NO. COA02-421
Appeal by defendant from judgment entered 9 February 2001 by
Judge David Q. LaBarre in Wake County Superior Court. Heard in the
Court of Appeals 23 December 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gayl M. Manthei, for the State.
John T. Hall for defendant appellant.
McCULLOUGH, Judge.
Defendant Terry S. Harris was tried before a jury at the 5
February 2001 Criminal and Civil Session of Wake County Superior
Court after being charged with attempted first-degree murder and
assault with a deadly weapon with intent to kill inflicting serious
injury. The State's evidence showed that on the evening of 14
March 2000, defendant was driving his car on Dogwood Street in
Fuquay-Varina, North Carolina, when William Thomas, who was
standing along the roadway, shouted out to him. In response,
defendant stopped the car and rolled down his window. Thomas
approached the car and slapped defendant in the face, whereupon
defendant shot Thomas. Defendant and Thomas had been engaged in an
ongoing disagreement since February 2000. On one occasion,defendant had drawn his gun and fired into the air after quarreling
with Thomas at a MiniMart. On another occasion, defendant hit
Thomas in the face with a handgun after an argument. Just two days
prior to the 14 March 2000 shooting, defendant made statements to
a friend that he had had enough of Thomas and was going to take
care of him. Defendant's girlfriend testified that defendant
admitted to her that he shot Thomas, but stated he had not intended
to hurt him.
After being shot by defendant, Thomas was transported by
ambulance to Wake Medical Center, where he was examined and treated
for a gunshot wound to the left side of his head. The bullet was
lodged in Thomas' head, and caused loss of speech and paralysis on
the right side of his body. The trauma surgeon, who treated
Thomas, described him as severely impaired “inasmuch as he lost
virtually complete motor control, muscle control of the right side
of his body, plus the ability to speak.” Thomas' injuries required
multiple surgeries, which were followed by rehabilitation.
At trial, defendant testified in his own defense. He admitted
to having previous altercations with Thomas. Defendant stated he
heard that Thomas was “looking” for him on the day of the shooting;
in response, he drove to Thomas' neighborhood. While defendant
admitted to shooting Thomas, he claimed he was merely trying to
shoot in the air from inside the car and the bullet “caught”
Thomas' head. Defendant testified he was just trying to scare
Thomas because defendant was afraid and did not know what Thomas
was going to do to him. After deliberating, the jury found defendant guilty of the
offense of assault with a deadly weapon inflicting serious injury
and not guilty of the attempted first-degree murder charge. After
finding two aggravating and four mitigating factors and determining
that the factors in aggravation outweighed the factors in
mitigation, the trial court sentenced defendant to an aggravated
term of 42-60 months' imprisonment. Defendant appealed.
On appeal, defendant argues the trial court committed
prejudicial error by (I) denying his motion to dismiss the charge
of assault with a deadly weapon, inflicting serious injury; and
(II) failing to properly instruct the jury on the defense of
“accident.” For the reasons stated herein, we disagree with
defendant's arguments and conclude he received a trial free from
error.
I.
By his first assignment of error, defendant argues that the
trial court erred in denying his motion to dismiss based upon
insufficient evidence. We disagree.
In ruling upon a motion to dismiss, the trial court must
determine “whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.”
State v. Crawford, 344 N.C. 65, 73,
472 S.E.2d 920, 925 (1996)
. Our Supreme Court recently stated,
“Evidence is substantial if it is relevant and adequate to convince
a reasonable mind to accept a conclusion.”
State v. Parker, 354
N.C. 268, 278, 553 S.E.2d 885, 894 (2001),
cert. denied, ___ U.S.___, 153 L. Ed. 2d 162 (2002). When considering a motion to
dismiss, the trial court should consider the evidence in the light
most favorable to the State, giving the State all the reasonable
inferences to be drawn therefrom.
State v. Davis, 130 N.C. App.
675, 679, 505 S.E.2d 138, 141 (1998).
To obtain a conviction for assault with a deadly weapon
inflicting serious injury, the State must show the following
elements: “'(1) an assault (2) with a deadly weapon (3) inflicting
serious injury (4) not resulting in death.'”
State v. Woods, 126
N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997) (quoting
State v.
Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990)). A pistol
or gun is a deadly weapon.
