State v Hood, (02-1751) 11/18/2003

Appeal by defendant from judgment entered 30 January 2002 by Judge James L. Baker, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 10 November 2003.

Attorney General Roy Cooper, by Assistant Attorney General Kevin L. Anderson, for the State.

Gilda C. Rodriguez for defendant appellant.

LEVINSON, Judge.

    Defendant appeals his conviction and sentence for assault with a deadly weapon inflicting serious injury, a Class E felony. See N.C.G.S. § 14-32(b) (2001). We find no error and affirm the judgment of the trial court.
    The State's evidence tended to show that defendant shot Stephen Waters in the knee with a handgun during an altercation in the parking lot of the Cool World nightclub in Asheville, North Carolina in the early morning hours of 14 January 2001. Waters testified that he went to Cool World with Chris Johnson on the night of the shooting. As they were leaving the club, Johnson began arguing and “screaming at” Traverse Crump, who was standingnext to a blue car in the parking lot. Waters walked over to Johnson and said, “Chris, let's go.” Defendant then came around the car and pointed a .38-caliber handgun at Waters' chest. After exchanging words with defendant, Waters “was shot in the leg.” Defendant drove away, leaving Waters with a bullet wound to the knee. Several months after the shooting, Waters saw defendant at a gas station on Sweeten Creek Road. Defendant “apologized to [Waters] for what he did” and told Waters “to tell [his] family that he was sorry.”
    Joseph Wendell Byrd, III testified that defendant and Waters “faced off at each other” in the parking lot and exchanged “a few words.” When it appeared the parties were “backing off from the situation[,]” Byrd started to leave the parking lot. Upon hearing a gunshot, Byrd turned around and saw Waters fall to the ground. Most of the crowd left after the shooting. Byrd called 911 and stayed with Waters until help arrived.
    Gary Sanford, Jr. testified that a crowd formed in the parking lot, at which point an argument arose. Sanford saw two “bigger guys, like running up on [] a guy at his car. . . .” He then heard a voice coming from defendant's direction say, “Back up off my boy, I might buck you.” Sanford described the subsequent shooting as follows:
        When [defendant] shot the ground, he hit [Waters]. And he looked like he didn't. I mean, he looked like he was surprised, and he jumped in his car. After he jumped in his car, he left. And [Waters] sat down on the ground, and I helped him up and got the ambulance out there.
Sanford identified defendant in court as the person who shot Waters.
    In his first of two arguments on appeal, defendant claims the trial court erred in denying his motion to dismiss, absent sufficient evidence to prove he intended to shoot or injure Waters. We reject the premise of defendant's argument, however, inasmuch as “assault with a deadly weapon inflicting serious injury . . . is not a specific intent crime.” State v. Woods, 126 N.C. App. 581, 587, 486 S.E.2d 255, 258 (1997) (citing State v. Curie, 19 N.C. App. 17, 20, 198 S.E.2d 28, 30 (1973); N.C.G.S. § 14-32(b)). The essential elements of assault with a deadly weapon inflicting serious injury under N.C.G.S. § 14-32(b) are “(1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death." State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990). Our Supreme Court has defined “assault” as follows:
        “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.”

State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967) (quoting 1 Strong's N.C. Index, Assault and Battery, § 4, p. 182). The general intent required for this offense “may be implied from culpable or criminal negligence, if the injury or apprehension thereof is the direct result of intentional acts done under circumstances showing a reckless disregard for the safety of othersand a willingness to inflict injury. State v. Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979) (citing State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955)).
    We find the State's evidence that defendant pointed a gun at Waters and discharged it more than sufficient to establish the intent element of criminal assault. See State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, cert. denied, 289 N.C. 728, 224 S.E.2d 675 (1976); State v. Currie, 7 N.C. App. 439, 173 S.E.2d 49 (1970); cf. N.C.G.S. § 14-34 (2001) (defining the offense of assault by pointing a gun). “[N]o special evidence was required beyond the intent to commit the unlawful act, and this will be inferred or presumed from the act itself.” State v. Matthews, 231 N.C. 617, 627, 58 S.E.2d 625, 631, cert. denied, 340 U.S. 838, 95 L. Ed. 615 (1950) (citation omitted).
    Defendant also asserts the trial court exceeded its jurisdiction by correcting the judgment subsequent to his entry of notice of appeal in open court on 30 January 2002. At sentencing, the court assigned defendant a Prior Record Level II, explicitly made no findings in aggravation or mitigation, and imposed a presumptive sentence of twenty-nine to thirty-five months imprisonment. The court recorded this sentence in a judgment entered 30 January 2002. Following defendant's entry of notice of appeal but before the filing of the record on appeal in this Court on 31 December 2002, the trial judge on 22 August 2002 amended the judgment to comply with the Structured Sentencing grid. See N.C.G.S. § 15A-1340.17(c), (e) (2001). Specifically, the correctedjudgment now reflects a sentence of twenty-nine to forty-four months' imprisonment, a term within the applicable presumptive range for a Class E felony and Prior Record Level II.
    Citing N.C.G.S. § 15A-1448(a)(3) (2001), defendant insists that his act of giving notice of appeal on 30 January 2002 divested the court of jurisdiction to “resentence” him by correcting the judgment on 22 August 2002. We have held, however, that the trial court retains jurisdiction to correct errors in the judgment until the filing of the record on appeal in this Court:
        No lapse of time will divest the trial court of the power to make its record speak the truth, and it may amend its record for this purpose either in or out of term. When a court amends its records to accurately reflect the proceedings, the amended record “stands as if it had never been defective, or as if the entry had been made at the proper time.” In other words the amended order is a nunc pro tunc entry.

        However, . . . after the record on appeal has been filed with the appellate court, the trial court may only amend or correct the record upon a directive from the appellate court[.]

State v. Dixon, 139 N.C. App. 332, 338, 533 S.E.2d 297, 302 (2000) (quoting State v. Warren, 95 N.C. 674, 676 (1886)) (citations omitted); see also N.C.R. App. P. 9(b)(5) (allowing motions to be filed in the trial court to correct errors in a portion of the record “[p]rior to the filing of the record on appeal in the appellate court”). Here, the judgment initially filed on 30 January 2002 contained a sentence not authorized for a Class E felony under any set of circumstances. See N.C.G.S. § 15A- 1340.17(e). The trial court retained jurisdiction to correct itsjudgment on 22 August 2002, prior to defendant's filing of the record on appeal on 31 December 2002. The corrected judgment stands as entered nunc pro tunc 30 January 2002.
    The record on appeal contains additional assignments of error not addressed by defendant in his appellant's brief. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Chief Judge EAGLES and Judge Bryant concur.
    Report per Rule 30(e).

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