STATE OF NORTH CAROLINA
v
.
Johnston County
No. 01 CRS 52565
No. 02 CRS 6538
JEFFREY ALLEN JACOBS,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Bruce T. Cunningham, Jr., for the defendant-appellant.
WYNN, Judge.
By this appeal, Defendant Jeffrey Allen Jacobs presents the
following issue: Did the trial court erroneously fail to dismiss
the charge of first-degree murder because the State presented
multiple inconsistent theories of how the shooting occurred? We
answer, no; accordingly, we uphold Defendant's conviction.
On 10 April 2001, Defendant and Antwian Atkinson stopped their
automobile at a convenience store in Selma, North Carolina. Later,
Defendant's brother, Jason Jacobs, and Antwian Atkinson's older
brother, Cedric Atkinson, arrived at the store on a motorcycle.
Shortly thereafter, the four men saw Timothy Johnson drive by the
convenience store with three passengers in his car, Andreous Scott,Anthony Lyons, and Antonio Lyons.
Minutes later, the four men drove their respective vehicles in
the same direction as Mr. Johnson's car. Thereafter, when Mr.
Johnson stopped his vehicle for a red light at an intersection with
all of his windows rolled down, Defendant drove to the right side
of Mr. Johnson's car, rolled down his window, pointed a Tech 9
handgun towards Mr. Johnson's car and said, “Y'all [expletive]
ready now? All y'all goin die.” Upon seeing Defendant's gun, Mr.
Johnson put his car in reverse and quickly backed up his vehicle.
However, in the meantime, Jason Jacob's motorcycle approached, Mr.
Johnson's car from the rear. Jason Jacob veered to the left and,
testimony at trial indicated that several gun shots were fired into
Mr. Johnson's car.
Later that day, Mr. Johnson died from gun shot wounds. As all
of the bullets passed through Mr. Johnson, Detectives were unable
to determine which of several guns was the murder weapon and the
medical examiner was unable to testify as to the positioning of the
victim's body when he was shot. However, the lethal gunshot wound
entrance was on Mr. Johnson's right side below his ear and exited
on the left side of his face.
Defendant was convicted of first-degree murder based upon
premeditation and deliberation and the felony murder rule, based on
the underlying felony of discharging a weapon into occupied
property. From this conviction and resulting sentence of life in
prison without parole, Defendant appealed.
________________________________________________________ On appeal, Defendant contends the trial court erroneously
denied his motion to dismiss because the State presented multiple
inconsistent theories of how the shooting occurred. Specifically,
he contends the State prosecuted the case under the theories of
acting in concert and transferred intent. Defendant argues that “a
State's case which presents three different perpetrators and two
intended victims cannot survive a motion to dismiss.” We disagree.
As our Supreme Court stated in State v. Thomas, 325 N.C. 583,
593, 386 S.E.2d 555, 561 (1989), “criminal defendants are not
convicted or acquitted of theories; they are convicted or acquitted
of crimes.” In Thomas, the State prosecuted the defendant for
first-degree murder based upon the felony-murder rule. On appeal,
the defendant contended that the trial court should have instructed
the jury on lesser included offenses supported by the evidence.
After agreeing with Defendant's contention, the majority then
addressed the dissent's argument that the State's election to try
a homicide case, and the trial judge's submission of it to the
jury, only on a felony murder theory in effect acquits defendant of
murder on a theory of premeditation and deliberation and all of its
lesser included homicide offenses. In response, the majority in
Thomas stated:
The dissent's notion that defendant, while
convicted of first degree felony murder, has
somehow been acquitted of premeditated and
deliberated murder and all lesser homicides
which might have been included in this latter
offense presupposes that defendant has been
charged with, and could have been convicted
of, two different crimes -- first degree
felony murder and first degree premeditated
and deliberated murder. Defendant was chargedwith only one crime, first degree murder; she
was convicted of that crime. She has not been
acquitted of anything. Premeditation and
deliberation is a theory by which one may be
convicted of first degree murder; felony
murder is another such theory. Criminal
defendants are not convicted or acquitted of
theories; they are convicted or acquitted of
crimes.
