An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA13-776
                         NORTH CAROLINA COURT OF APPEALS

                                  Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                       Guilford County
                                               No. 10 CRS 72489
WINFRED SCOTT SIMPSON,
          Defendant.


      Appeal by defendant from judgment entered 3 January 2013 by

Judge Edgar B. Gregory in Guilford County Superior Court.                         Heard

in the Court of Appeals 11 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Nicholaos G. Vlahos, for the State.

      Michael E. Casterline for defendant-appellant.


      GEER, Judge.


      Defendant        appeals    from   his   conviction         of    first    degree

murder     of    his    wife     Retha   Simpson.         On   appeal,     defendant

primarily contends that the trial court erred in denying his

motion to dismiss the charge of first degree murder because

there      was   insufficient      evidence       that    defendant      acted     with

premeditation      and    deliberation.           Our    review    of    the    record,

however,     indicates     that     there   was    substantial         evidence    from
                                       -2-
which a reasonable juror could conclude that defendant acted

with    premeditation      and     deliberation      in    killing       his   wife.

Because we find his additional arguments unpersuasive, we find

that defendant received a trial free of prejudicial error.

                                       Facts

       The State's evidence tended to show the following facts.

Beginning in late 2009, defendant and his wife Retha were having

marital   problems.        In    October     2009,    Retha    discovered        that

defendant had been having an affair.                  Although she wanted to

leave defendant, she was a full-time student and financially

dependent   on    defendant      who   worked   at    UPS.     She,      therefore,

decided to "suffer through" her relationship with him.                          As a

solution to their marital problems, defendant and Retha joined a

swinger's club in Charlotte, North Carolina.                 Retha bartended at

the club while defendant "participated in events" at the club.

       On 19 March 2010, Retha had plans with her best friend,

Lori   Hudson    ("Ms.    Hudson"),    to    meet    for   lunch   and    a    movie.

Around noon that         Friday,   Ms. Hudson called Retha to confirm

their plans.       Retha told Ms. Hudson that she had to cancel

because she and defendant had been arguing throughout the night.

Retha also told Ms. Hudson that she wanted to remove herself

from defendant's cell phone plan so that defendant would not

have access to her information.             Ms. Hudson could hear defendant
                                        -3-
in the background and was not able to get any more details about

their    argument.      When      Ms.   Hudson   called     Retha   later     that

afternoon, her cell phone was disconnected.

    The following day, Ms. Hudson called defendant's house to

check in on Retha.         Defendant answered and told Ms. Hudson that

Retha had "left the village."           He said that he had Retha's cell

phone service terminated and he did not know how to reach her.

Defendant's     demeanor    was    "pleasant,"     and    he   "sounded   happy"

during the conversation.

    Throughout the weekend, Ms. Hudson was unable to get in

touch with Retha.       Ms. Hudson reached out to mutual friends on

Facebook, but none of them had seen or heard from Retha.                        On

Monday, 22 March 2010, Ms. Hudson                spoke to defendant again.

Defendant clarified that when he said that Retha had "left the

village," he meant that she had left him for another man.                      Ms.

Hudson knew that something was not right because defendant also

told her that Retha had not taken her community college books,

her car was still in the driveway, and no one knew anything

about the other man.         Ms. Hudson told defendant that if he did

not report Retha missing, she would.

    The following morning, defendant reported Retha missing.

He told Deputy Carl T. Dill of the Guilford County Sheriff's

Office   that   Retha   was    bipolar    and    had     recently   changed   her
                                          -4-
medication, so she had been experiencing mood swings.                             When

defendant came home from work on 18 March 2010, he found Retha

talking to another man on the internet.                    After confronting her,

defendant learned that she had been having an affair for the

previous six months.            The couple argued throughout the night,

and when defendant left for work around 3:00 p.m. the following

day, Retha was still in bed crying over their argument.                        When he

came home from work on 19 March 2010, Retha's car was still in

the    driveway,       but     Retha   was        not    home   and    her     clothes,

medication, and purse were missing.

       Defendant told Deputy Dill that he did not know how to get

in    touch    with    Retha    because      he    had   her    cell   phone    service

disconnected.         Defendant claimed that he did not have any access

to Retha's bank account or credit card information, and he did

not know the name of the man with whom Retha had been having an

affair.       Deputy Dill called all of Retha's friends but no one

had heard from her.

