An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-242

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

STATE OF NORTH CAROLINA

     v .                      Catawba County    
                                 Nos. 04 CRS 50659, 50660
ANTONIO MARQUESE GETER                

    Appeal by defendant from judgments entered 28 September 2004 by Judge Beverly T. Beal in Catawba County Superior Court. Heard in the Court of Appeals 20 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Richard J. Votta, for the State.

    Charlotte Gail Blake for defendant appellant.

    McCULLOUGH, Judge.

     Defendant appeals from judgments entered after a jury verdict of guilty on attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and three counts of discharging a firearm into occupied property charges. We find no error.

FACTS
    On 9 February 2004, the Catawba County Grand Jury indicted defendant for two counts of attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, and three counts of discharging a firearm into occupied property. On 20 September 2004, defendant's case was heard in Catawba County Superior Court where the Stateelected to try defendant on one count of attempted first-degree murder, one count of assault with a deadly weapon with intent to kill inflicting serious injury, and three counts of discharging a firearm into occupied property.
    The State presented evidence at trial tending to show the following: On 22 December 2003, Jelani McCorkle (Mr. McCorkle) and Latisha Price (Ms. Price) were riding in an automobile owned by Mr. McCorkle. At approximately 10:40 p.m., when Ms. Price was driving Mr. McCorkle's vehicle, the two encountered defendant and Dior Rhinehardt (Mr. Rhinehardt) driving in another vehicle on 18th Avenue. At this time, the vehicle in which defendant was riding began flashing its lights in an attempt to talk to Ms. Price. When the two vehicles were side by side, Mr. Rhinehardt beeped his horn and told Ms. Price to roll down her window. Ms. Price did not roll down her window, and instead pulled away. The vehicle in which defendant was a passenger continued to follow Mr. McCorkle and Ms. Price blinking the lights and attempting to pull up beside the other vehicle. The vehicle in which defendant was riding then proceeded to pass Mr. McCorkle's vehicle. At this time, defendant placed half of his body out of the passenger window and began shooting with a black .45 caliber handgun. Defendant discharged four bullets into the vehicle which Mr. McCorkle and Ms. Price were occupying. As a result of the gunfire, Mr. McCorkle's vehicle crashed into a pole. Mr. McCorkle was shot twice, once in the neck and once in the leg. Mr. McCorkle is now paralyzed from the shoulders down and has been hospitalized and undergoing treatmentsince the night of 22 December 2003. Ms. Price was shot in the leg and the bullet went completely through. She received hospital treatment for the bullet wound and was unable to walk for two to three weeks. Even after recovery, sometimes her leg gives out or goes numb.
    After the shooting occurred, Mr. Rhinehardt and defendant fled the scene. Defendant directed Mr. Rhinehardt to take him to a mobile home park to visit someone. After that, defendant and Mr. Rhinehardt took Mr. Rhinehardt's car back to his grandparent's house and went to Lenoir where they spent the night. There was no testimony by Mr. Rhinehardt that he and defendant consumed any alcohol or drugs on the night of 22 December 2003.
    In the investigation at the scene of the incident, four .45 caliber shell casings were found. The McCorkle vehicle was also found to have three bullet holes: one in “the rear of the vehicle just above the bumper on the driver's side,” one “in the driver's side rear quarter panel,” and one “in the driver's side door.” The gun which was alleged to have been used in the course of the crime was never recovered.
    At the close of the State's evidence, defendant made a motion to dismiss for insufficient evidence which was denied. Defendant testified on his own behalf regarding the events of 22 December 2003. Defendant admitted to pointing the .45 caliber handgun at Mr. McCorkle's vehicle but denied ever intentionally pulling the trigger. Defendant testified that when he bought the handgun, the firing pin had been shaved which caused it to “unload the wholeclip” when the trigger was pulled only once. The same night that the incident occurred, defendant sold the .45 caliber gun to a man from Charlotte. Defendant also testified that on the night of 22 December 2003, he was under the influence of cocaine and alcohol sometime before 10:00 p.m. However, all of the instances in which defendant referred to consuming drugs and alcohol occurred after the shooting. Defendant did not talk to police officers until the following day, 23 December 2003. At the close of defendant's evidence, defendant again made a motion to dismiss on the grounds of insufficient evidence which was again denied by the trial judge.
    At the conference regarding the jury instructions, defendant again raised concerns regarding the sufficiency of the evidence to submit three counts of discharging a firearm into occupied property, claiming that there was only sufficient evidence to submit one count. In response to these concerns the trial judge submitted the following instruction to the jury:
            If you find from the evidence beyond a reasonable doubt that on or about December 22, 2003, the defendant willfully or wantonly and intentionally discharged a firearm into an automobile while it was occupied and that the defendant knew that it was occupied, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

            Now, members of the jury, the defendant has been charged with a second charge of discharging a firearm into occupied property. The law which I have just explained to you as to this offense applies equally as well to this charge.
            So if you find from the evidence beyond a reasonable doubt that on or about December 22, 2003, the defendant, Antonio Geter, willfully or wantonly and intentionally discharged a firearm for a second separate time into an automobile while it was occupied and that the defendant knew that it was occupied, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

            And, members of the jury, the defendant has been charged with a third charge of discharging a firearm into occupied property. The law which I've just explained to you as to this offense applies equally as well to this charge.

