Opinion
No. COA10-1322
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgments entered 24 March 2010 by Judge W. Russell Duke, Jr. in Edgecombe County Superior Court. Heard in the Court of Appeals 23 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State. Michele Goldman, for defendant-appellant.
Edgecombe County No. 09 CRS 53031.
Charles Dickens ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of one count of assault with a deadly weapon with intent to kill and one count of assault with a deadly weapon inflicting serious injury. We find no error.
I. Background
In August 2009, defendant was at home watching television with Demanchea Clevon Johnson ("Johnson") and Jamel Sterlin Allen ("Allen"). Defendant only knew Allen by the name "Dick." Defendant and Allen got into an argument, which evolved into a fight. During the fight, Allen pulled some of defendant's dreadlocks out of his scalp.
Approximately one week later, Johnson and Allen were walking past defendant's home. Defendant was in the front yard drinking beer with his brother and a friend. Defendant's group began arguing with Johnson and Allen, and Allen challenged defendant to a fight.
Defendant did not engage Allen in a fight, but instead returned to his home and retrieved a shotgun. Defendant took the shotgun outside and threatened Johnson and Allen with it. The shotgun discharged, striking Johnson in the neck. Defendant then aimed the shotgun at Allen and fired before fleeing the scene with his brother. Allen was not struck by this shot.
Defendant was subsequently arrested and indicted for one count of assault with a deadly weapon with intent to kill inflicting serious injury for the shooting of Johnson and one count of assault with a deadly weapon with intent to kill for the attempted shooting of Allen. Beginning 23 March 2010, defendant was tried by a jury in Edgecombe County Superior Court. At trial, Detective Timothy Hataway ("Det. Hataway") of the Rocky Mount Police Department testified that Allen and "Dick" were the same individual. Defendant also testified that he had learned after the shooting that Dick's real name was Jamel Allen.
After all of the evidence had been presented, the trial court prepared to instruct the jury on the applicable law. Defendant requested an instruction on the lesser included offense of assault with a deadly weapon for the offense in which Allen was the victim, but this request was denied by the trial court. The trial court then gave the jury its instructions. During the jury instructions, the trial court instructed the jury that Allen was "also known as Dick."
On 24 March 2010, the jury returned a verdict finding defendant guilty of one count of the lesser included offense of assault with a deadly weapon inflicting serious injury for the shooting of Johnson and one count of assault with a deadly weapon with intent to kill for the attempted shooting of Allen. The trial court sentenced defendant to a minimum of 25 months to a maximum of 39 months for each conviction. The sentences were to be served consecutively in the North Carolina Department of Correction. Defendant appeals.
II. Lesser Included Offense
Defendant argues that the trial court erred by refusing his request to instruct the jury on the lesser included offense of assault with a deadly weapon for the attempted shooting of Allen. Defendant contends that there was conflicting evidence at trial as to whether defendant possessed the intent to kill Allen. We disagree.
"An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). "To determine whether . . . evidence is sufficient for submission of the lesser offense to the jury, we must view the evidence in the light most favorable to defendant." State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994). An argument "challenging the trial court's decisions regarding jury instructions [is] reviewed de novo by this Court." State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred. The nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances are all matters from which an intent to kill may be inferred. Moreover, an assailant must be held to intend the natural consequences of his deliberate act.
State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (internal quotations and citations omitted). "Where the defendant points a gun at the victim and pulls the trigger, this constitutes evidence from which intent to kill may be inferred." State v. Cromartie, 177 N.C. App. 73, 77, 627 S.E.2d 677, 680 (2006). In addition, "[t]he lack of multiple shots fired does not negate intent to kill." Id.
In the instant case, although defendant fired only one shot at Allen, defendant specifically testified that he "was trying to shoot [Allen]" with that shot. Defendant further testified that he was trying to make Allen "feel the same pain" as Johnson, who had just been shot in the neck and was seriously wounded. This was sufficient evidence from which an intent to kill could be inferred.
Defendant contends that defendant's desire for Allen to feel pain is inconsistent with the intent to kill because "it is axiomatic that an individual need be living to experience pain." Contrary to defendant's argument, the desire to cause pain and the desire to kill are not mutually exclusive. A victim of a fatal gunshot wound would necessarily feel pain between the time of the impact of the bullet and the time of death.
There was no evidence presented to rebut the inference that, by intentionally firing the gun at Allen, defendant possessed the intent to kill him. Consequently, the trial court correctly denied defendant's request for an instruction on the lesser included offense of assault with a deadly weapon. This argument is overruled.
III. Testimony that Allen was known as "Dick"
Defendant argues that the trial court erred by allowing both Det. Hataway and defendant to testify that they had learned that "Dick" was the victim, Allen, because this testimony was not based upon personal knowledge. We disagree.
