State v. Nieto

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-430
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA

Montgomery County
v.
No. 08 CRS 50760-61

JOSE ANTONIO JAIMES NIETO

Appeal by defendant from judgment entered 31 May 2012 by

Judge V. Bradford Long in Montgomery County Superior Court.

Heard in the Court of Appeals 26 September 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General Richard L. Harrison.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr.,
for Defendant.

ERVIN, Judge.

Defendant Jose Antonio James Nieto appeals from a judgment

sentencing him to life imprisonment without the possibility of

parole based upon his conviction for the first degree murder of

Khammany Phankhamsao. On appeal, Defendant contends that the

trial court erred by denying his motion to dismiss the first

degree murder charge that had been lodged against him on the

grounds that the evidence was insufficient to establish that he

deliberated upon the murder of Mr. Phankhamsao, by admitting
 -2-
evidence that he attempted to escape from jail after his arrest,

and by admitting evidence concerning his conduct during a

videotaped interview with investigating officers. After careful

consideration of Defendant’s challenges to the trial court’s

judgment in light of the record and the applicable law, we

conclude that the trial court’s judgment should remain

undisturbed.

I. Factual Background
A. Substantive Facts
1. State’s Evidence

Khammany and Aene Phankhamsao immigrated to the United

States from Laos in the 1980s. Their daughter, Villaphanh, who

was twenty-one years old at the time of Defendant’s trial, dated

Defendant “off and on” throughout middle and high school, with

this relationship having begun when she was thirteen years old

and he was sixteen. About six months into their relationship,

Defendant and Villaphanh became sexually active. Although

Villaphanh became pregnant during her eighth-grade year, she had

a miscarriage.

Approximately one year after their relationship began,

Villaphanh introduced Defendant to her mother. Although Mrs.

Phankhamsao did not object to her daughter dating, she had

always been suspicious of Defendant and did not want Villaphanh

to become too close to him. Defendant was aware that the
 -3-
Phankhamsaos disapproved of his relationship with their

daughter.

Mr. Phankhamsao first met Defendant after Villaphanh ran

away with him for a week when she was in the eighth grade.

After this incident, Mr. Phankhamsao agreed to accept Defendant

on the condition that the family’s traditions were honored.

Unfortunately, Defendant and Mr. Phankhamsao got into an

altercation after Defendant came to the family home to break off

his relationship with Villaphanh. After his daughter began to

cry, Mr. Phankhamsao comforted her, told Defendant to leave, and

pushed him away from the property.

Villaphanh became pregnant with a child fathered by

Defendant during her sophomore year of high school at a time

when she was dating another individual. Defendant denied being

the father of the child and requested that a DNA test be

administered for the purpose of determining the identity of the

child’s father, although the test in question was never

performed. Throughout her pregnancy, Defendant attempted to

make Villaphanh feel guilty given his uncertainty about the

identity of the child’s father. Mr. Phankhamsao was

disappointed when he learned of Villaphanh’s pregnancy and told

his daughter that she should have heeded his warning about

continuing to associate with Defendant. However, Mr.
 -4-
Phankhamsao also stated that the family would have to deal with

the situation at hand as it actually existed.

Villaphanh’s daughter, Kaylee, was born on 2 December 2006.

In spite of the attitude that Defendant had exhibited during her

pregnancy, Villaphanh moved in with him shortly after telling

her parents that she had become pregnant. Prior to taking up

residence with Defendant, Villaphanh had been living with her

grandmother, Ta Souvannasaeng, given her deteriorating

relationship with her parents. After Kaylee’s birth, Defendant

and Villaphanh both lived with Ta Souvannasaeng.

For the first three months of her life, Kaylee was taken to

a daycare facility. As a result of the child’s repeated

illnesses, Ta Souvannasaeng began taking care of Kaylee while

Villaphanh was at school and work, with Mrs. Phankhamsao picking

Kaylee up from Ta Souvannasaeng’s home at some point during the

day and keeping Kaylee until Defendant got off work. Three or

four months after Kaylee’s birth, the family conducted a

traditional Laotian blessing ceremony at which Mr. Phankhamsao

accepted Defendant’s relationship with Villaphanh and introduced

Defendant as his son-in-law.

On 22 May 2008, Villaphanh went to school as usual. While

she was at school, Villaphanh made an appointment for Kaylee to

see a doctor because she had been running a fever that morning.
 -5-
At approximately 10:00 a.m., while she was taking Kaylee to see

a doctor, Villaphanh received a phone call from Defendant, who

questioned her about the extent of her contact with an ex-

boyfriend and warned her that bad things would happen if she was

continuing to talk to him. After learning that Kaylee had

contracted influenza, Villaphanh took Kaylee to Ta

Souvannaseang’s residence and went to work. As she was on her

way to work, Villaphanh called Mrs. Phankhamsao and told her to

get Kaylee.

