An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1295


Filed: 1 July 2003


         v.                        Buncombe County
                                No. 01 CRS 54189
SHAUN LEE BOWMAN                    

    Appeal by defendant from judgment entered 23 January 2002 by Judge Claude S. Sitton in Buncombe County Superior Court. Heard in the Court of Appeals 30 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Donald R. Teeter, for the State.

    Nancy R. Gaines for defendant-appellant.

    TYSON, Judge.

    Shaun Lee Bowman (“defendant”) was convicted of assault with a deadly weapon inflicting serious injury and sentenced to a term of thirty to forty-five months imprisonment. Defendant appeals.

I. Background

    On 24 March 2001, Earl Conley was with his wife at his home in Buncombe County, North Carolina. At approximately 7 p.m., a black truck backed into Conley's driveway and into the neighbor's yard and began to “spin out.” Conley grabbed his gun and confronted defendant. Defendant got out of the truck and approached Conley. Both defendant and Conley were cursing, and Conley warned defendant to leave. When defendant reached Conley, he “came around with hisright hand and struck [Conley] in the . . . eye and busted [his] ear . . . with a full bottle of beer.” Conley fired his gun twice, hitting defendant once, and defendant got in his truck and drove away.
II. Issue

    Defendant argues that the trial court erred by submitting the charge of assault with a deadly weapon inflicting serious injury to the jury because the beer bottle was not a deadly weapon.
III. Waiver

    We decline to review defendant's assignment of error. Defendant moved to dismiss the case at the close of the State's evidence. After that motion was denied, defendant presented evidence. “Appellate Rule 10(b)(3) states when defendant presents evidence at trial, he waives his right on appeal to assert the trial court's error in denying the motion to dismiss at the close of the State's evidence.” State v. Barfield, 127 N.C. App. 399, 401, 489 S.E.2d 905, 907 (1997) (citing State v. Davis, 101 N.C. App. 409, 411, 399 S.E.2d 371, 372 (1991)). Defendant also failed to renew his motion to dismiss at the close of all the evidence. “[A] defendant who fails to make a motion to dismiss at the close of all of the evidence may not attack on appeal the sufficiency of the evidence at trial.” State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988).
IV. Conclusion

    Defendant's assignment of error was waived and his appeal is dismissed.    Appeal dismissed.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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