An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1080


Filed: 5 July 2005


v .                             Guilford County
                                No. 03 CRS 79074

    Appeal by defendant from judgment filed 1 April 2004 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 13 April 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Christine M. Ryan, for the State.

    William B. Gibson for defendant.

    BRYANT, Judge.

    Ronald Kelvin Jordan (defendant) appeals a judgment filed 1 April 2004, entered consistent with a jury verdict finding him guilty of assault with a deadly weapon with intent to kill inflicting serious injury.
    On 19 May 2003, defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury, a Class C felony. This matter was tried during the 29 March 2004 criminal session of Guilford County Superior Court with the Honorable Anderson D. Cromer presiding. On 1 April 2004, the jury found defendant guilty of the offense charged. The trial court determined defendant had attained prior record level III for felonysentencing purposes, entered judgment, and imposed a sentence of 116 - 149 months imprisonment. Defendant appeals.

    On 23 September 2003, Derrick Chidomere pled guilty in Guilford County Superior Court to four felonies, including assault with a deadly weapon inflicting serious injury. The assault with a deadly weapon inflicting serious injury charge arose out of incidents which occurred on 21 March 2003 involving victim Dominick Barnes.
    At defendant's trial, Chidomere testified against defendant regarding the 21 March 2003 incidents. According to Chidomere, on the afternoon of 21 March 2003, Chidomere purchased a single-barrel, sawed-off shotgun. Shortly thereafter, he drove to defendant's house. The two men had known each other about ten years.
    Chidomere and defendant drove to Wal-Mart, where Chidomere bought ammunition. Having no specific plans in mind, Chidomere first drove to the Southgate Inn on Randleman Road in Greensboro. When they arrived, they spoke to a lady about a drug deal. As Chidomere guided his car further into the parking lot of the motel, a crowd of people approached and one man “walked up to the car and was beating on the right front window.” According to Chidomere, Jordan “fired a shot into the air,” and the crowd “took off running.” Chidomere also fired off a shot because firing the shot was “just to be doing something. Just bored.” He explained, “wewasn't trying like intend [sic] to hit anybody, but, you know, it was just like sort of an adrenaline rush.”
    According to Chidomere, he and defendant got back in the car, and Chidomere drove over to Hampton Homes, a housing project, sometime between 3:00 and 4:00 a.m. There, they saw a man walking along the sidewalk. An unfriendly conversation took place between Jordan and the pedestrian. Chidomere indicated the man had become offended and “tried to open the car to harm us,” and when Chidomere opened his door, the man started to run, at which point “a shot was fired.” According to Chidomere, “[Defendant] had the gun” at that time. After he saw the man hit the ground, Chidomere drove down the street, turned the car around and “came back to see if he was still there,” but the man was gone.
    Chidomere then drove over to Smith Homes, another housing project, where his car was soon spotted by the police, and “[t]hat's when I went on a high-speed chase from them.” Chidomere soon brought his car to a stop, allowing the police to apprehend him and defendant and take them into custody. At defendant's trial, Chidomere testified that during the chase defendant threw the shotgun out of the window. However, in his statement to the police following his arrest, Chidomere indicated he, and not defendant, threw the weapon from the car.
    The victim of the shooting also testified at trial. At the time of the crime, he lived in Hampton Homes. He recalled it was around 2:00 a.m. on 21 March 2003 when he was walking home along a sidewalk from a friend's house in the neighborhood. A car drove byand someone in the car asked him what was happening. The victim merely replied “nothing” and continued to walk. Subsequently, a person wearing a baseball cap seated in the passenger side shot him in the face. A nearby resident walked Barnes home, where he sat on the porch until the officers arrived and he was taken by ambulance to Cone Hospital. From there, he was flown to Baptist Hospital, where he underwent three surgeries over the next couple of months in an unsuccessful attempt to save the vision in his right eye.
    Officer B.M. Mayo of the Greensboro Police Department was the first to arrive at the scene. According to Officer Mayo, Barnes “wasn't able to tell me too much because he was in a lot of pain.” Officer B.C. Overstreet of the Greensboro Police Department was also dispatched to the location, where he observed the victim “had sustained a gunshot wound to the right side of his face.” When Officer J.C. Cho of the Greensboro Police Department arrived at the scene, he found a sixteen-gauge shotgun shell near the sidewalk in a parking lot.
    Officer B.A. Land of the Greensboro Police Department arrived at the scene, where he heard the victim describe a vehicle similar to the one whose occupants had discharged a weapon back at Southgate Inn. Officer Land was also the officer who became involved in the high-speed chase around Smith Homes. When Officer Land apprehended the vehicle and its two occupants, he noticed the passenger was wearing a hat fitting the victim's description of the shooter's hat. Thereafter, Officer Mayo arrived, searched the twosuspects, and found two live shotgun shells in defendant's front pocket. On the floor of the vehicle, the officers also found a pair of gloves and, on the passenger's side, a full box of ammunition. Guided by Chidomere, the officers soon found the shotgun “off to the side of the road . . . embedded down in some mud.” Officer Land described the shotgun and shells seized by the officers as being sixteen-gauge.
    W.C. Phoenix served as the Greensboro Police Department crime scene technician who investigated the case. He was present when the shotgun was located, and when he “picked it up to make sure that it was safe” he “ejected a live round.” He testified he found no latent fingerprints “of identifiable value” on the spent shell found near the shooting, the live shell ejected from the shotgun, or on the shotgun itself. Likewise, Special Agent Jim Gregory of the State Bureau of Investigation testified, when he later tested for gunshot residue, the results were negative for both Chidomere and defendant. He further indicated the results “do not eliminate the possibility that this subject may have fired a gun.”