       On     24   March     2010,     the        Greensboro     Police      Department

responded to a call that someone had discovered charred human

remains in a wooded area near Thurston Avenue in Greensboro,

North Carolina.         Police found what appeared to be two human legs

wrapped in black plastic and bound in wire.                       Other body parts

were identified as officers collected the pieces and put them in
                                             -5-
four    body    bags.       No     shoes    or     clothing   were    found     with    the

remains, and officers noticed an oily film on many of the body

parts.       About three feet and 12 feet away from the remains was a

black    oily     ring      of    residue        measuring    about     22    inches     in

diameter.         There     were     also     tire    impressions       in    the     muddy

portions of the roadway at the scene.

       The     detective     assigned       to     Retha's    missing     person      case,

Detective Robert Cheek of the Guilford County Sheriff's Office,

received a call that a body had been found, and he determined

that the remains fit the description of Retha.                        Detective Cheek

and Detective George Moore went to defendant's residence to talk

to him.        When they arrived at the front door, they heard the

sound of a vacuum cleaner inside.                      They had to knock two or

three times before defendant turned off the vacuum cleaner and

answered the door.               Defendant answered the door out of breath

and wearing only a pair of jean shorts with red stains on them.

While    they    spoke      with    defendant,        Detective      Moore    noticed     a

brand-new, empty box of carpet shampoo on the hearth of the

fireplace in the living room.                He also saw through a window that

a 55 gallon metal barrel was on the back porch.

       Defendant      allowed       the     detectives        to   look      around     his

residence.       Detective Moore found a can of lighter fluid in the

kitchen.         In   the    master        bathroom,    Detective       Moore       noticed
                                       -6-
several red stains on the bathtub, wall, blinds, and furniture.

The closet of the master bedroom contained very few women's

clothes and many empty hangers.              On the back porch, there was a

carpet shampooer, a hand truck, a hose, a broom, a shovel, and a

55 gallon metal barrel.        During a more thorough search pursuant

to a warrant, Detective Moore found Retha's purse and UPS boxes

filled with her clothing in the attic.                 The purse contained

Retha's driver's license and other personal belongings.

    DNA testing of samples of the red stains from the master

bedroom   and   bathroom     matched    Retha's     DNA    profile,    and   the

charred remains were identified as Retha's remains.                    Officers

also received information from defendant's neighbor that a fire

had been burning in the barrel on defendant's deck beginning 19

March 2010 and lasting two consecutive days.

    Defendant was indicted for first degree murder.                   At trial,

defendant testified in his own defense that Retha had a history

of mental health issues and had been diagnosed with borderline

personality     disorder     and   bipolar      disorder.      During     their

relationship,    she   was    both   physically      and    verbally    abusive

towards defendant.     She told defendant that she could hurt him

or kill him, and get away with it because she was mentally ill.

At various times during their marriage, she threated to poison,
                                             -7-
shoot, castrate, and attack defendant while he slept.                           She would

belittle his masculinity, sometimes in front of their friends.

       Defendant and Retha would sometimes playfully rough-house,

but occasionally Retha would cross the line from playfulness to

hurting defendant.               She outweighed defendant by 100 pounds and

would use her weight to push him onto the ground or up against a

wall, dig her nails into him, or twist his arm or leg.                           Once, at

Retha's request, defendant submitted to being tied face-down on

their    bed     and       blindfolded.            Retha   then    anally       assaulted

defendant with a strap-on sexual device.                      She refused to stop

when    he    asked        her   to,   and   instead       taunted      him   about     his

manliness.           The    assault    injured      defendant     so    badly    that    he

required surgery to repair the damage.

       On 19 March 2010, Retha was angry with defendant after he

had    used    her    laptop      without    her    permission     to    check    on    her

online activity.             Retha began yelling in defendant's face and

pushing him, trying to provoke defendant.                         Defendant tried to

defuse the situation by locking himself in the upstairs bathroom

to shower and get ready for his shift at UPS.                           However, Retha

picked the lock and burst into the bathroom.                           She yanked back

the shower curtain and shoved defendant, causing him to slip and

fall in the bathtub.              Defendant was frightened and threatened to
                                   -8-
call the police.   Retha grabbed a bath brush and started beating

defendant on the head and shoulders.

    When    defendant   realized   that   his   head   was   bleeding,   he

panicked because he believed that she was trying to kill him.

