;  

STATE OF NORTH CAROLINA

        v.                            Cumberland County
                                    Nos. 00 CRS 57440
RONALD LEE GOODMAN, III                        00 CRS 57262

    Appeal by defendant from judgment entered 22 October 2001 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 14 November 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Sylvia Thibaut for the State.

    Thomas R. Sallenger for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Ronald Lee Goodman, III was tried before a jury at the 19 October 2001 Criminal Session of Cumberland County Superior Court after being indicted for first-degree murder, robbery with a dangerous weapon, felonious larceny of a motor vehicle, and felonious larceny of a firearm. The evidence at trial showed the following: During the early morning hours of 19 April 2000, officers from the Fayetteville Police Department responded to the scene of a one-car accident along Enterprise Road in Fayetteville, North Carolina. The officers discovered a car that had veered off the road, crashed through a chain link fence, and come to rest at a forty-five degree angle in the tree line, with the passenger sideof the car in the air. Upon closer inspection, the officers found the body of Kenneth Ray Highsmith lying in the driver's seat of the car. Mr. Highsmith was dead and had six gunshot wounds in his body. The officers collected shell casings and other evidence at the scene and transported the wrecked car to the Department's forensic garage. The decedent's family was notified of his death and came to the accident scene.
    The Highsmith family told the law enforcement officers that defendant was a good friend of the decedent and might know what happened. The same morning, defendant's parents contacted the police and reported that someone had used Mrs. Goodman's truck without permission and that Mr. Goodman's .9mm handgun was missing. Officer Ralph Clinkscales of the Fayetteville Police Department went to the Goodman house around 10:00 a.m. on 19 April and spoke to Mrs. Goodman, who stated that defendant called her around 4:00 a.m. that morning and told her someone shot at him. At defendant's request, Mrs. Goodman picked him up and brought him home. She returned to bed; when she awoke a few hours later, defendant was gone.
    Sometime later that morning, Mr. Goodman successfully contacted defendant, who said he had taken his mother's truck and was at his grandmother's home in Ohio. Mr. Goodman notified Officer Clinkscales and Officer Donald McLamb of his contact with defendant and gave them the telephone number where defendant could be reached. Thereafter, Officer McLamb called defendant and took his statement of the events that took place on 19 April. OfficerMcLamb made arrangements for defendant to turn himself in and set a time for a taped conversation to take place.
    The taped conversation between Officer McLamb and defendant took place on the telephone on 21 April 2000, with defendant's full knowledge and acquiescence. It differed only slightly from the information defendant gave Officer McLamb during their first conversation. During the taped conversation, defendant told Officer McLamb that on the night of 18 April, he and Highsmith went to a young girl's house to sell cocaine. After the sale, defendant and Highsmith went to Hardee's for some food. While Highsmith was driving, the two men got into an argument about money defendant owed to Highsmith. Defendant stated that Highsmith pulled out a .25 caliber pistol and fired. The bullet went through defendant's jacket, but did not make contact with his body. Defendant then drew his .9mm handgun and shot Highsmith. The gun jammed, and he and Highsmith fought for control of Highsmith's .25 caliber handgun. Defendant stated he took Highsmith's gun and shot him a number of times. The car veered off the road, hit a chain link fence, went into the tree line, and came to rest with the passenger side of the car in the air. Defendant climbed out of the car, taking the two guns and Highsmith's cell phone with him. He threw the guns into the woods near some railroad tracks and began to run. Sometime later, he called his mother, who picked him up and took him home. After Mrs. Goodman returned to bed, defendant took her truck and fled to Ohio.     With the permission of law enforcement officers, Mr. and Mrs. Goodman were permitted to drive to Ohio, pick up defendant, and bring him back to Fayetteville. Upon his return, defendant was arrested and indicted.
