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Date: 05-05-2016


Case Number: COA15-762

Judge: Martha A. Geer


Plaintiff's Attorney: Nancy A. Vecchia

Defendant's Attorney: Mike Casterline

Description: Defendant Michael Leroy Wilkie appeals his conviction of first degree murder
of his wife. On appeal, defendant primarily argues that the trial court erred in
denying his motion to dismiss the charge of first degree murder because there was no
evidence demonstrating his wife’s death resulted from any act of criminal agency, and
the only evidence of her cause of death was his exculpatory statement that she
committed suicide. We hold that when the evidence is viewed in the light most
favorable to the State, the State presented substantial circumstantial evidence that
defendant murdered his wife and, therefore, the trial court properly denied
defendant’s motion to dismiss.
The State’s evidence tended to show the following facts. Defendant and his
wife Shelby Wilkie were married on 10 October 2010, only a few months after they
met online. Shelby then moved into defendant’s home in Hendersonville, North
Throughout the marriage, Shelby stayed in close contact with her family,
sometimes speaking twice a day. Within a short time after she moved in with
defendant, she began reporting instances of domestic abuse to her family members.
She told her mother of one specific incident in which defendant physically blocked
her from leaving the bedroom, took her cell phone away from her, and forcefully tried
to take the wedding rings off of her finger. She told her mother that this made her
very scared. On 27 October 2010, Shelby filed a Complaint and Motion for a Domestic
Violence Protective Order (“DVPO”), describing two incidents of defendant’s abuse.
Shelby’s father eventually confronted defendant, and he apologized for his behavior.
Shelby and defendant eventually reconciled.
On 30 March 2011, Shelby filed a second complaint and motion for a DVPO
after a physical altercation the day before resulting in defendant slamming Shelby
onto their bed, forcibly restraining her on their bed, and tearing Shelby’s phone out
of her hand and throwing it against the wall when she attempted to call 911. Shelby
was 12 weeks pregnant at the time. In relating this incident to her mother, Shelby
indicated she was very angry and scared. To her mother, it seemed Shelby became
more fearful of defendant after this incident. Despite her fear of defendant and
having twice sought DVPOs against him, Shelby continued to reside with defendant.
Shelby gave birth to a daughter on 8 October 2011. Shelby and defendant
continued to argue after their daughter’s birth. Shelby told her mother that she was
becoming more afraid and nervous because defendant did not want Shelby’s family
around them or the baby. Shelby informed her mother of another incident in which
defendant forcibly blocked her and took her phone away from her. At one point after
the pregnancy, Shelby’s brother visited their Hendersonville home and found Shelby
visibly upset and packing her clothes. While Shelby’s brother was there, defendant
followed her into the master bedroom and apologized for making her afraid.
Defendant then picked up the baby from their bed, left the room, and called the police.
Shelby told her brother she would not leave without the baby.
The day following this incident, Shelby unsuccessfully tried to file charges
against defendant. She then began to make plans to take her daughter and move out
of the Hendersonville house and in with her parents. On 23 November 2011, Shelby
signed a lease for a home in Black Mountain, North Carolina, where her parents
eventually moved in sometime in December of 2011. Shelby and her parents made
final plans to move her and the baby to the Black Mountain home on 2 January 2012
while defendant was working a night shift at the Wilsonart factory in Hendersonville.
On New Year’s Eve 2011, Shelby and the baby spent the day with Shelby’s
family. While they were out shopping, defendant called Shelby, and the two of them
got into an argument. Shelby was visibly upset afterwards. Shelby decided to take
the baby home to defendant before Shelby had dinner with her family that night.
That evening was the last time Shelby’s family saw her. However, Shelby called her
mother later that night and told her that she had an argument with defendant when
she returned home and that the plan to move on 2 January was still on.
Around noon on New Year’s Day 2012, Shelby spoke with her mother on the
phone. Shelby told her mother that she was going to try to work things out with
defendant. Later that day, at 4:48 p.m., Shelby texted her mother that things had
taken a turn for the worse, that defendant had stolen her ring, and that the plan to
move out was still on when defendant went to work the following night. Shelby’s
mother later texted her that night, asking Shelby if she was alright and to call her.
