An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-536


Filed: 6 July 2004


    v .                              Edgecombe County
                                     No. 00 CRS 52206

    Appeal by defendant from judgment entered 9 May 2002 by Judge Milton F. Fitch, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 25 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Dennis P. Myers, for the State.

    Paul T. Cleavenger for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was found guilty of the second degree murder of his cousin Antonio Hill. He was sentenced to prison for a term of 125 months to 159 months. The evidence presented by the State tended to show the following: On the night of 25 November 2000, a party was in progress at the Pinetops Community Center in Edgecombe County. During the last song of the party, attendees began jumping around and throwing cups in the air. A fight soon broke out and people started passing around chairs and hitting each other. After a woman got on a microphone and told everyone to leave the community center, the fight moved outside. There were four or five men fighting.     Ashley Davis (Ms. Davis), a State's witness, testified that she knew defendant. During the fight, she observed defendant walking back to his car with someone. After reaching his car, defendant was observed with a gun in his right hand. Ms. Davis then observed defendant walk over near a tree, and then she heard gunshots.
    State's witness Jacqueline Dickens (Ms. Dickens) testified that she saw defendant “come around the corner” with a gun in his hand and start shooting. Ms. Dickens observed the victim/deceased fall, and recognized him as Antonio Hill. State's witness James Pittman (Mr. Pittman) testified that he heard gunshots and saw defendant with a gun in his hand.
    The Pinetops Rescue Squad ambulance arrived within about 15 minutes and determined the victim to be deceased. His body was removed from the scene and taken to a local hospital.
    In a statement made later to police, defendant alleged that he stayed at the scene until the victim was taken to the hospital. Defendant then went to the hospital. At the hospital, it was announced to a large crowd that the victim was dead. Defendant then went to his grandparent's house. Defendant's grandfather brought him to the Pinetops Police Station on the morning of November 26. He was then taken to the Sheriff's Department in Tarboro, and beginning around 6:00 a.m., was interviewed. During the interview, at approximately 11:10 a.m., defendant wrote out a statement. In this statement, defendant states that his friend Cornbread handed defendant the gun and said “they got your boy overthere.” Defendant said he fired a “warning shot” and handed the gun back to Cornbread. In another statement made to an examining detective, defendant said the shot he fired “cantered” the gun in the direction of “fifteen to twenty people talking loud as if arguing and fighting.” He admitted to having fired the gun “at least three times.” Ten bullets, all nine millimeter shell casings and fired from the same gun, were recovered from the area. A pathologist testified that Mr. Hill died as a result of one such bullet striking him in the heart.
    The defendant presented no evidence.
    In this appeal, defendant alleges two issues of reversible error by the trial court: (I) the court erred in denying the defendant's motion to dismiss the charges of first and second degree murder at the close of the State's evidence and then at the close of all evidence; and (II) the court erred in granting the State's request for jury instructions on “flight” and “transferred intent” over defendant's objection. For the reasons stated herein, we hold defendant received a fair trial free from reversible error.

I. Evidence Sufficient for First/Second Degree Murder
    In his first assignment of error, defendant argues that the evidence of first and second degree murder was insufficient and the court should have dismissed those charges at the close of the State's evidence or at the close of all evidence. In reviewing the evidence upon a motion to dismiss a criminal charge, we view the evidence in the light most favorable to the State and grant the State all reasonable inferences therefrom. State v. Lee, 348 N.C.474, 488, 501 S.E.2d 334, 343 (1998). The State must present substantial evidence of each element of the offense charged. Id. “[T]he trial court should consider all evidence actually admitted, whether competent or not, that is favorable to the State.” State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996).
    Based upon the evidence before it, the trial court was not in error by allowing both the first and second degree murder charges to go to the jury.
    A. First Degree Murder
    “Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Keel, 333 N.C. 52, 58, 423 S.E.2d 458, 462 (1992); N.C. Gen. Stat. § 14-17 (2003). Defendant argues that the State lacked sufficient evidence on the elements of premeditation and deliberation, and malice to survive a motion to dismiss.
    Premeditation and deliberation, a component of the specific mens rea of first degree murder, requires “an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” State v. Jackson, 317 N.C. 1, 23, 343 S.E.2d 814, 827 (1986); and State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982)). To carry a charge of first degree murder to a jury, the State must possess sufficient evidence of more than an intentional act by the defendant resulting in the death of the victim; the State also must show that defendantintended for his action to result in the victim's death. See Keel, 333 N.C. at 58, 423 S.E.2d at 462.
    Malice, an element of first and second degree murder, has been defined by at least three measures as determined by our Supreme Court in State v. Reynolds:
        One connotes a positive concept of express hatred, ill-will or spite, sometimes called actual, express, or particular malice. State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds in State v. Phillips, 264 N.C. 508, 516, 142 S.E.2d 337, 342 (1965). Another kind of malice arises when an act which is inherently dangerous to human life is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). Both these kinds of malice would support a conviction of murder in the second degree. There is, however, a third kind of malice which is defined as nothing more than “that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.” State v. Foust, 258 N.C. 453, 458, 128 S.E.2d 889, 893 (1962) (quoting State v. Benson, supra, 183 N.C. 795, 111 S.E. 869). It is this third kind of malice which is proved as a matter of law when the state proves the intentional infliction of a wound with a deadly weapon which results in death and there is no evidence of mitigation, justification or excuse.

