Opinion
No. COA10-447
Filed 15 March 2011 This case not for publication
Appeal by Defendant from judgment entered 7 January 2010 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 12 October 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Susan K. Nichols for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker for the Defendant-appellant.
Guilford County No. 10 CRS 24029.
Defendant appeals four trial court rulings, contending that the trial court: (1) committed plain error in admitting three hearsay statements; (2) lacked jurisdiction due to a fatal variance; (3) incorrectly instructed the jury; and (4) erred in failing to grant his motion to dismiss. We find no error.
I. Factual and Procedural History
On 6 January 2010, James Mebane ("Defendant") signed a Bill of Information charging him with assault with a deadly weapon with intent to kill inflicting serious injury. The Bill of Information charged Defendant did "assault Rodney Dunn with a firearm, a deadly weapon, by shooting him in the neck inflicting serious injury to wit: a gunshot wound requiring emergency medical treatment and resulting in great pain and suffering. The assault was made with the intent to kill the victim, Rodney Dunn." Defendant was tried during the 4 January 2010 Criminal Session of Guilford County Superior Court. He was found guilty of assault with a deadly weapon with intent to kill inflicting serious injury on 7 January 2010. The trial court found Defendant had a prior record level of IV, and he was sentenced in the presumptive range to a minimum of 120 months and a maximum of 153 months in prison. Defendant gave timely notice of appeal. The State's evidence at trial tended to show the following:
On 22 June 2009, Defendant and Louvenia Lowe got into an altercation when, Ms. Lowe alleged, Defendant stole the money Ms. Lowe earned doing yard work for Robert Hines. Mr. Hines broke-up the altercation between Defendant and Ms. Lowe, and told Ms. Lowe not to bring Defendant back to his home.
On 23 June 2009, Mr. Hines was standing in his yard talking across his fence to his neighbor, Rodney Dunn. Mr. Dunn lived with his aunt, Arlene Dunn, who was inside the house, but was able to see and speak to her nephew through her screened door. Ms. Lowe was also present, working in Mr. Hines' yard.
As Mr. Hines and Mr. Dunn were speaking, they observed Defendant approach Ms. Lowe's car, which was parked a few feet away from Mr. Hines' yard. Mr. Dunn testified that Defendant looked through Ms. Lowe's car and then warned Ms. Lowe "not to come back over in the area or he was going to harm her." Defendant then removed an object from inside the passenger compartment and walked across the street toward some bushes; no one else was seen in the vicinity. A few seconds later, Mr. Hines saw "a shadow rise" out of the bushes as a shot was fired from that area. Mr. Dunn, whose back was turned toward the bushes, was struck in the neck by a bullet.
Ms. Dunn testified that from her living room she witnessed Defendant reach into Ms. Lowe's car, close the door, and then cross the street; she did not, however, see who fired the shot because she had turned away from the door.
Officers Justin Pacific and Christopher Wingfield of the Greensboro Police Department arrived at the scene and, after learning of Defendant's involvement, set up a perimeter around Defendant's house, which was located less than half-a-mile from the scene of the shooting. Defendant was apprehended as he walked out of the woods near his home. After Defendant was arrested, Defendant asked the arresting officer where the weapon was and said, "You don't have anything on me because you don't have any weapon." He then inquired as to whether "the girl or guy" had been shot. When Officer Pacific refused to answer him, he replied, "Your eyes told me who was shot. You don't need to tell. It was the guy who was shot." Police were unable to recover the gun used to shoot Mr. Dunn.
II. Analysis
As Defendant appeals from entry of a final judgment by a superior court following his conviction for a criminal charge to which he plead not guilty, this Court has jurisdiction to hear the appeal pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2009).
In his first argument on appeal, Defendant contends the trial court committed plain error by permitting Officer Wingfield to testify as to three hearsay statements made by Mr. Dunn. In speaking with Officer Wingfield after the shooting, Mr. Dunn identified Defendant as the shooter in two separate statements. Mr. Dunn also told the officer that Mr. Hines had alleged Defendant stole his bike a few days before the shooting. During Mr. Dunn's direct testimony and cross-examination, he did not identify Defendant as the shooter or testify as to his conversation with Mr. Hines about the stolen bike. Officer Wingfield's testimony was admitted without objection.