    The State presented a number of witnesses at trial. Mr. Gary Briggs, a forensic technician at the Fayetteville Police Department, testified regarding the evidence he collected at the crime scene. He stated the decedent's hands were bagged to preserve evidence for gunshot residue analysis. Four fired .25 caliber bullet casings and one fired .9mm bullet casing were found and collected at the crime scene. Two other members of the Fayetteville Police Department, Mr. Rusty Russell and Ms. Kathleen Farrell, testified that fingerprints were taken from the wrecked car; the only identifiable prints belonged to defendant. Agent Tim Luper of the State Bureau of Investigation (SBI) testified as an expert in the field of gunshot residue and trace evidence analysis. He stated the gun residue on the decedent's hands was not consistent with the decedent having fired a gun.
    Dr. Robert Thompson, a forensic pathologist, testified that he performed the autopsy on Kenneth Highsmith. Dr. Thompson testified the decedent received six gunshot wounds, three in the head and three in his upper body. One shot went into Mr. Highsmith's chest and was immediately fatal.
    SBI Special Agent Ronald Marrs was tendered, without objection, to the trial court as an expert in firearms and tool mark identification. He examined the bullet hole in defendant'sjacket and gave his opinion that the hole was more consistent with a .9mm bullet rather than a .25 caliber bullet.
    Defendant's parents testified about their contact with defendant on 19 April and the conversations they had with him over the telephone in the days following the crimes. Kenneth Highsmith's mother and brother testified about the decedent's relationship with defendant. The decedent's mother also testified that she saw her son the night before his death, and he was wearing his gold chain and had a large sum of money in his wallet. She stated that she saw neither the gold chain nor the money at the accident scene.
    At the close of the State's evidence, defendant moved to dismiss all the charges based on insufficient evidence. The trial court denied all the motions. After defendant indicated he would not present evidence, the trial court conducted a charge conference with the parties. The trial court informed the parties that it would instruct the jury on general matters, as well as self- defense, first-degree murder, second-degree murder, voluntary manslaughter, felonious larceny of a firearm and confessions and denied defendant's request for an instruction on admissions. After deliberating, the jury found defendant guilty of larceny of a .9mm firearm, first-degree murder, and larceny of a .25 caliber firearm. The jury found defendant not guilty of larceny of the cell phone. The trial court consolidated the cases for judgment and sentenced him to life imprisonment without parole. Defendant gave notice of appeal in open court.     On appeal, defendant argues the trial court committed reversible error by (I) denying his motion to dismiss the charge of first-degree murder and all lesser offenses because the evidence was insufficient to support conviction; (II) denying his motion to dismiss the charge of larceny of a firearm because the evidence was insufficient to support conviction; (III) allowing Ronald Marrs to testify about the bullet hole in defendant's jacket; (IV) instructing the jury over his objection that there was evidence that defendant confessed to the crimes charged; and (V) failing to grant his request for an instruction on admissions. We will address each argument in order.