307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982).
    In the present case, the trial court had before it the testimony of three eyewitnesses that defendant possessed a firearm. Ms. Davis testified that she saw defendant “walking” to his car, where it can be reasonably inferred that he retrieved his gun. These three witnesses testified that defendant was brandishing afirearm before and after they heard the shots. The State also put on evidence that, upon firing, the gun went in the direction of fifteen or twenty people. Furthermore, in contrast to three “warning shots” defendant alleges he fired, the State put on evidence that ten bullets from his gun were fired.
    We conclude this evidence sufficient to create the reasonable inference of the following: Defendant was not hurrying to retrieve his gun to defend his cousin Mr. Hill (the victim/deceased), but that defendant had a deliberate plan. A reasonable jury could infer the armed defendant returned to the area where people where fighting and distracted with an intent to kill someone in the affray. Defendant possessed the requisite malice both in his inherently dangerous act of firing a deadly weapon up to ten times into a crowd of up to 20 people, or by the intentional infliction of a wound with a deadly weapon that resulted in death. Thus, there was no error in giving the charge of first degree murder to the jury.
    Assuming arguendo that the trial court was in error in allowing the first degree murder charge to go to the jury, we point out it could not be prejudicial in this case. While we acknowledge the issue of the sufficiency of the evidence of premeditation and deliberation is a close one, defendant in this case received a verdict of second degree murder. In a similar instance, we have explained:
        [D]efendant's conviction of voluntary manslaughter would render harmless an error, had any error been committed, in submitting tothe jury the question of defendant's guilt of the more serious offense, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby.

State v. Chavis, 30 N.C. App. 75, 78, 226 S.E.2d 389, 391-92, cert. denied, 290 N.C. 778, 229 S.E.2d 33 (1976). Defendant has made no showing that his second degree murder conviction was affected by allowing the jury to consider the more serious offense of first degree murder.
    B. Second Degree Murder
    Second degree murder is a lesser included offense of first degree murder and with the exception of the element of premeditation and deliberation, the elements of the two charges are the same. State v. Goodson, 101 N.C. App. 665, 668, 401 S.E.2d 118, 120-21 (1991). Therefore, because we held above the evidence of first degree murder sufficient to survive a motion to dismiss (particularly on the element of malice), it is axiomatic that the trial court was not in error in allowing the charge of second degree murder to go to the jury. Thus, there was no error in giving the charge of second degree murder to the jury.
II.             Jury Instructions on “Flight” and “Transferred Intent”

