An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1695


Filed: 15 February 2005


         v.                        Gaston County
                                Nos. 03 CRS 53781-83

    Appeal by defendant from judgment entered 13 August 2003 by Judge Nathaniel J. Poovey in Gaston County Superior Court. Heard in the Court of Appeals 25 October 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

    Calvin B. Hamrick for defendant-appellant.


    On 2 June 2003, defendant Anthony Bernard Chapman was indicted on charges of discharging a firearm into occupied property, assault with a deadly weapon with intent to kill, and simple assault. The case was tried at the 11 August 2003 criminal session of Gaston County Superior Court.
    The evidence presented at trial tends to show the following:
On 4 February 2003, defendant entered Custom Metal Finishing, Inc., a body shop in Gastonia, North Carolina. The shop was owned by Ricky Mullinax, who was in the shop along with Billy Arrowhead. Defendant wanted to pick up some parts that had been brought to the shop to be chromed. Defendant had apparently left the parts at theshop unclaimed for more than 30 days, and Mullinax sold them to pay defendant's bill, as was his practice. Defendant wanted Mullinax to immediately call the person to whom the parts were sold because defendant desired their return. Mullinax told defendant that it was not possible for him to immediately contact the buyer, but directed defendant to leave a name and number where he could reach defendant. As Mullinax leaned forward to record defendant's information, defendant began punching Mullinax in the head. Attempting to stop defendant from punching him, Mullinax grabbed defendant's collar. Defendant managed to break loose and ran to the door. Mullinax started behind defendant to make sure he was leaving.
    At this point, Arrowood told Mullinax not to follow defendant because they did not know if defendant had a gun. Mullinax saw defendant get into an unoccupied white car and reach under the front seat. Afraid defendant would try to come back in the shop, Mullinax shut the door and locked it. Mullinax then heard what sounded like bullets ricocheting off iron beams, and he and Mr. Arrowood ducked to the floor. A water pipe burst and water was released throughout the shop. Mullinax heard the sound of tires squealing and a car driving away. After hearing the vehicle pull off, Arrowood testified that he and Mullinax talked about what happened until a customer came for Mullinax. Arrowood left the shop, telling Mullinax that he would come back if the police wanted to question him. Officer Brian Jurumbo of the Gastonia City Police arrived on the scene shortly after the incident. He found fourbullet holes in the side of the building, but was only able to recover three of the casings.
    Defendant testified that on 4 February 2003, he went to Mullinax's shop to pick up some parts he had chromed. Defendant testified that upon asking for his parts Mullinax got mad and attempted to punch him. Defendant said he defended himself by punching Mullinax in return, and they scuffled a bit. Defendant testified that he was not driving a white car, that he was driving a truck and that he had a passenger, Kiley Cannon, with him. Cannon testified that he waited inside the truck for the defendant to come out of the shop. Cannon testified that when defendant came out, defendant said that he had been in a fight and was ready to go. Cannon testified they left Gastonia and drove to Spartanburg, South Carolina.
    Defendant was convicted of misdemeanor simple assault, misdemeanor assault with a deadly weapon, and felony discharging a firearm into an occupied property. Defendant was sentenced to a term of twenty-nine to forty-four months imprisonment for the felony discharging a firearm into an occupied property, as well as a term of seventy-five days for the misdemeanor simple assault and assault with a deadly weapon. Defendant appeals.
    Defendant's sole argument on appeal is that the trial court erred by failing to dismiss the charge of discharging a firearm into an occupied property based on insufficiency of the evidence. Defendant contends that there is no evidence that the defendant fired a gun into Mullinax's shop. We disagree.    After careful review of the record, briefs, and contentions of the parties, we find no error.
    In ruling on a motion to dismiss, “the trial court must determine whether there is substantial evidence of each essential element of the offense charged.” State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). When reviewing the evidence, the trial court must consider even incompetent evidence in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). In State v. Malloy, our Supreme Court held that when the evidence is sufficient only to raise a suspicion or conjecture as to the identity of the defendant as the perpetrator, the motion to dismiss must be allowed. 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983). However, even circumstantial evidence has been considered sufficient to elevate a claim above mere suspicion or conjecture and thus to overcome a motion to dismiss. See State v. Wilson, 354 N.C. 493, 521-22, 556 S.E.2d 272, 290-91 (2001) overruled on other grounds by State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002).
    In the instant case, the defendant was charged with discharging a firearm into an occupied property. The elements of this offense are: (1) the willful or wanton discharging; (2) of a firearm; (3) into any building; (4) while it is occupied. State v. Jones, 104 N.C. App. 251, 258, 409 S.E.2d 322, 326 (1991) (citingState v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973)); see also N.C. Gen. Stat. § 14-34.1 (2003). A person is guilty of this crime if he intentionally, without legal excuse or justification, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons. Id.
Here, the State presented evidence that defendant entered Mullinax's shop alone and became upset when he learned that his auto parts had been sold. Defendant began punching Mullinax when Mullinax would not immediately telephone the person to whom the parts were sold. Defendant left the shop, knowing Mullinax and Arrowood were inside the shop. Mullinax observed defendant reach under the seat of the car. A few seconds later, Mullinax and Arrowood had to duck because bullets were being fired into the shop. Although no one actually saw defendant fire the gun, there were bullet holes and casings found in the shop and in the area where defendant's car was previously parked. Viewing this evidence in the light most favorable to the State, a reasonable mind could infer that defendant discharged a firearm into the shop while Mullinax and Arrowood occupied the building. Defendant argues that he had a passenger, and it is possible that the passenger could have fired the gun. However, the State need not rule out this possibility in order to prove defendant's guilt. See State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000). Accordingly, we conclude that the trial court did not err indenying the motion to dismiss.
    No error.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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