    The issues on appeal are whether: (I) defendant received ineffective assistance of counsel; and (II) the trial court erred in denying his motion to dismiss the charge.
    Defendant first argues his counsel's request that the trial court not provide an instruction on accomplice testimony (as an interested witness) constituted ineffective assistance of counselin violation of the Sixth and Fourteenth Amendments to the United States Constitution.
    A defendant's counsel is presumed to act with reasonable professional judgment. State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488 (2002). “Reviewing courts should avoid the temptation to second-guess the actions of trial counsel, and judicial review of counsel's performance must be highly deferential.” Gainey, 355 N.C. at 113, 558 S.E.2d at 488.
        To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different.

Gainey, 355 N.C. at 112, 558 S.E.2d at 488, (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984) and State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)). Further, the reviewing “'court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies[, for t]he object of an ineffectiveness claim is not to grade counsel's performance.'” Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49 (quoting Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699- 700).
    Mere allegations surrounding matters of trial tactics, without more, are not sufficient to meet the test set forth in Strickland. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 563-64(1991). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (2002).
    The only error complained of on appeal is the defense counsel's rejection of the proposed jury instruction on accomplice testimony. In conference, the trial court proposed adding the pattern jury instruction on accomplice testimony. The transcript reveals:
        [THE COURT]: It basically reads as follows: There's evidence which tends to show that a witness was an accomplice in the commission of the crime charged in this case. An accomplice is a person who joins with another in the commission of a crime. The accomplice may actually take part in acts necessary to accomplish the crime or he may knowingly help or encourage another in the crime either before or during its commission. An accomplice is considered by the law to have an interest in the outcome of the case. You should examine every part of the testimony of such a witness with the greatest of care and caution. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.

        Anyone have any objections if I give that?

        [DEFENSE COUNSEL]: I do. I would ask the Court not to give that, Your Honor.

        [PROSECUTOR]: It's fine with me.

        [THE COURT]: Well, that's -- okay. I won't give it.
        I'd like for the record to reflect that it was discussed; objected to by the defendant.

    Our case law is quite clear. “A successful ineffective assistance of counsel claim based on a failure to request a jury instruction requires the defendant to prove that without the requested jury instruction there was plain error in the charge.” State v. Pratt, 161 N.C. App. 161, 165, 587 S.E.2d 437, 440 (2003); see also State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684 (1985). Where a defendant asserted ineffective assistance of counsel because his counsel failed to request instructions directed at the credibility of the victim and other witnesses, our Supreme Court found no error when “[t]he suggested instructions would have added little to the jury's awareness of the importance of deciding whom to believe.” State v. Swann, 322 N.C. 666, 688, 370 S.E.2d 533, 545-46 (1988).
    Plain error is defined as “'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.'” State v. Odom, 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) (emphasis omitted)).
    In North Carolina, “an instruction to scrutinize the testimony of a witness on the ground of interest or bias is a subordinate feature of the case which does not require the trial [court] to give the cautionary instruction unless there is a request for such instruction.” State v. Vick, 287 N.C. 37, 43, 213 S.E.2d 335, 339(1975) (emphasis and citations omitted). Here, even though the jury charge did not contain the specific instruction on accomplice testimony now requested by defendant, the final charge given by the trial court included the following:
        You are the sole judges of the credibility of each witness. By that, I mean you must decide for yourselves whether to believe the testimony of any witness. You may believe all, or any part, or none of what a witness has said on the stand. In determining whether to believe any witness, you should apply the same tests of truthfulness which you apply in your everyday affairs. As applied to this trial, these tests may include . . . any interest, bias, or prejudice the witness may have . . . and whether his testimony is consistent with other believable testimony or evidence in the case.

