STATE OF NORTH CAROLINA
v. Rowan County
No. 00CRS052112
SCOTT HARRISON McCLAIN
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Michael C. Warren, for the State.
Nancy R. Gaines for defendant-appellant.
HUNTER, Judge.
Scott Harrison McClain (“defendant”) was charged with the
attempted first degree murder of Deputy Steve K. Fortune with the
Rowan County Sheriff's Department. The State's evidence tended to
show that prior to 2 June 2000, defendant called the home of Thomas
Gregory Hinson and spoke to his babysitter, Mae Selvey. Defendant
told Selvey that “somebody was going to get hurt” and that he
“[w]as going to whip Greg's ass.” On 2 June 2000, defendant went
to Hinson's home to collect money that defendant believed he was
owed for work he had done during the construction of a house. The
Hinson home was occupied by defendant's wife, Selvey, and Hinson's
two children. Defendant loaded his double-barreled shotgun, walkedto the back of the house, hid in the shrubbery and threatened to
kill someone. He then climbed into a pine tree with his shotgun.
Officer David Allen, who was, at that time, the Chief of the
Cleveland Police Department, parked his patrol vehicle in the
Hinson front yard, exited the vehicle and stood at the front left
corner of the house. Defendant yelled to Officer Allen, “you
better get you[r] ass back in that car, and back out of here or
I'll shoot.” Officer Allen heard defendant state that Hinson owed
him $850.00, and that if Hinson would give the money to defendant's
wife, who was at the Hinson house, then defendant would leave and
no one would be hurt. Defendant then yelled: “Call your backup[,]
I've got plenty of ammunition, Tommy owes me money.”
A neighbor, Richard Current, witnessed the events unfold from
his own property. Deputy Fortune parked his vehicle at the end of
Current's driveway and exited his vehicle. Current saw Deputy
Fortune proceed down the right side of the Hinson house and situate
himself at the rear of the house. Deputy Fortune located defendant
in a pine tree and heard defendant yell something at Officer Allen,
and shortly thereafter defendant fired two shots in the direction
of Deputy Fortune. The second shot struck Deputy Fortune in the
face, resulting in serious and permanent injuries. Pellets from
defendant's shotgun fell on Current's patio. Despite having been
shot in the face, Deputy Fortune returned fire, struck defendant,
and dislodged him from the tree.
Defendant presented evidence that he had a history of
substance abuse and was able to read and write at only the third orfourth grade level. Before the incident, defendant used valium,
marijuana, and cocaine. Defendant's drug screen performed at the
hospital on the day in question showed a positive reading for
cocaine and opiates. Dr. Jerry Noble, a psychologist, testified
that defendant had an I.Q. of seventy-two, had a poly-substance
dependancy, and had a personality disorder. He further testified
that on the day of the incident, defendant “was much impaired in
terms of his ability to plan a course of action and follow through
with it.” Dr. Noble also testified that, in his opinion, defendant
went to the Hinson home to obtain money, not intending to harm
anyone.
Defendant was charged with (1) attempted first degree murder,
(2) assault with a deadly weapon with intent to kill inflicting
serious bodily injury, and (3) assault with a firearm on an
officer. A jury found defendant guilty as charged, and the trial
court arrested judgment on the second and third charges. The trial
court further found the aggravating factor that defendant
“knowingly created a great risk of death to more than one person by
means of a weapon or device which would normally be hazardous to
the lives of more than one person.” The trial court found two
mitigating factors: that defendant “was suffering from a[] mental
condition that was insufficient to constitute a defense but
significantly reduced the defendant's culpability for the offense,”
and that defendant “has a support system in the community.” After
determining that the aggravating factor outweighed the mitigating
factors, the trial court sentenced defendant to 237 to 294 months'imprisonment for attempted first degree murder. Defendant appeals.
We find no error.
Defendant first contends the trial court erred by denying his
motion to dismiss the charges against him because the State failed
to present sufficient evidence of intent to support the charges of
attempted first degree murder and assault with a deadly weapon with
intent to kill inflicting serious bodily injury. Specifically,
defendant argues that he suffered from significant mental
impairment that diminished his capacity to form the specific intent
element for these charges. We disagree.
