An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-753

NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005

THE STATE OF NORTH CAROLINA
v .                         Granville County
                            No. 02 CRS 053508
JAMES ROBERT KOZOMAN

    Appeal by defendant from judgment entered 9 December 2003 by Judge Robert H. Hobgood in Granville County Superior Court. Heard in the Court of Appeals 2 March 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General William B. Crumpler, for the State.

    Joseph E. Zeszotarski, Jr., for the defendant-appellant.

    JACKSON, Judge.

    On 7 October 2002, James Robert Kozoman (“defendant”) was indicted and charged with first degree murder in the death of John Edward McGhee (“McGhee”). Defendant pled not guilty and was tried before a jury on 8 December 2003. Defendant was convicted of second degree murder and sentenced to between 219 and 272 months in prison. Defendant gave notice of appeal in open court.
    At trial the State's evidence tended to show that on 22 September 2002, defendant shot and killed his neighbor McGhee. Earlier that day defendant and McGhee, who had known each other for several years and were friends, had been working on a truck together and drinking beer and wine. Defendant and an elderly friend of McGhee's, Robert Gregory (“Gregory”), who was with both of them, stated they were joking and getting along with each other.
    After several hours, McGhee went into his house and emerged with a shotgun, appearing very angry. McGhee pointed the shotgun at defendant and began yelling at defendant that he would kill him, his mother, his girlfriend, and his children. Defendant stated he did not know what caused McGhee to act that way and was scared. Gregory got between the two men and tried to calm McGhee down. Defendant backed away and proceeded across the road to the house where he lived with his mother and girlfriend.
    Defendant had been in an altercation with his girlfriend earlier on the day of the incident and was not supposed to return home that night. Defendant beat on the front door to try to get someone to let him in the house. When his girlfriend refused to open the door, defendant went around to the unlocked back door and entered. Defendant tried to call the police, but his girlfriend would not let him because she was afraid their children would be taken away. The commotion awakened defendant's mother and he instructed her to call the police - which she did. Defendant then left his mother's house with his rifle.    Defendant stated he went back towards McGhee's residence because he was afraid McGhee would try to sneak up to his mother's house to carry out his threats and he wanted to make sure McGhee remained at his residence. Defendant remained in the bushes and shadows watching McGhee and Gregory. McGhee appeared angry and said something to the effect of “I'm was going to get my shit and do this.” Defendant stated that he believed that McGhee was referring to carrying out his earlier threats. McGhee then went inside his residence and returned with the shotgun again. Defendant testified McGhee took two or three steps out the door, pointed the shotgun in his direction and fired. McGhee then turned to the side and opened the shotgun as if he were going to reload. Defendant then fired two shots at McGhee, who collapsed after the second shot.
    Defendant fled the scene and attempted to drive to his brother's residence, but was stopped and arrested for driving under the influence and speeding en route. Upon his arrest, the officer took the .22 caliber rifle that was used in the shooting from defendant's vehicle for safe-keeping, unaware of defendant's involvement in the previous altercation with McGhee.
    After being remanded to the county jail following a magistrate's hearing, defendant said to the arresting officer “I think I killed my neighbor tonight with that rifle.” Defendant wasread his Miranda rights and made a brief statement, but was not questioned immediately regarding the shooting due to his intoxicated state. The next day defendant was interviewed and he stated he shot McGhee in defense of himself and his family. Defendant also drew a map depicting his recollection of the positioning of McGhee and himself at the time of the shooting.
    Defendant moved to dismiss the charge of first degree murder and the lesser included offense of second degree murder for insufficient evidence at the close of the State's evidence and again at the close of all evidence. Both motions were denied. The first degree murder charge subsequently was submitted to the jury with an instruction from the trial court on the lesser included offenses of second degree murder and voluntary manslaughter, with an instruction regarding self-defense and defense of family. Defendant was found guilty of second degree murder. Defendant timely appealed the verdict.
    Defendant first argues that the trial court erred in denying his motions to dismiss the charge of first degree murder and the lesser included offense of second degree murder for insufficient evidence. The standard of review for denial of a criminal defendant's motion to dismiss for insufficient evidence is whether the State has offered substantial evidence to show the defendant committed each element required to be convicted of the crimecharged. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002). Substantial evidence is relevant evidence sufficient to persuade a rational juror to accept a conclusion. State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000). When deciding a motion to dismiss for insufficient evidence, the evidence must be considered in the light most favorable to the State. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    If a criminal defendant's motion to dismiss for insufficient evidence at the close of the State's evidence is denied and the defendant then presents evidence in his defense, the motion to dismiss is waived and the denial of the motion cannot be a basis for appeal. N.C. Gen. Stat. § 15-173 (2004); State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988). At the close of the State's evidence, defendant did, in fact, present evidence in his defense. Consequently, we only consider defendant's argument regarding the denial of his motion to dismiss at the close of all evidence.
    First degree murder is the intentional and unlawful killing of a human being with malice, premeditation and deliberation. State v. Coplen, 138 N.C. App. 48, 59, 530 S.E.2d 313, 321, cert. denied, 352 N.C. 677, 545 S.E.2d 438 (2000). To convict a defendant of second degree murder, the State must prove that defendant committedan unlawful killing of a human being with malice, but, proof of premeditation or deliberation need not be shown as it must with first degree murder. State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991).
    Defendant argues here that substantial evidence of malice was not shown by the State. However, “'[t]he intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice.'” State v. Taylor, 155 N.C. App. 251, 266, 574 S.E.2d 58, 68 (2002)(quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)); see also State v. Hodges, 296 N.C. 66, 72, 249 S.E.2d 371, 374 (1978) (evidence showing defendant intentionally inflicted a wound with a deadly weapon which caused death “raises inferences of an unlawful killing with malice which are sufficient [to support a charge of] murder in the second degree”); State v. McNeill, 346 N.C. 233, 238, 485 S.E.2d 284, 287 (1997)(“malice is presumed where the defendant intentionally assaults another with a deadly weapon, thereby causing the other's death”). Such a presumption is sufficient to withstand a motion to dismiss for insufficient evidence and the question of whether the evidence is sufficient to rebut the presumption is a question for the jury. State v. Barrett, 20 N.C. App. 419, 422-23, 201 S.E.2d 553, 555 (1974).    In the case sub judice defendant, by his own admission intentionally shot McGhee with a rifle. This intentional assault with a deadly weapon that resulted in McGhee's death is sufficient to support the presumption that the act was unlawful and committed with malice. See Taylor, supra. Further, this presumption is sufficient to overcome defendant's motion to dismiss for insufficient evidence absent evidence that unequivocally rebuts that presumption. See Barrett, supra.
    Defendant also argues that his statements to police after his arrest, presented into evidence by the prosecution, that he acted in defense of his family in shooting McGhee were sufficient to overcome the presumption of malice. Defendant relies primarily on the case of State v. Carter in support of his position. 254 N.C. 475, 119 S.E.2d 461 (1961). In Carter, the defendant's father was beating her mother with a wine bottle when the defendant struck him several times about the head with a tire iron, killing him. Id. At trial, defendant's motion to dismiss was denied and she was convicted of manslaughter. Id. On appeal, our Supreme Court found that the defendant's statements following the incident showed that she was acting in defense of her mother and that, in the absence of any evidence to the contrary, the killing was justified and the conviction was reversed. Id.    The facts of this case clearly are distinguishable from those presented in Carter. Here there is evidence that defendant actually may have been the aggressor: defendant having left the scene of the argument, removed himself from harm's way, obtained a rifle, and then returned to McGhee's property. There also is no evidence to support defendant's contention that his family was in imminent danger. Additionally, the evidence was conflicting as to whether defendant himself was in imminent danger after returning to McGhee's property. This conflicting evidence fails to establish conclusively that defendant was acting in self-defense or defense of his family. The question of whether the evidence presented was sufficient to overcome the presumption of malice implied by defendant's assault on McGhee with a deadly weapon properly was for the jury to decide. Barrett, 20 N.C. App. at 422, 201 S.E.2d at 555. Accordingly,this assignment of error is overruled.
    Defendant next argues that the trial court improperly excluded opinion evidence regarding McGhee's reputation for violence. When a defendant argues that he acted under self-defense, the victim's character may be admissible to show defendant's fear or apprehension was reasonable or to show the victim was the aggressor. State v. Winfrey, 298 N.C. 260, 258 S.E.2d 346 (1979). Rule 405(a) of the North Carolina Rules of Evidence provides “[i]n all cases in which evidence of character or a trait of character ofa person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.” N.C. Gen. Stat. . 8C-405(a)(2003).
    Here, the trial court allowed defendant's mother, to testify regarding McGhee's reputation immediately prior to sustaining the State's objection to the question from the defense whether the witness had an opinion of whether McGhee was a violent or peaceful person. The trial court sustained the objection as repetitive, not on the basis that it was inadmissible. A “defendant is not entitled to a new trial based on trial errors unless such errors were material and prejudicial.” State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). Defendant bears the burden of showing that he was prejudiced by an error by showing that there was a reasonable possibility a different result would have occurred if not for the error. N.C. Gen. Stat. . 15A-1443(a)(2003); State v. Wingard, 317 N.C. 590, 599-600, 346 S.E.2d 638, 645 (1986).
    The erroneous exclusion of evidence is not prejudicial error when the same, or substantially similar, testimony is otherwise admitted into evidence. State v. Hageman, 307 N.C. 1, 24, 296 S.E.2d 433, 446 (1982). As testimony regarding McGhee's violent temperament already had been introduced in the testimony of defendant's mother regarding McGhee's reputation and additional testimony of his temperament was presented subsequently when shetestified that she was scared of McGhee, even if excluding the witness' testimony was error, it would constitute harmless error. Therefore this assignment of error is overruled.
    Defendant failed to properly preserve his final two assignments of error for appeal and defendant therefore argues plain error as the grounds for appeal of these two assignments of error as permitted by North Carolina Rules of Appellate Procedure Rule 10(c)(4). Our Supreme Court explained the application of the plain error rule in State v. Odom:
        [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings.”