He grabbed the brush from her, threw it down, and tried to run

out of the bathroom.      Retha wrapped her arms around his legs

causing him to fall to the floor and smash his foot through the

bathroom vanity door.     Retha then started hitting him with her

fists.   Defendant grabbed her arm and pulled her down onto her

hands and knees.    She kept trying to hit him, so he decided to

try to immobilize her with a sleeper hold.        He put his right arm

under her head, grabbed his right wrist with his left hand, and

applied pressure to the sides of her neck until she went limp.

He then got up and ran into the bedroom.

    When Retha did not get up after a few seconds, defendant

went back into the bathroom to check on her.           He rolled her over

to find that her face was blue and she was not breathing.                He

administered CPR, but was unable to revive her.

    Afterwards, defendant was scared, confused, and in a state

of shock.    He took a number of Retha's anti-anxiety and anti-

psychosis pills to calm himself down.           He then went to work.

Because he did not immediately report Retha's death, he decided

that he would have to hide the fact that she had died, even
                                        -9-
though it was accidental.             Her body was too large to move from

the bathroom, so the following day, he covered her body with

plastic, removed her limbs with a reciprocating saw, and placed

the pieces of her body into a metal barrel.                He moved the barrel

to the back yard, lit a fire and burned the contents for three

days.    On the night of Tuesday, 23 March 2010, he put the barrel

in the back of his pickup truck, drove down a dirt road and

dumped the contents into the woods.

       After    his    arrest,   defendant    was   examined       by    a   forensic

psychologist and a forensic psychiatrist.                 They each testified

in his defense at trial.              The psychologist diagnosed defendant

with    clinical      symptoms   of   major   depression     recurrent        without

psychosis,      unspecified      anxiety      disorder,      and        features   of

Asperger's syndrome.         According to the psychologist, defendant

was highly anxious, prone to depression of suicidal proportions,

with    many    negative    feelings     about    himself,    dependent,       self-

effacing, introverted, shy, and withdrawn.                The psychologist did

not see any evidence that defendant was a violent person or

prone to acting out.             Instead, he determined that defendant

dealt    with   his    aggressive     feelings    and   negative        emotions   by

turning them inward on himself.                  He felt defendant had been

truthful in reporting the events of Retha's death and that the

details were consistent with the evidence presented at trial.
                                         -10-
     The psychiatrist diagnosed defendant with clinical symptoms

of   major     depressive     disorder         and     found      that    he       had     been

physically     and   sexually       abused.          She    attributed         defendant's

behavior after Retha's death to his feelings of guilt and shame

that emotionally overwhelmed defendant and caused him to have

impaired judgment.

     Defendant       moved    to    dismiss      the       charge    of   first          degree

murder at the close of the State's evidence and again at the

close of all evidence.         The trial court denied both motions, and

the jury returned a verdict of guilty of first degree murder.

The trial court sentenced defendant to life imprisonment without

parole.   Defendant timely appealed to this Court.

                                           I

     Defendant       first    argues      that       the    trial    court         erred    in

excluding evidence of Retha's criminal conviction for assaulting

a man in a previous relationship.                    Out of the presence of the

jury,   the    defendant     tendered      to     the      trial    court      a    copy    of

Retha's criminal history, which included a conviction for simple

assault   in    1992.        Defendant     argued          that    this   evidence          was

relevant to defendant's state of mind at the time of Retha's

death   and    was   offered       to   support      the     defense's      theory         that

defendant acted in self-defense.
                                            -11-
    Implicitly          accepting      that    the    evidence         was    relevant       to

defendant's          theory    of   self-defense,          the    judge       nevertheless

ruled:

              [Y]ou may ask [defendant] what [Retha] said
              about [the assault] but I'm not going to
              allow any evidence, any -- any documentary
              evidence about it. Certainly wouldn't allow
              this kind of evidence in about a defendant.
              And I understand the reasons but I rule
              under 403 that under the balancing test that
              the   probative   value   is   substantially
              outweighed by the considerations of time and
              not needing to go there.

Subsequently, the trial judge allowed admission of defendant's

testimony, over the State's objection, that Retha "used to tell

me that she used to beat the hell out of [the father of her

illegitimate         child]"    and    that   she     "used      her    assault         on   the

father of her son as kind of a threat" against the defendant.