Throughout the day, Defendant placed telephone calls and

sent text messages to Villaphanh’s cell phone and placed

telephone calls to her at her work phone. Eventually,

Villaphanh sent a text message to Defendant in which she told

him that she was staying at her mother’s home that night because

she needed a break from their relationship. Subsequently,

Villaphanh called Mrs. Phankhamsao and requested that Mrs.

Phankhamsao pick her up from work given her desire to avoid

seeing Defendant. As a result, Mrs. Phankhamsao picked

Villaphanh up from work and brought her back to the Phankhamsao

home. By 9:00 p.m., when Villaphanh and her sister went to the

residence of her sister’s boyfriend’s to work on a project, Mr.

Phankhamsao had gone to bed. Kaylee was put to bed at 9:30 p.m.
 -6-
After stopping by Ta Souvannaseang’s residence at around

10:00 p.m., Defendant went to the Phankhamsao residence for the

purpose of locating Villaphanh. When Defendant arrived at that

location at approximately 10:15 p.m., he had a tense facial

expression. However, he had a polite conversation with Mrs.

Phankhamsao, who told him that Villaphanh was not there.

At approximately 10:35 p.m., Defendant returned to the

Phankhamsao residence. On that occasion, Defendant used a

louder tone of voice and demanded to see Kaylee. After Mrs.

Phankhamsao told him that Kaylee was asleep, Defendant departed.

As soon as Defendant left, his younger sister came to the house

and asked where Villaphanh was. Defendant returned to Ta

Souvannasaeng’s home at approximately 10:40 p.m., went to his

room without speaking to anyone, and put on a jacket.

Defendant came to the Phankhamsao residence for the third

time at 10:55 p.m. At that time, Defendant knocked on the door

in a repetitive manner, rang the doorbell, and stated that he

wanted to speak with Mr. Phankhamsao. After being informed that

Mr. Phankhamsao was asleep, Defendant said that he did not care

what Mr. Phankhamsao was doing and insisted upon speaking with

him. Eventually, Mr. Phankhamsao emerged from his bedroom. As

Mrs. Phankhamsao admitted Defendant into the house, Defendant,

consistent with Laotian custom, removed his shoes.
 -7-
After entering the Phankhamsao residence, Defendant began

slapping his own face and complaining to Mr. Phankhamsao about

the fact that he could not pick up his daughter. After

witnessing Defendant “slam” his own face, Mrs. Phankhamsao

called the police for the purpose of having Defendant removed

from the house. Although Defendant asked Mr. Phankhamsao to

come and hit him, the latter responded, “I’m not gonna lay hands

on you. If I hit you, it’ll kill you.”

At that point, Mrs. Phankhamsao pushed Defendant out of the

house while making sure that her husband remained inside. After

being ejected, Defendant kicked the door and called for Mr.

Phankhamsao to come outside. Against the advice of his wife,

Mr. Phankhamsao went outside, followed by Mrs. Phankhamsao, who

was still on the phone with the police.

After Mr. Phankhamsao came outside, Defendant ran at Mr.

Phankhamsao and Mrs. Phankhamsao, pushed both of them, and got

between them. At that point, Mr. Phankhamsao told Defendant

that, since Defendant was “wanting to hit” him, he would hit

Defendant. In response, Defendant emitted a number of

expletives. Although Mrs. Phankhamsao pushed Defendant away, he

returned to Mr. Phankhamsao’s location and hit him. After Mrs.

Phankhamsao pushed him away a second time, Defendant staggered
 -8-
against his car, opened the car door, pulled out a gun,1 cocked

it, and shot Mr. Phankhamsao “right away” in his shoulder.

In spite of the fact that Mr. Phankhamsao fell to the

ground after sustaining this shoulder wound, Defendant kept

shooting at him, with the second shot having been fired from

approximately a foot away. Although Mr. Phankhamsao was able to

get up and run away after the firing of the fourth shot,

Defendant pursued him. When Mrs. Phankhamsao attempted to

assist her husband, Defendant put the gun to her head and

prevented her from doing so. After she did not see Defendant

for a short period of time, Mrs. Phankhamsao entered the house

and closed the door. However, Defendant returned and fired a

shot that entered the Phankhamsao residence. At that point,

Mrs. Phankhamsao called police again for the purpose of

ascertaining why they had failed to come in response to her

first call and told them what had occurred. In addition, Mrs.

