State v McMillian, (02-854) 05/06/2003

Appeal by defendant from judgments dated 14 February 2002 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County. Heard in the Court of Appeals 27 March 2003.

Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.

Mary March Exum for defendant-appellant.

    McGEE, Judge.

    Felipe Daniel McMillian (defendant) was indicted for attempted first degree murder, possession of a firearm by a felon, and discharging a firearm into occupied property on 10 July 2000. The evidence at trial tended to show that Ella Mae Thompson (Ms. Thompson) lived with her son in an apartment in Kannapolis, North Carolina in January 2000. Ms. Thompson testified that after she went to bed between midnight and 1:00 a.m. on 16 January 2000, she heard someone knocking at the back door of her apartment. She went to the door, turned on an outside light, opened the blinds and saw a black man with a hood over his head standing outside. Ms. Thompson said that she stood face-to-face with the man for about fifteen seconds before he smiled at her and reached toward his hip. Ms. Thompson ducked and heard a gunshot. She slid across the floor to get out of the way of the gunshots. Ms. Thompson grabbed the telephone as she slid across the floor and dialed 911. Ms. Thompson testified that she heard more than seven gunshots and she heard glass breaking while she was crawling away from the door. Ms. Thompson was not physically injured in the incident.
    Lieutenant Milton Davis (Lieutenant Davis) of the Kannapolis Police Department testified that he went to Ms. Thompson's apartment in response to a 911 call. He stated that the back door had several bullet holes and that the solid pane of glass in the door was shattered. He also found that a bullet had gone through the kitchen window just above the sink about twelve feet to the left of the back door. Lieutenant Davis recovered several bullets from inside the apartment and several spent nine millimeter shell casings outside on the patio. He testified that he traced the possible trajectories of the shots fired and located bullets in the refrigerator, on the floor behind the refrigerator, and in the living room wall. Before removing the bullets and casings as evidence, Lieutenant Davis took photographs and noted the locations where he found the bullets.
    Detective Jack Blalock (Detective Blalock) of the Kannapolis Police Department testified that he and Detective Joe Ballard (Detective Ballard) went to Ms. Thompson's apartment on 21 January 2000. They marked the trajectories of the bullets by running lengths of string from the bullet holes in the door and taping the string to the places on the floor, wall, and ceiling where thebullets had penetrated. Detective Blalock testified regarding the trajectories of the bullets and stated that Detective Ballard prepared the diagram of the trajectory paths that Detective Blalock used to illustrate his testimony. Detective Blalock stated that four shots came through the door near the door handle, two more shots went through the glass of the door, and one shot "had to be fired from a distance back from the apartment for it to come straight in through the kitchen and hit the stove." One of the shots fired through the door glass entered a trash can at a height of twelve inches above the floor.
    A jury found defendant guilty of attempted first degree murder, discharging a firearm into occupied property, and possession of a handgun by a felon. The trial court sentenced defendant to a minimum of 220 months and a maximum of 273 months in prison for attempted first degree murder, a minimum of 34 months and a maximum of 50 months in prison for discharging a firearm into occupied property, and a minimum of 16 months and a maximum of 20 months in prison for possession of a firearm by a felon. Defendant appeals.
    Defendant argues the trial court erred in denying his motion to dismiss the charge of attempted first degree murder for insufficient evidence of defendant's intent to kill Ms. Thompson.         "In ruling on a motion to dismiss, the trial court need only determine whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." Evidence is considered substantial when "a reasonable mind might accept [it] as adequate to support a conclusion." The motion to dismiss should bedenied if there is substantial evidence supporting a finding that the offense charged was committed.

State v. Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208 (2002) (citations omitted). The State is entitled to all reasonable inferences that may be drawn from the evidence. State v. Scott, 296 N.C. 519, 522, 251 S.E.2d 414, 416 (1979).
    The elements of attempted first degree murder are: "(1) a specific intent to kill another person unlawfully; (2) an overt act calculated to carry out that intent, going beyond mere preparation; (3) the existence of malice, premeditation, and deliberation accompanying the act; and (4) a failure to complete the intended killing." State v. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000). "'An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred.'" State v. Ferguson, 261 N.C. 558, 561, 135 S.E.2d 626, 628-29 (1964) (quoting State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956)). "[T]he nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances are all matters from which an intent to kill may be inferred." State v. White, 307 N.C. 42, 49, 296 S.E.2d 267, 271 (1982).
     There was sufficient evidence presented at trial to permit the jury to find that defendant possessed the specific intent to kill Ms. Thompson. Lieutenant Davis testified that he observed bullet holes and the broken glass pane in the back door of Ms.Thompson's apartment and found bullets in the kitchen and living room. He also found shell casings from a nine millimeter handgun outside the back door from where the shots were fired. Detective Blalock testified regarding the trajectories of the bullets. He used a diagram showing the paths of the bullets to illustrate his testimony to the jury. Detective Blalock testified that four shots were fired through the door near the door handle and two additional shots were fired through the pane of glass in the door.
    Ms. Thompson testified that she went to the door and opened the blinds after she heard someone knocking. She stood at the door facing defendant for about fifteen seconds before defendant reached toward his hip. The evidence shows that Ms. Thompson ducked away from the door and that defendant, using a nine millimeter handgun, fired six shots through the door into the area where Ms. Thompson had been standing.
    The jury could reasonably infer from the evidence that defendant intended to kill Ms. Thompson. Defendant smiled and gave Ms. Thompson no warning before reaching for his nine millimeter weapon and firing it six times at close range into the immediate area where Ms. Thompson was standing behind the door. The evidence supports a conclusion that Ms. Thompson would have been hit by the bullets had she not ducked to the floor.
    When viewed in the light most favorable to the State, there was sufficient evidence to permit the jury to conclude that defendant intended to kill Ms. Thompson. The trial court did not err in denying defendant's motion to dismiss the charge ofattempted first degree murder. This assignment of error is without merit.
    No error.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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