Where defense counsel fails to object to testimony at trial, our review is limited to plain error. N.C. R. App. P. 10(a)(4) (2011). "Under a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). "[T]he plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error." State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 463, appeal dismissed, cert. denied, 363 N.C. 376, 679 S.E.2d 139 (2009).
In the instant case, assuming arguendo that it was error for the trial court to admit into evidence the hearsay statements in Officer Wingfield's testimony, we conclude there was sufficient evidence to convict Defendant absent these statements. Three witnesses — Mr. Hines, Mr. Dunn, and Ms. Dunn — observed Defendant in the area from which the bullet was fired only moments before the shooting. Defendant threatened Ms. Lowe, removed an object from her parked car only a few feet away, and then walked toward the location from which the shot was fired only moments before the shooting. In light of this evidence and our plain error review, we conclude the hearsay statements in Officer Wingfield's testimony did not prejudice Defendant such that the jury would have reached a different conclusion had the evidence not been admitted. Thus, if the trial court erred in admitting the statements, the error did not rise to the level of plain error and Defendant's argument is dismissed.
In his second argument, Defendant contends the trial court erred in denying his motion to dismiss for insufficient evidence that he was the perpetrator of the alleged crime and that he had the intent to kill Mr. Dunn. We disagree.
The trial court's denial of a defendant's motion to dismiss for insufficient evidence in a criminal proceeding is a question of law, which we review de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). "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, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000) (internal citations and quotation marks omitted).
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). When ruling on a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, "making all reasonable inferences from the evidence in favor of the State." State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). "`[I]f there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'" State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (citation omitted).
As for Defendant's contention that there was insufficient evidence that he was the perpetrator, we have already noted above the evidence that tends to establish Defendant as the perpetrator: three witnesses observed Defendant in the area from which the bullet was fired only moments before the shooting; he threatened to harm Ms. Lowe, removed an object from her parked car, and then walked toward the location from which the shot was fired only moments before the shooting. We conclude this is substantial evidence, evidence sufficient to permit a reasonable jury to conclude Defendant was the perpetrator of the crime charged.
We also conclude there is substantial evidence that Defendant possessed the specific intent to kill Ms. Lowe which transferred to Mr. Dunn. 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." State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956) ("An intent to kill `may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.'"(citation omitted)).
Furthermore, the record reveals there is substantial evidence Defendant fired the gun that wounded Mr. Dunn. Where a person aims a gun at one person, but kills or injures another, he is "guilty or innocent exactly as the fatal act had caused the death of his adversary." State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971) ("`The malice or intent follows the bullet.'" (citation omitted)). "[U]nder the doctrine of transferred intent, it is immaterial whether the defendant intended injury to the person actually harmed; if he in fact acted with the required or elemental intent toward someone, that intent suffices as the intent element of the crime charged as a matter of substantive law." State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992).
The State presented evidence that established Defendant intended to kill Ms. Lowe: Defendant's 22 June 2009 altercation with Ms. Lowe and Defendant's threat to harm Ms. Lowe on 23 June 2009, immediately prior to the shooting, evidences his malice toward her. Defendant's use of a firearm, although it does not establish a presumption of intent to kill, is additional evidence from which reasonable jurors could infer Defendant's intent to kill Ms. Lowe. Furthermore, the intent to kill transfers from Ms. Lowe, the intended victim, to Mr. Dunn, the actual victim. Thus, we conclude there was substantial evidence that Defendant was the perpetrator of the crime charged and that he possessed the intent to kill Mr. Dunn. Defendant's argument is dismissed.
Defendant next argues that his conviction cannot be supported by the State's evidence. The bill of information charged that Defendant "unlawfully, willfully and feloniously did assault Rodney Dunn with a firearm, a deadly weapon, by shooting him in the neck inflicting serious injury. . . . with the intent to kill the victim, Rodney Dunn." (Emphasis added.) Defendant contends the State's evidence at best established that he intended to kill Ms. Lowe, not Mr. Dunn, and therefore State's evidence could not support his conviction on the charge contained in the bill of information. We disagree.
Assault with a deadly weapon with intent to kill inflicting serious injury is a statutory offense. N.C. Gen. Stat. § 14-32 (2009). As a general rule, an indictment or bill of information for a statutory offense is sufficient when it charges the offense in the language of the statute. State v. Penley, 277 N.C. 704, 707, 178 S.E.2d 490, 492 (1971). "An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense." State v. Coker, 312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984).