Shelby responded simply with “Yes” and that she would call her in the morning.
Shelby’s mother believed these responses to be unusual and when she tried calling
Shelby throughout the night, her phone went straight to voicemail, which her mother
also found unusual. -
On 2 January 2012, after having no contact with Shelby since the night before,
Shelby’s father and brother went to the Hendersonville house, but no one was home.
Defendant eventually pulled into the driveway while they were there. He told them
that Shelby had gone to her job at a radio station in Asheville, North Carolina. This
struck Shelby’s father as strange because it was a holiday. Shelby’s father went to
the radio station and did not see her car or any other cars there, or any tire tracks in
the snow leading into or out of the parking lot. He returned to Hendersonville and
reported her missing.
Local law enforcement officers later arrived at the Hendersonville house to do
a safety check. They reported that defendant informed them that Shelby had gone to
work and that it was not unusual for her to work late at night. They also reported
that defendant was sweating and had a fresh scratch on his face, which the officer
presumed was from the baby he was holding. The officers searched through the house
without finding anything suspicious. The following day, Sonya Matthews, a violent
crimes detective with the Henderson County Sheriff’s Department, interviewed
defendant, and he appeared very nervous, often averting his gaze when the subject
of the interview turned to Shelby. Defendant admitted the scratches on his face came
from an altercation with Shelby.
On 4 January 2012, search warrants were secured and executed for the
Hendersonville home and for Shelby’s vehicle, which was found in a parking lot across
Opinion of the Court
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from the Asheville airport. The police later obtained a video showing defendant
leaving Shelby’s car in the parking lot on 2 January 2012. During the search of the
Hendersonville home, officers found a burned area in the backyard. According to
defendant’s neighbor, he and his wife observed a large bonfire in defendant’s
backyard on New Year’s Day and a smoldering 55-gallon barrel on defendant’s
property the following morning.
During the search of the Hendersonville house, investigators also found
positive indications for large amounts of blood throughout the house using luminol
and phenolphthalein. The evidence showed a pattern that looked as if someone had
squirted a line of blood across the bedroom wall several feet long, and the luminol
exposed a silhouette of a human body slumped and leaning against the wall. The
luminol also indicated drag marks down the hallway and across the living room up to
the front door and large swirl marks on the floor indicating the area had been cleaned.
A later search of the Hendersonville house resulted in officers finding what appeared
to be Shelby’s wedding rings on top of the refrigerator.
On 5 January 2012, authorities executed a search warrant at defendant’s
parents’ home located on 705 Kanuga Lake Road in Hendersonville. During the
search, officers discovered a 55-gallon drum with ashes and what appeared to be bone
pieces. The medical examiner could not determine whether the drum contained any
of Shelby’s DNA. Shelby’s body was never found. However, a charred bracelet that
Opinion of the Court
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Shelby’s mother identified as a gift she had given to Shelby was found in the same
area as the 55-gallon drum and its remains. Shelby’s sister-in-law had a bracelet
matching the one discovered at the Kanuga Lake Road property that she had
similarly received as a gift from Shelby’s mother.
Defendant agreed to an interview with Detective Andrew Anderson of the
Henderson County Sherriff’s Office on 5 January 2012. During the interview,
defendant initially maintained that Shelby had disappeared and that she had gone
to work on 2 January and never returned. He also claimed that the blood found in
their bedroom could belong to his ex-wife Amanda or to Shelby, who was bleeding
from her nose and mouth after a recent altercation in which she tried to claw his eyes
out. After presenting substantial evidence to defendant indicating Shelby was dead,
Detective Anderson suggested that maybe she had killed herself.
Defendant then changed his story and agreed that she had taken Ambien and
then he watched her cut her wrists with a straight razor in their bathtub. He told
Detective Anderson that he did not call the police because of past incidents of
domestic violence with his former wife Amanda. He also admitted that he had burned
Shelby’s body and the razor in the back yard, and although initially he claimed that
he dumped her remains in the French Broad River, he later admitted that he had left
the 55 gallon barrel at his parents’ Kanuga Lake Road property.
