An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-85

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006

STATE OF NORTH CAROLINA
                                    Rowan County
v .                                 Nos. 02CRS001146-48
                                        02CRS050572
TERENCE JARARD AUSTIN

    Appeal by defendant from judgments entered 11 February 2004 by Judge Richard L. Doughton in Rowan County Superior Court. Heard in the Court of Appeals 21 September 2005.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General David Roy Blackwell, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant-appellant.

    HUNTER, Judge.

    Terence Jarard Austin (“defendant”) appeals from judgments and commitments of the trial court imposed upon jury verdicts finding him guilty of voluntary manslaughter and two counts of assault with a deadly weapon inflicting serious injury. Defendant contends the trial court erred in denying his motion to dismiss and in instructing the jury on the theory of acting in concert. We find no error.
    The State presented evidence tending to show that on the evening of 25 January 2002, Catawba College student and football player Darris Morris (“Morris”) was shot and killed during an altercation between a group of Catawba College (“Catawba”) students and students from Livingstone College (“Livingstone”). Two otherCatawba students, Bradley McCrary (“McCrary”) and Demetrius Phipps (“Phipps”), were shot and injured as well. The confrontation between the Catawba students and the Livingstone students began during a party at Catawba's Pine Knott dormitory that was attended by many members of Catawba's football team. A group of six students from Livingstone, including defendant, attended the dormitory party as well. The six Livingstone students -- defendant, Isaac Brazeal (“Brazeal”), Morris Brannon (“Brannon”), Ricardo Battle (“Battle”), Cory Peterson (“Peterson”), and Karl Wilson, Jr. (“Wilson”) -- arrived together in a four-door Dodge Dynasty driven by Brazeal. Brazeal parked the vehicle on the street approximately one hundred yards from the Pine Knott dormitory. Brazeal remained at the party only briefly, however, and then returned to his car. The other Livingstone students remained at the party.
    During the party, Brannon, a football player for Livingstone, and Catawba student and football player Jemonte Battle (“Jemonte”) began arguing. They were ordered to “take it outside,” and the five Livingstone students exited the dormitory, followed by a number of Catawba students, including Jemonte and Morris. Witnesses varied in their accounts of the size of the crowd of Catawba students following the Livingstone students, with numbers ranging from “a few” to as many as forty students. Once outside, the Livingstone students met Brazeal, who was walking toward them, and told him to return to the car and start the engine. The Livingstone students ran to Brazeal's car, followed by the Catawbastudents. Some witnesses testified that the trunk of Brazeal's car was briefly opened. Once the Catawba students reached Brazeal's vehicle, a fistfight immediately erupted. Defendant broke away from the fight, opened the front passenger-side door of Brazeal's car, and retrieved a nine-millimeter gun from beneath the driver's seat. Defendant testified he then fired several shots in the air to “scare the crowd away to give us enough time so we could get out of there.”
    Catawba campus security guard Allen Hinson (“Hinson”) testified he witnessed the fistfight at Brazeal's vehicle. As he radioed for back-up, Hinson observed a young black male with braided hair and a goatee open Brazeal's front passenger-side door and “reach[] down in the front floorboard or seat area for something.” Hinson continued:
        I saw his arm go up and saw what I thought to be a handgun, at which point he fired one round off in the air.

            The Catawba students started running toward me. I stepped over to the side so they could get by. And just as the last Catawba student was right at me, I looked at him and hollered, “Get down,” took my hand and motioned like get down and was looking at him.

            Just as I take my eyes off him and looked back at the guy that was shooting the gun, he had his arm extended straight out . . . in my direction, and he fired another round off. And the percussion from the gun hit me in the face. . . . And I could hear the bullet as it passed me and then I heard a thump.

