NO. COA02-846

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2003

    Appeal by defendant from judgment entered 21 February 2002 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 25 March 2003.

    Roy Cooper, Attorney General, by Elizabeth N. Strickland, Assistant Attorney General, for the State.

    Irving Joyner for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Melvin Christopher Parker, appeals convictions of two counts of attempted robbery with a firearm, assault with a deadly weapon with intent to kill, and assault with a deadly weapon with intent to kill inflicting serious injury. He argues four assignments of error. For the reasons discussed herein, we find no error.
    The State's evidence tended to show that on the night of 30 December 1999, four men, brothers John and Marlen Goodwin, their cousin, Dwayne Watkins, and Anthony Dula, decided to drive to getVerdie Watkins from a liquor house located at 1418 Olga Street in High Point, North Carolina. Marlen drove his truck to the liquor house. Upon arriving, the four men went into the house to try to persuade Verdie to leave. He did not. The four men exited the house and walked toward the truck. As they approached the vehicle, a black man with dreadlocks and a hooded sweatshirt came out of the bushes and approached them demanding money. Before the men could respond, the man with dreadlocks, later identified as defendant, shot Dwayne in the head at point-blank range. Defendant then turned the gun toward Marlen, but Marlen struck the barrel of the gun and the bullet fired into the truck. Marlen then ran away. Several more shots were fired as Marlen fled. John and Anthony ran from the truck after the first shots were fired.
    Emergency assistance was called and Dwayne was taken to the hospital. Marlen later identified defendant as the man who fired the gun. Marlen's brother, Nathaniel Goodwin, testified that he heard defendant say that the bullet was meant for Marlen, not Dwayne, while both defendant and Nathaniel were in the jail's holding cell.
    Defendant presented no evidence. The jury returned guilty verdicts of assault with a deadly weapon with intent to kill inflicting serious injury and attempted robbery with a firearm as to Dwayne and assault with a deadly weapon with intent to kill andattempted robbery with a firearm as to Marlen. Defendant was sentenced to 133 to 169 months for his crimes against Dwayne and received a consecutive sentence of 94 to 122 months for his crimes against Marlen. Defendant appeals.

I.

    In his first assignment of error, defendant argues the trial court erred in failing to grant his motion to dismiss the attempted robbery charges because the State failed to present sufficient evidence of an overt act. We disagree.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidence are resolved in favor of the State. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).    The elements of attempted robbery with a firearm are: (1) an intent to commit the substantive offense; and (2) an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). Defendant contends there was no overt act.
    In State v. Robinson, 355 N.C. 320, 561 S.E.2d 245 (2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 404 (2002), our Supreme Court held that where the defendant pointed a gun at the victim's face and demanded money there was sufficient evidence of an overt act. In State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996), our Supreme Court held that a defendant's “sneak” approach to the victim with his pistol drawn and the first attempt to shoot were each more than enough to constitute an overt act, not to mention two fatal shots fired thereafter. (Citing State v. Powell, 277 N.C. 672, 178 S.E.2d 417 (1971)). In State v. Applewhite, 127 N.C. App. 677, 493 S.E.2d 297 (1997), this Court held that there was sufficient evidence of an overt act to deny a motion to dismiss where the defendant pointed a gun at the victim and ordered him to get down and empty his pockets.
    In the instant case, we hold that there was sufficient evidence of an overt act by defendant's ambushing of the four men, demanding money, pointing a gun, ultimately shooting one of them, and then firing shots at another. This assignment of error has nomerit.

II.

    In his second assignment of error, defendant argues the trial court erred in failing to grant his motion to dismiss the charge of assault with a deadly weapon with intent to kill Marlen Goodwin. We disagree.
    As discussed above, a motion to dismiss for insufficient evidence should be denied if there is substantial evidence of each element of the crime. State v. Roddey, 110 N.C. App. 810, 812, 431 S.E.2d 245, 247 (1993). Substantial evidence is such relevant evidence as a reasonable mind might find sufficient to support a conclusion. Id.
    The elements of assault with a deadly weapon with intent to kill are: (1) an assault; (2) with a deadly weapon; and (3) with the intent to kill. N.C. Gen. Stat. § 14-32(c) (2001). Defendant contends no intent to kill Marlen Goodwin was shown. The evidence at trial showed that defendant shot Dwayne in the head at point- blank range and then turned the loaded gun on Marlen. Marlen swatted at the gun as defendant pulled the trigger and the bullet struck the truck instead of Marlen. As Marlen ran away, defendant fired more shots at him. In addition, defendant stated that the bullet that hit Dwayne was meant for Marlen. We hold that this evidence constitutes sufficient evidence to properly denydefendant's motion to dismiss, and this assignment of error has no merit.

III.

    By his third assignment of error, defendant argues the trial court erred in admitting evidence of defendant's prior bad acts. We disagree.
    Pursuant to Rule 403 of the North Carolina Rules of Evidence, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.”
    Here, the State presented evidence that defendant had previously tried to rob Marlen by getting into Marlen's vehicle, pulling out a gun, and searching for drugs and money. Marlen was one of the witnesses who identified defendant as the robber and shooter in this case. This evidence was admitted by the courtafter a voir dire hearing, for the purposes of identification of defendant, which is a permissible purpose under Rule 404(b).
    The State also introduced the testimony of Avery O'Mont Thompson, who testified that shortly before the shooting, defendant told him that Marlen and “Paco” had beaten him. Defendant had asked Thompson for a gun. Thompson later ran into Marlen, who told him that defendant had tried to rob him earlier and that was the reason they had beaten defendant. This evidence was admissible to show a motive for defendant to rob and shoot Marlen. The testimony concerning Marlen's statements corroborated Marlen's prior testimony that identified defendant as the perpetrator of the crimes. This assignment of error has no merit.

IV.

    In his fourth and final assignment of error, defendant argues the trial court erred in sentencing him to consecutive terms of 133 to 169 months and 94 to 122 months where defendant presented mitigation evidence and the sentence was incorrectly calculated. We disagree.
    The trial court is not required to make findings of aggravating and mitigating factors unless it departs from the presumptive range of sentences. N.C. Gen. Stat. § 15A-1340.16(c) (2001). We hold that the trial court did not abuse its discretion in sentencing defendant within the presumptive range.     Defendant was sentenced for the Class C felony of assault with a deadly weapon with intent to kill inflicting serious injury to an active sentence of a minimum of 133 months and a maximum of 169 months. Defendant argues that the statute provides “that for a Class C offense at a record level IV, the appropriate sentence is a minimum of 107 months and a maximum of 133 months.” Defendant does not understand the Felony Structured Sentencing chart set forth in N.C. Gen. Stat. § 15A-1340.17. For a Class C felony, at a prior record level IV, in the presumptive range, the sentencing judge has the discretion to impose a minimum sentence anywhere from 107 to 133 months. See N.C. Gen. Stat. § 15A-1340.17 (2001). Once the minimum sentence has been imposed under the chart set forth in subsection (c), the court must impose the corresponding maximum sentence as set forth in subsection (d) or (e). Id. Since this is a Class C felony, the corresponding maximum sentence is found in subsection (e), and is 169 months. Id. This assignment of error has no merit
    NO ERROR.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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