NO. COA01-1025
Appeal by defendant from judgment dated 7 February 2001 by
Judge Stafford G. Bullock in Durham County Superior Court. Heard
in the Court of Appeals 26 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General E.
Burke Haywood, for the State.
Miles and Montgomery, by Lisa Miles, for defendant-appellant.
GREENE, Judge.
Rueben A. Mason (Defendant) appeals a judgment dated 7
February 2001 entered consistent with a jury verdict finding him
guilty of assault with a deadly weapon inflicting serious injury.
At trial, the State's evidence tended to show that on or about
4 March 2000, Defendant and two other men approached Norfolk Lee
Mitchell (Mitchell) and attempted to rob Mitchell of his coat at
gunpoint as he walked to his girlfriend's house. As the assailants
were grabbing at his coat, Mitchell pushed them and walked away.
Thereafter, Mitchell heard gun shots and subsequently collapsed but
was able to crawl to a nearby apartment for assistance. Mitchell
was taken by ambulance to Duke University Medical Center, where itwas determined he had been shot in the lower back. Because the
bullet was lodged between two vertebrae and removal of the bullet
posed a risk of paralysis, doctors left the bullet in Mitchell's
back. Mitchell subsequently identified Defendant as one of the
persons who attempted to rob him on 4 March 2000. In a statement
made to law enforcement, Mitchell indicated Defendant was one of
the assailants who brandished a gun and demanded his coat during
the robbery attempt. During his testimony, Mitchell gave varying
accounts of the degree to which he knew Defendant and of the number
of shots fired. Mitchell was unable to state the time the shots
were fired or how long after he had walked away from the three men
the shots were fired.
On cross-examination, Mitchell testified the gun Defendant
pointed at him was a silver handgun. Although Mitchell did not see
the individual(s) who shot him, he testified there was no one,
other than Defendant and the two men, in the parking lot after he
walked away from Defendant.
Detective Craig Monroney (Detective Monroney) of the Durham
Police Department testified that he spoke with Mitchell during his
investigation of the 4 March 2000 shooting, at which time Mitchell
gave him the name of a possible suspect. Detective Monroney then
compiled a photographic lineup from which Mitchell identified
Defendant as one of the men who approached him with a drawn gun on
4 March 2000. At that time, Detective Monroney also obtained a
statement from Mitchell in which he stated he was approached by
three black males, “one being [Defendant]”; that Defendant“pull[ed] out a silver automatic handgun [and] said 'Give it up,
your jacket, empty your pockets[]'”; that when he resisted,
Defendant grabbed the jacket, but Mitchell pushed him and turned to
walk away; Mitchell then heard five shots, at which time he
collapsed but later crawled to a nearby apartment for help.
At the close of the State's evidence, Defendant moved to
dismiss the charge against him. The trial court denied Defendant's
motion. Defendant did not present any evidence. Over Defendant's
objection, the trial court instructed the jury it could convict
Defendant if he, either acting alone or with others, intentionally
shot the victim with a handgun and intended to kill the victim and
did seriously injure him. The jury subsequently found defendant
guilty of assault with a deadly weapon inflicting serious injury.
__________________________
The dispositive issue is whether the State presented
substantial evidence Defendant, either acting alone or in concert
with others, assaulted Mitchell with a deadly weapon inflicting
serious injury.
Defendant argues the trial court erred in denying his motion
to dismiss based upon the insufficiency of the evidence. We
disagree.
A motion to dismiss is properly denied if “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. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814
(1990). “Substantial evidence is such relevant evidence as areasonable mind might accept as adequate to support a conclusion.”
State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
When ruling on a motion to dismiss, the trial court must consider
the evidence in the light most favorable to the State, giving the
State the benefit of every favorable inference to be drawn
therefrom.
State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138,
141 (1998). “The test for sufficiency of the evidence is the same
regardless of whether the evidence is circumstantial or direct.”
State v. Harding, 110 N.C. App. 155, 162, 429 S.E.2d 416, 421
(1993) (citations omitted). “Contradictions and discrepancies [in
the evidence] are for the jury to resolve and do not warrant
[dismissal].”
State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d
578, 581 (1975).
In this case, Defendant was charged with assault with a deadly
weapon with intent to kill inflicting serious injury but was found
guilty of the lesser-included offense of assault with a deadly
weapon inflicting serious injury. To obtain a conviction for
assault with a deadly weapon inflicting serious injury, the State
must prove: (1) the defendant committed an assault on another, (2)
with a deadly weapon, and (3) inflicted serious injury. N.C.G.S.
§ 14-32(b) (1999);
State v. Woods, 126 N.C. App. 581, 592, 486
S.E.2d 255, 261 (1997). This Court has held that where there is no
evidence a defendant personally committed all the elements of a
crime, he can be convicted of a crime “under the theory that he
acted in concert with another 'if [he] is present at the scene of
the crime and . . . [he acts] together with another who does theacts necessary to constitute the crime pursuant to a common plan or
purpose to commit the crime.'”
State v. Ridgeway, 137 N.C. App.
144, 149, 526 S.E.2d 682, 686 (2000) (quoting
State v. Hart, 105
N.C. App. 542, 547, 414 S.E.2d 364, 367,
appeal dismissed and disc.
review denied, 332 N.C. 348, 421 S.E.2d 157 (1992)). All that is
necessary is that the “two persons join in a purpose to commit a
crime” and that each of them is either “actually or constructively
present” when the crime is committed.
State v. Westbrook, 279 N.C.
18, 41-42, 181 S.E.2d 572, 586 (1971),
sentence vacated, 408 U.S.
939, 33 L. Ed. 2d 761 (1972). If a defendant acts in concert with
another, he is guilty of the planned crime and “also guilty of any
other crime committed by the other in pursuance of the common
purpose . . . or as a natural or probable consequence thereof.”
Id.
In this case, viewing the evidence in the light most favorable
to the State, Mitchell testified Defendant and two other men
approached him and attempted to rob him, with at least two of the
men brandishing firearms. After Mitchell walked away from
Defendant and the two men, he heard the gun shots and later felt a
wound to his lower back. Although the victim was unable to
identify the shooter, there is no evidence that anyone other than
Defendant and the two men were in the immediate vicinity at the
time the shots were fired. This evidence is substantial evidence
from which it can be inferred and a reasonable mind could conclude
Defendant, either acting alone or while “acting in concert” with
others, fired the shots. Accordingly, the trial court did not errin denying Defendant's motion to dismiss.
(See footnote 1)
No error.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1