Opinion of the Court
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Defendant was indicted for first degree murder. At trial, Shelby’s family
testified to the numerous instances of domestic violence that Shelby had reported to
them. Shelby’s co-worker, Dawn Creasman, also testified that Shelby would come to
work with bruises, and she testified about Shelby’s descriptions of domestic violence,
including an incident when Shelby passed out after defendant choked her, as well as
other incidents when defendant took Shelby’s phone and tried to get her wedding
rings off of her finger. Both Shelby’s family members and Ms. Creasman testified
that Shelby was a generally happy person, loved her daughter, and that there were
no indications of depression or suicidal tendencies.
After the State presented its case, defendant moved for a dismissal, which was
denied. Defendant presented no evidence and again moved for dismissal, which was
again denied. After the trial court instructed the jury on charges of first degree
murder and second degree murder, the jury found defendant guilty of first degree
murder. Defendant was sentenced to life imprisonment without possibility of parole.
Defendant timely appealed to this Court.
Defendant first argues the trial court erred by denying his motion to dismiss
the charge of first degree murder. “ ‘Upon defendant’s motion for dismissal, the
question for the Court 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
Opinion of the Court
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defendant’s being the perpetrator of such offense.’ ” State v. Lowry, 198 N.C. App.
457, 465, 679 S.E.2d 865, 870 (2009) (quoting State v. Powell, 299 N.C. 95, 98, 261
S.E.2d 114, 117 (1980)). “Substantial evidence is that amount of relevant evidence
necessary to persuade a rational juror to accept a conclusion.” State v. Mann, 355
N.C. 294, 301, 560 S.E.2d 776, 781 (2002). “In weighing the sufficiency of the
evidence, the trial court considers all evidence admitted at trial, whether competent
or incompetent[] in the light most favorable to the State, giving the State the benefit
of every reasonable inference that might be drawn therefrom. Any contradictions or
discrepancies in the evidence are for resolution by the jury.” State v. Cox, 190 N.C.
App. 714, 720, 661 S.E.2d 294, 299 (2008) (internal quotation marks omitted).
Defendant’s first argument relating to his motion to dismiss is that the State
failed to offer sufficient evidence of the second component of the corpus delicti of
murder, which “consists of two fundamental facts, the death and the criminal agency
as its cause[.]” State v. Johnson, 193 N.C. 701, 702, 318 S.E. 19, 20 (1927). Defendant
concedes that Shelby died, although he claims she committed suicide. He focuses his
argument on “the criminal agency” component, arguing that the State presented no
evidence of his criminal agency as the cause of death.
In support of his argument, he cites to the rule in State v. Minton, 234 N.C.
716, 721-22, 68 S.E.2d 844, 848 (1952) (internal citations omitted), that “[t]he cause
of death may be established in a prosecution for unlawful homicide without the use
Opinion of the Court
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of expert medical testimony where the facts in evidence are such that every person of
average intelligence would know from his own experience or knowledge that the
wound was mortal in character. There is no proper foundation, however, for a finding
by the jury as to the cause of death without expert medical testimony where the cause
of death is obscure and an average layman could have no well grounded opinion as to
the cause.”
Minton simply stands for the traditional evidentiary principle that if a case
presents complicated issues of medical causation, then there must be expert medical
testimony to prove causation. See, e.g., Click v. Pilot Freight Carriers, Inc., 300 N.C.
164, 167, 265 S.E.2d 389, 391 (1980) (holding in a workers’ compensation case that
“where the exact nature and probable genesis of a particular type of injury involves
complicated medical questions far removed from the ordinary experience and
knowledge of laymen, only an expert can give competent opinion evidence as to the
cause of the injury”). In Minton, our Supreme Court concluded that when the
defendant purposefully shot the victim with a pistol, there was no need to present
expert medical testimony regarding cause of death even though the victim was found
outside frozen stiff the next morning. 234 N.C. at 722, 68 S.E.2d at 848.