Phankhamsao called Villaphanh at approximately 11:00 p.m. and

told her that there had been a problem at the house, that

Defendant had been firing gunshots around the house, and that

Mr. Phankhamsao was outside with Defendant.

1
As a result of problems that he had been having with
certain unrelated individuals, Defendant had purchased a handgun
in April 2008 and kept the weapon in a bedroom dresser at Ta
Souvannaseang’s residence.
 -9-
Mr. Phankhamsao sustained five gunshot wounds. More

specifically, Mr. Phankhamsao was wounded in his left arm, his

upper right arm, his right leg, and his left knee. In addition,

one bullet grazed Mr. Phankhamsao’s upper left arm. The leg

wounds that Mr. Phankhamsao sustained had an upward trajectory,

a fact that suggested that these wounds had been inflicted while

Mr. Phankhamsao was lying on the ground. Mr. Phankhamsao died

as the result of asphyxiation stemming from bleeding in his left

chest cavity caused by a projectile that entered his right arm,

traveled through his arm, and pierced his esophagus and left

lung.

In February 2009, Detective Jesse Prado of the Austin,

Texas, Police Department received information from a

confidential informant to the effect that a North Carolina

murder suspect was living in Austin. As a result, Detective

Prado contacted Captain Pete Blue of the Montgomery County

Sheriff’s Office for the purpose of obtaining additional

information about the situation. On 6 February 2009, officers

of the Austin Police Department were able to capture Defendant,

who was eventually extradited to North Carolina. In an

interview conducted following his arrest in Texas, Defendant

told Detective Prado that Mr. Phankhamsao had been in possession

of a gun at the time of the shooting.
 -10-
2. Defendant’s Evidence

Defendant, who was twenty-four at the time of trial,

immigrated to the United States from Mexico at age five and

arrived in Montgomery County when he was six years old. After

coming to know Villaphanh while in middle school, Defendant

eventually met her parents and obtained permission to visit her

in the family home.

After deciding he wanted to end their relationship,

Defendant called Villaphanh and told her that, since he had

asked and obtained permission from her parents to see her, he

planned to come to the Phankhamsao residence for the purpose of

informing Mr. Phankhamsao that he and Villaphanh were going

their separate ways. When Defendant arrived at the Phankhamsao

residence for the purpose of speaking with Mr. Phankhamsao,

Villaphanh came outside, begged him not to end their

relationship, and began crying. At that point, Mr. Phankhamsao

came outside to see what was wrong with Villaphanh and, after

speaking with his daughter in their native language, slapped

“the fire out of” Villaphanh, causing her to fall to the ground.

Once Defendant attempted to protect Villaphanh from her father,

Mr. Phankhamsao threatened to shoot Defendant, called him a

coward, and chased Defendant down the road as he ran away.

Defendant denied that he and Villaphanh had ever run away
 -11-
together. Instead, Defendant claimed that he had allowed

Villaphanh to stay with him after she told him that her parents

had kicked her out of their house.

Defendant and Villaphanh “hooked up” again when Villaphanh

became depressed and began using drugs, at which point one of

Villaphanh’s sisters asked Defendant to talk to her. Defendant

was happy when he learned that Villaphanh was pregnant and set

up a meeting between the two families. At this family meeting,

Mrs. Phankhamsao stated that she wanted Villaphanh to have an

abortion and only relented after Defendant’s mother agreed to

take care of the child. Although Villaphanh lived with

Defendant and his mother during the early part of her pregnancy,

she subsequently moved in with her grandmother in order to be

closer to her physician and to make it easier for her

grandmother to help with the child.

On the day of the shooting, Defendant did not make any

calls to or receive any calls from Villaphanh and he knew

nothing of Kaylee’s illness. When he returned home at

approximately 5:00 p.m., Ta Souvannasaeng told Defendant that

Mrs. Phankhamsao had come to get Kaylee. As a result, Defendant

called Mrs. Phankhamsao to ascertain whether he needed to pick

Kaylee up. At that point, Mrs. Phankhamsao told Defendant that

he could pick Kaylee up later. Shortly before Villaphanh got
 -12-
off work, Defendant called her to see if she wanted him to come

and get her. At that point, Villaphanh told Defendant that she

would get a ride and that she and the baby would wait for him at

the Phankhamsao residence.