        I looked back over my shoulder down the sidewalk and I noticed there was one male running like he had his hand over his chest area, like in a leaning forward position. I didn't know if he had gotten hit or not.
Hinson took cover behind a car and radioed again for more assistance. As Hinson then drew his weapon to return fire, the individual at Brazeal's car “started firing -- firing rounds off in our direction, mine and the Catawba students' direction.” As Hinson fired his first shot, the gunman entered Brazeal's car. Hinson fired three rounds, one of which struck and shattered the back window of Brazeal's vehicle. Hinson testified that, “[i]n the meantime, there's someone in the back seat that [began] shooting a smaller caliber weapon out of the driver's rear passenger area.” Brazeal's vehicle drove away.
    McCrary testified he was a Catawba student and football player at the time of the shooting and attended the Pine Knott dormitory party. McCrary was one of the group of people who followed the Livingstone students out of the dormitory “to make sure they were leaving.” As he was walking towards Brazeal's vehicle, Hinson walked up from behind and passed McCrary. McCrary stopped when he was approximately one hundred feet away from Brazeal's vehicle. At that point, “[w]hoever was standing on the passenger side of the car raised [a] gun and pointed it toward the stairway.” The man fired at least one shot and “then proceeded to turn and shoot toward [McCrary].” One of the bullets struck McCrary's left leg, and then lodged in his right leg. Physicians later determined that removal of the bullet from McCrary's leg was medically inadvisable. McCrary could not identify the shooter, and did not see Hinson while the bullets were being fired.    Phipps testified he was a student and basketball player at Catawba. Phipps was outside the Pine Knott dormitory the night of the shooting and joined a group of approximately forty other students “running on the side of Pine Knott[.]” Phipps stated he did not know why the students were running, but nevertheless followed them. Phipps stated the group of students slowed and “that's when they started shooting, so we started to turn around and run back towards the parking lot.” Phipps was struck in the hand and back of his leg. He could not identify who shot him.
    Peterson testified that, as he and the other Livingstone students reached Brazeal's vehicle, the Catawba students “came down and started hitting on [Wilson], one of them did.” Immediately afterwards, shots rang out and “everybody just started running, scattering everywhere.” Peterson saw Battle with a gun, but did not see him shoot it. However, Peterson heard two shots coming from Battle's direction. Peterson stated he also heard shots fired from the passenger side of the car where defendant was standing. Peterson later told police officers that defendant and Battle had guns.
    Special Agent Thomas Trochum (“Special Agent Trochum”) of the State Bureau of Investigation (“SBI”) testified as an expert in forensics firearms identification. According to Special Agent Trochum, the nine-millimeter firearm recovered by investigating detectives fired the eight nine-millimeter shell casings discovered at the scene of the shooting. Similarly, Special Agent Trochum testified it was Hinson's .40 caliber pistol which fired three .40caliber cartridges found at the scene, and a recovered .22 caliber pistol which fired the .22 shell casings found at the scene. Upon examining the bullet removed from Phipps' leg, Special Agent Trochum stated that, of the three weapons recovered -- defendant's nine-millimeter, Hinson's .40 caliber pistol, and the .22 caliber pistol -- the bullet could have only originated from defendant's nine-millimeter. Special Agent Trochum further opined that the x- ray of the bullet lodged in McCrary's leg was more consistent with bullets fired from defendant's nine-millimeter rather than Hinson's weapon.
    Defendant presented evidence and testified he entered Brazeal's vehicle in an effort to escape the fistfight. From his vantage point inside the car, defendant saw his friend Wilson “slumped over the front of the car . . . being jumped on by . . . three individuals [who] . . . were pounding on him.” He then noticed the handle of the nine-millimeter beneath the driver's seat, removed the gun, and exited the vehicle. Defendant testified he had given the nine-millimeter to Brannon one week earlier and did not know the weapon was in the car. He stated that he was scared and fired shots in the air to frighten the crowd away so that he and his friends could escape the mob. Defendant testified:
        After firing, the crowd pretty much scattered. I then threw the gun back into the passenger's front door. And I grabbed Karl Wilson by his arm and tossed him into the front passenger seat.

            . . .
        After I tossed him into the front passenger seat, I opened the back passenger door and dove in.