Here, there is no complicated question of medical causation. Given defendant’s
statements to the detective and the blood evidence present at the Hendersonville
house, there was no serious dispute regarding the medical cause of death: blood loss
Opinion of the Court
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due to being slashed by a razor. The issue for the jury was whether Shelby’s death
was suicide or homicide. As in Minton, there is no need, in this case, for expert
testimony to make that determination. See State v. Thomas, 296 N.C. 236, 244, 250
S.E.2d 204, 208-09 (1978) (“If there is substantial evidence -- whether direct,
circumstantial or both -- to support a finding that the offense charged has been
committed and that defendant committed it, a case for the jury is made and nonsuit
should be denied.”).
Contrary to defendant’s arguments, State v. Head, 79 N.C. App. 1, 9, 338
S.E.2d 908, 912 (1986), holds that for the purposes of a motion to dismiss,
circumstantial evidence is sufficient to prove the corpus delecti. Thus, “[i]f the
evidence presented is circumstantial, the question for the court is whether a
reasonable inference of defendant’s guilt may be drawn from the circumstances. If
so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy
them beyond a reasonable doubt that the defendant is actually guilty.” Id. In Head,
similar to the facts here, no body or remains of the victim were found but other
evidence -- such as the victim’s clothes in a creek, ankle-size links of duct tape for
binding, and the fact that the victim was set to appraise a house for a man who had
given her a false name and telephone number -- was sufficient to allow a jury to
reasonably infer the victim’s death was caused by criminal agency and not accident
or suicide. Id. at 11, 338 S.E.2d at 914. Accordingly, this Court held that “[t]he death,
Opinion of the Court
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the felonious cause of death and the identification of an accused as the person who
caused the death can all be shown by circumstances from which these facts might
reasonably be inferred.” Id. at 9, 338 S.E.2d at 912.
Our Supreme Court in State v. Sokolowski, 351 N.C. 137, 143-44, 522 S.E.2d
65, 69 (1999), came to the same conclusion, relying heavily on circumstantial evidence
for proof of the corpus delecti when the only physical evidence that the defendant had
killed the victim was her severed ears and her bloody clothes. The Court also relied
upon circumstantial evidence -- that the defendant started a bonfire for the purpose
of disposing of the victim’s body around the time of her disappearance and that the
defendant suggested to a neighbor he killed the victim -- to conclude that there was
“proof of defendant’s criminal agency and an explanation for the reason the police
were unable to find the rest of [the victim’s] body.” Id. at 144, 522 S.E.2d at 70.
Here, similar to Head and Sokolowski, the State relied on substantial
circumstantial evidence to prove that defendant caused Shelby’s death by an act of
criminal agency. First of all, the State established defendant’s various acts of
domestic violence against Shelby, including Shelby’s seeking two DVPOs in the
months leading up to her death, Shelby’s confiding to her friends and family on
numerous occasions that she was afraid of defendant, and evidence of bruises on
Shelby. The State also presented evidence that Shelby was not depressed or suicidal
and that, as a result of defendant’s history of domestic violence, Shelby planned to
Opinion of the Court
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take their daughter and move out of the Hendersonville house. This evidence both
tends to rebut defendant’s suggestion that Shelby committed suicide and establishes
defendant’s motive for killing his wife.
Secondly, the physical evidence collected is suggestive of an act of criminal
agency. Specifically, the blood evidence collected at the Hendersonville house
indicates a traumatic and violent event occurred in the bedroom that defendant and
Shelby shared. The luminol and phenolphthalein used by the forensic analysts at the
Hendersonville house showed that an individual lost a large amount of blood in the
bedroom, that a person was slumped against the bedroom wall, that there were drag
marks to the front door, and that an effort was made to clean up the blood. This blood
evidence also tends to contradict defendant’s claim that Shelby committed suicide in
the bathtub.
Finally, the State presented extensive evidence about defendant’s failed
attempts to cover up the murder and his various equivocations about his wife’s
whereabouts. Specifically, the evidence showed defendant deliberately lied about
Shelby going to work on the morning of 2 January 2012. Video evidence of defendant
leaving Shelby’s car near the Asheville airport on 2 January 2012 forecloses the
possibility that Shelby went to work that day and supports the State’s theory that
defendant attempted to fabricate Shelby’s disappearance and cover up the murder.
