STATE OF NORTH CAROLINA
v. Gaston County
No. 98 CRS 26491
WILLIAM DERIS BELL
Attorney General Roy Cooper, by Assistant Attorney General
Leonard G. Green, for the State.
Sharon Dunigan Jumper for defendant-appellant.
MARTIN, Judge.
Defendant appeals from a judgment sentencing him to
imprisonment for a minimum term of 108 months and a maximum term of
139 months following his conviction by a jury of assault with a
deadly weapon with intent to kill inflicting serious injury.
The State presented evidence tending to show that the victim
and Chad Burgess (Burgess) had been feuding with each other. On 28
August 1998 the victim ran out of his house to confront Burgess and
two other men, defendant and Gary Butler (Butler), who had been
riding by the victim's house in Burgess' pickup truck. As the
victim ran toward the truck, defendant stood up in the bed of the
truck and fired a .380 caliber pistol at the victim. A bullet
entered the victim's right arm, severed a nerve, exited the arm,and lodged in the rib cage. As the victim turned to run away from
the truck, Burgess fired a shot that struck the victim in the upper
part of his right leg, shattering the leg. The victim fell down an
embankment. As the victim lay in the embankment, Burgess backed
up the truck toward the victim. Defendant continued to fire shots
at the victim from the bed of the truck. Defendant stopped
shooting when the victim's brother came out of the house and fired
a shotgun into the air. Burgess and his passengers sped away.
Defendant gave a statement to Detective Jim Anderson of the
Gastonia Police Department in which he stated he fired three shots
after he saw a “flash of gunfire” from a tree. As the truck
proceeded down the road, defendant “saw someone shoot and [he] shot
back two more times.”
Butler testified for defendant that the victim, armed with a
gun, came running at the truck and fired the gun into the back of
the truck. Defendant stood up, “drawed a bead upon [the victim]
and started commencing firing.”
Defendant contends that the court committed plain error by
failing to submit the lesser offense of assault with a deadly
weapon inflicting serious injury because the evidence of the
element of intent to kill is entirely circumstantial. He also
contends that he was denied effective assistance of counsel because
of counsel's failure to request the instruction.
Plain error may be found only in the rare and exceptional case
in which “it can be said the claimed error is a 'fundamental error,
something so basic, so prejudicial, so lacking in its elements thatjustice cannot have been done' . . . or it can be fairly said 'the
instructional mistake had a probable impact on the jury's finding
that the defendant was guilty.'” State v. Odom, 307 N.C. 655, 660,
300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676
F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L.
Ed. 2d 513 (1982)). Similarly, ineffective assistance of counsel
may be found only where there is a reasonable probability that but
for counsel's error, the result of the proceeding would have been
different. State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).
The intent to kill necessary for a conviction of assault with
a deadly weapon with intent to kill inflicting serious injury is
inferred from the nature of the assault, the manner of the assault,
the nature of the weapon employed and the surrounding
circumstances. State v. White, 307 N.C. 42, 296 S.E.2d 267 (1982).
An assailant is “held to intend the normal and natural results of
his deliberate act.” State v. Jones, 18 N.C. App. 531, 534, 197
S.E.2d 268, 270, cert. denied, 283 N.C. 756, 198 S.E.2d 726 (1973).
The evidence is uncontradicted that defendant fired multiple shots
at the victim with a .380 semiautomatic pistol. Defendant admitted
in his statement that he fired multiple shots. Butler testified
for defendant that defendant “drawed a bead” at the victim as he
fired the gun. There is no positive evidence that defendant did
not intend to kill the victim. Under these circumstances, it is
not probable a different result would have occurred had the
instruction been submitted.
We hold the trial court did not commit plain error in failingto submit the instruction and that defendant did not receive
ineffective assistance of counsel because of counsel's failure to
request the instruction in a timely manner.
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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