At the time that Defendant arrived at the Phankhamsao

residence, he asked for Kaylee and Villaphanh and was told that,

while Kaylee was present, Villaphanh was not. Instead,

Defendant was told that Villaphanh had gone to Wal-Mart. As a

result, Defendant stated that he would drive towards Wal-Mart to

see if he could locate Villaphanh and that he would return to

the Phankhamsao residence if his efforts to locate Villaphanh

proved unsuccessful.

As a general proposition, Defendant and Villaphanh avoided

the Wal-Mart store because Defendant had gotten into a fight

with a gang member at that location. After this incident, which

had occurred in May, Defendant purchased a handgun, which he had

in his possession as he traveled towards the Wal-Mart store.

After circling the Wal-Mart parking lot and failing to see

Villaphanh’s sister’s car, Defendant returned to Ta

Souvannsaeng’s residence to see if Villaphanh’s sister had

brought Villaphanh and Kaylee there. After finding Villaphanh’s

cell phone, but not Villaphanh, at Ta Souvannasaeng’s home,

Defendant returned to the Phankhamsao residence.
 -13-
Upon arriving at the Phankhamsao residence, Defendant spoke

with Mrs. Phankhamsao and suggested that he take Kaylee home

while leaving it up to Villaphanh to find a way to Ta

Souvannasaeng’s house at a later time. At that point, Mrs.

Phankhamsao informed Defendant that Kaylee was sleeping, refused

to allow him to take her home, and shut the door. After

Defendant knocked on the door again, Mr. Phankhamsao answered

the door, cursed at Defendant, and asked Defendant what he

wanted. After stating that he had come to pick up his child and

that he intended to do just that, Defendant removed his shoes

and entered the house.

As Defendant reached the interior of the Phankhamsao

residence, Mr. Phankhamsao cursed at Defendant, ordered

Defendant to leave the house, and threatened Defendant’s life.

At that point, the two men began pushing each other. After Mr.

Phankhamsao took a swing at Defendant, Mrs. Phankhamsao

restrained him. After concluding that Mr. Phankhamsao was

attempting to get to the kitchen area, where he kept his

firearms, Defendant decided to leave. Throughout the entire

time that he was inside the Phankhamsao residence, Defendant had

his gun in his waist and knew that, if Mr. Phankhamsao got his

gun, he and Defendant would have to “kill each other there.”
 -14-
As Defendant left the house, the two men cursed at each

other and Mr. Phankhamsao threatened Defendant’s life again.

While he walked towards his car, Defendant noticed that Mr.

Phankhamsao was running towards him. As a result, Defendant

pulled out his gun and began firing shots without waiting to

determine if Mr. Phankhamsao was armed. Defendant did not,

however, shoot at Mrs. Phankhamsao, who returned to the interior

of the house. As a result of the incident in question,

Defendant developed post-traumatic stress disorder.

After the shooting, Defendant became frightened, discarded

the gun, and, eventually, went to Austin, Texas. In the course

of his interview with Detective Prado, Defendant stated that he

brought the gun with him to pick up Kaylee because he was

“pissed.” Defendant admitted that he had lied to Detective

Prado on multiple occasions and testified that he would have

developed a better story if he had had more time to prepare for

the interview.

B. Procedural History

On 23 May 2008, warrants for arrest charging Defendant with

assault with a deadly weapon with the intent to kill,

communicating threats, injury to real property, and murder were

issued. On 16 March 2009, the Montgomery County grand jury

returned bills of indictment charging Defendant with first
 -15-
degree murder and assault with a deadly weapon with the intent

to kill. The charges against Defendant came on for trial before

the trial court and a jury at the 21 May 2012 criminal session

of the Montgomery County Superior Court. On 31 May 2012, the

jury returned a verdict convicting Defendant of first degree

murder and assault with a deadly weapon. At the ensuing

sentencing hearing, the trial court arrested judgment with

respect to Defendant’s conviction for assault with a deadly

weapon and entered judgment sentencing Defendant to life

imprisonment without the possibility of parole. Defendant noted

an appeal to this Court from the trial court’s judgment.

II. Legal Analysis

A. Sufficiency of the Evidence

In his first challenge to the trial court’s judgment,

Defendant argues that the trial court erred by denying his

motion to dismiss the first degree murder charge for

insufficiency of the evidence. More specifically, Defendant

contends that the record does not contains sufficient evidence

to permit a determination that Defendant deliberated upon the

killing of Mr. Phankhamsao. We do not find Defendant’s argument

persuasive.

