An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-421

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2003

STATE OF NORTH CAROLINA

         v.                                 Wake County
                                         No. 00CRS18045
TERRY S. HARRIS

    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).

*** Converted from WordPerfect ***