Id.; 386 S.E.2d at 560-61. Indeed, [w]here the factual basis for
the prosecution is sufficiently pleaded, defendant must be prepared
to defend against any and all theories which these facts support.”
State v. Wingard, 317 N.C. 590, 594, 346 S.E.2d 638, 641 (1986).
Thus, we hold that the trial court did not erroneously deny
Defendant's motion to dismiss based upon the State's utilization of
several different theories to establish Defendant's guilt.
Defendant also contends the trial court erroneously denied his
motion to dismiss because there was insufficient evidence that
Defendant was the perpetrator. We disagree.
“The standard for ruling on a motion to dismiss is whether
there is substantial evidence (1) of each essential element of the
offense charged and (2) that defendant is the perpetrator of the
offense. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
In determining the sufficiency of the evidence the trial court must
consider such evidence in the light most favorable to the State,
giving the State the benefit of every reasonable inference to be
drawn therefrom.” State v. Harris, 145 N.C. App. 570, 578, 551
S.E.2d 499, 504 (2001).
In this case, Defendant was charged with first-degree murderbased upon premeditation and deliberation or felony murder. In
instructing the jury on the charge of first-degree murder based
upon premeditation and deliberation, the trial court did not give
an acting in concert instruction. Rather, the trial court limited
the acting in concert instruction to the felony murder instruction
stating:
Now, ladies and gentlemen, for a person to be
guilty of a crime, it is not necessary that he
himself do all the acts necessary to
constitute the crime. If two or more persons
join in a purpose to commit the felony of
firing into an occupied vehicle, each of them
if actually are constructively present is not
only guilty of that crime if the other commits
the crime, but he is also guilty of any other
crime committed by the other in pursuance of
the common purpose to commit firing into an
occupied vehicle or a natural -- or as a
natural or probable consequence thereof.
As stated by our Supreme Court in State v. Fletcher, 354 N.C. 455,
473, 555 S.E.2d 534, 545 (2001):
When instructed on acting in concert, a jury
may convict a defendant of premeditated and
deliberate first degree murder even though it
does not believe the defendant personally
committed the acts constituting the offense.
See also State v. Holmes, 355 N.C. 719, 734 n.1, 565 S.E.2d 154,
165 n.1 (2002)(stating, after citing Fletcher, that “a finding of
premeditated murder without being instructed on acting in concert
requires the jury to find that defendant himself committed all the
acts of murder, including firing the rifle”).
Viewing the evidence in the light most favorable to the State,
there was sufficient evidence from which the jury could determine
Defendant fired the fatal shots. Notwithstanding the eyewitnesstestimony indicating the shots were fired from the motorcycle and
that there were no bullet holes on the right side of the car, which
was where Defendant's car was positioned, the Chief Medical
Examiner for the State of North Carolina, John Butts, testified
that the bullet which caused Mr. Johnson's death had to come from
his right. Furthermore, the testimony indicated that Defendant
pulled alongside the right side of the victim's car, rolled down
his window, pointed a gun at the victim's car whose windows were
rolled down, and asked whether the occupants were ready to die.
Immediately after making this statement, Anthony Lyons, a passenger
in the victim's car, testified that he heard a “boom sound.” After
hearing the boom sound, the victim started backing his car up.
Accordingly, we conclude there was substantial evidence upon which
the jury could make a reasonable inference that Defendant fired the
fatal shot.
Moreover, Defendant has not challenged his conviction for
discharging a weapon into occupied property, a Class E felony, on
appeal. As to this charge, the trial court instructed the jury on
acting in concert, and there was sufficient evidence upon which the
jury could infer the four individuals were acting in concert.
Indeed, the four individuals, including Defendant, were talking in
a parking lot when they saw the victim's car pass by the
convenience store. Shortly thereafter, Defendant left the
convenience store traveling in the same direction as the victim.
Upon pulling up beside the victim's car, Defendant rolled down his
window, pointed a gun at the victim's car, and asked the occupantsif they were ready to die. Defendant's actions caused the victim
to back his car up quickly, and as he did this, the motorcycle
swerved to the left and the motorcycle passenger fired the fatal
shots into the victim's car. This evidence was sufficient to allow
the jury to convict Defendant based upon the felony murder rule.
Accordingly, we find no error in his conviction.
No Error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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