State v Velardi, (04-1164) 04/05/2005

Appeal by defendant from judgments entered 7 January 2004 by Judge Philip Ginn in Henderson County Superior Court. Heard in the Court of Appeals 4 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General John C. Evans, for the State.

William D. Auman, for defendant-appellant.

ELMORE, Judge.

     Defendant was found guilty of four counts of assault with a deadly weapon with intent to kill. He was sentenced to an active term of imprisonment of a minimum of 24 months and a maximum of 38 months. Three other terms of the same duration were suspended.
    The State presented evidence tending to show that at approximately 3:00 a.m. on 19 May 2002, Deputy John Johnson of the Henderson County Sheriff's Department answered a dispatch to Interstate 26 near the Brookside Camp Road bridge. He met Mr. Charles Lawson, a driver for Swift Transfer, who showed him a broken windshield on the cab of his rig. Deputy Johnson also saw a rock on the seat near where Mr. Lawson had been seated.
    The next morning at approximately 2:00 a.m. Mr. James LloydTimmons was driving his tractor-trailer rig north on Interstate 26. As he approached the Brookside Camp Road bridge, he saw two objects flying through the air. A rock about four or five inches in size crashed through his windshield about eight inches to the right of center and landed inside the cab of his truck. A cinder block dented the hood of the vehicle and tore off the right side mirror. He saw two or three people standing atop the bridge.
    Deputy Johnson came to the scene to investigate the incident involving Mr. Timmons's truck and a second vehicle, a recreational vehicle. Deputy Johnson observed damage to the truck's and recreational vehicle's windshields inflicted by a rock or other object. Deputy Johnson at a later time investigated a fourth incident at or near the same location involving damage and windshield breakage to a tractor-trailer driven by Mr. Kenneth Holcomb.
    On 28 June 2002 Detective Jerry Rice of the Henderson County Sheriff's Department, after receiving a tip, visited defendant's residence located on Brookside Camp Road about one quarter mile from Interstate 26. Defendant admitted to Detective Rice that he and a friend had twice gone to the bridge and thrown rocks at trucks traveling on the interstate highway. He stated he hit only three semi-trucks and no cars. He denied throwing a cinder block.
    Defendant testified and admitted that he threw rocks off the bridge at Brookside Camp Road. He maintained that he did not damage any vehicles.
    On cross examination defendant was questioned about entriesmade in an internet journal maintained on his home computer. One entry, dated 19 May 2002, states: “I'm going to trash some shit tonight, maybe my damage will be shown on the news.” Another entry, dated 22 May 2002, states: “So I made the news. Did any of you watch News 13 tonight? Catch the 11:00 news if you can. Look for any news on windshields, overpasses, I-26, etc.”
    Defendant first contends that the court committed plain error by allowing the prosecutor to cross examine him regarding the entries in the internet journal. He argues that these entries were obtained as a result of an illegal warrantless search of his home.
    We first note that we can find nothing in the record to indicate how the entries recorded in the internet journal were obtained. The record does not show that defendant made any motion to suppress or otherwise challenged any alleged improper search or seizure. Moreover, to receive appellate relief in the absence of an objection made in the trial court to the admission of evidence, a defendant must show that a different result probably would have been reached absent the error or that the error was so fundamental as to result in a miscarriage of justice or the denial of a fair trial. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Given defendant's testimony inculpating himself and the lack of any evidence in the record to support defendant's assertion of error, we conclude plain error has not been shown.
    Defendant's remaining assignment of error is to the denial of his motion to dismiss for insufficient evidence. Upon such motion the trial court determines whether there is substantial evidence toestablish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65- 66, 296 S.E.2d 649, 651 (1982). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the Court in ruling upon the motion.” State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581-82 (1975). The defendant's evidence which is favorable to the State and does not conflict with the State's evidence may be considered. State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971).
    The elements of assault with a deadly weapon with intent to kill are: (1) an assault; (2) employing a deadly weapon; and (3) having the intent to kill. N.C. Gen. Stat. § 14-32(c) (2003). Of those three elements, defendant contends that evidence is lacking of the element of intent to kill.
    “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. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956). “[T]he nature of the assault, the mannerin 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).
    By his own testimony, defendant admitted that on 19 and 20 May 2002, he threw rocks from atop the bridge on Brookside Camp Road at trucks traveling on Interstate 26. He further admitted that he knew that these vehicles were occupied by people, that the vehicles were traveling at a great rate of speed and that a glass windshield was in front of these people. He further acknowledged that he knew what happens to glass when it is struck by a rock. That a person could have been killed or seriously injured by defendant's actions is readily apparent. One who deliberately performs an act “must be held to intend the normal and natural results of his deliberate act.” State v. Jones, 18 N.C. App. 531, 534, 197 S.E.2d 268, 270, cert. denied, 283 N.C. 756, 198 S.E.2d 726 (1973). We overrule this assignment of error.
    No error.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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