An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-391

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2004

STATE OF NORTH CAROLINA

v .                         Haywood County
                            No. 01 CRS 052622
TOREN GERARD GORDON

    Appeal by defendant from judgment dated 23 May 2002 by Judge Dennis J. Winner in Superior Court, Haywood County. Heard in the Court of Appeals 24 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.

    James L. Goldsmith, Jr. for defendant-appellant.

    McGEE, Judge.

    Toren Gerard Gordon (defendant) was indicted on 14 January 2002 for the second degree murder of Corey Matthews (Matthews). Defendant was thereafter convicted of the lesser included offense of voluntary manslaughter of Matthews. Defendant was sentenced to sixty to eighty-one months in prison. Defendant appeals.
    The evidence at trial tended to show that between 1:00 a.m. and 2:00 a.m. on 6 December 2001, a disturbance occurred at the Thunder Ridge nightclub in Maggie Valley, North Carolina. The 700 to 800 patrons present in the nightclub that night, including defendant, were asked to leave the building. Law enforcement officers from several different jurisdictions were on the scene in response to the disturbance at the nightclub.     Defendant and his friends left the nightclub and proceeded to their vehicle, a Jeep Cherokee (Jeep). They saw Marcus Jones (Jones) and Brian Rucker (Rucker), classmates of defendant at Western Carolina University, being physically attacked by other patrons in the nightclub's parking lot. Defendant and his friend, Patrick Leach (Leach), told Jones and Rucker to get into the Jeep.
    The attackers followed Jones and Rucker to the Jeep and began to drag defendant and the other occupants from the Jeep. Defendant believed he heard someone claim to have a gun. Defendant retrieved his gun from the floor of the Jeep and freed himself from his assailant. Defendant fired the gun in "an area where [he] didn't see anyone." Defendant dropped the gun and kicked it away.
    Sergeant Jason Moody (Sergeant Moody) of the Maggie Valley Police Department testified he heard gunshots coming from the area where the Jeep was parked. Sergeant Moody discovered Matthews' body lying facedown in the nightclub's parking lot.
    Dr. Ronald Jason (Dr. Jason), a physician who specializes in forensic pathology, testified that a bullet entered the back of Matthews' head and exited Matthews' right temple, resulting in his death. No bullet fragments were recovered.
    Defendant argues on appeal that the trial court erred in denying defendant's motion to dismiss the charge of second degree murder because defendant contends the evidence was insufficient to support the charge. Defendant summarily contends that the case should have been submitted to the jury solely on the basis of involuntary manslaughter.     The trial court instructed the jury on second degree murder, voluntary manslaughter, and involuntary manslaughter. The jury subsequently rejected the charge of second degree murder and found defendant guilty of voluntary manslaughter. Defendant was not prejudiced as a result of the submission of the second degree murder charge because the jury declined to find defendant guilty of that charge. See State v. Price, 344 N.C. 583, 476 S.E.2d 317 (1996). Therefore, we find defendant's argument to be without merit.
    Furthermore, defendant failed to object to the trial court's voluntary manslaughter instruction. N.C.R. App. P. 10(b)(1) provides that "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." Defendant failed to object to the jury instruction; therefore, this argument is not properly before this Court.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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