1. Standard of Review
 -16-
“When ruling on a defendant's motion to dismiss, the trial

court must determine whether there is substantial evidence (1)

of each essential element of the offense charged, and (2) that

the defendant is the perpetrator of the offense.” State v.

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

State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651

(1982), and N.C. Gen. Stat. § 15A-1227). According to well-

established North Carolina law, “[s]ubstantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (internal quotation marks

omitted) (quoting State v. Cummings, 46 N.C. App. 680, 683, 265

S.E.2d 923, 925, aff’d, 301 N.C. 374, 271 S.E.2d 277 (1980)).

“When considering a motion to dismiss, the trial court must view

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

the State the benefit of all reasonable inferences.” State v.

Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert.

denied, 546 U.S. 830, 126 S. Ct. 47, 163 L. Ed. 2d 79 (2005).

“If the evidence at trial gives a reasonable inference of guilt,

the jury must decide whether the facts show defendant’s guilt

beyond a reasonable doubt.” State v. Sokolowski, 351 N.C. 137,

143, 522 S.E.2d 65, 69 (1999). “This Court reviews the trial

court’s denial of a motion to dismiss de novo.” Smith, 186 N.C.

App. at 62, 650 S.E.2d at 33 (citing State v. McKinnon, 306 N.C.
 -17-
288, 298, 293 S.E.2d 118, 125 (1982)). Under a de novo standard

of review, this Court “considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294

(2008) (internal quotation marks omitted) (quoting In re Appeal

of The Greens of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576

S.E.2d 316, 319 (2003)).

2. Evidence of Deliberation

“The elements of first-degree murder are: (1) the unlawful

killing, (2) of another human being, (3) with malice, and (4)

with premeditation and deliberation.” State v. Coble, 351 N.C.

448, 449, 527 S.E.2d 45, 46 (2000). “‘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.’”

State v. Fields, 315 N.C. 191, 200, 337 S.E.2d 518, 524 (1985)

(quoting State v. Lowery, 309 N.C. 763, 768, 309 S.E.2d 232, 237

(1983)). “The phrase ‘cool state of blood’ means that the

defendant’s anger or emotion must not have been such as to

overcome the defendant’s reason.” State v. Elliott, 344 N.C.

242, 267, 475 S.E.2d 202, 212 (1996) (internal quotation marks

omitted) (quoting State v. Thomas, 332 N.C. 544, 560, 423 S.E.2d

75, 84 (1992), overruled in part on other grounds in State v.
 -18-
Richmond, 347 N.C. 412, 430, 495 S.E.2d 677, 687, cert. denied,

525 U.S. 843, 119 S. Ct. 110, 142 L. Ed. 2d 88 (1998)), cert.

denied, 520 U.S. 1106, 117 S. Ct. 1111, 137 L. Ed. 2d 312

(1997).

Among other circumstances to be considered
in determining whether a killing was with
premeditation and deliberation are: (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. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 843 (1984).

As the Supreme Court has clearly stated, the fact that the

killing may have occurred in the course of an altercation does

not necessarily preclude a finding that the defendant acted

after premeditation and deliberation.

“[A]lthough there may have been time for
deliberation, if the purpose to kill was
formed and immediately executed in a passion,
especially if the passion was aroused by a
recent provocation or by mutual combat, the
murder is not deliberate and premeditated.
However, passion does not always reduce the
crime since a man may deliberate, may
premeditate, and may intend to kill after
premeditation and deliberation, although
prompted and to a large extent controlled by
passion at the time. If the design to kill
 -19-
was formed with deliberation and
premeditation, it is immaterial that
defendant was in a passion or excited when
the design was carried into effect.” Thus a
killing committed during the course of a
quarrel or scuffle may yet constitute first
degree murder provided the defendant formed
the intent to kill in a cool state of blood
before the quarrel or scuffle began and the
killing during the quarrel was the product of
this earlier formed intent.

State v. Misenheimer, 304 N.C. 108, 113-14, 282 S.E.2d 791, 795

(1981) (alteration in original) (citations omitted) (quoting

State v. Faust, 254 N.C. 101, 108, 118 S.E.2d 769, 773, cert.

denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961)),

overruled in part on other grounds, State v. Weaver, 306 N.C.

629, 640, 295 S.E.2d 375, 381-82 (1982), overruled in part on

other grounds, State v. Collins, 334 N.C. 54, 61-62, 431 S.E.2d

188, 193 (1993).

According to Defendant, the evidence presented at trial

indicated that he had engaged in a heated argument with Mr.

Phankhamsao immediately prior to firing the fatal shots and that

this fact precluded a finding that he acted with deliberation.