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Under the plain error standard of review, defendant has the burden of showing: “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fairtrial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
    Defendant argues that on cross-examination of his mother, the State elicited improper testimony regarding his altercation with his girlfriend on the day of the shooting. Defendant contends that his mother's testimony that he slapped his girlfriend constituted improper character evidence. Defendant further argues that the State asked an improper question during the cross-examination of his mother regarding a statement she allegedly made to police that defendant probably was taking the gun to trade for drugs. However, defendant fails to show how a different result would have been reached but for the introduction of this evidence.
    Defendant's failure to carry this burden is particularly evident in light of the fact that the impact of this questioning is mitigated by the responses given. In response to the line of questioning regarding defendant's altercation with his girlfriend, defendant's mother testified that the girlfriend struck the defendant first, a fact which mitigates the effect of the testimony as tending to show a violent tendency of defendant. In response to the State's questioning as to whether she told the police that defendant probably had taken the gun to trade for drugs, his mother responded that she did not recall making such a statement. Defendant makes no showing that a different result would have been reached by the jury if these questions had not been asked.
    Taken in the context of the entire record, the questioning and testimony referred to by defendant in these assignments of error do not support the conclusion that a different result would have been reached were it not for the alleged errors; nor that they resulted in a miscarriage of justice; nor denied defendant a fair trial. Consequently, we hold that there was no plain error.
    No error.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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