The State’s evidence also showed that defendant was nervous when questioned by
Opinion of the Court
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detectives about Shelby’s disappearance and that defendant had various
inconsistencies in his story during his interview with Detective Anderson. Most
importantly, defendant only advanced his story of Shelby’s suicide upon the
suggestion of Detective Anderson.
Viewing all this circumstantial evidence together, as the courts did in Head
and Sokolowski, we hold that the jury could reasonably find that Shelby was killed
as a result of an act of criminal agency, not an act of suicide, and that defendant was
the perpetrator of that act of criminal agency. Despite there being no definitive proof
that the barrel contained Shelby’s remains or any direct evidence of Shelby’s precise
cause of death, the circumstantial evidence here was sufficient to withstand a motion
to dismiss and allow the jury to decide whether defendant was guilty of murder.
Defendant, however, argues that the State was bound by his exculpatory
statements that Shelby committed suicide because the State failed to contradict those
statements with evidence. Defendant relies on State v. Carter, 254 N.C. 475, 479, 119
S.E.2d 461, 464 (1961), which holds that “[w]hen the State introduces in evidence
exculpatory statements of the defendant which are not contradicted or shown to be
false by any other facts or circumstances in evidence, the State is bound by these
statements.” In Carter, “the State introduced statements of the accused to the effect
that the defendant was trying to stop the deceased from assaulting her mother with
a broken bottle[,]” and there was “no evidence from which a jury could reasonably
Opinion of the Court
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find that either the defendant or her mother was at fault in starting the altercation
described in the record.” Id. Thus, the trial court found that “[t]his evidence plainly
negatives the existence of an unlawful killing” and reversed the trial court’s denial of
defendant’s motion for judgment of nonsuit. Id.
Here, however, the State presented substantial circumstantial evidence
contradicting defendant’s exculpatory statements and suggesting instead that
defendant killed his wife. Our courts, on numerous occasions, have distinguished the
rule in Carter where there is evidence contradicting the exculpating statement. See,
e.g., State v. Wheeler, 321 N.C. 725, 728, 365 S.E.2d 609, 611 (1988) (“In this case, the
statement of the defendant that he did not intend to shoot into the vehicle was
contradicted by the evidence that he fired the pistol at the vehicle.”); State v. Lane, 3
N.C. App. 353, 355, 164 S.E.2d 618, 619 (1968) (distinguishing Carter where “[t]he
evidence did not completely exculpate the defendant because accidental death was
not conclusively shown”); State v. Edwards, 186 N.C. App. 680, 652 S.E.2d 72, 2007
WL 3256625, at *5, 2007 N.C. App. LEXIS 2236, at *15 (2007) (unpublished)
(distinguishing Carter where “the State presented substantial physical and
circumstantial evidence to rebut Defendant’s self-defense claim”). We follow the same
reasoning here and hold that defendant’s reliance on Carter is misplaced.
As a final matter, we also reject defendant’s argument on appeal that the State
cannot use defendant’s statements that Shelby committed suicide to establish the
Opinion of the Court
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first component of the corpus delicti while also using circumstantial evidence to refute
defendant’s exculpatory statement and establish that defendant perpetrated the
murder. We first note that defendant cites no authority to support this contention.
Furthermore, we note that defendant made this exculpatory statement only after
Detective Anderson suggested that Shelby might have committed suicide. Thus, a
jury could reasonably infer from the other circumstantial evidence presented by the
State that defendant killed his wife and that defendant’s exculpatory statements
were falsified in an attempt to cover up his criminal actions. We, therefore, find no
error in the trial court’s denial of defendant’s motion to dismiss.
Defendant also contends the trial court erred by admitting hearsay statements
of Shelby made to her family and friends regarding prior instances of domestic abuse.
Defendant challenges numerous aspects of Shelby’s mother’s testimony as improper
hearsay evidence, including the following:
Q. Did she complain of any injuries as a result of the argument with Mr. Wilkie?
A. She did.
. . . .
A. She said he was trying to . . . you know, throw her to keep her blocked from her room. She said he got . . . “real buffed up” to her, telling her she couldn’t leave her room and took her phone away. . . . She said she was scared to death.