    Rule        403     of    the   Rules     of     Evidence      provides         for      the

exclusion       of    otherwise     admissible       evidence     "if        its    probative

value    is     substantially         outweighed      by    the    danger          of   unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence."                  We review a trial court's

decision      to     exclude    evidence      under     Rule      403     for      abuse     of

discretion.          State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388,

390 (2008).          "An abuse of discretion occurs when a trial judge's

ruling     is      'manifestly      unsupported       by    reason.'"              State     v.
                                         -12-
Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907 (2006)

(quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59

(1986)).

       Here, the trial judge applied the Rule 403 balancing test

and concluded that the probative value of the 1992 conviction

for civil assault was substantially outweighed by considerations

of     time.    Given   that     the   trial     court    admitted       defendant's

testimony regarding what Retha had told him about assaulting her

prior    boyfriend      and    given   that     defendant's      knowledge    of    the

prior assault was the only information relevant to the issues at

trial, we hold that the trial court did not abuse its discretion

in excluding the victim's 18-year-old conviction.                     See State v.

Jacobs, 363 N.C. 815, 822, 689 S.E.2d 859, 864 (2010) (holding

copies of victim's prior convictions admissible when defendant

offered evidence to show that defendant knew of these "certain

violent acts by the victim").

                                          II

        Next,    defendant      argues    that    the    trial    court     erred   in

admitting expert testimony from Dr. Simmons that the cause of

death was "undetermined homicidal violence."                     Defendant asserts

that     the    expert's       conclusion       "did    not     derive      from    his

examination of the victim or from scientific knowledge; rather,

it   was   derived      from    the    underlying       facts    by   the    sort    of
                                        -13-
reasoning process entirely within the capability of an average

juror."   Further, he argues that this conclusion "amounted to an

opinion   that      the   death   was   not     accidental"    and   "an   expert

opinion as to [defendant's] state of mind."

      Pursuant to Rule 702(a) of the Rules of Evidence, "[i]f

scientific, technical or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify thereto

in the form of an opinion . . . ."                      An expert opinion is

admissible if the witness is in a better position than the trier

of fact to have an opinion.             State v. Wilkerson, 295 N.C. 559,

568-69, 247 S.E.2d 905, 911 (1978).

      In State v. Annadale, 329 N.C. 557, 573, 406 S.E.2d 837,

847 (1991), our Supreme Court rejected the defendant's argument

that the State's forensic pathologist was in no better position

than the jury to render an opinion as to the victim's cause of

death.    In Annadale, the remains of the victim's body included

only the skull and various bones such as vertebrae, backbones,

rib bones, a portion of the sacrum, and hip bones.                   Id. at 565,

406   S.E.2d   at    842.     Despite     the    lack   of   physical   evidence

indicating cause of death, the forensic pathologist listed the

cause of death as "'incision of the throat,'" which was based
                                        -14-
upon information received from law enforcement.                   Id. at 573, 406

S.E.2d at 847.          He further testified, among other things, that

the victim's death was the result of violence or injury trauma

rather than natural disease.            Id., 406 S.E.2d at 846.

    In finding that the trial court did not err in admitting

the forensic pathologist's opinion, our Supreme Court held:

               Dr. Butts serves as the State's Chief
               Medical Examiner.    He was accepted as an
               expert in forensic pathology and was allowed
               to testify as an expert witness.       As a
               forensic pathologist, Dr. Butts was well
               qualified to provide testimony which was
               within his area of expertise and helpful to
               the jurors.     Dr. Butts was subject to
               thorough   cross-examination   by  defendant
               concerning his testimony, and any apparent
               discrepancies therein.   The trial judge did
               not err in permitting Dr. Butts to give his
               opinion as to the cause of the victim's
               death.

Id., 406 S.E.2d at 847.

    Likewise, in this case,                  Dr. Simmons was accepted as an

expert    in    forensic      pathology,      he   thoroughly    examined     Retha's

remains, received additional information from law enforcement,

and, based on his knowledge, skill, experience, training, and

education      as   a   forensic   pathologist,        determined     that   Retha's

cause    of    death    was    "undetermined        homicidal    violence."      Dr.