In support of this contention, Defendant notes that he removed

his shoes in the customary manner prior to entering the

Phankhamsao home, that the two men argued inside and outside the

Phankhamsao residence, and that very little time elapsed between

the time that Mrs. Phankhamsao shoved him and the firing of the
 -20-
fatal shots. Although we agree that the evidence upon which

Defendant relies would have supported a verdict convicting him

of an offense less serious than first degree murder, we also

believe that the record contains sufficient evidence to support

a finding that Defendant acted with deliberation.

A careful review of the record evidence provides

substantial support for a determination that Defendant killed

Mr. Phankhamsao after premeditation and deliberation. For

example, the record contains considerable evidence tending to

show that there had been previous “ill will and difficulties”

between the two men. Both Defendant and Villaphanh described an

incident in which Mr. Phankhamsao became angry at Defendant and

physically forced him from their home, with Defendant’s account

of this encounter containing references to death threats. In

addition, the record contains evidence tending to show a lack of

provocation on Mr. Phankhamsao’s part in the period immediately

prior to the shooting. According to the State’s evidence,

Defendant shot Mr. Phankhamsao after having been pushed by Mrs.

Phankhamsao rather than by her husband. Moreover, the jury

could have found that Mr. Phankhamsao did not provoke Defendant

given that Mr. Phankhamsao only threatened to strike Defendant

after being struck himself rather than actually striking

Defendant. In addition, the record contains evidence tending to
 -21-
show that Defendant went out of his way to bring a loaded

firearm to what obviously threatened to be a confrontational

environment. More specifically, the record contains evidence

tending to show that Defendant returned to the location at which

his weapon was kept between his visits to the Phankhamsao

residence and was “pissed” at the time of his second visit. As

we have already noted, the record establishes that Defendant

shot Mr. Phankhamsao multiple times and suggests that at least

two of these wounds were inflicted while Mr. Phankhamsao was in

a prone position. The conduct in which Defendant engaged after

the shooting, including his flight to Texas and certain

intemperate references that he made during his interview with

Detective Prado, provides further support for an inference that

he premeditated and deliberated upon Mr. Phankhamsao’s death.

Thus, the record contains ample support for the jury’s

determination that Defendant was guilty of first degree murder.

Although the argument advanced in Defendant’s brief focuses

upon the moment at which Defendant grabbed his weapon and began

firing at Mr. Phankhamsao, we do not believe that such a narrow

focus is appropriate. Instead, we believe that a proper

evaluation of Defendant’s challenge to the trial court’s

judgment requires us to take a broader view of the record that

includes all of the evidence relevant to Defendant’s mental
 -22-
state at the time of the shooting. For that reason, the fact

that the record contained evidence tending to show that

Defendant and Mr. Phankhamsao had reconciled their differences,

while relevant, does not constitute conclusive proof that the

elements required to support a first degree murder conviction

did not exist. In addition, the existence of evidence that

Defendant was angry at the time that he killed Mr. Phankhamsao

does not preclude a finding that he acted after premeditation

and deliberation given that “[a]n unlawful killing is deliberate

and premeditated if done pursuant to a fixed design to kill,

notwithstanding that defendant was angry or in an emotional

state at the time, unless such anger or emotion was such as to

disturb the faculties and reason.” State v. Myers, 299 N.C.

671, 677, 263 S.E.2d 768, 772-73 (1980). In spite of the fact

that Defendant claimed to be scared of what Mr. Phankhamsao

might do to him, the record also suggests that Mr. Phankhamsao

did nothing more than argue with Defendant and that Defendant

fired multiple shots at Mr. Phankhamsao in spite of the fact

that Mr. Phankhamsao had not assaulted him, a fact which tends

to undercut any contention that Defendant’s “anger or emotion

was such as to disturb the faculties and reason.” Id. Thus,

none of Defendant’s arguments persuade us that the trial court
 -23-
erred by allowing the jury to determine whether Defendant acted

after premeditation and deliberation.

As a result, after carefully considering the evidentiary

record in the light most favorable to the State, we conclude

that a reasonable juror could have determined that Defendant

killed Mr. Phankhamsao with premeditation and deliberation.

Although the record does contain evidence from which the jury

could have reached a number of different decisions, we are

satisfied that the trial court properly allowed “the jury [to]

decide whether the facts show [D]efendant’s guilt [of first

degree murder] beyond a reasonable doubt.” Sokolowski, 351 N.C.

at 143, 522 S.E.2d at 69. As a result, Defendant’s challenge to

the sufficiency of the evidence to support his first degree

murder conviction lacks merit.

