An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-737


Filed: 2 August 2005


     v .                             New Hanover County
                                    Nos. 02 CRS 25841
KENNETH BROWN, JR.                         25843

    Appeal by defendant from judgments entered 8 September 2003 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 26 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

    Sofie W. Hosford for defendant appellant.

    McCULLOUGH, Judge.

    Defendant (Kenneth Brown, Jr.) appeals from convictions and judgments for assault with a deadly weapon with the intent to kill inflicting serious injury and assault with a firearm on a law enforcement officer. We hold that defendant received a fair trial, free of prejudicial error, but that he is entitled to be resentenced.
    The evidence presented at defendant's trial tended to show the following: On the evening of 27 December 2002, Officer Lance Reeves of the Wilmington Police Department was conducting a uniformed patrol of Houston Moore housing development on foot. At approximately 9:30 p.m., Reeves happened upon what appeared to himto be an illegal drug transaction. In particular, Reeves noticed an individual walking away from a car and counting something in his hand. The person who walked away from the car was a male, approximately six feet tall with a medium build; he had shoulder- length dreadlocks and was wearing a blue sweater or jacket and a baseball cap. After being alerted that Reeves was approaching, the man put something in his mouth. Officer Reeves then ran towards the man, who dropped his hat as he attempted to flee.
    During the ensuing chase, the man turned around and fired four shots at Reeves with a pistol. Bullets struck Reeves in his elbow, tricep, and chest, and one bullet struck the back of his bullet- proof vest. A baseball hat and four shell casings were later recovered from the scene of the shooting.
    Shortly after Reeves was shot, defendant unexpectedly arrived at the home of Benay Cotten. Cotten was the girlfriend of one of defendant's friends, and she lived in the neighborhood where the shooting occurred. According to Cotten, defendant slept in one of her back bedrooms that evening. A subsequent search of Cotten's house revealed a handgun on top of a furnace in a back bedroom closet. Ballistics testing indicated that this gun fired the four shell casings retrieved from the shooting scene and at least two of the bullets that struck Officer Reeves.
    Demond Lewis was with defendant on 27 December 2002 prior to the shooting. According to Lewis, the hat retrieved from the crime scene looked like the hat that defendant was wearing prior to the shooting. Lewis also identified the gun retrieved from Cotten'shouse as having been in defendant's possession prior to the shooting. After defendant was arrested in connection with the injury to Officer Reeves, Lewis was also arrested for an unrelated charge. When the two of them were placed in a holding cell together, defendant told Lewis that he shot Reeves.
    Defendant took the stand during the trial, and denied shooting Officer Reeves. He testified that he had never seen the gun that was retrieved from Benay Cotten's house prior to the trial and that he does not wear baseball caps.
    The jury convicted defendant of assault with a deadly weapon with intent to kill inflicting serious injury and assault with a firearm on a law enforcement officer, for which the trial court imposed consecutive aggravated sentences of 128 to 163 months' imprisonment and thirty-seven to fifty-four months' imprisonment, respectively. Defendant now appeals.