     First-Degree Murder

    By his first assignment of error, defendant contends there was insufficient evidence to convict him of first-degree murder and all lesser-included offenses. Defendant argues that the evidence shows his intent to kill Kenneth Highsmith was formed when Highsmith provoked him, argued with him, and drew his weapon. Defendant therefore maintains he did not engage in premeditation and deliberation. We do not agree.
    The jury faced possible verdicts of guilty of first-degree murder, second-degree murder, or voluntary manslaughter, or not guilty. Defendant was ultimately convicted of first-degree murder on the basis of premeditation and deliberation. When a defendant argues there is insufficient evidence to support a conviction,
        “the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonableinference to be drawn from it . . . . If 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. Roddey, 110 N.C. App. 810, 813, 431 S.E.2d 245, 247 (1993) (quoting State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415-16 (1991)). In other words, the State can withstand a defendant's motion to dismiss if it presents substantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator of the offense. See State v. McAvoy, 331 N.C. 583, 589, 417 S.E.2d 489, 493 (1992). “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).
    Defendant was charged with first-degree murder, which is “the unlawful killing of a human being with malice and with premeditation and deliberation.” McAvoy, 331 N.C. at 589, 417 S.E.2d at 494; see also N.C. Gen. Stat. § 14-17 (2001). “'Premeditation is defined as thought beforehand for some length of time; deliberation means an intention to kill, executed by defendant in a “cool state of blood” in furtherance of a fixed design or to accomplish some unlawful purpose.'” State v. Bell, 338 N.C. 363, 388, 450 S.E.2d 710, 724 (1994) (quoting State v. Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 838 (1981), cert. denied, 515 U.S. 1163, 132 L. Ed. 2d 861 (1995)). Premeditation can be “for some length of time, however short; but no particular amountof time is necessary for the mental process[.]” State v. Harden, 344 N.C. 542, 554, 476 S.E.2d 658, 664 (1996), cert. denied, 520 U.S. 1147, 137 L. Ed. 2d 483 (1997). Premeditation and deliberation need not be proven with direct evidence; “'[i]nstead, they usually must be proved by circumstantial evidence.'” Bell, 338 N.C. 388, 450 S.E.2d at 724 (quoting State v. Brown, 315 N.C. 40, 59, 337 S.E.2d 808, 823 (1985), cert. denied 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), rev'd on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)). “A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation. Proof of premeditation and deliberation is proof of that intent.” State v. Young, 324 N.C. 489, 493, 380 S.E.2d 94, 96 (1989) (citations omitted).
    In the present case, defendant admitted that he repeatedly shot Kenneth Highsmith. Thus, the only question was whether the killing was premeditated and deliberate. Defendant maintains he did not premeditate or deliberate the killing because he did not form the intent to kill in a cool state of blood before his argument and scuffle with the victim. Defendant argues the evidence indicates that he shot the victim in self-defense after Highsmith pulled out his .25 caliber gun and shot at him. Because there were no witnesses to the scuffle and the events that followed, defendant contends that one can only speculate as to who the aggressor was. In his statement to the police, defendant stated that Highsmith pulled out his gun and fired first.    Defendant also contends that Highsmith became angry and started the altercation, thereby directly provoking defendant and causing the chain of events that ultimately led to his death. Defendant argues that, while he did have a .9mm gun with him, the presence of the gun did not support the inference that he anticipated a possible confrontation with the victim. Instead, defendant argues he had the gun with him because he and Highsmith were involved in illegal drug transactions. Finally, defendant contends his conduct after the killing did not support premeditation and deliberation. Defendant was frightened and called his mother for help shortly after the car wrecked. He specifically told her someone had shot at him. While defendant acknowledges his flight to Ohio, he also points out that he made two voluntary statements to law enforcement officers, voluntarily returned to North Carolina with his parents, and fully cooperated with the ensuing investigation. Thus, defendant believes the State's evidence was insufficient to support the charge of first- degree murder based upon premeditation and deliberation.
    The State correctly points out that “[d]eliberation may occur during a scuffle or a quarrel between the defendant and the victim if the emotions produced by the scuffle or quarrel have not overcome the defendant's faculties and reason.” Harden, 344 N.C. at 555, 476 S.E.2d at 664. There is no evidence, other than defendant's statement, that he was provoked by Highsmith prior to shooting him. Defendant stated he and Highsmith got into an argument over money that Highsmith believed defendant owed him; asthe argument progressed, Highsmith allegedly pulled out his gun and shot at defendant. The bullet went through defendant's jacket, but did not make contact with his body. Defendant stated he then pulled out his own handgun and shot Highsmith. When defendant's gun jammed, he and Highsmith struggled for control of Highsmith's .25 caliber handgun. Defendant ultimately won the struggle and shot Highsmith several times with Highsmith's own gun.
    The State presented evidence from several witnesses that refuted the factual recitation given by defendant. Agent Tim Luper testified that the trace evidence analysis performed on Highsmith's hands was not consistent with his having fired a gun. Agent Luper stated:
        In order to be consistent with an individual having fired a weapon, what we look for are elevated concentrations on the backs of the hands. When an individual fires a weapon the backs of the hands are exposed more so than the palms and we look for higher concentrations on the backs of the hands as opposed to the palms of the hands. And in this case it was not consistent with an individual having fired a weapon.

SBI Agent Ronald Marrs refuted defendant's statement that a bullet from Highsmith's .25 caliber handgun hit his coat and tore a hole in it. Agent Marrs testified the hole in defendant's jacket was “more consistent with that made by a larger caliber bullet, such as a nine millimeter than the 25 caliber.” Agent Marrs further testified that the hole in the jacket
        is more consistent with a larger caliber cartridge having a -- the extensive gas pressure to make that large of a tear and a hole in both the front and through threelayers of cloth and leave -- and a large tear in the back in the lining of the cloth. Twenty-fives have much less power and produce much smaller -- They do produce a stellate shaped hole, but it's a much smaller and not as large and extensive hole as this, as a nine millimeter.