B. Defendant’s Escape Attempt

Secondly, Defendant contends that the trial court erred by

allowing the admission of evidence to the effect that he

attempted to escape from the Montgomery County Jail. In support

of this contention, Defendant argues that the challenged

testimony had no relevance other than to show his “association

with a murderer and his potential incorrigibility” and that the

evidence in question, when considered in context, had no real
 -24-
probative value. We do not find Defendant’s argument

persuasive.

At approximately 9:00 p.m. on 23 September 2010, Defendant

attempted to escape from the Montgomery County Jail, in which he

had been confined following his arrest and extradition. After

climbing over an exterior fence along with Terrance Marshall,

who had been charged with murder, Defendant attempted to get in

a red Camaro operated by his sister. As Defendant struggled

with the correctional officers who were attempting to apprehend

him, Defendant’s sisters came to his assistance, allowing

Defendant to free himself from the officer’s grip and use a

canister of pepper spray that he had taken from the guard in an

attempt to complete his escape. After other correctional

officers arrived on the scene, Defendant was restrained and

returned to custody.

On 17 May 2012, the State filed a motion in limine seeking

to obtain authorization to present evidence of Defendant’s

flight to Texas and his subsequent attempt to escape from jail.

The State brought its motion to the trial court’s attention at

the time that it attempted to elicit evidence concerning

Defendant’s attempt to escape from the Montgomery County Jail.

At that time, Defendant objected to the admission of the

evidence in question, arguing that this evidence should be
 -25-
excluded given that the State had already obtained the admission

of evidence that Defendant had fled to Texas after the killing

of Mr. Phankhamsao.2

According to N.C. Gen. Stat. § 8C-1, Rule 402, “[a]ll

relevant evidence is admissible,” with “[e]vidence which is not

relevant” being inadmissible. “Relevant evidence means evidence

having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” N.C. Gen.

Stat. § 8C-1, Rule 401. “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

2
Although Defendant did make a pretrial motion to exclude
evidence of Defendant’s “prior acts” in reliance upon N.C. Gen.
Stat. § 8C-1, Rule 404(b) (stating that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he acted in conformity
therewith,” but “may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident”), and cited N.C. Gen. Stat. § 8C-1, Rule 404(b) in
seeking to persuade the trial court to exclude the evidence at
issue in this section of our opinion, his principal argument in
both the trial court and before this Court with respect to the
present issue is predicated, almost exclusively, upon
considerations made relevant by N.C. Gen. Stat. § 8C-1, Rules
402 and 403. As a result, as Defendant essentially concedes, a
determination of the extent to which evidence that Defendant
attempted to escape from the Montgomery County Jail was relevant
for the purpose of showing flight and not subject to exclusion
pursuant to N.C. Gen. Stat. § 8C-1, Rule 403, eliminates the
necessity for considering whether the challenged evidence should
have been deemed inadmissible pursuant to N.C. Gen. Stat. § 8C-
1, Rule 404(b).
 -26-
misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” N.C.

Gen. Stat. § 8C-1, Rule 403. Although “a trial court’s rulings

on relevancy technically are not discretionary and therefore are

not reviewed under [an] abuse of discretion standard,” “such

rulings are given great deference on appeal.” State v. Wallace,

104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), disc. review

denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S.

915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992). “Whether to

exclude evidence under [N.C. Gen. Stat. § 8C-1,] Rule 403 is a

matter within the sound discretion of the trial court.” State

v. Penley, 318 N.C. 30, 41, 347 S.E.2d 783, 789 (1986).

According to well-established North Carolina law, “an

escape from custody constitutes evidence of flight.” State v.

Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990). “Evidence

of flight, in turn, is admissible as evidence tending to show

the defendant’s guilt.” State v. McDougald, 336 N.C. 451, 456,

444 S.E.2d 211, 214 (1994). As a result, evidence tending to

show that Defendant attempted to escape from the Montgomery

County Jail after having been charged with the murder of Mr.

