An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1472

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2003

STATE OF NORTH CAROLINA

v .                         Iredell County
                            Nos. 01 CRS 4289-90
JAMES NATHANIEL CHAMBERS                01 CRS 4292
                                01 CRS 4293    

    Appeal by defendant from judgments entered 12 June 2002 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 11 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Gwendolyn W. Burrell, for the State.

    J. Clark Fischer for defendant appellant.

    TIMMONS-GOODSON, Judge.

    James Nathaniel Chambers (“defendant”) appeals from the judgments of the trial court entered upon a jury verdict finding him guilty of injury to personal property, injury to real property, and two counts of discharging a weapon into occupied property. For the reasons stated herein, we find no error in the judgments of the trial court.
    The evidence for the State tended to show the following: On 10 November 1999 Jeffery Minor (“Jeffery”) was located on the corner of Caldwell and New Bern Avenue with defendant. According to Jeffery, he was talking with defendant when Investigator John Cranford (“Investigator Cranford”), who was working as an undercover drug officer, approached them in his vehicle. Investigator Cranford testified that defendant asked him if he wanted to purchase drugs and then instructed him to “drive to the store and park.” Jeffrey testified that after Investigator Cranford left, defendant gave him two rocks of crack cocaine, and instructed him to deliver the drugs to Investigator Cranford's parked vehicle. Thereafter, Investigator Cranford arrested Jeffery and defendant for possession with the intent to sell and deliver cocaine.
    In December 2000, the criminal case against defendant and Jeffery was in the pre-trial stages when Jeffery agreed to testify against defendant. According to Jeffery, defendant became aware that he would testify against him and this resulted in a “little argument” when they later saw each other at the Bentley Center (“the center”). While at the center, defendant called Jeffery a “snitch” and informed him that “holes were being set for [him].” Jeffery further testified that he understood defendant's comments to mean that he was “going to get shot.”
    After the above described conflict between defendant and Jeffery took place, the following events transpired: On 21 December 2000, between 10:00 p.m. and midnight, Tammi Minor (“Minor”), Jeffery's mother, was in her home when she heard “some shots, and then [a] loud noise” from the kitchen area of her residence. Minor testified that after hearing the noise, she went into the kitchen, but failed to identify the cause of the disturbance. Thereafter, Minor left the home, but later returnedand discovered a hole above a door in the kitchen. Minor immediately contacted the police.
    Officer Stanley Parker, Jr. (“Officer Parker”) with the Statesville Police Department responded to the Minor residence. According to Officer Parker, he discovered a “gunshot hole” above the “back door” of Minor's home, but failed to recover the bullet, which created the hole. Upon further investigation, Officer Parker recovered a second bullet, which he placed in a storage locker at the police department.
    During the early morning hours of 30 December 2000, Minor was again in her home when she heard “another gunshot.” According to Minor, after hearing the discharge of a firearm, a bullet penetrated through the front door of her home, hit a clock, shattered the glass on the clock, and then hit a picture on the wall. Minor testified that the shattered glass from the clock hit her daughter in the face. Minor further testified that at the time of the second shooting she was at home with Jeffery and her other children. A police investigation of the second shooting incident failed to yield any physical evidence; however, Minor immediately relocated her family.
    During the late evening hours of 31 December 2000 and the early morning hours of 1 January 2001, Minor was notified by telephone that a third shooting had occurred at her residence. Upon arriving at her home, Minor discovered police officers investigating the third shooting. Officer Chapman recovered shell casings outside of the residence. Upon entering the residence,Minor and Officer Chapman discovered several bullets, damage to a televison set and several holes in the walls throughout the house. At that time, Jeffery informed Minor and Officer Chapman of the statements made by defendant at the center prior to the three shootings. Minor confirmed that she had resided in her home for eight years prior to the three shooting incidents and that her home had never been “shot into” prior to 21 December 2000.
    Also, on 31 December 2000, Anthony Turmire (“Turmire”), an employee with a private police agency, was patrolling the Weanst apartment complex when he observed defendant and Bobby Jermell Dobbins (“Dobbins”) traveling at a slow pace through the apartment complex. Turmire further observed that loud music was coming from the vehicle. Upon hearing the music and observing the speed of the vehicle, Turmire initiated a vehicle stop. Dobbins was operating the vehicle and defendant was a passenger. According to Turmire, defendant informed him that the vehicle was rented. Turmire then contacted the automobile rental company and confirmed that the vehicle was rented under defendant's name. Thereafter, Turmire asked both men for consent to search the vehicle, which was granted. Upon searching the vehicle, Turmire recovered a revolver, a semi-automatic nine millimeter handgun, and a bullet located on the rear floorboard of the vehicle. Defendant informed Turmire that he purchased the semi-automatic nine millimeter from an individual by the name of “Little Shawn.” Turmire then conducted a computer search of the weapons and discovered that the weapons were stolen. At that time, defendant and Dobbins were arrested.    The weapons recovered from Dobbins and defendant were given to Investigator Crystal Scott (“Investigator Scott”), who was in the process of investigating the three shooting incidents at the Minor residence. Investigator Scott forwarded the weapons to the State Bureau of Investigations (“the SBI”) for forensic firearms identification testing. The SBI lab determined that the nine millimeter weapon recovered from defendant and Dobbins matched the bullets found in the Minor home. Defendant and Dobbins were subsequently indicted for injury to personal property, injury to real property, and two counts of discharging a firearm into occupied property.
    On 11 June 2002, defendant and Dobbins were tried jointly. During the second day of trial, out of the presence of the jury, Dobbins entered a plea of guilty to injury to real and personal property. Subsequently, the two counts of discharging a weapon into occupied property were dismissed against Dobbins and the trial regarding the charges against defendant continued.
    At the close of evidence, the jury found defendant guilty of injury to personal property, injury to real property and two counts of discharging a weapon into occupied property. The trial court then sentenced defendant to a minimum term of imprisonment of thirty-four months and a maximum of fifty months for one count of discharging a weapon into occupied property, injury to personal property, and injury to real property. Additionally, defendant was sentenced to a minimum term of imprisonment of thirty-four months and a maximum of fifty months for the second count of discharginga weapon into occupied property to run at the expiration of the prior sentence. From the judgments entered against him, defendant appeals.
    