    We first address defendant's argument that the trial court erred by denying his motion to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was no evidence of his intent to kill Officer Reeves. This contention lacks merit.
    A trial court should deny a motion to dismiss if, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, “there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.”State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996) (citation omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981) (citation omitted).
    “Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974) (citation omitted). “[I]ntent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.” State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988) (citation omitted).
    In the instant case, there was evidence that defendant, while attempting to elude capture, turned and fired four shots at Officer Reeves with a handgun. All four shots hit the officer, with one bullet lodging in his chest and another bullet hitting him in an area of the back covered by a bulletproof vest. A jury considering this evidence could permissibly infer that defendant intended to kill Officer Reeves. This assignment of error is overruled.
    We next address defendant's argument that the trial court erred by denying his motions for a mistrial, for sanctions, and to poll the jury. We are not persuaded.
    During defendant's trial, the judge repeatedly instructed the jurors to avoid reading, listening to, or watching media reports about the case. According to defendant, the court also ordered theparties to refrain from providing the media with transcripts of telephone calls made by defendant from jail during his pretrial detention. After audio tape recordings of the telephone calls were played for the jury, a local newspaper published excerpts of the telephone conversations in an article titled “Jail phone calls played in trial.” Defendant contended that the prosecution gave transcripts of the calls to the media and moved for a mistrial, for sanctions against the prosecution, and to have the jury polled. The trial court denied these motions.
    A trial judge “must declare a mistrial upon the defendant's motion if there occurs during the trial . . . conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen. Stat. § 15A-1061 (2003). “Whether to allow a motion for mistrial is a decision committed to the sound discretion of the trial court, and its decision in this regard will not be overturned on appeal unless an abuse of that discretion is established.” State v. Ward, 354 N.C. 231, 248, 555 S.E.2d 251, 263 (2001) (citation omitted). Likewise, whether to poll a jury in light of potentially prejudicial information and whether to impose sanctions against the prosecution are decisions consigned to the discretion of the trial court, subject to review only for an abuse of discretion. State v. Taylor, 311 N.C. 266, 271, 316 S.E.2d 225, 228 (1984) (whether to impose sanctions); State v. Clark, 159 N.C. App. 520, 532, 583 S.E.2d 680, 688 (2003) (whether to poll jury).    Given the trial court's repeated admonitions for the jury to avoid media reports about the trial and the fact that the excerpts of defendant's telephone conversations did not appear in media reports prior to their airing in open court, we are unpersuaded that the trial court abused its discretion in denying defendant's motions for a mistrial, for sanctions, and to poll the jurors regarding whether they had been exposed to the allegedly prejudicial media coverage. This assignment of error is overruled.
    We next address defendant's argument that the trial court erred by denying his motion for a continuance made prior to the start of the trial. We do not agree.
    The following information was presented to the trial court with respect to defendant's motion to continue: Defendant was being tried in New Hanover County where the offenses occurred. After his arrest, defendant was continually in New Hanover County for a period of at least six months, during which time he visited with his attorney. At some point thereafter, defendant was transferred to a confinement facility in Rutherford County, and he was transferred back to New Hanover County at least twelve days prior to the beginning of his trial. In his argument to the trial court, defendant contended that he did not have access to his attorney during the months he was in Rutherford County and that he could not assist in the preparation of his defense until the twelve days prior to the trial. Defendant could not cite any specific prejudice resulting from the transfer to Rutherford County andinstead alleged “general prejudice.” The trial court found that defendant had adequate access to counsel and denied the motion to continue.
    As a general rule, “a motion to continue is addressed to the sound discretion of the trial court, and absent a manifest abuse of that discretion, the trial court's ruling is not reviewable.” State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 674-75 (2000). “However, when a motion to continue raises a constitutional issue . . . , the trial court's ruling is 'fully reviewable by an examination of the particular circumstances of each case.'” Id. (citation omitted).
    Our Supreme Court has noted that neither the United States Constitution nor the North Carolina Constitution guarantees a particular length of time for the preparation of a defense by a defendant and his attorney. State v. Morgan, 359 N.C. 131, 144, 604 S.E.2d 886, 894 (2004). Moreover, defendant's brief does not present a constitutional argument addressing the denial of his motion to continue. Therefore, we need only review the trial court's ruling for an abuse of discretion.
    Our review reveals that defendant was not prejudiced by the trial court's refusal to delay defendant's trial, and we discern no abuse of discretion by the denial of the motion to continue. This assignment of error is overruled.
    In his remaining argument on appeal, defendant contends that he was unconstitutionally sentenced to terms in the aggravatedrange based on a judicial finding that he committed the assault with a deadly weapon with intent to kill inflicting serious injury and the assault with a firearm on a law enforcement officer to avoid lawful arrest. Specifically, defendant contends that his sentences could not be aggravated in the absence of a jury finding beyond a reasonable doubt that the alleged aggravating factor existed. We agree and remand for defendant to be sentenced in accordance with the principles set forth in Blakely v. Washington, 542 U.S. __, 159 L. Ed. 2d 403 (2004), and State v. Allen, __ N.C. __, __ S.E.2d __ (filed 1 July 2005).
    No error in defendant's trial; remanded for resentencing.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).

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