Simmons       was   also     subject    to    thorough     cross-examination      by

defense       counsel      concerning   his        testimony    and   any    apparent

discrepancies in that testimony.
                                        -15-
       Defendant's argument that the expert's opinion as to the

cause   of    death      constituted    a   legal    conclusion     was     expressly

rejected by this Court in State v. Parker, 354 N.C. 268, 290,

553 S.E.2d 885, 900 (2001), which held that a medical examiner's

conclusion        that    the    victim's    death    was      a   "homicide"       was

admissible:

              Dr. Thompson used the word "homicide" to
              explain   the   factual  groundwork   of   his
              function as a medical examiner.            Dr.
              Thompson did not use the word as a legal
              term of art. He explained how he determined
              the death was a homicide instead of death by
              natural causes, suicide, or accident.      Dr.
              Thompson's    testimony conveyed    a   proper
              opinion for an expert in forensic pathology,
              and the trial court properly allowed it.

See also State v. Trogdon, 216 N.C. App. 15, 21-22, 715 S.E.2d

635, 639-40 (2011) (applying Parker and holding expert testimony

that death was "homicide" properly admitted where "homicide" not

used    "as   a    legal    term   of   art,   but    rather       as   a   means    of

describing        how    the[]   injuries   came     to   be   inflicted      --    the

'manner of death' was a homicide and not through accidental

means").

       In this case, similarly, Dr. Simmons did not use "homicide"

as a conclusion regarding defendant's state of mind when he

killed Retha, but rather as a conclusion regarding the manner in

which she died -- that it was not a natural death.                      Dr. Simmons

explained that the term "undetermined homicidal violence" is "a
                                          -16-
convention      from    our    office   and      the   chief     medical    examiner's

office"   that     is    used     "in   cases     where     there      is   not   enough

information to suggest any other cause or manner of death than

homicide, but there's also not necessarily enough information to

figure    out    specifically       why    the     person      died    based      on   the

evidence available at the time of autopsy."

     Review      of     similar    cases    in     which    an    expert     testified

regarding a victim's cause of death suggests that "homicidal

violence" is an appropriate and accepted cause of death among

forensic pathologists.            See State v. Gregory, 340 N.C. 365, 381,

459 S.E.2d 638, 647 (1995) (noting victims' bodies were in an

advanced state of decomposition and autopsy revealed that one

victim died from "undetermined homicidal violence"); State v.

Patel, 217 N.C. App. 50, 56, 719 S.E.2d 101, 106 (2011) (noting

expert in forensic pathology testified that victim's cause of

death was "'homicidal violence of undetermined type'"), disc.

review denied, 365 N.C. 551, 720 S.E.2d 395 (2012); State v.

Johnson, 196 N.C. App. 330, 332, 674 S.E.2d 727, 729 (2009)

(noting expert forensic pathologist testified that victim died

of   "'unspecified            homicidal       violence'"         but    most       likely

asphyxiation).          Accordingly, we hold that the trial court did

not err in admitting Dr. Simmons' testimony.

                                           III
                                            -17-
       Finally, defendant argues that the trial court erred in

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 defendant's being the perpetrator

of such offense.          If so, the motion is properly denied.'"                        State

v.    Fritsch,     351    N.C.     373,     378,   526    S.E.2d    451,      455    (2000)

(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918

(1993)). "Substantial evidence is such relevant evidence as a

reasonable       mind      might     accept        as    adequate       to     support      a

conclusion."        State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d

164, 169 (1980).           "In making its determination, the trial court

must    consider       all     evidence      admitted,        whether     competent        or

incompetent, in the light most favorable to the State, giving

the     State    the      benefit     of     every      reasonable       inference        and

resolving any contradictions in its favor."                      State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994).                      "This Court reviews

the trial court's denial of a motion to dismiss de novo."                                State

v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

       Defendant       contends      that    there      was   insufficient         evidence

that defendant intentionally killed Retha with premeditation and

deliberation.          "'Premeditation means that the defendant thought
                                     -18-
about the killing for some length of time, however short, before

he killed.'"      State v. Bass, 190 N.C. App. 339, 342, 660 S.E.2d

123, 126 (2008) (quoting State v. Fields, 315 N.C. 191, 200, 337

S.E.2d 518, 524 (1985)).         "'Deliberation means that the intent

to kill was formulated in a cool state of blood, one not under

the   influence    of   a   violent passion    suddenly    aroused    by   some

lawful or just cause or legal provocation.'"              Id. at 342-43, 660

S.E.2d at 126 (quoting Fields, 315 N.C. at 200, 337 S.E.2d at

524).