State v. Pettiford, 60 N.C. App. 92, 98,
298 S.E.2d 389, 392 (1982). While cautious in defining “serious
injury,”
State v. Hannah, 149 N.C. App. 713, 716, 563 S.E.2d 1, 4,
disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002),
the
Supreme Court explained that “'[t]he injury must be serious but it
must fall short of causing death' and . . . '[f]urther definition
seems neither wise nor desirable.'”
State v. Ramseur, 338 N.C.
502, 507, 450 S.E.2d 467, 471 (1994) (quoting
State v. Jones, 258
N.C. 89, 91, 128 S.E.2d 1, 3 (1962)). As this offense is not a
specific intent crime, the State need not show that defendant
intended to harm his victim.
See Woods, 126 N.C. App. at 587, 486
S.E.2d at 258.
Taken in the light most favorable to the State, the evidence
here tends to show that, after having an ongoing disagreement with
William Thomas, defendant shot Thomas on the evening of 14 March2000. As a direct result of the shooting, the victim sustained
life-threatening injuries requiring hospitalization, surgery and
rehabilitation. Though defendant contends he simply intended to
fire his gun into the air and did not intend to shoot the victim,
specific intent is not an element of the offense charged here. To
the extent that intent was at issue, the evidence of the prior
violent confrontations between defendant and the victim and
defendant's own statements that he was going to take care of the
victim constituted sufficient evidence to support an inference that
defendant did indeed intend to shoot the victim. Contrary to
defendant's argument, the evidence need not exclude “every
reasonable hypothesis of innocence” before defendant's motion to
dismiss is denied.
State v. Barfield, 127 N.C. App. 399, 401, 489
S.E.2d 905, 907 (1997). As there was sufficient evidence for the
jury to find that defendant committed the subject offense, the
trial court did not err in denying his motion to dismiss.
Accordingly, defendant's first assignment of error is overruled.
II.
By his second assignment of error, defendant argues the trial
court committed plain error by failing to instruct the jury on the
defense of “accident.” Again, we disagree.
In the instant case, defendant has never denied purposefully
firing the weapon. In fact, defendant testified at trial that he
only intended to scare Thomas and that he did not intend to hurt
the victim. This Court previously addressed the same issue in
State v. Efird, 37 N.C. App. 66, 67, 245 S.E.2d 226, 226-27 (1978),
cert. denied, 301 N.C. 98 (1980). The defendant in
Efird, like
defendant here, did not deny that he fired the gun and did not
contend that the gun discharged accidentally. The Court held that
the defendant was not entitled to an instruction on the defense of
accident where he contended (1) that he did not intend to shoot his
stepson, but only intended to scare the young man; and (2) that at
the time he fired the gun, his wife was struggling with him and
holding his arm.
Id. The
Efird Court explained:
In our opinion, based upon the evidence
as noted, defendant was not entitled to an
instruction on shooting by accident or
misadventure. All of the cases which have
come to our attention holding that such an
instruction was required have involved
evidence tending to show that the
discharge of
the firearm was accidental; that it discharged
during a struggle or when grabbed or struck by
the victim while in the defendant's hands.
Where, as in the instant case, all of the
evidence indicates that defendant intended to
fire and did fire the shot or shots which
resulted in injury to the victim, defendant is
not entitled to an instruction on shooting by
accident or misadventure.
Id. at 67-68, 245 S.E.2d at 227 (citations omitted);
see also State
v. Riddick, 340 N.C. 338, 457 S.E.2d 728 (1995) (rejecting the
defendant's argument that he was entitled to an instruction on the
defense of accident, although a corroborating witness testified
that defendant accidentally shot the victim, where the evidence
established the defendant acted unlawfully with wrongful purpose in
going to the victim's residence with a loaded gun, confronting the
victim, pulling out the gun, threatening to kill him, assaulting
the victim, then firing the gun twice).
Efird and
Riddick are controlling here. Defendant admitted to
going in search of the victim on the evening of 14 March 2000,
despite having previous violent altercations with him. Defendant
also admitted firing the gun and intending to fire the gun -- even
if only for the purpose of scaring the victim. Accordingly, we
conclude that the trial court did not commit error -- plain or
otherwise -- in failing to instruct on the defense of accident.
This assignment of error is also overruled.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
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