Phankhamsao was clearly relevant to the matters at issue in this

case.
 -27-
In seeking to persuade us that the trial court should have

excluded the challenged evidence, Defendant argues that, given

his admission that he shot Mr. Phankhamsao and given that the

record contained other evidence that he had fled the area after

shooting Mr. Phankhamsao, evidence that he attempted to escape

from the Montgomery County Jail in the company of another

individual charged with murder added little to the State’s case

and severely prejudiced him in the eyes of the jury. However,

given that the State was required to prove each element of the

offenses submitted for the jury’s consideration3 beyond a

reasonable doubt and given that the extent to which Defendant

attempted to avoid apprehension was relevant to the issue of his

guilt of one or more of these offenses, State v. Warren, 348

N.C. 80, 112, 499 S.E.2d 431, 449 (stating that, despite the

defendant’s concession that he should be found guilty of second

degree murder, the fact that he “did not plead guilty to second-

degree murder” meant that the trial court’s decision to deliver

a flight instruction did not constitute error on the theory that

“the State was still required to prove each element of the

charged offense”), cert. denied, 525 U.S. 915, 119 S. Ct. 263,

3
The jury was allowed to consider whether Defendant was
guilty of first degree murder on the basis of malice,
premeditation, and deliberation; second degree murder; or
voluntary manslaughter. As is noted in Defendant’s brief, his
trial counsel conceded his guilt of at least voluntary
manslaughter.
 -28-
142 L. Ed. 2d 216 (1998), the fact that the record contained

other evidence of flight did not suffice to necessitate the

exclusion of the challenged evidence. Although the evidence in

question clearly cast Defendant in a bad light, its undoubted

relevance did not render its admission unduly or unfairly

prejudicial. As a result, given the relevance of this flight-

related evidence to the issues that the jury was required to

decide, we are unable to conclude that the trial court abused

its discretion by allowing the admission of evidence tending to

show that Defendant attempted to escape from the Montgomery

County Jail.

C. Description of Defendant’s Conduct in Custody

Finally, Defendant contends that the trial court erred by

allowing the admission of Detective Prado’s description of the

events depicted on a video that was introduced into evidence and

played before the jury at trial. According to Defendant, the

evidence in question should have been excluded because the “best

evidence” of the events depicted on the video was the video

itself. We are not persuaded by Defendant’s argument.

At trial, Detective Prado testified that he observed

Defendant by viewing the images depicted on a video camera

trained on an interrogation room into which Defendant was

brought after having been taken into custody. Detective Prado
 -29-
routinely observed individuals whom he was about to interrogate

in this fashion for the purpose of preparing himself for the

“mentally draining” interrogation process. According to

Detective Prado, Defendant placed his feet on the interrogation

room table, an action that he had only seen one other suspect

take despite having had years of law enforcement experience. In

addition, Detective Prado testified that he observed Defendant

laughing on five to seven occasions during the course of their

conversation. Subsequently, a DVD depicting Defendant’s conduct

in the interrogation room prior to and during his discussion

with Detective Prado was played for the jury.

N.C. Gen. Stat. § 8C-1, Rule 1002, provides that, “[t]o

prove the content of a writing, recording, or photograph, the

original writing, recording, or photograph is required, except

as otherwise provided in these rules or by statute.” N.C. Gen.

Stat. § 8C-1, Rule 1002, is intended to prohibit the admission

of “secondary evidence” concerning the contents of a document or

a similar item when the original item is available. State v.

York, 347 N.C. 79, 91, 489 S.E.2d 380, 387 (1997). Assuming,

without in any way deciding, that the admission of Detective

Prado’s testimony concerning Defendant’s conduct in the

interrogation was erroneous, we are unable to see how Defendant

was prejudiced by this ruling. As we have already noted, the
 -30-
video in question was introduced into evidence and played for

the jury, giving that body ample opportunity to determine if

Detective Prado’s testimony accurately described Defendant’s

conduct. Although Defendant contends that the information

concerning Defendant’s conduct in the interrogation room

undercut his credibility and his claim to have acted without

premeditation, deliberation, or a specific intent to kill, he

does not contend that Detective Prado’s description of his

conduct was inaccurate or explain how his conduct as described

by Detective Prado tended to show that he did not act with the

mental state necessary for a finding that Defendant was guilty

of first degree murder. As a result, given our inability to

determine that there is a reasonable possibility that the

outcome at Defendant’s trial would have been different had

Detective Prado been precluded from describing Defendant’s

conduct in the interrogation room, N.C. Gen. Stat. § 15A-1443(a)

(stating that a non-constitutional error is prejudicial if there

“is a reasonable possibility that, had the error in question not

been committed, a different result would have been reached at

the trial out of which the appeal arises”), we conclude that

Defendant’s final challenge to the trial court’s judgment lacks

merit.

III. Conclusion
 -31-
Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgment

have merit. As a result, the trial court’s judgment should, and

hereby does, remain undisturbed.

NO ERROR.

Judges ROBERT N. HUNTER, JR. and DAVIS concur.

Report per Rule 30(e).