perpetrator of the crime, fibers found in the victim\u2019s hair and the towel and blanket in which she was wrapped were consistent with the carpet found in defendant\u2019s house in the master bedroom. There was no sign of forcible entry into defendant\u2019s house. Luminol testing revealed the presence of blood not belonging to defendant on his master bedroom carpet around the bed and toward the entrance of the bedroom. Red and black acrylic fibers, consistent with the blanket in which the victim\u2019s body was wrapped, were found in defendant\u2019s boat. The anchor used in an attempt to weigh down the victim\u2019s body was identical to the one missing from defendant\u2019s boat. The victim\u2019s body was also weighed down with circular weights bearing the same serial number and having an identical appearance to missing weights that defendant received from his brother-in-law and that he usually kept on his boat. The victim was shot with a .32 caliber bullet, and defendant had owned a .32 Colt semi-automatic which he claimed he no longer owned but gave conflicting reports as to whether he sold the gun, lost it in a bet, or used it to pay a debt. The victim\u2019s body was found in the Blewett Falls Lake area, with which defendant was \u201cvery knowledgeable.\u201d We also note there was testimony that the victim and defendant\u2019s relationship had deteriorated, the victim feared defendant was going to kill her, and defendant had threatened to kill her. Viewing this sampling of the evidence presented at trial in the light most favorable to the State, we conclude there was sufficient evidence that defendant was the perpetrator of the crime.\nDefendant also asserts there was insufficient evidence of premeditation and deliberation.\nPremeditation 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 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.\nState v. Elliott, 344 N.C. 242, 267, 475 S.E.2d 202, 212 (1996) (internal citations omitted). \u201cPremeditation 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.\u201d State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693 (1986). In determining whether a killing was done with premeditation and deliberation, the jury may consider \u201cthe statements and conduct of the defendant before and after the killing\u201d as well as \u201cill will or previous difficulties between the parties.\u201d State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992). Additionally, our Supreme Court has also held that \u201cunseemly conduct toward the victim\u2019s corpse, including concealment of the body\u201d may be used to show premeditation and deliberation. State v. Parker, 354 N.C. 268, 280, 553 S.E.2d 885, 894-95 (2001). See also State v. Rose, 335 N.C. 301, 319, 439 S.E.2d 518, 527 (1994), overruled on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001) (holding that \u201cevidence of an elaborate process\u201d of removing and disposing of the victim\u2019s body was \u201cevidence from which a jury could infer premeditation and deliberation\u201d).\nViewing the evidence in the light most favorable to the State, each of these factors has application in the instant case. Prior to the victim\u2019s death, defendant threatened to kill the victim. That there was both ill will and difficulties between defendant and the victim both is illustrated by the fact that there was fighting and conflict concerning the bedroom suite and tension due to defendant\u2019s continued contact with Harrington. Finally, there was evidence of an elaborate process of concealing the body by wrapping it in a towel, blanket, and trash bag; weighing the body down with weights and anchors; transporting the body to the Blewett Falls Lake area; and disposing of the laden body to sink after the victim had been killed. All of these factors were evidence from which the jury could permissibly infer premeditation and deliberation, and we hold that, in the light most favorable to the State, there was substantial evidence of the element of premeditation and deliberation. This assignment of error is overruled.\nIV. Short-form Indictment\nDefendant asserts, for preservation of the issue, the question of whether the short-form indictment satisfies the requirements of the North Carolina and federal Constitutions. Our Supreme Court has upheld the constitutionality of the short-form murder indictment. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000); State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000). Thus, we hold accordingly.\nWe have carefully considered defendant\u2019s remaining arguments and found them to be without merit.\nNo error.\nJudges McGEE and HUNTER concur.\n. Our review of the judgment is pursuant to a petition for writ of certiorari granted by this Court on 9 May 2002.\n. We also note that if we were to approve of defendant\u2019s argument, defendant would have the advantage of forcing the jury to convict him of first-degree murder or acquit him, and then, after a conviction occurred, overturning it if the outcome was unsatisfactory.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Ronald M. Marquette, for the State.", "Cunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T Cunningham, Jr., for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PHILIP RAY DAWKINS, JR.\nNo. COA02-1637\n(Filed 20 January 2004)\n1. Homicide\u2014 first-degree murder \u2014 no instruction on second-degree \u2014 invited error\nThere was no plain error in the court not submitting second-degree murder to the jury in a first-degree murder prosecution where defendant sought to prevent just that.\n2. Evidence\u2014 hearsay \u2014 state of mind \u2014 other evidence admitted\nThere was no error in the court admitting hearsay testimony in a first-degree murder prosecution where other testimony was admitted to the same effect or the evidence concerned the victim\u2019s state of mind. These statements explained the victim\u2019s conditions as shown in photographs and tended to disprove the nonabusive relationship defendant described. An express declaration of fear is not required.\n3. Homicide\u2014 first-degree murder \u2014 sufficiency of evidence\nA motion to dismiss a charge of first-degree murder for insufficient evidence was properly denied where fiber and blood evidence, items found with the body, the type of weapon used, and the location of the body linked defendant to the crime, and there was testimony that the marital relationship between defendant and the victim had deteriorated, that defendant had threatened the victim, and that she feared him. There was evidence of premeditation in threats to the victim, ill will, and efforts to conceal the body.\n4. Homicide\u2014 first-degree murder \u2014 short-form indictment\u2014 constitutional\nThe short-form indictment for first-degree murder is constitutional.\nOn writ of certiorari by defendant to review judgment entered 3 June 1998 by Judge Marvin K. Gray in Stanly County Superior Court. Heard in the Court of Appeals 18 September 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General Ronald M. Marquette, for the State.\nCunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T Cunningham, Jr., for the defendant-appellant." }, "file_name": "0231-01", "first_page_order": 259, "last_page_order": 268 }