Opinion of the Court
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Q. Did she say anything about him trying to remove rings or anything about her rings?
. . . .
A. She said that he got real intent to get her wedding ring off of her . . . . That was part of what she was trying to get away from him from, that she wasn’t going to leave until he got the ring. And she was . . . terrified even in describing what happened.
. . . .
Q. Okay. And what did your daughter tell you about that fight in March?
A. That he did the same thing. He bucked up at her. And she wanted to leave and take the baby. She was scared of him. It started again about the ring. He was trying to get the ring off her finger, blocked her in doorways. Same feeling that she had, only this time, you know, she had the baby.
. . . .
Q. . . . And again, did she describe any physical injuries to her as a result of this argument they had?
. . . . A. She described, you know, about the rings, you know, her fear of that. She wanted -- she started to think about, you know, where she could hide the ring, that that would not be a reason for him to try to harm her. Same thing of pushing her, pushing her on the bed. Hurting her in that way.
Opinion of the Court
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Q. Did she express, when she would speak to you about this particular incident, tell the jury about her emotion that she exhibited toward Mr. Wilkie at that time?
A. She was very, very angry. She was very scared. She was . . . even more scared of things he said.
. . . .
Q. And after that second restraining order period . . . did Shelby ever convey to you any additional injuries or fears or threats from the defendant during that -- after that period of time?
. . . .
A. She did. She did. She continued to express, you know, the problems that they were having, as far as she felt they argued and -- and about his secretiveness. He didn’t want to open up his bills or his income as a married couple. Whenever they would even get into an argument he would really scream again and carry on about the ring. The ring became an intense argument between them. He would threaten her about the ring, you know, “I’m going to get the ring.” . . .
Defendant also challenged Shelby’s mother’s testimony regarding the contents of a
text message from Shelby’s cell phone on New Year’s Day 2012. As her mother
testified, Shelby’s message stated that “[t]hings had taken a turn for the worse, and
[defendant] has stolen my ring, and I’m going to keep it calm, but I’ll need dad and
the boys to help me get my stuff when he goes to work.”
Shelby’s father also testified to numerous statements Shelby made. For
example, “[Shelby] told me that . . . he would bow up on her and block her from leaving
Opinion of the Court
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the room and try to . . . physically control her, grab her by the wrists. . . . Take her
phone. Always tried to get her wedding rings.” He also testified Shelby had said
defendant “threw her on the bed . . ., tried to get her weddings rings again. He had
an obsession with trying to remove her rings from her hands.”
Shelby’s brother also testified to an incident that Shelby reported to him: “She
was wanting to take [the baby] and leave. He was blocking her from getting into their
bedroom where [the baby] was at first. And then, you know, she went in there, he
took her phone, wouldn’t let her call, was blocking her from leaving the room. Just
the same thing, getting in her face again and that kind of thing.”
Finally, Shelby’s co-worker, Ms. Creasman, testified that Shelby told her that
Shelby and defendant had gotten into a fight and defendant had “learned [sic] her
over a table and was choking her” and as a result “she had thought she passed out”;
that defendant “was trying to kill me” and that she was scared; that defendant talked
about taking the rings from Shelby and that Shelby discussed selling the rings when
she moved out because she needed money.
Defendant objected to this testimony, but the trial court admitted it pursuant
to Rule 803(3) of the Rules of Evidence. Rule 803(3) allows for the admission of
[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed . . . .
Opinion of the Court
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In support of his argument that the testimony was not properly admitted under Rule
803(3), defendant cites to the rule that “[s]tatements that merely recount a factual
event are not admissible under Rule 803(3) because such facts can be proven with
better evidence, such as the in-court testimony of an eyewitness.” State v. Smith, 357
N.C. 604, 609, 588 S.E.2d 453, 457 (2003). Thus, defendant argues that Shelby’s
statements to her family members and Ms. Creasman merely recounted factual
events and therefore do not fall into the Rule 803(3) exception. We disagree.
Rule 803(3) is used frequently in cases, like the one here, where the hearsay
evidence demonstrates instances of domestic violence between the deceased and the
defendant, thus showing the deceased’s state of mind and the violent relationship
between the deceased and the defendant that created that state of mind. This was
the case in State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998), State v. Gray, 347 N.C.