    The jury was aware Chidomere had already been convicted of a crime based on the events of 21 March 2003. In its final charge, the trial court also gave a pattern jury instruction on interested witnesses. The instruction given was substantially the same as the one now requested by defendant:
        You may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take his interest into account. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.

As a result, there is little practical difference between the instructions as given at trial and the instructions as proposed by defendant on appeal.
    Second, there was ample opportunity for the jury to assess and consider the witness' credibility. Defendant thoroughly cross-examined Chidomere on his interest in the outcome ofdefendant's case. As shown by the evidence, Chidomere had already been sentenced for his participation. He stood to gain no reduction in his sentence if defendant was convicted; instead, all Chidomere was to receive was a letter in his Department of Corrections file outlining his agreement to testify. There is no evidence the letter was contingent upon defendant's conviction.
    Defendant's argument in this case is similar to the argument
made in State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988). In Swann, defendant alleged he received ineffective assistance of counsel when his trial counsel failed to request five specific jury instructions related to the credibility of the victim and other witnesses. Swann, 322 N.C. at 687-88, 370 S.E.2d at 545. Our Supreme Court reiterated, “in order to show ineffective assistance of counsel because of the failure to request jury instructions, the defendant must show that without the requested instructions there was plain error in the charge.” Swann, 322 N.C. at 688, 370 S.E.2d at 545. The Supreme Court agreed with the trial court's conclusion, “[t]he suggested instructions would have added little to the jury's awareness of the importance of deciding whom to believe.” Swann, 322 N.C. at 688, 370 S.E.2d at 545-46.
    As in Swann, the jury in the case at bar had ample opportunity to assess the credibility of the witnesses, and had sufficient instructions concerning the witness' potential interest in the outcome. Ultimately, the jury determined Chidomere's testimony regarding defendant's participation was credible. Accordingly, it was not plain error for the trial court to fail to give thisinstruction, and defendant has failed to demonstrate ineffective assistance of counsel for failure to request an instruction on accomplice testimony. This assignment of error is overruled.
    Defendant next argues the trial court erred in denying his motion to dismiss made at the close of all the evidence when there did not exist sufficient evidence to support the element of intent to kill.
    In ruling on a motion to dismiss the trial court must determine whether there “is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). In determining the sufficiency of the evidence, “the trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
    To convict defendant of assault with a deadly weapon with intent to kill inflicting serious injury, the State must prove: (1) an assault, (2) with a deadly weapon, (3) with intent to kill, and (4) inflicting serious injury not resulting in death. State v. James, 321 N.C. 676, 687, 365 S.E.2d 579, 586 (1988). In hisbrief, the only element challenged by defendant was whether there was sufficient evidence to indicate defendant intended to kill the victim.
    “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. Ferguson, 261 N.C. 558, 561, 135 S.E.2d 626, 629 (1964). “[T]he nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances 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).
    Applying these principles to the instant case, taken in the light most favorable to the State, there was substantial evidence presented at trial that defendant was armed with a shotgun, and he fired the shotgun at the victim at close range, hitting him in the face. The gun retrieved by police was a shotgun with live ammunition. The victim testified the shooter was “about as far from me to the judge.” When a person fires a shotgun in the face of another at close range, it may be fairly inferred the shooter intended to kill the person, even if he was unsuccessful.
    This case is substantially similar to State v. Holley, 35 N.C. App. 64, 239 S.E.2d 853 (1978). In Holley, defendant deliberately shot the victim at close range with a twelve-gauge shotgun. This Court stated:
        It is well known that a twelve-gauge shotgun fired at close range is a deadly weapon. Thejury could reasonably infer that defendant intended the normal and natural result of his deliberate act. Indeed, it is difficult to see how any other inference is reasonably possible from the evidence in this case.

Holley, 35 N.C. App. at 66, 239 S.E.2d at 855.
    In the instant case, there was enough evidence to support the element of intent to kill. It was proper for the trial court to present to the jury the charge of assault with a deadly weapon with intent to kill inflicting serious injury. This assignment of error is overruled.
    No error.
    Judges MCGEE and STEELMAN concur.
    Report per Rule 30(e).

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