An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-143


Filed: 18 November 2003


    v.                            Union County
                                Nos. 01 CRS 9983
JUSTIN TADARIAN WALKER                    01 CRS 53080-82

    Appeal by defendant from judgments entered 23 August 2002 by Judge Susan C. Taylor in Union County Superior Court. Heard in the Court of Appeals 17 November 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State.

    Reita P. Pendry for defendant-appellant.

    EAGLES, Chief Judge.

    Defendant Justin Tadarian Walker was indicted for four counts of assault with a deadly weapon with intent to kill inflicting serious injury. On appeal, defendant argues that the trial court erred by (1) denying defendant's motion to dismiss all charges and (2) allowing the admission of testimony by the victims' mothers and medical personnel. After consideration of the record and briefs, we find no error.
    The State's evidence tends to show the following. On the night of 22 July 2000, defendant was a patron at a club located on Highway 74 in Monroe, North Carolina. Sometime after twelve a.m. on 23 July 2000, defendant got into a fight with Neharold Walls,another club patron. The two men were fighting inside the club, with Walls on top of defendant. Walls was “winning the fight” before he and defendant were separated. Shortly before the club owner announced that the club was closed, defendant went outside while Walls remained in the club.
    Defendant stood next to a car in the parking lot, “fussing” about the fight. Soon thereafter, Walls and other patrons left the club. Walls stood approximately ten feet from defendant, emptied his pockets, and held up his fists.
    After getting into the car he was standing beside, defendant raced the motor, and drove toward Walls, who was standing near a crowd of people. Walls ran for safety, as did other members of the crowd. Defendant did not injure Walls, but injured four teenagers and damaged another car and a scooter. Defendant fled on foot, leaving the car behind. Defendant later turned himself in to the police after arrest warrants where issued.
    Defendant presented evidence that tended to show he was intoxicated at the time in question. He heard someone say something about getting a gun, so he attempted to leave the parking lot to avoid any further confrontation with Walls. Defendant contends that he lost control of the car while it was moving five to seven miles per hour. Defendant testified that he did not realize he had injured anyone. Defendant did not intend to kill or injure Walls when he lost control of the car. Instead, he testified that he was trying to leave the parking lot when the accident occurred.     The jury found defendant guilty as charged on all four counts. He was sentenced to 120-153 months of imprisonment for the first count, 120-153 months of imprisonment for the second count, and 120-153 months of imprisonment for the third and fourth counts which were consolidated for sentencing. The sentences were to run consecutively. Defendant appeals.
    Defendant argues that the trial court erred in denying his motion to dismiss the charges and his motion to set aside the verdict based on insufficiency of the evidence regarding the requisite intent to kill. We disagree.
    In reviewing a motion to dismiss, “the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense.” State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). When reviewing defendant's challenge regarding the sufficiency of the evidence, “the trial court must view the evidence in the light most favorable to the State, giving it the benefit of all reasonable inferences which can be drawn therefrom.” State v. Compton, 90 N.C. App. 101, 103-04, 367 S.E.2d 353, 355 (1988).
    Assault with a deadly weapon with intent to kill inflicting serious injury is a felony according to N.C.G.S. § 14-32(a) (2001). A jury is allowed to infer the requisite intent to kill “from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.” State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988); see State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964).
    The State's evidence tended to show that shortly before the assault, Walls was “winning” a fight with defendant. Defendant left the club, went to the parking lot, and started “fussing” about the fight. When Walls left the club, defendant got in his car, raced the motor, and drove towards Walls. Defendant only stopped the car after running into another car. Moreover, defendant jumped out of his car and fled on foot. This is sufficient evidence upon which the jury could infer the requisite intent to kill.
    Additionally, based upon the evidence presented, defendant has not shown the trial court abused its discretion in denying his motion to set aside the verdict. See State v. Fleming, 350 N.C. 109, 146, 512 S.E.2d 720, 745 (“The denial of a motion to set aside the verdict on the basis of insufficient evidence is within the discretion of the trial court and is reviewable on appeal under an abuse of discretion standard.”), cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). Therefore, this assignment of error is overruled.
    Defendant also argues that he was unduly prejudiced by the admission of testimony from the victims' mothers and medical personnel concerning the victims' injuries. Moreover, he arguesthat the trial court committed plain error in admitting this testimony. We disagree.    
    Plain error is an error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).        
    Here, defendant concedes in his brief that the victims' testimony concerning the extent of their injuries, hospital treatment, loss of function, and pain, were sufficient to prove the infliction of serious injury. Defendant argues, however, that admission of the additional testimony from the victims' mothers and medical personnel was unnecessary to prove the element of infliction of serious injury and only served to inflame the jury.
    The transcript reveals that the additional testimony only served to corroborate the victims' testimonies concerning the nature of their injuries. As a result, defendant failed to show a probability that the result at trial would have been different without the contested testimony. This assignment of error is also overruled.
    No error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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