An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-682

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2003

STATE OF NORTH CAROLINA

v .                         Wayne County
                            No. 01 CRS 2005
MICHAEL A. BARNES,
        Defendant.

    Appeal by defendant from judgment entered 19 March 2002 by Judge Russell J. Lanier, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 13 March 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State.

    Paul T. Cleavenger, for defendant-appellant.

    HUDSON, Judge.

    
    Defendant appeals from a judgment entered upon conviction by a jury of one count of assault with a deadly weapon with intent to kill inflicting serious injury. On appeal, defendant contends (1) that the trial court erred in failing to hold a recorded jury charge conference at the close of all evidence; (2) that the trial court erred in not instructing the jury on a lesser included offense; and (3) that defense counsel provided ineffective assistance of counsel in not requesting an instruction on the lesser included offense and by failing to offer any mitigating factors during sentencing. For the following reasons, we find no prejudicial error.

Factual Background
    The State presented evidence at trial tending to show the following: shortly after noon on 7 March 2001, defendant approached the apartment door of Danielle and Maneke Purchase. Defendant did not live in the same apartment complex as the Purchases, but frequently visited his fiancée who lived there. Mrs. Purchase answered the door and noticed that defendant was very angry and was pacing back and forth. She also noticed that defendant had a gun under his coat. Defendant told Mrs. Purchase that he was an SBI agent and that he needed to speak to her husband about scratches on his car. Mrs. Purchase described defendant's behavior as “bizarre” and “frightening” and was not making much sense. After a ten or fifteen minute conversation, defendant calmed down and left.
    Later that night, Mrs. Purchase picked her husband up from work, and on the way home told him about the conversation she had with defendant. She asked her husband to speak to defendant about the situation. When they arrived home, Mr. Purchase went to defendant's fiancée's apartment, but defendant was not there.
    Mr. Purchase then began to clean out his car in the parking lot of the apartment complex. As part of that process, he removed a .22 caliber pistol from the glove box of his car. Mr. Purchase bought the gun for his wife's protection, but she did not like having it in the house so she kept it in the glove box in the car. Mr. Purchase put the gun in his coat pocket intending to put it back in the house.
    Just as Mr. Purchase finished cleaning his car, defendantdrove into the parking lot. Mr. Purchase called to defendant and started walking toward defendant. Mr. Purchase testified that defendant spoke to him in an angry tone, called him a M----- F----- and said, “Let me tell you how it's going to be.” Defendant had his hand inside of his coat and Mr. Purchase thought defendant was going to pull out a badge. Mr. Purchase also became angry and the two exchanged heated words. When the two were approximately five feet apart, defendant withdrew a gun from his coat and shot Mr. Purchase in the hand. Defendant continued firing as Mr. Purchase retreated behind his car.
    Mr. Purchase then began to run toward his apartment. As he neared his apartment door, he pulled his gun from his pocket and turned to fire. At that time, defendant shot Mr. Purchase in the stomach. Mr. Purchase fired three rounds from his gun, attempting to scare off defendant, but defendant continued walking toward Mr. Purchase, repeating over and over, “Why don't you just die” and continued firing until he was out of bullets.
    Mr. Purchase was able to make it into his apartment. The Purchases decided to drive to the hospital rather than await an ambulance because Mr. Purchase had already lost a lot of blood. Mr. Purchase had gunshot wounds to the wrist and stomach, as a result of which he remained hospitalized for approximately ten days and was out of work for approximately three months.
    The defendant testified on his own behalf at trial. His testimony tended to show that someone at the apartment complex was vandalizing his car, and he thought that it was someone who livedtwo or three doors down from him, but not Mr. Purchase. Defendant decided to talk to Mrs. Purchase about the problem and asked her to tell the people he suspected of causing the damage to stay away from his car. Defendant denied ever telling Mrs. Purchase that he was with the SBI.
    On the evening of the shootings, defendant received a phone call from his fiancée and decided to go there to see what was happening. Prior to going to his fiancée's home, defendant drove to his residence where he called the police because he was concerned that there was going to be some type of altercation. When he arrived at the apartment complex, he noticed Mr. Purchase standing in the doorway of his apartment. Defendant testified that he saw Mr. Purchase go to his bedroom and defendant assumed that Mr. Purchase was going to get a gun.
    As defendant got out of his car, he noticed Mr. Purchase coming toward him. According to defendant, Mr. Purchase was cursing and was not making any sense. Defendant tried to calm him down, to no avail. Mr. Purchase then reached into his pocket and started to pull out a gun, but the gun got hung up on his coat. Defendant said he then took the safety off his gun and fired one shot, intending to wound, not kill, Mr. Purchase.
    Mr. Purchase fell backwards as a result of the shot, fired two shots from his gun, and then got up and staggered toward his apartment, firing four more shots as he went. Defendant did not fire any more shots because he was concerned that he might hit Mrs. Purchase and the Purchases' daughter who were standing in thedoorway of their apartment.
    Defendant obtained the gun used in the shooting from a friend specifically for use that night. Afterwards, he destroyed the gun. The police recovered bullets and a magazine but never recovered the gun.
Argument
    Defendant first argues that the trial court erred by failing to record the jury charge conference. We disagree.
    G.S. . 15A-1231(b) provides that “[b]efore the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury.” The statute further provides that the “failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure . . . materially prejudiced the case of the defendant.”
    Here, the trial court failed to hold a recorded conference as required by G.S. . 15A-1231(b). However, in an affidavit submitted as part of the record on appeal, defendant's trial counsel Charles R. Gurley acknowledged: that at the conclusion of the evidence and before arguments to the jury, a charge conference was held outside the presence of the jury; that the trial judge advised defense counsel and the district attorney of the instructions he intended to include in the charge to the jury and inquired of defense counsel whether any additional instructions were requested; that the only modification requested by defense counsel was to include in the jury charge an instruction on the “Highest Aim of Every Legal Contest,” which was allowed; and that the instructions givento the jury were the instructions requested by and agreed to by defense counsel at the charge conference. This, together with our holding above, leads us to believe that defendant cannot show material prejudice as required by the statute. Thus, this assignment of error is overruled.
    Defendant next argues as error the trial court's failure to instruct the jury on the lesser included offense of assault with a deadly weapon inflicting serious injury. We disagree.
    We initially note that
        A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.