The standard for ruling on a motion to dismiss “is whether
there is substantial evidence (1) of each essential element of the
offense charged and (2) that 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 that relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
Id. In ruling on a motion to dismiss, the trial court must
consider all of the evidence in the light most favorable to the
State, and the State is entitled to all reasonable inferences which
may be drawn from the evidence. Id. at 215-16, 393 S.E.2d at 814.
Any contradictions or discrepancies arising from the evidence are
properly left for the jury to resolve and do not warrant dismissal.
Id. at 216, 393 S.E.2d at 814.
We now apply the foregoing principles to the convictions for
attempted first degree murder and assault with a deadly weapon with
intent to kill inflicting serious bodily injury. To prevail on thecharge of attempted first degree murder, the State must present
substantial evidence that defendant: (1) specifically intended to
kill another person unlawfully; (2) committed an overt act
calculated to carry out that intent, going beyond mere preparation;
(3) acted with malice, premeditation, and deliberation; and (4)
fell short of committing the murder. State v. Cozart, 131 N.C.
App. 199, 202-03, 505 S.E.2d 906, 909 (1998), disc. review denied,
350 N.C. 311, 534 S.E.2d 600 (1999). N.C. Gen. Stat. § 14-32(a)
lists the elements of assault with a deadly weapon with intent to
kill inflicting serious injury as: (1) an assault; (2) with a
deadly weapon; (3) with intent to kill; and (4) inflicting serious
injury not resulting in death. N.C. Gen. Stat. § 14-32(a) (1999).
Intent to kill is a mental attitude which must normally be proven
by circumstantial evidence. State v. Cauley, 244 N.C. 701, 708, 94
S.E.2d 915, 921 (1956).
Here, defendant called the Hinson home indicating his intent
to harm Mr. Hinson and others. A couple of days later, defendant
arrived at Hinson's home with a shotgun, made verbal threats to law
enforcement officials, stated that Hinson owed him money, and then
situated himself high in a tree with his shotgun. This evidence
shows that defendant planned to retrieve money from Hinson with
force and that defendant followed through with the plan, resulting
in the shooting of Deputy Fortune. Although defendant presented
evidence demonstrating his history of substance abuse and his
intoxication at the time of the incident, we conclude that the
witnesses' testimony, and the nature of the assault itself, whenconsidered in the light most favorable to the State, constitute
sufficient evidence to adequately support the conclusion that
defendant had the requisite intent to kill. Accordingly, the trial
court properly denied defendant's motion to dismiss.
Defendant also contends the trial court erred in sentencing
him within the aggravated range when the mitigating factors
outweighed the aggravating factor. Defendant argues there were
insufficient facts to support the aggravating factor that defendant
“knowingly created a great risk of death to more than one person by
means of a weapon or device which would normally be hazardous to
the lives of more than one person.” Specifically, defendant
asserts that he did not knowingly create a great risk of death to
more than one person by shooting twice towards Deputy Fortune and
the house next door from his vantage point in the tree.
Our Supreme Court has stated that this statutory aggravating
factor “addresses essentially two considerations: a great risk of
death knowingly created and the weapon by which it is created.”
State v. Moose, 310 N.C. 482, 497, 313 S.E.2d 507, 517 (1984).
“[A] shotgun falls within the category of weapon envisioned [by the
statute].” Id. at 498, 313 S.E.2d at 518. The “risk element”
requires that the defendant “knowingly created a great risk of
death to more than one person” in using the weapon. Id. at 496,
313 S.E.2d at 517. In Moose, the Court found there was a great
risk of death knowingly created where the shotgun was fired into a
vehicle occupied by two persons. Id. at 497, 313 S.E.2d at 517. Here, defendant sat high in a tree approximately 100 feet from
Deputy Fortune. Deputy Fortune was at the right rear corner of the
Hinson house. Defendant pointed a double-barrel shotgun in the
direction of Deputy Fortune and fired twice. Hinson's neighbor,
Current, watched the events unfold from his backyard, and testified
that the corner of the Hinson house where Deputy Fortune was shot
is located “right directly in front of [his] backyard,” and that
the tree in which defendant was situated is so close to his
property that pellets from defendant's shotgun landed on Current's
backyard patio. This evidence is sufficient to show that defendant
“knowingly created a great risk of death to more than one person”
with the shotgun, and, therefore, we hold that the trial court did
not abuse its discretion in finding this aggravating factor.
No error.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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