Agent Marrs noted that the shirt defendant wore under the jacket had “no bullet holes or gunshot residue present[,]” and the bullet did not come into contact with defendant's body.
    The State maintains that the foregoing testimony, as well as defendant's behavior before and after the shooting, supports the charge of first-degree murder. “[A] defendant's conduct before and after the killing supports an inference of premeditation and deliberation.” State v. Miller, 339 N.C. 663, 682, 455 S.E.2d 137, 147, reh'g denied, 340 N.C. 118, 458 S.E.2d 183, cert. denied, 516 U.S. 893, 133 L. Ed. 2d 169 (1995). The State points to the fact that defendant possessed the .9mm gun prior to the altercation and contends that its presence supports an inference that “he had anticipated a possible confrontation and given some forethought to how he would deal with a confrontation.” State v. Ginyard, 334 N.C. 155, 159, 431 S.E.2d 11, 13 (1993). Here, the victim sustained six gunshots to his head, neck, and chest at close range while he was driving a car. The State maintains the evidence (other than defendant's statement) indicates a lack of provocation. These facts, taken together, indicate premeditation and deliberation on defendant's part. See State v. Wilson, 340 N.C. 720, 732, 459 S.E.2d 192, 199 (1995).     The State argues defendant's behavior after the shooting is also evidence of premeditation and deliberation. The evidence indicated that Highsmith had a large sum of money and a gold chain with him the night before his death; however, neither the money nor the gold chain were found at the crime scene. Defendant himself stated he took the .25 caliber and .9mm guns and Highsmith's cell phone when he left the scene and later threw all three items into the woods. Defendant contacted his mother, went home, then fled to Ohio. Evidence of flight “may be considered with other facts and circumstances in determining whether all the circumstances amount to an admission of guilt or reflect a consciousness of guilt.” State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 698 (1973). Furthermore, Officer McLamb testified that defendant was “calm” when he spoke to him on the telephone, thereby indicating the deliberate nature of the killing.
    “[T]he premise of the 'felled victim' theory of premeditation and deliberation . . . when numerous wounds are inflicted, the defendant has the opportunity to premeditate and deliberate from one shot to the next.” State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653, cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987). See also State v. Watson, 338 N.C. 168, 179, 449 S.E.2d 694, 701 (1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569, overruled in part on other grounds by State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995). In the present case, the victim was shot six times. Based upon the reasoning in Austin, we conclude defendant had an opportunity to premeditate and deliberate. Accordingly, the State presented sufficient evidence of premeditation and deliberation, and the trial court properly denied defendant's motion to dismiss that charge. Defendant's first assignment of error is overruled.

     Larceny of a Firearm

    By his second assignment of error, defendant contends the trial court erred in denying his motion to dismiss the charge of felonious larceny of a firearm -- the .9mm handgun -- because the evidence was insufficient to convince the jury that defendant was guilty of that crime beyond a reasonable doubt. We agree.
    To successfully convict a defendant for felonious larceny of a firearm, the State must prove the defendant: (1) took (2) and carried away a firearm (3) without the consent of the owner (4) with knowledge that he was not entitled to take it and (5) intended to permanently deprive the owner of the firearm. See N.C. Gen. Stat. § 14-72(b)(4) (2001); and N.C.P.I., Crim. 216.11A. The standard for a motion to dismiss is the same as that mentioned previously in the body of this opinion. See Roddey, 110 N.C. App. at 813, 431 S.E.2d at 247 (quoting Small, 328 N.C. at 180, 400 S.E.2d at 415-16).
    Defendant told Officer McLamb he obtained his father's .9mm handgun from his parents' house and admitted that his father did not know he had it and that he took the gun without his father's permission. Defendant's father testified about the .9mm handgun as follows:            Q.    What did you discover was missing, sir?

            A.    My pistol.

            Q.    And can you describe for the jury what type of pistol that was?

            A.    Smith and Wesson, nickel plate, nine millimeter.

            Q.    At that time, sir, did you know what had happened to your pistol?

            A.    No.

            Q.    Prior to that occasion had you allowed your son, Ronald, to take the pistol out of the house whenever he wanted to?

