An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-623


Filed: 6 April 2004


         v.                        Halifax County
                                No. 01 CRS 056443

    Appeal by defendant from judgment entered 9 January 2003 by Judge Dwight L. Cranford in Superior Court, Halifax County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.

    Kathryn L. VandenBerg for defendant appellant.

    WYNN, Judge.

    Appealing his conviction of voluntary manslaughter, Defendant Mark Jones argues the trial court (I) erred by failing to dismiss the charge of voluntary manslaughter under the theory of imperfect self-defense; (II) committed plain error in its instructions to the jury on the theory of imperfect self-defense; and (III) erred by failing to consider and find mitigating factors submitted at sentencing. After careful review, we find no error.
    At trial, the State introduced evidence tending to show the following: On the morning of 22 December 2001, Robert Davis “walk[ed] up and smack[ed] [Defendant] in the back of the head.” Defendant turned and told Davis “to go ahead, he didn't want no trouble.” As Defendant turned, Davis again struck the back ofDefendant's head. Defendant repeated his statement that he wanted “no trouble.” Defendant walked away, and Davis struck him on the back of the head for the third time. Defendant then turned and stabbed Davis in the chest with a knife. Davis, apparently unaware of his injury, laughed at Defendant and asked him, “What was that supposed to do?” Defendant “took off running” and Davis pursued him. After chasing Defendant down the street, Davis collapsed approximately 214 feet from where Defendant had stabbed him. Law enforcement officers later recovered a broken knife blade at the scene, but they could not locate the knife handle. Davis died from his injuries en route to the hospital.
    The regional forensic pathologist who performed an autopsy on Davis testified that Davis bled to death from a single stab wound in his chest. After the knife passed through Davis's chest, it entered the front side of the right ventricle of the heart and exited through the back side of the left ventricle. While the regional forensic pathologist was unable to quantify the specific amount of force required to create Davis's wound, he did note “this would be a substantial pressure to push it all the way through all the muscles of the chest and through the heart. Virtually the whole blade had to have gone in.” He testified that the knife blade recovered by law enforcement officers could have caused the wound. Davis was five feet, eleven inches in height and weighed 188 pounds. Blood tests revealed that Davis had a blood alcohol level of 0.19% and traces of cocaine in his system.
    After being taken into custody, Defendant waived his Mirandarights and gave a statement to officers. He stated that he knew Davis well, having previously resided with Davis and his family. Defendant did not know why Davis had accosted him, and he admitted stabbing Davis. He informed Davis that he was bleeding after Davis chased Defendant. Defendant told someone to call the police after Davis collapsed, and he then fled the scene.
    Defendant made motions to dismiss the charge of first-degree murder and all lesser charges at the close of the State's evidence. The trial court dismissed the charge of first-degree murder, but denied the motion to dismiss the remaining lesser charges. Defendant then testified on his own behalf. He stated that he was five feet, one inch in height and weighed about 170 pounds. Defendant said he knew Davis well, for he had previously resided with Davis's family and considered Davis to be “like family.” When Davis approached him on the date in question, Defendant realized he was under the influence of either alcohol or drugs. Defendant knew Davis was often violent in such condition.
    Defendant testified Davis first threatened to kill him, then knocked him to the ground by punching him in the face. Davis next “mushed” him in the back of his head when Defendant turned to walk away. When Defendant turned again to leave, Davis grabbed his coat and struck Defendant on the back of the head. Defendant then turned around and stabbed Davis. Davis laughed and repeated his threat to kill Defendant. Defendant fled toward the home of Davis's grandmother to seek her assistance in handling Davis. After Davis collapsed, Defendant attempted to cover the chestwound, but Davis sat up and told him, “If you don't get away from me, I'm going to kill you.” Defendant then thought Davis was “all right,” and he ran away.
    Defendant renewed his motions to dismiss at the close of all the evidence, and the trial court denied the motions. During the charge conference, defense counsel stated “we would contend that there is evidence of voluntary manslaughter.” Defense counsel later said, “I would submit there was enough evidence presented, both from the State's evidence and then from what [defendant] said, to raise the issue of self-defense.” The trial court subsequently instructed the jury as to the charges of second-degree murder and of voluntary manslaughter, and the trial court also instructed the jury as to self-defense. While the State objected to the trial court's instruction on self-defense, Defendant raised no objections to the trial court's jury instructions. The jury subsequently convicted Defendant of voluntary manslaughter.
    During the sentencing hearing, defense counsel requested that the trial court find both a statutory and a nonstatutory mitigating factor. He commented that “the jury may have taken some of those into consideration in reaching its verdict.” The State responded that the jury “probably did consider both the factors that he submitted in reaching their verdict.” The trial court sentenced Defendant to a presumptive term of 107 to 138 months' imprisonment. From the trial court's judgment, Defendant appeals.