As Brazeal began to drive the car away from the scene, Battle was in the back seat next to defendant. Peterson was also in the car, but defendant could not remember where he sat. As the car pulled away, defendant heard gunshots. Seconds later, “the rear window was shot out and [Battle] was struck in the head and [defendant] was grazed on the left side of [his] head.” Battle began “screaming and kicking and hollering saying that he was hit.” Defendant pulled Battle down to the floorboard of the vehicle. As he did so, Brannon “jumped into the driver's back side[.]” Defendant testified Brannon was holding defendant's nine-millimeter gun. After they escaped the scene, the Livingstone group searched without success for a hospital. Brazeal stopped the vehicle to allow Wilson and Peterson to exit. As he did so, Brazeal noticed that Peterson was carrying a gun.
    Peterson testified defendant handed him the nine-millimeter as he exited the car. Peterson stated that he then buried the gun at a flower shop. He later led investigating officers to the flower shop, where a nine-millimeter Smith and Wesson brand semi-automatic pistol was recovered. Peterson also testified that, as he exited Brazeal's vehicle, Brannon “tossed one of the guns on the left-hand side of the road[.]” A .22 caliber pistol matching the .22 shell casings found at the scene of the shooting was later recovered.
    Unable to locate a hospital, the four remaining Livingstone students finally returned to Livingstone, where security officerssummoned an ambulance for Battle and defendant. Battle survived his injuries. Defendant denied shooting his weapon in any direction except straight up into the air.
    Defendant presented expert testimony by forensic pathologist Dr. Patrick Lantz (“Dr. Lantz”). Upon his review of the autopsy records, Dr. Lantz testified he believed it was Hinson's bullet that struck and killed Morris.
    Thomas Chad Hyde (“Hyde”) testified on behalf of defendant. According to Hyde, Brannon told him after the shooting that “'he was worried about a residue test and he didn't know how that would come around'” because “'he had shot at someone and probably was the one who had hit him.'” Defendant also introduced a handwritten statement given to the police by Peterson stating that, after the Catawba students assaulted Wilson, Peterson observed Brannon “shooting down the sidewalk area[.]”
    At the conclusion of the evidence, the jury found defendant guilty of voluntary manslaughter of Morris and guilty of two counts of assault with a deadly weapon inflicting serious injury to McCrary and Phipps. The trial court sentenced defendant to a term of sixty-four months to eighty-six months for the voluntary manslaughter conviction, and terms of twenty-five to thirty-nine months on each of the assault with a deadly weapon inflicting serious injury convictions. Defendant appeals.

I. Motion to Dismiss

    By his first assignment of error, defendant contends the trial court erred in denying his motion to dismiss the charges againsthim. When ruling on a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Woodard, 324 N.C. 227, 230, 376 S.E.2d 753, 754-55 (1989). The State is entitled to every reasonable inference which can be drawn from the evidence presented, and all contradictions and discrepancies are resolved in the State's favor. Id. Evidence is sufficient to withstand a motion to dismiss when it gives “rise to a reasonable inference of [the] defendant's guilt based on the circumstances.” State v. Styles, 93 N.C. App. 596, 603, 379 S.E.2d 255, 260 (1989). Once sufficient evidence is adduced at trial, it becomes a question for the jury. Id.
    Defendant argues evidence establishes that it was the security guard, Hinson, who fired the fatal bullet that killed Morris. Defendant contends the evidence also failed to show that he, and not Brannon, shot and injured McCrary and Phipps. We do not agree.
    In the light most favorable to the State, there was evidence from which a reasonable juror could conclude that defendant shot and killed Morris, and shot and injured McCrary and Phipps. Hinson testified that he observed a man matching defendant's general description reach into the front passenger-side of Brazeal's vehicle and retrieve a weapon. The man initially shot the gun into the air only. This testimony is identical to defendant's own statement that he reached into the passenger-side of Brazeal's vehicle, removed the nine-millimeter gun, and shot into the air. Hinson stated that the man with the gun then shot in his direction, toward the fleeing Catawba students. Hinson heard and felt thebullet pass him and heard a “thump.” Hinson looked over his shoulder and observed a “male running like he had his hand over his chest area, like in a leaning forward position.” When he later viewed Morris's body, Hinson “thought that maybe that's who that individual was.” Morris's body lay approximately ten yards behind Hinson.
    Defendant argues that Hinson's testimony was unreliable and therefore does not serve to support defendant's conviction. “This argument ignores the fact that when weighing a challenge to the sufficiency of the evidence, we are to construe all evidence in the light most favorable to the [S]tate.” State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). It is a “long-standing principle in our jurisprudence that . . . it is the province of the jury, not the court, to assess and determine witness credibility.” Id. Although defendant presented evidence in support of acquittal, “[t]he defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence.” State v. Peoples, 167 N.C. App. 63, 67, 604 S.E.2d 321, 324 (2004).
    The State also presented testimony by Special Agent Trochum, who testified that the bullets which struck and injured McCrary and Phipps were most likely fired from defendant's nine-millimeter. McCrary testified that the man who shot him was standing at the passenger-side door, where defendant admitted he stood and fired into the air. Hinson testified that a man matching defendant's general description stood at the passenger-side door and firedshots at the fleeing Catawba students. Peterson heard shots emanating from where defendant was standing, and he told police that defendant had a gun. We conclude the State presented sufficient evidence from which the jury could conclude that defendant committed voluntary manslaughter and assault with a deadly weapon inflicting serious injury. We overrule this assignment of error.
II. Jury Instructions

    By further assignment of error, defendant contends the trial court erred in instructing the jury on the theory of acting in concert in connection with the assault charges. During the fistfight at Brazeal's vehicle, defendant fired his nine-millimeter pistol and Battle fired a .22 caliber pistol. Defendant also testified that he saw Brannon holding his nine-millimeter at one point, and introduced a statement by Peterson that he observed Brannon shooting down the sidewalk. McCrary and Phipps were shot by someone who fired defendant's nine-millimeter pistol. Thus there was evidence from which the jury could have found that either defendant or Brannon shot and wounded McCrary and Phipps. Defendant argues the State presented insufficient evidence that he acted together with Brannon or anyone else pursuant to a common plan or purpose in committing the assaults against the Catawba students. Defendant contends the trial court therefore improperly instructed the jury that it could find defendant guilty of assault with a deadly weapon inflicting serious injury under the theory of acting in concert. We do not agree.    Under the theory of acting in concert:
        “It is not . . . necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.”