    A.    Flight     
    Defendant next contends, as objected to at trial, that it was reversible error for the trial court to instruct the jury on flight pursuant to N.C.P.I., Crim. 104.36. While we agree the instruction was error and not warranted based on the evidence before the trial court, we hold this error was harmless.    The instruction of flight is given to the jury when “there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged[.]” State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). The relevant inquiry concerns whether there is evidence that defendant left the scene of the murder and took steps to avoid apprehension. State v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990). Thus, we search the record for sufficient evidence before the trial court as to both defendant leaving the scene, and taking steps to avoid apprehension. See State v. Lloyd, 354 N.C. 76, 118-19, 552 S.E.2d 596, 625-26 (2001).
    In the case at bar, there is evidence that defendant went to the hospital after the shooting at the community center. At the hospital, defendant's cousin was pronounced dead on arrival. Defendant then returned to his grandparents to stay the night, and his grandfather took him to the Sheriff's Department by 6:00 a.m the next morning. There is evidence that he went to the police station after he learned the police were searching for him. This was at most six hours after the victim had been announced dead.
    In light of cases in which this Court and our Supreme Court concluded the evidence was sufficient to support a flight instruction, we conclude that the facts of record do not support an inference that defendant took steps to avoid apprehension. See Levan, 326 N.C. at 165, 388 S.E.2d at 434 (defendant tried to conceal the victim's body, ordered the murder weapon thrown into a river, and tried to throw away the victim's personal effects);State v. Sheffield, 251 N.C. 309, 312-13, 111 S.E.2d 195, 198 (1959) (defendant tried to escape custody); State v. Brewton, 342 N.C. 875, 467 S.E.2d 395 (1996) (defendant immediately fled the scene, went to his mother's, than checked himself into a hotel, and finally turned himself in the next day when he discovered police were looking for him). While the facts of Brewton are close to those at bar, we conclude the fact that defendant in Brewton immediately fled the scene and later checked into a hotel sufficient evidence of avoiding apprehension, and distinguishable from this case. In this case, defendant remained at the scene until the body was taken to a hospital. Defendant followed the victim to the hospital where Mr. Hill was pronounced dead. Defendant then stayed with his grandparents before going to the police. All of this occurred within, at most, a matter of six hours. To hold this evidence warranted a flight instruction would, short of those who immediately turn themselves in at the scene of the crime, subject every alleged criminal to the instruction.
    Though the evidence is lacking for the flight instruction in this case, defendant was not prejudiced by the error in giving the instruction. Evidence of a defendant's flight following the commission of a crime may properly be considered by a jury as evidence of guilt or consciousness of guilt. Lloyd, 354 N.C. at 119, 552 S.E.2d at 625-26 (2001). Because the evidence, without the flight instruction, was sufficient for a jury to reasonably render a guilty verdict of second degree murder, the additional “flight” instruction was harmless. There were three witnesses whoobserved defendant with a gun, both before and after the shots were fired and the victim fell. Furthermore, there were defendant's own incriminating statements made to investigating officers saying that he shot the gun, and that the gun “cantered” at a crowd of up to 20 people.
    B. Transferred Intent
    Defendant lastly contends, as objected to at trial, that it was reversible error for the trial court to instruct the jury on transferred intent pursuant to N.C.P.I., Crim. 206.14. Defendant argues that the State's evidence lacked any showing of intent to inflict harm on another that could then be transferred to the victim in this case. We do not agree.
    The doctrine of transferred intent provides:
        [W]here one is engaged in an affray with another and unintentionally kills a bystander or a third person, his act shall be interpreted with reference to his intent and conduct towards his adversary. Criminal liability, if any, and the degree of homicide must be thereby determined. Such a person is guilty or innocent exactly as the fatal act had caused the death of his adversary.

State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971). Based on Wynn, our Supreme Court has ruled that an instruction on transferred intent is appropriate where an unintended victim is harmed. State v. Locklear, 331 N.C. 239, 415 S.E.2d 726 (1992); see also State v. Christian, 150 N.C. App. 77, 562 S.E.2d 568, disc. review denied, 356 N.C. 168, 568 S.E.2d 618 (2002). Simply put, “'[t]he malice or intent follows the bullet.'” Wynn, 278 N.C. at 519, 180 S.E.2d at 139 (citation omitted).    In Locklear, the defendant shot and killed an estranged girlfriend. The woman's daughter, who was present in the apartment at the time of the shooting, was struck in the neck by a bullet. The defendant was convicted of first-degree murder of the woman, and assault with intent to kill inflicting serious injury on the daughter. The Court in Locklear noted that "[t]he instruction . . . did not have the effect of relieving the State of any part of its burden of persuasion on an essential element; instead, it merely stated the substantive law of this state." Locklear, 331 N.C. at 245, 415 S.E.2d at 729.
    In the case at bar, the evidence before the court was sufficient to instruct the jury on transferred intent. There was sufficient evidence of premeditation, deliberation, and malice to survive the motion to dismiss the charges of first and second degree murder, and there was evidence that the victim of the homicide in this case was not the intended victim. The trial court gave extensive instructions to the jury, specifically concerning premeditation, deliberation, and malice as to an intended victim. The instructions clearly emphasized to the jury that these must be established beyond a reasonable doubt after weighing all the evidence, and only then may they be transferred to the victim in this case.
    After thoroughly reviewing the transcript, record, and briefs, we deem all other assignments of error not properly raised by defendant as waived, and otherwise without merit. We furtherconclude that defendant received a fair trial free from prejudicial error.
    No error.
    Judges HUNTER and LEVINSON concur.
    Report Per Rule 30(e).

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