N.C. R. App. P. 10(b)(2). Here, defense counsel at trial did not request an instruction on the lesser included offense and did not object to the trial court's failure to give such an instruction. Thus, we must review this assignment of error for “plain error.”
    Our courts have consistently held that
        the plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings orwhere 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) (internal citations and quotation marks omitted).
    However, as this Court has previously noted
        The plain error rule does not negate Rule 10(b)(2) and as is explained in Odom, rarely will an improper instruction which not objected to (or in this case not requested) justify reversal. Instead of the prejudicial error contained in N.C.G.S. § 15A-1443, we must determine whether the jury instruction was erroneous, and if so, whether it had a probable impact on the jury's verdict.

State v. Washington, 142 N.C. App. 657, 662, 544 S.E.2d 249, 252 (2001), disc. review denied, 353 N.C. 532, 550 S.E.2d 165 (2001).
    G.S. § 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. Here, defendant pointed a .40 caliber handgun at Mr. Purchase and shot him in the wrist and the stomach. A handgun is a deadly weapon per se. State v. Powell, 238 N.C. 527, 78 S.E.2d 248 (1953). Thus, there was an assault with a deadly weapon. Additionally, there is undisputed testimony that as a result of the injuries, Mr. Purchase was hospitalized for approximately ten days and was required to miss work for approximately three months. Mr. Purchase clearly suffered serious injury.
    Defendant contends, however, that there was conflicting evidence as to the intent to kill element, and that the trial courterred by not instructing the jury on the lesser included offense of assault with a deadly weapon inflicting serious injury.
    Defendant's intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties and other relevant circumstances. State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988)(citing State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972)). Here, the following evidence supports an inference of intent to kill: (1) defendant obtained the handgun used in the shooting specifically for use that night; (2) defendant shot Mr. Purchase twice at close range with a large caliber handgun with the specific intent of wounding him; and (3) defendant continued firing at Mr. Purchase until he ran out of ammunition while repeatedly saying “Why don't you just die.” This evidence shows without equivocation that defendant intended to use lethal force. There was sufficient evidence introduced at trial to support every element of the offense of assault with a deadly weapon with intent to kill inflicting serious injury. This assignment of error is overruled.
    Defendant finally argues that he was denied effective assistance of counsel in that his trial counsel failed to request an instruction on a lesser included offense and failed to offer any mitigating factors for defendant's sentencing.
    This Court has continually held that
        claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal. A motion for appropriate relief is preferable to direct appeal because in order to defend against ineffective assistance of counselallegations, the State must rely on information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor. [O]nly when all aspects of the relationship are explored can it be determined whether counsel was reasonably likely to render effective assistance. Thus, superior courts should assess the allegations in light of all the circumstances known to counsel at the time of representation.

State v. Stroud, 147 N.C. App. 549, 553-54, 557 S.E.2d 544, 547 (2001) (internal citations and quotation marks omitted), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002).
    Because we are unable to resolve upon the record before us whether defendant was denied effective assistance of counsel due to either of these alleged omissions, we overrule this assignment of error without prejudice to defendant's right to file a motion for appropriate relief in the superior court.
    No error.
    Judges MCGEE and STEELMAN concur.
    Report per Rule 30(e).

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