"A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." N.C. Gen. Stat. § 8C-1, Rule 602 (2009). "Personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception." State v. Poag, 159 N.C. App. 312, 323, 583 S.E.2d 661, 669 (2003) (internal quotations and citation omitted). A "[p]reliminary determination of personal knowledge need not be explicit but may be implied from the witness' testimony." State v. Givens, 95 N.C. App. 72, 79, 381 S.E.2d 869, 873 (1989) (internal quotations and citation omitted). "As long as the lay witness has a basis of personal knowledge for his opinion, the evidence is admissible." State v. Bunch, 104 N.C. App. 106, 110, 408 S.E.2d 191, 194 (1991).
A. Det. Hataway's Testimony
In the instant case, Det. Hataway testified about defendant's statement regarding the altercation with "Dick" and stated that "we subsequently identified [Dick] as Jamel Allen," at which point defense counsel entered an objection which was overruled by the trial court. While Det. Hataway did not explicitly explain the details of this subsequent investigation, his testimony clearly implied that Det. Hataway, along with other law enforcement, personally determined through the course of their investigation that "Dick" and Allen were the same individual. Since this testimony sufficiently demonstrated that Det. Hataway had personal knowledge that Allen was also known as "Dick," the trial court properly overruled defendant's objection.
B. Defendant's Testimony
Defendant also contends that his testimony that "I just found out [that Dick's name was Jamel Allen] that night or the next day" was not based on personal knowledge. Since defendant did not object to his own testimony at trial, he is only entitled to plain error review of this issue. See N.C.R. App. P. 10(a)(4) (2009). However, we can discern no error, plain or otherwise, in allowing this testimony. Defendant's testimony was an unequivocal statement that he had personally learned that the individual he knew as "Dick" was actually named Jamel Allen, which is the essence of personal knowledge. Defendant's arguments are overruled.
IV. Jury Instructions
Defendant argues that the trial court erred by instructing the jury that Allen was "also known as Dick." Specifically, defendant contends that the added language created a fatal variance between defendant's indictment and the jury instructions and constituted an improper expression of opinion by the trial court as to a material fact in the case. We disagree.
Initially, we note that defendant did not object to the trial court's instructions. As a result, we review this issue for plain error. Id. "To prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result." State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d 700, 704 (2000).
A. Fatal Variance
Defendant argues that the addition of the language "also known as Dick" created a fatal variance between defendant's indictment and the jury instruction. "[T]he failure of the allegations [in an indictment] to conform to the equivalent material aspects of the jury charge represents a fatal variance, and renders the indictment insufficient to support that resulting conviction." State v. Williams, 318 N.C. 624, 631, 350 S.E.2d 353, 357 (1986).
In support of his argument, defendant cites State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994). In Abraham, the defendant's indictment listed the name of the victim as Carlose Antoine Latter when the victim's actual name was Joice Hardin. Id. at 340, 451 S.E.2d at 144. Our Supreme Court held that "[w]here an indictment charges the defendant with a crime against someone other than the actual victim, such a variance is fatal" and overturned the defendant's conviction. Id. at 340-41, 451 S.E.2d at 144. Abraham is not applicable to the instant case. Defendant's indictment alleged that the name of the victim was Jamel Sterlin Allen and the jury was instructed that the name of the victim was Jamel Sterlin Allen, which was consistent with the evidence presented at trial. Thus, the indictment did not charge defendant with a crime against someone other than the actual victim and there was no fatal variance. The instruction that Allen was "also known as Dick" was mere surplusage and could not have prejudiced defendant. See State v. Booker, 33 N.C. App. 223, 225, 234 S.E.2d 417, 418 (1977).
B. Material Fact
Finally, defendant argues that by instructing the jury that Allen was "also known as Dick," the trial court violated N.C. Gen. Stat. § 15A-1232 (2009). This statute states, in relevant part: "In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence." Id. The trial court violates N.C. Gen. Stat. § 15A-1232 if, when instructing the jury, it expresses an opinion as to the existence of a material fact. See State v. Merritt, 120 N.C. App. 732, 736, 463 S.E.2d 590, 592 (1995).
In the instant case, the only fact alluded to by the trial court's instruction, that Allen was also known as Dick, was not a material fact. Contrary to defendant's assertions, the trial court's instruction on Allen's alias cannot be considered the trial court's opinion as to whether Allen was the actual victim of defendant's assault. Thus, the trial court did not violate N.C. Gen. Stat. § 15A-1232 by expressing an opinion as to a material fact. Defendant's arguments are overruled.
V. Conclusion
The trial court properly denied defendant's request for the lesser included instruction of assault with a deadly weapon, as evidence of defendant's intent to kill could be inferred by the evidence at trial and was not rebutted. The testimony that the victim, Allen, was also known as "Dick," was within the personal knowledge of Det. Hataway and defendant. The trial court's instruction that Allen was "also known as Dick" did not create a fatal variance between the indictment and the jury instruction and did not constitute the trial court's opinion as to a material fact. Defendant received a fair trial, free from error.
No error.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).