            A.    That's a yes and no answer.

            Q.    All right. If you would like to answer it and then explain it too, feel free to do that.

            A.    I've taken the pistol out target practice with him and the whole family.

            Q.    Did he have the same --

            A.    The --

            Q.    I'm sorry. Go ahead.

            A.    The weapon was purchased for protection.    

            Q.    Did he --

            A.    If he needed the weapon for protection, he had my permission.    

            Q.    All right. So it was your weapon that was kept at the house for protection?

            A.    Yes, sir.

            Q.    And if he needed it, he had your permission to take it for protection[?]
            A.     Yes, sir.

            Q.    He didn't have to ask you if he wanted to take it?

            A.    If he needed it, no, sir.

Based on the evidence, it is apparent that the .9mm handgun belonged to defendant's father, who testified that his son could use the gun anytime for protection without first asking his permission. When asked why he reported the gun stolen, Mr. Goodman stated he did so “because I did not fully understand everything that was going on.”
    Felonious intent as applied to the crime of larceny is the intent which exists where a person knowingly takes and carries away the personal property of another without any claim or pretense of right with the intent wholly and permanently to deprive the owner of his property and to convert it to the use of the taker or to some person other than the owner. Furthermore, to constitute larceny, the taker must have had the intent to steal at the time he unlawfully took the property from the owner's possession by an act of trespass. State v. Bowers, 273 N.C. 652, 655, 161 S.E.2d 11, 14 (1968).
    In the present case, the State's evidence did not show a felonious intent by defendant to “wholly and permanently deprive” his father of the handgun. See State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983) (evidence insufficient to prove intent to permanently deprive the owner of his property). Thus, we agree with defendant that his motion to dismiss the charge of feloniouslarceny of a firearm should have been allowed. Our conclusion is bolstered by the fact that the trial court dismissed the charge of larceny of a motor vehicle earlier in the proceedings and defendant had similar rights to his mother's truck as he had to his father's handgun. Accordingly, defendant's conviction for felonious larceny of a firearm is reversed.

     Agent Marrs' Testimony

    By his third assignment of error, defendant contends the trial court erred by allowing Agent Marrs to testify regarding the source of the bullet hole in his jacket because the testimony violated his state and federal constitutional rights. We do not agree.
    N.C. Gen. Stat. § 8C-1, Rule 702(a) (2001) provides:
            If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.

“The trial court is given great latitude in determining the admissibility of expert testimony.” State v. Gainey, 355 N.C. 73, 88, 558 S.E.2d 463, 474, cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (2002). Expert testimony is properly admissible when such testimony can assist the jury in determining a fact in issue because the expert is better qualified by knowledge, skill, experience, training or schooling. See State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987).
    The State tendered Agent Marrs as an expert in firearms and tool mark examinations and requested that “he be allowed to expressan opinion consistent to that expertise.” Agent Marrs testified that he examined defendant's jacket and formed an opinion that the bullet hole was more consistent with a bullet from a larger caliber gun, such as a .9mm handgun, than a .25 caliber handgun. The State offered Agent Marrs' testimony to refute defendant's statement that he shot the victim in self-defense after the victim initiated the scuffle and shot at him with his .25 caliber handgun.
    Defendant contends Agent Marrs' testimony was misleading and deceptive because any handling of the jacket after the scuffle could have compromised the integrity of the evidence and impacted his ultimate conclusion about the size of the bullet that made the original hole. Defendant further believes Agent Marrs' opinion testimony was outside the scope of his expertise and knowledge, and was comprised of speculation and conjecture which did not assist the trier of fact and violated N.C. Gen. Stat. § 8C-1, Rule 702. See State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).
    The State, on the other hand, points out that defendant did not object to Agent Marrs' recognition as an expert in firearms and tool mark examinations. We recognize that defendant's failure to object resulted in a failure to properly preserve this issue for appellate review. This assignment of error is overruled both because of defendant's failure to object and on the merits. Contrary to defendant's assertions, Agent Marrs testified that the hole the bullet made in defendant's jacket was preserved. Thus, even if the jacket was handled after the crime, Agent Marrs had an opportunity to thoroughly examine the jacket and form an opinion onwhat type of object created the hole. The trial court properly allowed Agent Marrs to testify and left it to the jury to weigh Agent Marrs' testimony against defendant's. This assignment of error is overruled.