The jury found defendant guilty of attempted first-degree murder of Jelani McCorkle, guilty of assault with a deadly weapon with intent to kill inflicting serious injury on Latisha Price, and guilty of three counts of discharging a firearm into occupied property. The trial court found that defendant was a level three for sentencing purposes and sentenced him to 219 to 272 months for attempted first-degree murder, 110 to 141 months for assault with a deadly weapon with intent to kill inflicting serious injury, and 28 to 43 months for each conviction of discharging a firearm into occupied property consecutively.
    Defendant now appeals.
ANALYSIS
I
    In the first argument on appeal, defendant contends that the trial court erred in failing to instruct the jury on the lesser included offense of assault with a deadly weapon and further toinstruct the jury on the defense of voluntary intoxication. We disagree.
“The plain error rule 'allows review of fundamental errors or defects in jury instructions affecting substantial rights, which were not brought to the attention of the trial court.'” State v. Bell, 87 N.C. App. 626, 634-35, 362 S.E.2d 288, 293 (1987) (citation omitted). “In order to obtain relief under this doctrine, defendant must establish that the omission was error, and that, in light of the record as a whole, the error had a probable impact on the verdict.” Id.
    Assault with a deadly weapon
    Defendant contends that, where the trial judge did not give a peremptory instruction regarding the seriousness of the injuries to Ms. Price, it erred by failing to instruct the jury on the lesser included offense of assault with a deadly weapon. Assuming arguendo that this assignment of error is properly before this Court, we find no error.
    A defendant is “'entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (citation omitted). However, “a lesser offense should not be submitted to the jury if the evidence is sufficient to support a finding of all the elements of the greater offense, and there is no evidence to support a finding of the lesser offense.” State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226 (1995). Assault witha deadly weapon is a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury. State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002). The primary distinction is that felonious assault requires a showing that a deadly weapon was used and serious injury resulted. Id. at 685, 564 S.E.2d at 316. The elements of assault with a deadly weapon inflicting serious injury are “'(1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death.'” State v. Uvalle, 151 N.C. App. 446, 453, 565 S.E.2d 727, 732 (2002), disc. review denied, 356 N.C. 692, 579 S.E.2d 95 (2003) (citation omitted).
     Generally, “whether a serious injury has been inflicted depends upon the facts of each case and is generally for the jury to decide under appropriate instructions.” State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991). Our Supreme Court has approved a peremptory instruction on serious injury where the evidence of the prosecuting witness's injury “'is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.'” Id. at 54, 409 S.E.2d at 318 (citation omitted). However, a peremptory instruction is not required. Uvalle, 151 N.C. App. at 455, 565 S.E.2d at 732-33. Where there is no genuine dispute as to the serious nature of the victim's injury, the defendant is not entitled to an instruction on the lesser included offense of assault with a deadly weapon. Id. Our courts have held that in lieu of a peremptory instruction regarding “serious injury,” a trial court may achieve the samelegal effect simply by declining “to submit a lesser included charge not including the serious injury element.” Hedgepeth, 330 N.C. at 54, 409 S.E.2d at 318.
    In the instant case, it is evident that the injury of Ms. Price was serious. See State v. Crisp, 126 N.C. App. 30, 37, 483 S.E.2d 462, 466-67, appeal dismissed, disc. review denied, 346 N.C. 284, 487 S.E.2d 559 (1997) (finding that an injury where a bullet passed through the leg of a person, was a serious injury upon which reasonable minds could not differ). The evidence at trial tended to show that Ms. Price received a bullet wound that passed completely through her leg. After the incident, she was taken to the hospital and was unable to walk for two to three weeks. She continues to have problems with her leg giving out and going numb from time to time. Thus, defendant was not entitled to an instruction on the offense of assault with a deadly weapon which omitted the element of serious injury since the evidence did not permit the jury rationally to find him guilty of the lesser offense and acquit him of the greater.
Voluntary Intoxication
    It is “well established that an instruction on voluntary intoxication is not required in every case in which a defendant claims” that he committed an act “after consuming intoxicating beverages or controlled substances.” State v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992). In resolving the question of whether defendant is entitled to an instruction on voluntary intoxication, we examine the evidence in the light most favorableto defendant. State v. Boyd, 343 N.C. 699, 713, 473 S.E.2d 327, 334 (1996), cert. denied, 519 U.S. 1096, 136 L. Ed. 2d 722 (1997). Evidence of mere intoxication is not enough to meet defendant's burden of production. State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 536 (1988). Before the trial court will be required to instruct on voluntary intoxication, defendant must produce substantial evidence which would support a conclusion by the trial court that at the time of the crime for which he is being tried “'defendant's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose . . . . In the absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon.'” State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987) (citation omitted).
    More importantly, the evidence must show that “'at the time of the killing,'” defendant was so intoxicated that he could not form specific intent. Id. “Evidence tending to show only that defendant drank some unknown quantity of alcohol over an indefinite period of time before the murder does not satisfy the defendant's burden of production.” State v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996), cert. denied, 522 U.S. 825, 139 L. Ed. 2d 43 (1997).
    In the instant case, defendant testified that he was under the influence of cocaine and alcohol sometime on the night of 22 December 2003. The testimony shows that at some point and time, which he believes was before 10:00 p.m., defendant consumed alcohol and cocaine. Even taking this evidence in the light most favorableto defendant, this is merely evidence which shows a consumption of substances over an indefinite period of time. Further, defendant acted inconsistently with the contention that he was so intoxicated that he could not have formed the requisite intent. See State v. Long, 354 N.C. 534, 538-39, 557 S.E.2d 89, 93 (2001) (stating that where the defendant takes steps to hide participation in the crime, this demonstrates the ability to plan and think rationally and shows that one was not so intoxicated that the requisite intent could not be formed). Defendant instructed Mr. Rhinehardt where to drive him so that he could leave the county and sell the handgun that was used in shooting the victims the very same night. We hold that the record evidence regarding defendant's intoxication at the time of the murder was insufficient to warrant instruction on the defense of voluntary intoxication.
    There was no error in the omission of jury instructions regarding assault with a deadly weapon and voluntary intoxication and therefore this assignment of error is overruled.
II

