An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-844
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Filed: 6 May 2003


v .                             Gaston County
                                No. 01 CRS 07797

    Appeal by defendant from judgment entered 8 March 2002 by Judge F. Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 16 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Susan R. Lundberg, for the State.

    Michael E. Casterline for defendant-appellant.

    MARTIN, Judge.

Defendant appeals from a judgment entered upon his conviction of assault with a deadly weapon with intent to kill inflicting serious bodily injury. Defendant was sentenced to prison for a term of not less than 93 nor more than 121 months.
The evidence at trial tended to show that defendant shot William Robert Tyson at close range with a 20-gauge shotgun. Prior to 1 April 2001, defendant lived in an apartment with his girlfriend, Ann Brackett, and Brackett's two daughters. One of Brackett's daughters, Lisa Michelle Raines, testified she was friends with Tyson, and, on several occasions, she declined to enter into a dating relationship with Tyson. There was evidence that Tyson believed that defendant was interfering with hisrelationship with Raines. Defendant's nephew, Jamey Frankowitz, testified that three or four days prior to the shooting, Tyson told him he would kill defendant if defendant interfered with Tyson and Raines again. There was also evidence that during the three and a half months defendant and Tyson were acquainted, defendant had seen Tyson carrying a pistol in the trunk of his car or in his front pocket.
The State's evidence tended to show that on the night of the shooting, Tyson was invited to a party at the home of defendant. After several hours at the party, Tyson tried to go home but was unable to start his car because his key broke off in the ignition. Defendant went outside with Tyson to assist him in starting his car, and the two men began arguing about Tyson's relationship with Raines. Defendant testified that while Tyson was working on the car with a screwdriver, he turned around and held the screwdriver up to defendant's face. Defendant testified that he threatened Tyson, and Tyson put the screwdriver away. At approximately 3:00 a.m., after failing to start the car, defendant and Tyson walked back towards the apartment together.
Defendant testified that he told Tyson not to enter the apartment, but Tyson put his foot in the door and came in with his hand in his front pocket. Defendant went into a bedroom and returned to the living room holding a shotgun where Tyson was sitting on a couch. Tyson testified that defendant said, “I got you something,” while approaching him with the gun. Tyson testified that he lifted his arm in front of his face, and the gunfired into his right arm and shoulder. Defendant testified that he aimed the gun at Tyson's shoulder intending to ask him to leave the apartment, but the gun fired when Tyson spun around and hit the gun. Tyson suffered from massive tissue loss in his arm and permanent loss of two fingers as a result of his wounds. When the police arrived and arrested defendant, they searched Tyson and found no weapons.


Defendant asserts three arguments on appeal. He argues the trial court erred in (1) denying defendant's request to instruct the jury on the doctrine of self-defense, (2) failing to find the existence of a statutory mitigating factor in sentencing, and (3) denying defendant's motion to dismiss the charge for insufficiency of evidence of intent to kill. We conclude defendant received a fair trial free from prejudicial error.
In his first argument, defendant contends that the trial court erred in failing to instruct the jury on the law of self-defense.
    The right to act in self-defense rests upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief.

State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). In determining whether to instruct the jury on the law of self- defense, the trial court must view the evidence in the light most favorable to the defendant. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973). Defendant supports his contention of self-defense by pointing to evidence that Tyson threatened him with a screwdriver earlier in the evening and that Tyson conveyed threats to kill defendant to Jamey Frankowitz several days before the shooting. Defendant also contends that he believed he was in danger after seeing an empty holster in Tyson's car and because Tyson entered the apartment with his hand in his front pocket. However, the evidence showed that Tyson did not have a gun on or near him at the time he was shot and that neither defendant nor anyone else had seen him with a weapon that night. Furthermore, Tyson was not engaged in any argument or altercation but was sitting on a couch by himself when defendant approached him with the gun and fired. Thus, even when considered in the light most favorable to defendant, there is no evidence that defendant could have reasonably believed he was in danger of death or great bodily harm. The trial court did not err in refusing to instruct the jury on self-defense.
In his second argument, defendant contends the trial court erred in failing to find the existence of a statutory factor in mitigation of punishment. He argues that the trial court should have considered his positive employment history and sentenced him in the mitigated range rather than in the presumptive range.
G.S. § 15A-1340.16(a) provides in part that, “[t]he court shall consider evidence of aggravating or mitigating factors present in the offense that makes an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court.” N.C. Gen.Stat. § 15A-1340.16(a) (2003). In this case, the trial court did not depart from the presumptive range. Defendant was sentenced for a Class C felony with a Prior Record Level III for a minimum sentence of 93 months and a maximum of 121 months. See N.C. Gen. Stat. §15A-1340.17(c), (e). Since the decision to depart from the presumptive range is within the trial court's discretion, and defendant does not argue there was an abuse of discretion, defendant's argument is without merit.
Defendant also argues that if a trial judge has discretion to decline to find the existence of mitigating factors and impose a sentence within the presumptive range, the portion of the statute allowing such discretion is unconstitutional as a violation of his due process rights. In State v. Streeter, 146 N.C. App. 594, 553 S.E.2d 240 (2001), this Court rejected the same argument, upholding the constitutionality of the Structured Sentencing Act. This argument is overruled.
Defendant contends, in his final argument, that the trial court erred in denying his motion to dismiss at the close of all the evidence and that his conviction for assault with a deadly weapon with intent to kill inflicting serious bodily injury must be vacated because there was no evidence of his intent to kill. When reviewing the sufficiency of evidence to withstand a motion to dismiss, the court must determine whether there is substantial evidence of each element of the crime charged and substantial evidence that the defendant is the perpetrator. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The trial court must view theevidence in the light most favorable to the State, giving it the benefit of every reasonable inference to be drawn therefrom. Id. A defendant's intent to kill “may be inferred from the nature of the assault, the manner in which it is made, the conduct of the parties, and other relevant circumstances.” State v. Revels, 227 N.C. 34, 36, 40 S.E.2d 474, 475 (1946).
In the present case, defendant held a loaded 20-gauge shotgun up to the victim's arm and fired. There was testimony from a police officer that the hammer must be pulled back and the trigger must be pulled in order for the gun to fire. Given the nature of the weapon used and the close range at which it was fired, the jury could reasonably infer that defendant intended to kill the victim. See, e.g., State v. Holley, 35 N.C. App. 64, 239 S.E.2d 853 (1978) (holding that the jury could reasonably infer that defendant intended to kill the victim when he fired a twelve-gauge shotgun from a few feet away). The trial court did not err in failing to dismiss the charge because of insufficient evidence of intent to kill.
No error.
Judges HUDSON and ELMORE concur.
Report per Rule 30(e).

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