     Jury Instructions

    By his fourth and fifth assignments of error, defendant argues the trial court committed prejudicial error by instructing the jury on confessions and denying his request for an instruction on admissions. Upon review, we believe the jury instructions were proper.
    The trial court instructed the jury on confessions pursuant to N.C.P.I., Crim. 104.70, which states:
            There is evidence which tends to show that the defendant confessed that he committed the crime charged in this case. If you find that the defendant made that confession, then you should consider all of the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it.

During the charge conference, defendant objected to the instruction on confessions and instead requested the instruction on admissions in N.C.P.I., Crim. 104.60, which states:
            There is evidence which tends to show that the defendant has admitted a fact relating to the crime charged in this case. If you find that the defendant made that admission, then you should consider all of the circumstances under which it was made in determining whether it was a truthful admission and the weight you will give to it.

    Defendant requested the admissions instruction because he believed that it, along with his statement to Officer McLamb,bolstered his claim that he killed Kenneth Highsmith in self- defense. The trial court considered defendant's contention that his statement was an exculpatory explanation of the events which could support self-defense; subsequently, the trial court gave an instruction on self-defense.
    Defendant argues his statement only admitted facts relating to the crimes charged and did not acknowledge his guilt of those crimes. He maintains he did not confess to any illegal or criminal activity. Defendant points out that his case was hotly contested and he had a great deal at stake, thus warranting an instruction on admission rather than confession. He believes the trial court's failure to instruct on admissions was prejudicial error because it directly affected the outcome of the case and a different result would likely have occurred had the trial court complied with his request.
    “[T]he trial court is not required to give a requested instruction in the exact language of the request. However, when the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance.” State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976). We note that
            [t]he pattern jury instruction concerning confessions . . . should be used with great caution. The instruction should not be given in cases in which the defendant has made a statement which is only of a generally inculpatory nature. When evidence is introduced which would support a finding that the defendant in fact has made a statement admitting his guilt of the crime charged, however, the instruction is properly given.
Young, 324 N.C. at 498, 380 S.E.2d at 99.
    In this case, the trial court never instructed the jury that defendant confessed to the crimes; rather, the trial court stated “[t]here's evidence which tends to show that the defendant confessed that he committed the crimes charged in this case.” The trial court's instruction acknowledged that there was evidence tending to show that defendant had confessed, but left it for the jury to determine whether the evidence showed that defendant had in fact confessed to the crimes charged. See id. Moreover, defendant's two statements to law enforcement officers and the evidence at trial were sufficient for the jury to conclude defendant confessed to the crimes. Defendant stated he repeatedly shot the victim and threw the guns into the woods. Defendant's statements regarding the brutal killing constituted evidence of malice, which in turn supports first-degree murder. Defendant's actions after the killing also support the inference of guilt, as well as premeditation and deliberation. See Miller, 339 N.C. at 682, 455 S.E.2d at 147. Thus, we conclude that defendant's two statements supported the inference that he confessed to the first- degree murder of Kenneth Highsmith.
    We also agree with the State that the trial court's decision to instruct on confessions was not prejudicial error. The trial court never told the jury that defendant's statement was a confession. Rather, the jury was instructed to first determine whether they believed defendant's statement was a confession, and then to determine whether the statement was a justification forself-defense. The trial court also instructed the jury on self- defense and thereby gave the jury the option of believing defendant's self-defense claim. Defendant has failed to show that he would not have been convicted of first-degree murder had the confessions instruction not been given. Examined in their totality, the instructions were proper and allowed the jury to consider the evidence, then decide for itself whether defendant confessed to the crimes or acted in self-defense. In light of defendant's failure to show prejudice, his final two assignments of error are overruled. See N.C. Gen. Stat. § 15A-1443(a) (2001).
    After careful consideration of the proceedings below as well as the arguments of the parties, we conclude defendant's conviction for felonious larceny of a firearm (the .9mm handgun) should be vacated because the State did not prove all the elements of that crime. The remainder of defendant's convictions contain no error.
    No error in part; vacated in part.
    Judge TYSON concurs.
    Judge WALKER concurred in this opinion prior to 31 December 2002.
    Report per Rule 30(e).

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