An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-680


Filed: 18 May 2004


         v.                        Iredell County
                                No. 02 CRS 54093

    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.


    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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