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North Carolina v. Thomas11/19/1992
e was going to be raped and then began to disrobe. After defendant put his hand in the victim's vagina "a couple of times,"
the victim tried to crawl out of the truck, and defendant then dragged her 120 feet into the woods.
When the evidence in this case is viewed in the light most favorable to the State, it clearly shows a savage beating that can only be characterized as being substantial evidence of "serious personal injury ." See generally State v. Herring, 322 N.C. at 739, 370 S.E.2d at 367. None of the serious external injuries, as testified to by the pathologist and Crossley, were the cause of the victim's death. All of the external injuries were inflicted upon the victim immediately prior to and during the sexual assault by the defendant. This Conclusion is consistent with defendant's own statement. The trial court thus properly denied defendant's motion to dismiss the charge of first-degree sexual offense.
Defendant next contends that the first-degree murder charge should have been dismissed because the evidence was insufficient to permit the jury reasonably to infer that defendant intended to kill the victim after premeditation and deliberation. Defendant argues that all of the evidence showed that defendant was in a state of sudden passion when he injured the victim, that he sexually assaulted her when he became enraged and sexually aroused by the victim. We find that the evidence, when viewed in the light most favorable to the State, was sufficient to support a jury's finding that the defendant killed the victim with premeditation and deliberation.
Premeditation and deliberation are usually proved by circumstantial evidence because they are mental processes that are not readily susceptible to proof by direct evidence. State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992). Some of the circumstances from which an inference of premeditation and deliberation can be drawn are:
(1) absence of provocation on the part of the deceased, (2) the statements and conduct of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds.
Id.
Six of the seven above circumstances were met in the case at bar. As a result, there was more than sufficient evidence that the killing was premeditated and deliberated.
According to defendant's own statement, he began his sexual assault of Ms. Kreeger by reaching over and touching the victim's breast. The victim, who was five feet two inches and weighed 140 pounds, responded to this unsolicited and unconsented-to fondling by slapping the six-foot one-inch, 265-pound defendant. Defendant then knocked the victim back into the sleeper and hit her a few more times on the head. There is no evidence of provocation by the victim in this case. Merely repelling a sexual assault does not constitute provocation. State v. Williams, 308 N.C. 47, 301 S.E.2d 335, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh'g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983).
Furthermore, evidence of defendant's conduct and statements before and after the killing may be considered in determining whether premeditation and deliberation existed. Before the defend
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