143, 491 S.E.2d 538 (1997), overruled in part on other grounds by State v. Long, 354
N.C. 534, 557 S.E.2d 89 (2001), and State v. Lynch, 327 N.C. 210, 393 S.E.2d 811
(1990). Each of these cases demonstrates that where a witness recounts a victim’s
statements regarding factual events for the purpose of explaining the victim’s then
existing state of mind, “[t]he factual circumstances surrounding [the victim’s]
statements of emotion serve only to demonstrate the basis for the emotions.” Gray,
347 N.C. at 173, 491 S.E.2d at 550; see also Gary, 348 N.C. at 522, 501 S.E.2d at 65
(“The testimony in this case was admissible [under Rule 803(3)] to show the victim’s
Opinion of the Court
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fear at the time of the conversation with her mother and to demonstrate the basis for
her fear, namely, the threat to her life.”); Lynch, 327 N.C. at 224, 393 S.E.2d at 819
(“Evidence of the threats made by defendant was admissible to explain [the victim’s]
then-existing mental and emotional state, vis-a-vis defendant, as described by the
witnesses.”). Even the Smith case to which defendant cites in support of his
argument holds that “where such statements ‘serve . . . to demonstrate the basis for
the [victim’s] emotions,’ the statements will be admitted under Rule 803(3).” 357 N.C.
at 609, 588 S.E.2d at 457 (quoting Gray, 347 N.C. at 173, 491 S.E.2d at 550).
Furthermore, the hearsay evidence introduced here is different from that
introduced in State v. Hardy, 339 N.C. 207, 228, 451 S.E.2d 600, 612 (1994), on which
defendant relies. In Hardy, “[t]he statements in the [victim’s] diary [were] not
statements of [the victim’s] state of mind but [were] merely a recitation of facts which
describe various events.” Id. In other words, the hearsay statements the victim made
in her diary were not admissible under Rule 803(3) because they “contain[ed] no
statements like [‘I’m frightened,’ or ‘I’m angry’] which assert[ed] her state of mind.”
Id. at 229, 451 S.E.2d at 612. Although Shelby’s statements recount specific factual
events such as defendant throwing her, blocking her, or taking away her phone and
her weddings rings, they were made in conjunction with and established a basis for
the statements Shelby made as to her emotional, mental, or physical states. Those
states of mind consisted of either anger, fear, Shelby’s plan or intent to “hide the
Opinion of the Court
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rings” so to avoid confrontation with defendant, or Shelby’s plan to “keep calm” and
wait for her father and brothers to help her move out. Consequently, we find that
these hearsay statements were admitted without error.
Defendant also contends that this hearsay evidence was highly prejudicial to
defendant because it consisted of inflammatory testimony from Shelby’s family and
friends regarding instances of domestic abuse perpetrated against her by defendant.
Presumably, although not argued specifically in defendant’s brief, defendant argues
that the prejudicial nature of this evidence outweighs its probative value, and is
therefore inadmissible pursuant to Rule 403 of the Rules of Evidence.
We first note that defendant failed to make this specific objection below and,
therefore, it is not properly preserved for our review. State v. Price, 170 N.C. App.
57, 67, 611 S.E.2d 891, 898 (2005) (“As defendant did not make a motion to suppress
only those portions of the evidence that were allegedly inflammatory or object to the
introduction of the evidence on the basis that it violated Rule 403, this assignment of
error was not properly preserved for appeal and therefore, is overruled.”). However,
even if it were properly preserved, we would reject defendant’s argument on the basis
that “[a] murder victim’s statements falling within the state of mind exception to the
hearsay rule are relevant to show the status of the victim’s relationship to the
defendant” and that “evidence of a defendant’s prior assaults on the victim for whose
murder the defendant is being tried is admissible for the purpose of showing malice,
Opinion of the Court
- 23 -
premeditation, deliberation, intent or ill will against the victim under N.C.G.S. § 8C
1, Rule 404(b).”

Outcome: Consequently, we hold that the admission of these statements did not amount to prejudicial error.

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