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    Defendant argues that the trial court erred in (1) denying his motion to dismiss the charges against him, and (2) failing to properly instruct the jury regarding the plea entered by Dobbins. For the reasons stated herein, we conclude that the trial court committed no error.
    In his first assignment of error, defendant argues that the trial court erred by denying his motion to dismiss the charges against him. Specifically, defendant argues that the State failed to show that he discharged a firearm or that he was in the location of the shootings. We disagree.
    In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The standard of review for a “motion to dismiss based on insufficiency of the evidence is the substantial evidence test.” State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993), cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994). Substantial evidence is defined as the amount of “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Any contradictions or discrepancies in theevidence should be resolved by the jury. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    In the instant case, considering the evidence in the light most favorable to the State, we hold that the evidence presented at trial was sufficient to support the conclusion that defendant discharged a weapon into the Minor residence and damaged property. Perhaps the strongest evidence introduced against defendant was evidence tending to show that on 31 December 2000, defendant was in possession of the weapons discharged into the Minor residence on 31 December 2000. Minor testified that she was no longer living in her home and was notified by telephone between the late evening hours of 31 December 2000 and the early morning hours of 1 January 2001, that a third shooting had taken place at her home. Testimony from Turmire revealed that on 31 December 2000, he initiated a vehicle stop, that Dobbins and defendant were in the vehicle, and that he recovered stolen weapons from the vehicle. Turmire testified that defendant admitted ownership of the weapons and stated that he purchased them from an individual named “Little Shawn.” Moreover, there was testimony from Special Agent Ronald Mars (“Agent Mars”), an expert in forensic firearms identification, that he tested the weapons found in defendant's vehicle and the bullets discharged from those weapons matched the bullets discharged into the Minor residence.
    In addition to testimony from Agent Mars and Turmire, the State further provided a motive for defendant shooting into the Minor household in the form of testimony from Jeffery and hisattorney, Patricia Riddick (“Riddick”). Jeffery testified that he was scheduled to testify against defendant in a separate case and as a result of his possible testimony, he received threatening comments from defendant. The three shooting incidents at the Minor household did not occur until after the confrontation between Jeffery and defendant. Moreover, Riddick testified that prior to the three shooting incidents she informed defendant's counsel that Jeffery would testify against him. Therefore, there was relevant evidence which a reasonable mind might accept as adequate to support a conclusion that defendant committed the crimes for which he was charged. Defendant's first assignment of error is overruled.
    In his final assignment of error, defendant argues that the trial court committed plain error by instructing the jury that Dobbins, the co-defendant, entered a guilty plea during the trial. Specifically, defendant objects to the following explanation given to the jury to explain Dobbins' absence:
        The Court: All right. Ladies and Gentlemen, thank you for being patient this morning. We had a couple of matters that we needed to take care of out of your presence. One of those was the matter of . . . Dobbins who went ahead and entered a plea of guilty to some other offenses and that is why he's no longer sitting over there. Only [defendant] is being tried at this point. I don't want to tell you any more than that right now. But [defendant] is the only person who is on trial at this time for the felony charges and misdemeanor charges.
    In State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), our Supreme Court adopted the following language to explain the plain error rule:
        [T]he 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' or where it can be fairly said 'the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'

Id. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F. 2d 995, 1002, cert. denied, 459 U.S. 1018, L. Ed. 2d 513 (4th Cir. 1982)) (emphasis in original). Therefore, “'in order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (1) absent the error, the jury probably would have reached a different verdict; or (2) the error would constitute a miscarriage of justice if not corrected.'” State v. Berry, 356 N.C. 490, 523, 573 S.E.2d 132, 153 (2002) (quoting State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert. denied, 352 N.C. 679, 545 S.E.2d 721 (2000)) (alterations in original). “In deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the instructional errorhad a probable impact on the jury's finding of guilt.” Odom, 307 N.C. at 661, 300 S.E.2d at 378-79.
    In the instant case, Dobbins changed his plea to guilty on the second day of trial out of the presence of the jury. The trial judge then attempted to explain Dobbins' absence by stating that he “entered a plea of guilty on some other offenses.” The trial judge abstained from making any comments regarding the exact offenses for which Dobbins entered a plea of guilty. While we recognize that the better practice by the trial court would have been to inform the jury that they should not allow the developments in the Dobbins matter to in any way affect their deliberations and determination of the case between the State and defendant, given the facts of this case, we cannot conclude that the trial court committed prejudicial error. After reviewing the record, we conclude that defendant has not established any alleged prejudicial error on the part of the trial court that was so fundamental that the jury would have reached a different result. Accordingly, defendant's final assignment of error is overruled.
    For the reasons contained herein, we hold that the trial court did not err.
    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

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