An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1629


Filed: 15 February 2005


         v.                        Wayne County
                                No. 02CRS56930-31
JOHNY DEMORRIS KING, JR.                     03CRS191-92

    Appeal by defendant from judgments entered 30 May 2003 by Judge Thomas D. Haigwood in Wayne County Superior Court. Heard in the Court of Appeals 25 October 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Rudy Renfer, for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.

    Defendant was found guilty of discharging a weapon into occupied property, possession of a firearm by a felon, assault with a deadly weapon, first-degree burglary and attaining habitual felon status.
    The State presented evidence tending to show that on the evening of 20 July 2002, defendant exited a white Chevrolet Blazer and approached the residence of Charles and Patricia Wilson in Goldsboro, North Carolina. He displayed a firearm and fired three shots in the vicinity of the Wilsons and their relatives, who were sitting on the front porch. The Wilsons ran into the house and attempted to close the door. Defendant wedged his arm into the door and fired another shot into the house. Mr. Wilson forceddefendant's arm and leg out of the door and closed the door. Defendant then shattered a window next to the door and forced his way inside the house. Defendant exited the house when Gloria Cox, Mrs. Wilson's sister, shone the bright lights of her vehicle on the residence. Defendant approached Ms. Cox's vehicle, brandished the firearm and made a threatening remark to Ms. Cox before he departed. Defendant did not present any evidence at trial.
    Defendant first contends that his convictions for assault with a deadly weapon and first-degree burglary must be vacated because the State failed to prove he assaulted “Charles King” as the court charged to the jury. Defendant purports to raise this issue by an assignment of error to the denial of his motion to dismiss at the close of the evidence. However, the motion to dismiss was made prior to the jury charge and before the alleged error in the charge was made by the court. This contention is therefore not supported by an assignment of error and is not properly before the Court for review. See State v. Williams, 350 N.C. 1, 9-10, 510 S.E.2d 626, 633, cert. denied, Williams v. North Carolina, 528 U.S 880, 145 L. Ed. 2d 162 (1999). Furthermore, to preserve the right to appellate review of a jury charge, a party must object to the court's summary of the evidence and give the court the opportunity to make any corrections to the charge before the jury retires to deliberate. State v. Price, 310 N.C. 596, 601, 313 S.E.2d 556, 560 (1984). This Court has further held that the misstatement of names by the court in summarizing the evidence or applying the evidence to the law is not prejudicial error if the defendant fails to call theerror to the attention of the court, and it does not appear that the jury could have been misled. State v. Hudson, 54 N.C. App. 437, 441-42, 283 S.E.2d 561, 565 (1981). Defendant did not object to the misstatement of name by the court and it is readily apparent that the jury could not have been confused. Every witness used the name “Charles Wilson” and at no time during the presentation of evidence was the name “Charles King” used.
    Defendant's remaining contention is that the court committed plain error by admitting a statement of Ms. Cox for corroborative purposes when portions of the statement did not corroborate the testimony of Ms. Cox. To establish plain error in the admission of evidence without objection, the defendant must show that the admission of the evidence had a probable impact upon the jury's finding of guilt. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983). Given the overwhelming and uncontradicted testimony by several witnesses establishing defendant's guilt of the offenses, it is highly improbable that the jury would have reached any different verdict if the evidence had been excluded. This assignment of error is overruled.
    In defendant's trial we find no prejudicial error.
    No error.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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