An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-389


Filed: 18 May 2004


         v.                        Wake County
                                Nos. 02 CRS 54152-53

    Appeal by defendant from judgment entered 2 October 2002 by Judge Jack W. Jenkins in Wake County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Meredith Jo Alcoke, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant-appellant.

    CALABRIA, Judge.

    Upon evidence that defendant stepped out of his vehicle with a handgun and fired a single shot into the rear windshield of a car driven by LaKesha Mewborn on the afternoon of 24 June 2002, a jury found defendant guilty of discharging a firearm into occupied property but not guilty of assault with a deadly weapon with intent to kill. The trial court sentenced him within the applicable mitigated range to a term of twenty to thirty-three months in the North Carolina Department of Correction.
    Defendant argues on appeal that the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon with intent to kill. While recognizing that he was foundnot guilty of the assault offense, defendant nevertheless insists “the jury ought never to have even considered this charge.” As the State notes, defendant fails to suggest any manner in which he was prejudiced by the submission of this charge to the jury. See N.C. Gen. Stat. § 15A-1443(a) (2003). Inasmuch as defendant was acquitted on the charge of assault with a deadly weapon with intent to kill, any error in the denial of his motion to dismiss this charge was harmless and provides no basis for relief on appeal. State v. Brindle, 66 N.C. App. 716, 718-19, 311 S.E.2d 692, 694 (1984).
    Defendant expressly abandons his remaining assignments of error.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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