    In the second argument on appeal, defendant contends that his attorney rendered ineffective assistance of counsel by failing to request the aforementioned jury instructions. We disagree.
    A defendant's right to counsel includes the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773 (1970). When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). In order to meet this burden defendant must satisfy a two part test:
        “First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (citation omitted). Thus, if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient. Id. at 563, 324 S.E.2d at 249.
    Where this Court has determined that there was insufficient evidence to submit instructions to the jury regarding voluntary intoxication and assault with a deadly weapon, it cannot be said that the result of the proceeding would have been different had defendant's counsel requested these instructions. Therefore, this assignment of error is overruled.
    III
    Finally, defendant contends that the trial court erred in submitting three counts of discharging a weapon into occupied property instead of one. We disagree.    “In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the state, which is entitled to every reasonable inference which can be drawn from that evidence.” State v. McNicholas, 322 N.C. 548, 556-57, 369 S.E.2d 569, 574 (1988). “There must, however, be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense.” Id. at 557, 369 S.E.2d at 574. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
    The offense of discharging a firearm into an occupied vehicle requires that a person willfully or wantonly discharge a firearm into a vehicle while it is occupied. See N.C. Gen. Stat. § 14-34.1 (2003). However, defendant's contention is that the State presented insufficient evidence to support three distinct charges of discharging a firearm into an occupied vehicle. Defendant bases this contention on his own testimony that the handgun used, which was not present at trial, had been altered so that it would fire all the rounds in the chamber with only one pull of the trigger.
    Viewing the evidence in the light most favorable to the State and drawing all reasonable inferences in its favor, we conclude that substantial evidence existed showing that defendant discharged his firearm into the victim's vehicle three times. The State's evidence at trial tended to show that there was a bullet hole in the rear bumper of the vehicle, one in the rear quarter panel, andone in the driver's side door. See State v. Nobles, 350 N.C. 483, 505, 515 S.E.2d 885, 899 (1999) (holding that where there were several distinct and separate bullet holes in the vehicle there was sufficient evidence to submit separate offenses to the jury). Further, after hearing defendant's argument that there was insufficient evidence to submit the three separate charges to the jury, the trial judge concluded that there was sufficient evidence to submit all three offenses, but with a jury instruction, allowing the jury to decide whether they believed defendant's contention that there was only one distinct act of pulling the trigger. The jury instruction stated:
            Now, members of the jury, the defendant has been charged with a second charge of discharging a firearm into occupied property. The law which I have just explained to you as to this offense applies equally as well to this charge. So if you find from the evidence beyond a reasonable doubt that on or about December 22, 2003, the defendant, Antonio Geter, willfully or wantonly and intentionally discharged a firearm for a second separate time into an automobile while it was occupied and that the defendant knew that it was occupied, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

            And, members of the jury, the defendant has been charged with a third charge of discharging a firearm into occupied property. The law which I've just explained to you as to this offense applies equally as well to this charge.

(Emphasis added.)
    Based on the evidence, we conclude that the trial court did not err in denying defendant's motion to dismiss the additional charges of discharging a firearm into an occupied vehicle. Therefore, this assignment of error is overruled.
    Accordingly, we find that there was no error in the trial court's failure to submit jury instructions as to assault with a deadly weapon and voluntary intoxication, no merit to an ineffective assistance of counsel claim based on the omission of the aforementioned jury instructions, and sufficient evidence to submit three counts of discharging a firearm into occupied property to the jury.
    No error.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).

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