NO. COA03-680
Appeal by defendant from judgment entered 19 February 2003 by
Judge Christopher M. Collier in Iredell County Superior Court.
Heard in the Court of Appeals 12 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Kristine L. Lanning, for the State.
Bruce T. Cunningham, Jr., for defendant-appellant.
TIMMONS-GOODSON, Judge.
On 22 July 2002, the Iredell County grand jury indicted
Derrick Shamar Ramseur (“defendant”) on a charge of assault with a
deadly weapon with intent to kill inflicting serious injury. A
jury found defendant guilty as charged and the trial court
sentenced defendant to 120 to 153 months in the North Carolina
Department of Corrections. From the trial court's judgment,
defendant appeals.
The State offered evidence at trial tending to show the
following: At approximately 4:30 a.m. on 21 April 2002, Tony
Dewayne Burke (“Burke”) was riding a bicycle when he saw defendant
and Odera Miller getting out of a taxi. Burke testified that he
approached defendant to purchase ten dollars worth of crackcocaine. Defendant had a twenty-dollar rock of crack cocaine and
proceeded to break it for Burke.
While defendant tried to “pop [the rock] in half” Burke said
that the crack “didn't look right” and that he no longer wanted it.
Defendant became angry and pulled a gun from the front of his
pants, fired four shots under Burke's bicycle, and then put the gun
to Burke's right knee. Burke dropped his bicycle and asked, “Man,
what's wrong with you?” Burke testified that he “knew [defendant]
was going to shoot [him]” so he turned to run. Defendant shot
Burke in the back as he was running away.
A small caliber bullet entered approximately one-half inch to
the right of Burke's spine and his “legs just went plum dead.”
Burke fell to the ground and was unable to move or crawl. Although
he heard Odera Miller tell defendant to “shoot him again,” the two
men just walked away laughing. Officers responded to the scene and
Burke was taken to the hospital.
At trial, defendant made a Motion to Dismiss at the close of
the State's evidence and at the close of all the evidence. The
trial court denied both motions.
Defendant argues that the trial court erred by denying his
motion to dismiss at the close of all the evidence. Specifically,
defendant asserts that the State failed to prove that he intended
to kill Burke, which is a required element of the offense of
assault with a deadly weapon with intent to kill inflicting serious
injury. We disagree. 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. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189
(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. “If
there is substantial evidence - whether direct, circumstantial, or
both - to support a finding that the offense charged has been
committed and that defendant committed it, a case for the jury is
made and nonsuit should be denied.”
State v. McKinney, 288 N.C.
113, 117, 215 S.E.2d 578, 582 (1975).
The elements of the offense of assault with a deadly weapon
with intent to kill inflicting serious injury are: (1) an assault;
(2) with a deadly weapon; (3) an intent to kill; and (4) infliction
of a serious injury not resulting in death. N.C. Gen. Stat. § 14-
32 (2003);
State v. James, 321 N.C. 676, 687, 365 S.E.2d 579, 586
(1988). Defendant concedes on appeal that the evidence at trial
supports three of the four elements, but argues that the evidence
was insufficient to support a finding that he intended to kill
Burke.
“An intent to kill is a mental attitude, and ordinarily it
must be proved, if proven at all, by circumstantial evidence, that
is, by proving facts from which the fact sought to be proven may be
reasonably inferred.”
State v. Cauley, 244 N.C. 701, 708, 94
S.E.2d 915, 921 (1956). “[T]he nature of the assault, the manner
in which it was made, the weapon, if any, used, and the surroundingcircumstances are all matters from which an intent to kill may be
inferred.”
State v. White, 307 N.C. 42, 49, 296 S.E.2d 267, 271
(1982). In addition, an assailant “must be held to intend the
normal and natural results of his deliberate act.”
State v. Jones,
18 N.C. App. 531, 534, 197 S.E.2d 268, 270 (1973),
cert. denied,
283 N.C. 756, 198 S.E.2d 726 (1973).
The State presented evidence that Burke was unarmed when
defendant fired four bullets under the bicycle on which Burke was
sitting. One of the bullets hit Burke's inner thigh. Defendant
then put the handgun to Burke's right knee, which prompted Burke to
drop the bicycle and run. Defendant shot the victim in the upper
back as Burke was running away. Burke testified that defendant
left the scene laughing as he called out for help. When considered
in the light most favorable to the State, the evidence reasonably
supports the inference that defendant intended to kill Burke.
Accordingly, we find no error by the trial court.
No error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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