State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (quoting State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979)); see also State v. Bellamy, ___ N.C. App. ___, ___, 617 S.E.2d 81, 94 (2005) (noting that, where two persons join in a purpose to commit a crime, each of them is guilty of that crime and all other crimes committed by the other in pursuance of the common purpose or as a natural and probable consequence thereof).
    Defendant argues there was no evidence that a plan to assault the Catawba students existed prior to the shootings, and that the trial court was therefore precluded from giving an acting in concert instruction. This is not the law in this State, however.
            The principle of concerted action need not be overlaid with technicalities. It is based on the common meaning of the phrase “concerted action” or “acting in concert.” To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose. . . . These terms mean the same in the law of crimes as they do in ordinary parlance.

            Where the state seeks to convict a defendant using the principle of concerted action, that this defendant did some act forming a part of the crime charged would be strong evidence that he was acting together with another who did other acts leading toward the crimes' commission. That which isessentially evidence of the existence of concerted action should not, however, be elevated to the status of an essential element of the principle. Evidence of the existence of concerted action may come from other facts. It is not, therefore, necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

Joyner, 297 N.C. at 356-57, 255 S.E.2d at 395.
    Evidence in a criminal case can be either direct or circumstantial. State v. Cummings, 267 N.C. 300, 301, 148 S.E.2d 97, 98 (1966). Circumstantial evidence is entitled to be given the same weight by the jury as direct evidence. State v. Lowther, 265 N.C. 315, 317, 144 S.E.2d 64, 66 (1965).
    In the light most favorable to the State, there was evidence from which a reasonable juror could find that defendant acted together with Battle and Brannon to assault the Catawba students. Following the confrontation at the dormitory, the Livingstone students retreated to their automobile. As the group of Catawba students approached, defendant and Battle retrieved handguns and elevated the fistfight into a gunfight. Both Battle and defendant fired their weapons. Subsequently, defendant jumped into the car. According to the statement by Peterson, Brannon also obtained possession of the gun defendant had been shooting and fired into the crowd. Thus, there was evidence from which a juror could find that defendant, Battle, and Brannon acted together with a commonpurpose to assault the Catawba students with handguns. We overrule this assignment of error.
    Defendant also contends that the trial court erred in instructing the jury on the acting in concert doctrine in connection with the first degree murder charge. Although recognizing that he was convicted of voluntary manslaughter and not first degree murder, he nevertheless asserts that the trial court should have explicitly told the jury during its instruction on voluntary manslaughter that it should not apply the acting in concert doctrine to the voluntary manslaughter charge. Defendant argues that the trial court's silence on this matter might have confused the jury and led it to mistakenly apply the acting in concert doctrine on the voluntary manslaughter charge to find defendant guilty of the crime even where it believed that someone else fired the deadly shot. We do not agree.
    Defendant never requested the trial court to instruct the jury that it should not consider the acting in concert doctrine in connection with the voluntary manslaughter charge. The trial court therefore did not err in failing to give this special instruction. State v. Pyatt, 125 N.C. App. 147, 149-50, 479 S.E.2d 218, 219-20 (1997). Moreover, defendant concedes that he was convicted of voluntary manslaughter, and not first degree murder, and further admits that the trial court properly did not instruct the jury on the acting in concert doctrine with respect to voluntary manslaughter. It is a well-established principle of law in this State that the charge of the court will “be construed contextually,and segregated portions will not be held prejudicial error when the charge as a whole is free from objection.” State v. Matthews and State v. Snow, 299 N.C. 284, 291, 261 S.E.2d 872, 878 (1980). We overrule this assignment of error.
    We hold the trial court did not err in denying defendant's motion to dismiss the charges against him, and we find no error in his conviction of voluntary manslaughter. We further hold the trial court did not err by instructing the jury they could find defendant guilty of assault with a deadly weapon inflicting serious injury under a theory of acting in concert. We therefore find no error in the judgment of the trial court.
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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