    Defendant first contends the trial court erred by failing todismiss the charge of voluntary manslaughter under the theory of imperfect self-defense. He argues that no evidence supported a finding that he used excessive force in defending himself. Defendant asserts that he “was not physically able to stop [Davis] without a weapon[.]” He claims the amount of force which he used “was nearly insufficient” to prevent Davis from continuing his assault. Defendant's argument is not persuasive.
    When ruling on a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Woodard, 324 N.C. 227, 230, 376 S.E.2d 753, 754-55 (1989). The State is entitled to every reasonable inference which can be drawn from the evidence presented, and all contradictions and discrepancies are resolved in the State's favor. Id. Evidence is sufficient to withstand a motion to dismiss when it gives “rise to a reasonable inference of defendant's guilt based on the circumstances.” State v. Styles, 93 N.C. App. 596, 603, 379 S.E.2d 255, 260 (1989). Once sufficient evidence is adduced at trial, it becomes a question for the jury. Id.
    “Generally, voluntary manslaughter occurs when one kills intentionally but does so . . . in the exercise of self-defense where excessive force is used . . . .” State v. Jackson, 145 N.C. App. 86, 90, 550 S.E.2d 225, 229 (2001). Excessive force occurs when a defendant uses “more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.” State v. Lyons, 340 N.C. 646, 661, 459 S.E.2d 770, 778 (1995).    When viewed in the light most favorable to the State, the evidence tends to show that Defendant stabbed the unarmed intoxicated victim through the heart with a knife after Davis “smacked” Defendant on the back of his head three times. The State presented sufficient evidence of excessive force by Defendant, and the trial court did not err by denying his motion to dismiss the charge of voluntary manslaughter and by submitting the charge to the jury. This assignment of error is without merit.
    In a related argument, Defendant contends the trial court committed plain error by instructing the jury on the theory of imperfect self-defense. He argues there was no evidence to show that he used excessive force. We disagree.
    The record reveals that trial counsel actively sought a jury instruction on self-defense and did not object to the trial court's instructions to the jury. Because Defendant failed to object to the trial court's jury instructions, see N.C.R. App. P. 10(b)(2), this issue is subject to plain error analysis. N.C.R. App. P. 10(c)(4). “Under a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
    Neither Defendant nor any of the witnesses testified that Davis possessed or used any type of weapon during the assault. Defendant himself testified to making only one effort to repel Davis's assault, which was when he stabbed Davis in the chest with a knife. The regional forensic pathologist testified that“substantial pressure” would have been required to push the knife through Davis's chest muscles and heart. On the basis of this and other evidence of Defendant's response to Davis's assault, Defendant has failed to show error, much less plain error, in the trial court's instruction on excessive force. This assignment of error is without merit.
    In his final argument, Defendant contends the trial court erred by failing to consider and find the mitigating factors submitted at sentencing. He asserts that comments by the State and defense counsel that the jury had already taken the two mitigating factors into account in arriving at its verdict were improper, and he concludes “the trial court did not in fact consider the submitted mitigating factors as required by N.C. Gen. Stat. § 15A- 1340.16(a).” We are not so persuaded.
    A trial court is required to take factors in aggravation or mitigation into account “only when deviating from the presumptive range in sentencing.” State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997); N.C. Gen. Stat. § 15A-1340.16(c) (2001). The trial court here made no findings of aggravating or mitigating factors, and it imposed the lowest possible presumptive term of imprisonment (107 months) for the Class D felony at Defendant's prior record level of V. See N.C. Gen. Stat. § 14-18 (2001) and N.C. Gen. Stat. § 15A-1340.17(c) (2001). Since the trial court in its discretion imposed a presumptive term of imprisonment, no findings as to those factors were necessary. Caldwell, 125 N.C. App. at 162, 479 S.E.2d at 283; see also N.C.Gen. Stat. § 15A-1340.16(a) (2001).
    Defendant, citing State v. Milam, 65 N.C. App. 788, 792, 310 S.E.2d 141, 144 (1984), contends the trial court did not consider submitted mitigating factors as a result of allegedly improper comments by the State and defense counsel. Defendant's argument is based entirely upon his inference that, by making no findings as to the submitted mitigating factors, the trial court did not consider such evidence. This inference is untenable. There is no evidence that the trial court disregarded or ignored any of the evidence in mitigation offered by Defendant. Accordingly, the trial court did not abuse its discretion by sentencing Defendant within the presumptive range.
    Defendant failed to set out his remaining assignment of error in his brief. Because he has neither cited any authority nor stated any reason or argument in support of that assignment of error, it is deemed abandoned. N.C.R. App. P. 28(b)(6).
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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