The defendant must show the variance between the bill of information and the evidence at trial affects "an essential element of the offense." See State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (quoting State v. Williams, 295 N.C. 655, 663, 249 S.E.2d 709, 715 (1978)). The elements of assault with a deadly weapon with intent to kill inflicting serious injury are: "(1) an assault; (2) with a deadly weapon; (3) with intent to kill; and (4) inflicting serious injury not resulting in death." State v. Washington, 142 N.C. App. 657, 661, 544 S.E.2d 249, 252 (2001); N.C. Gen. Stat. § 14-32(a) (2009). Additionally, in order to charge a defendant with assault, a victim must be named. State v. Powell, 10 N.C. App. 443, 448, 179 S.E.2d 153, 157 (1971) ("In order to properly charge an assault, there must be a victim named, since by failing to name the particular person assaulted, the defendant would not be protected from a subsequent prosecution for assault upon a named person."). All of these elements were provided in the bill of information, which stated Defendant (1) "did assault" Rodney Dunn, (2) "with a firearm, a deadly weapon"; (3) had the "intent to kill"; and (4) "inflict[ed] serious injury." Washington, 142 N.C. App. at 661, 544 S.E.2d at 252. This is sufficient identification of the incident to eliminate any risk that Defendant would face subsequent prosecution for the same offense. Thus, the bill of information properly charged Defendant with assault with a deadly weapon with intent to kill inflicting serious injury, and the State's evidence conformed to the charge pursuant to the theory of transferred intent. Therefore, we conclude no variance existed between the bill of information and the State's evidence and Defendant's argument is without merit.
Lastly, Defendant asserts that because the bill of information stated Mr. Dunn was the intended victim, the trial court committed plain error when it instructed the jury that they could find Defendant guilty if they found he intended to kill Ms. Lowe. Defendant argues this variation permitted the jury to convict him of the offense based on a theory of guilt not charged in the indictment. Defendant did not object to the jury instruction at trial, but asserts that the jury instruction's variation from the bill of indictment constitutes plain error. We disagree.
"It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment." State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). Where counsel does not object to the trial court's instruction, the standard of review is plain error. State v. Davis, 349 N.C. 1, 34, 506 S.E.2d 455, 473 (1998). "[P]lain error is that error in the instructions which is `so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" Id. (citation omitted).
There is nothing in the record to suggest the jury instruction permitted the Defendant to be tried on an "abstract theory not supported by the bill of [information]." Taylor, 301 N.C. at 170, 270 S.E.2d at 413. Defendant was tried for the assault on Rodney Dunn with a firearm, which resulted in a gunshot wound to the neck and was done with an intent to kill. These essential elements were part of the indictment and the jury instruction.
The jury was instructed that "[i]f Mr. Mebane intended to harm one person but actually harmed a different person, the legal effect would be the same as if he had harmed the intended victim." Based upon this transferred intent instruction, the trial court further instructed that "if you find . . . Mr. Mebane intentionally shot a firearm, a deadly weapon, at Ms. Lowe or Mr. Dunn, that he intended to kill Ms. Lowe and did seriously injure Mr. Dunn, it would be your duty to return a verdict of guilty of assault with a deadly weapon with intent to kill inflicting serious injury." (Emphasis added.)
It was not plain error to give an instruction that Defendant would be found guilty if he intended to kill Ms. Lowe but instead injured Mr. Dunn. These jury instructions were not a new theory of the charges, but an explanation of the law on transferred intent. "[A]n instruction on transferred intent is appropriate where an unintended victim is harmed." State v. Andrews, 154 N.C. App. 553, 558, 572 S.E.2d 798, 802 (2002).
The instruction here on transferred intent was appropriate, as an unintended victim, Mr. Dunn, was harmed. Defendant's argument is without merit.
III. Conclusion
Assuming arguendo that the trial court erred in admitting the testimony of Officer Wingfield, we conclude such error did not rise to the level of plain error in light of the other evidence of Defendant's guilt. The trial court did not err in denying Defendant's motion to dismiss as there was substantial evidence of each essential element of the crime charged and that Defendant was the perpetrator. Under the theory of transferred intent, there was no variation between the bill of indictment and the State's evidence. Finally, the trial court did not commit plain error when it instructed the jury that it could find Defendant guilty of the assault on Mr. Dunn if it concluded that he intended to kill Ms. Lowe, as it was a correct statement of the law.
No error.
Judges MCGEE and BEASLEY concur.
Report per Rule 30(e).