An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1716

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

STATE OF NORTH CAROLINA,

v .                         Cumberland County
                            No. 01 CRS 54561

WAYNE CHARLES JOHN FEENEY,

        Defendant.

    Appeal by defendant from judgment entered 03 September 2002 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 14 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery for the State.

    Beaver, Holt, Sternlight, Glazier, Carlin, Britton & Courie, P.A., by Richard B. Glazier and H. Gerald Beaver for the defendant-appellant.

    ELMORE, Judge.

    Wayne Charles John Feeney (defendant) appeals from his second degree murder conviction. Defendant and victim fought in a car outside a Fayetteville bar. Both were shot and wounded in the struggle. At the scene, an officer testified that defendant was in pain and extremely intoxicated. Doctor's notes showed that the defendant had a blood-alcohol level at the hospital of .16, and a toxicology report the victim had a blood-alcohol level of .33 and had ingested cocaine. Victim later died, and defendant was convicted of second-degree murder.     As an initial matter, we note that defendant only brings one assignment of error in his brief on appeal. Thus, the remaining seven assignments of error in the record on appeal are deemed abandoned pursuant to our Rule of Appellate Procedure 28 (b)(5). N.C.R. App. P. 28(b) (2004).
    Defendant's remaining assignment of error on appeal is whether “the trial court committed reversible error [by] denying defendant's motion to dismiss the charge against him, made at the close of the State's evidence and at the close of trial, where the evidence was insufficient to convince a trier of fact of the defendant's guilt of the charge [against him] beyond a reasonable doubt in violation of the sixth and fourteenth amendments and Article I, §§ 19, 23 and 27 of the North Carolina Constitution.” Defendant failed to develop this argument in his brief and cited no authority in support thereof. Defendant's subsequent argument in his brief on appeal makes no reference to the Constitution, and does not cite to the Constitution. The brief contains a sole argument that the defendant offered evidence of perfect self-defense and cites some authority in support. However, defendant has not made a corresponding assignment of error. This is inappropriate under the Rules of Appellate Procedure. N.C.R. App. P. 28(a), (b)(6) (2004). However, we will suspend the Appellate Rules pursuant to Rule 2 in order to prevent manifest injustice. N.C.R. App. P. 2 (2004). We will consider defendant's argument that the trial court erred in denying his motion todismiss citing evidence of self-defense, without regard to the constitutional issues not addressed.
    Our Supreme Court has held:
        In determining the sufficiency of the evidence to withstand a motion to dismiss and to be submitted to the jury, the trial court must determine “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” Substantial evidence is such relevant evidence as is necessary to persuade a rational juror to accept a conclusion. The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.

State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (2004) (citations omitted).
    Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Gainey, 355 N.C. 73, 91, 558 S.E.2d 463, 475-76, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
    We hold that the State brought sufficient evidence that the defendant intentionally assaulted the victim with a pistol, that the victim received four gunshot wounds, and that he died as a result. The jury was also allowed to hear any evidence brought by the defendant of a struggle over the gun, and any evidence tending to suggest self-defense. The trial court charged the jury concerning the definitions of first-degree murder, second-degree murder, voluntary manslaughter, and self-defense. The trial courtalso instructed the jury that “the defendant would not be guilty of any murder or manslaughter if he acted in self-defense, as I have just defined it to be, and if he is not the aggressor in bringing on the fight and did not use excessive force under the circumstances.” The jury was therefore able to consider the evidence and the law regarding self-defense, and found that the defendant committed second-degree murder. Viewing the evidence in a light most favorable to the State, there is substantial evidence to support every essential element of the charge of second degree murder.
    For the reasons explained above, we hold that the trial court did not err. Because there was no error in denying the motion to dismiss, we do not reach the constitutional issues.
    No error.
    Judge TIMMONS-GOODSON concurs.
    Judge WYNN concurs by separate opinion.
    Report per Rule 30(e).

NO. COA02-1716

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

STATE OF NORTH CAROLINA

v .                         Cumberland County
                            No. 01 CRS 54561
WAYNE CHARLES JOHN FEENEY,
    Defendant.

    WYNN, Judge concurring.
    Defendant appeals contending the charge of second degree murder should have been dismissed for want of sufficient evidence. Indeed, the facts of this case support a plausible theory of self- defense; however, the facts, viewed in the light most favorable to the State, also tend to indicate Defendant committed second degree murder. I write separately to highlight additional facts.
    As indicated by the majority:
        In determining the sufficiency of the evidence to withstand a motion to dismiss and to be submitted to the jury, the trial court must determine "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." Substantial evidence is such relevant evidence as is necessary to persuade a rational juror to accept a conclusion. The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.

State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003). “Contradictions and discrepancies [in the evidence] are for thejury to resolve and do not warrant [dismissal].” State v. Pallas, 144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
    “Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.” State v. Gainey, 355 N.C. 73, 91, 558 S.E.2d 463, 475-76 (2002). Intent to kill is not an element of second degree murder; however, there must be an intentional act sufficient to show malice. State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 305 (2000).
    Viewing the evidence in the light most favorable to the State, the evidence tends to indicate Defendant and the victim were both intoxicated on the night in question. Although Defendant did not know the victim, he agreed to take him home. After they left the Pyrates club, the two men shortly returned to Pyrates and eventually visited the Drifters club, located approximately two miles from Pyrates. Employees at the two clubs visited by Defendant and the victim testified they could sense tension between them and indicated it seemed to be a “weird conflict.” Witnesses testified they were calling each other names and indicated they were calling each other “faggots.” Defendant admitted he asked the victim to get out of his car and further testified that instead of getting out, the victim began to attack him and a struggle began when the victim attempted to get Defendant's gun. During the struggle, both the victim and Defendant were shot. Defendant's statements to police tend to indicate he was upset over the homosexual name calling and he asked the victim to get out of hiscar. Crime scene photos indicate Defendant's gun holster was located in between the driver's seat and the driver's side door jamb, which was a location in which the victim would have a difficult time getting the gun. Even though there was blood throughout the car, no blood was found on the gun holster. Also, notwithstanding Defendant's testimony that the victim attacked him, no visible injuries, marks or bruises were seen on Defendant's face and no one saw the victim with a weapon.
    Defendant presented evidence from police officers indicating the victim had a reputation for violence and from several witnesses who observed the victim experience several severe mood swings, from a state of rage to calm, that evening. Furthermore, the evidence tends to corroborate several aspects of Defendant's testimony_i.e., the victim asked Defendant for a ride; Defendant asked the bouncer if the victim was “okay;” Defendant attempted to “get rid” of the victim by going to a different nightclub, hoping to leave the victim there, after the victim began to act weird in his car; and witness testimony was consistent with Defendant's version of how the victim left the second nightclub with him. However, no one witnessed the events that took place in Defendant's car.
    At best, the evidence supports the theories presented by the prosecution and the defense. “If there is substantial evidence, either direct or circumstantial, that the defendant committed the offense charged, then a motion to dismiss is properly denied.” Gainey, 355 N.C. at 89, 558 S.E.2d at 474. Furthermore, as indicated, “contradictions and discrepancies [in the evidence] arefor the jury to resolve and do not warrant [dismissal].” Pallas, 144 N.C. App. at 286, 548 S.E.2d at 780. Accordingly, I agree with the majority's conclusion that “there is substantial evidence to support every essential element of the charge of second degree murder.”

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