      Defendant     argues    that   the    State's      evidence    regarding

whether the killing was premeditated was insufficient because it

was circumstantial and "evidence of [defendant's] conduct after

Retha's death is insufficient to prove his state of mind prior

to her death."      We disagree.

      Our Supreme Court has explained that "[p]remeditation and

deliberation      generally   must   be    established    by   circumstantial

evidence, because both are processes of the mind not ordinarily

susceptible to proof by direct evidence."                State v. Rose, 335

N.C. 301, 318, 439 S.E.2d 518, 527 (1994), overruled in part on

other grounds by State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823

(2001).

      The following circumstances are relevant to the existence

of premeditation and deliberation:
                                       -19-
            "(1) want of provocation on the part of the
            deceased; (2) the conduct and statements of
            the defendant before and after the killing;
            (3)   threats   and  declarations   of  the
            defendant before and during the course of
            the occurrence giving rise to the death of
            the deceased; (4) ill will or previous
            difficulty between the parties; (5) the
            dealing of lethal blows after the deceased
            has been felled and rendered helpless; and
            (6) evidence that the killing was done in a
            brutal manner."

State v. Williams, 144 N.C. App. 526, 530, 548 S.E.2d 802, 805

(2001) (quoting State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d

837, 843 (1984)), aff'd per curiam, 355 N.C. 272, 559 S.E.2d 787

(2002).

    The evidence shows that prior to the killing, defendant and

Retha were having significant marital problems.                   Defendant had

committed adultery six months prior.                 The night before Retha's

death,    they    got    into   a   fight    after    defendant     used   Retha's

computer because he suspected her of cheating.                    The following

day, Retha cancelled plans with her best friend because she and

defendant continued to fight, and Retha told her best friend

that she wanted to remove herself from defendant's cell phone

plan so that he would not have access to her information.

    After        Retha   was    killed,     defendant   did   not    immediately

notify the authorities.             Instead, he took measures to try to

cover up her death and hide the body.                 He sawed off her limbs,

placed her body parts in a barrel, burned her body for three
                                       -20-
days, and then dumped her remains in the woods.                       Our Supreme

Court   has   held   that    burning      a    victim's     body   after   death    is

"evidence     from   which    a    jury       could   infer    premeditation       and

deliberation."       Rose, 335 N.C. at 319, 439 S.E.2d at 527.                     See

also State v. Battle, 322 N.C. 69, 73, 366 S.E.2d 454, 457

(1988) (concluding that defendant's demand that two witnesses

help him dispose of victim's body by burning it was evidence of

premeditation and deliberation); Patel, 217 N.C. App. at 62, 719

S.E.2d at 109 (holding "fact that [victim's] body was burned

after   she    was    killed       constitutes        additional     evidence       of

premeditation and deliberation").

    Additionally, defendant created a web of lies to cover up

what he had done.       When Ms. Hudson called the house to check on

Retha the day after her death, defendant, with a "pleasant"

demeanor and sounding "happy," told Ms. Hudson that Retha had

"left   the   village."       He    also      told    Ms.   Hudson   that   he     had

cancelled Retha's cell phone service and did not know how to

reach her.      He emailed the swinger's club in Charlotte to let

them know he and Retha were no longer together and that Retha

"won't be back" to the swinger's club.                  He hid Retha's clothes

and purse in the attic to make it look like she had left him and

attempted to clean the blood from the bathroom and bedroom.

Finally, he did not report Retha missing until three days after
                                    -21-
her death, and he only did so then because Ms. Hudson threatened

to report Retha missing if defendant did not.

       The evidence of defendant's and Retha's marital troubles

and argument immediately preceding her death, the mutilation,

burning, and disposal of Retha's body, and defendant's lying in

an attempt to cover up her death constitute substantial evidence

from   which   a   reasonable    jury   could   conclude   that   defendant

intentionally killed Retha with premeditation and deliberation.

Although    defendant   points    to    evidence   in   the   record   that

supports his contention that he did not intend to kill Retha and

that her death was the result of an accident after defendant

acted in self- defense, it was up to the jury to determine the

credibility and weight of the evidence presented.              Defendant's

argument amounts to a request that this Court view the evidence

in the light most favorable to defendant, which is contrary to

our standard of review.         Accordingly, the trial court did not

err in denying his motion to dismiss.


       No error.

       Judges BRYANT and CALABRIA concur.

       Report per Rule 30(e).
