An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-268


Filed: 7 February 2006


v .                         Gaston County
                            Nos. 02 CRS 13488; 13493-96

    Appeal by Defendant from judgment entered 29 July 2004 by Judge James Lanning in Superior Court, Gaston County. Heard in the Court of Appeals 6 December 2005.
    Attorney General Roy Cooper by Assistant Attorney General Steven A. Armstrong and Assistant Attorney General Thomas M. Woodward, for the State.

    Mary Exum Schaefer, for defendant-appellant.

    WYNN, Judge.

    Under North Carolina law, “contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal” of a criminal charge. State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citation omitted). In this case, Defendant argues that evidence showed there was no common purpose with his accomplice to assault Billy Alan Wilson. Because there was conflicting evidence of common purpose, we hold that the evidence was sufficient for a rational jury to find Defendant guilty of assault with a deadly weapon with intent tokill on the theory of acting in concert.
    On 26 July 2004, Defendant Bobby Edwin Bell was tried before a jury in Gaston County on charges of assault with a deadly weapon with intent to kill, robbery with a dangerous weapon, felonious breaking and entering, felonious larceny, and felonious possession of goods.
    At trial, Billy Alan Wilson testified that on 30 September 2000, he observed a car in his driveway, his front door was open and his side door had been kicked in. He grabbed a crowbar from his truck, entered his house, confronted two men, chased the men out of his house, and heard one say, “Just shoot him,” and, “Go on and shoot him.” As Wilson ran toward his truck in his driveway, one of the men fired a gun at him two or three times.
    Harvey Rainey, Defendant's brother, testified that on that day, he and Defendant drove “out to the country” and randomly chose a house to break-in and enter. While the brothers were in a house, Wilson unexpectedly showed up. Upon seeing Wilson, Rainey became scared, went to his car , retrieved a gun from the dashboard or under the seat, and fired the gun at Wilson. According to Rainey's testimony, Defendant was “standing off to the side of [him]” when he fired the gun and no one yelled for him to shoot Wilson. Rainey further testified that there was no common purpose between Defendant and him to assault Wilson, just to commit the breakingand entering, and that “bad stuff just happened.”
    Defendant was found guilty of three counts of possession of stolen goods, one count of breaking and entering, one count of larceny, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill. The trial judge sentenced Defendant to 77 to 102 months imprisonment for the robbery with a deadly weapon conviction, and twenty-three to thirty-seven months imprisonment to run consecutive to the previous sentence on the assault with a deadly weapon with intent to kill conviction. The trial judge then sentenced Defendant to consolidated sentences of eight months to ten months for the breaking and entering and two of the counts of possession convictions, with these sentences to run consecutive to the previous two sentences. Finally, the trial judge arrested judgment on a larceny conviction and a possession of stolen goods conviction. Defendant appeals.


    In his first argument on appeal, Defendant argues the trial court erred in denying his motion to dismiss the assault with a deadly weapon with intent to kill charge because there was insufficient evidence to support the conclusion that Defendant acted in concert with Rainey. We disagree.
    To convict a defendant of assault with a deadly weapon with intent to kill, the State must prove the following elements: (1) anassault, (2) with a deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting in death. State v. James, 321 N.C. 676, 687, 365 S.E.2d 579, 586 (1988). Under the acting in concert doctrine, “if two [or more] persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.” State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002) (citations omitted). In State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979), our Supreme Court concluded:
        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.

Id. at 357, 255 S.E.2d at 395; see also State v. Reid, 335 N.C. 647, 657, 440 S.E.2d 776, 781 (1994); State v. Wilson, 322 N.C. 117, 141, 367 S.E.2d 589, 603 (1988).
    To withstand a motion to dismiss, the State must present substantial evidence of each element. “'Substantial evidence isthat amount of evidence that a reasonable mind might accept as adequate to support a conclusion.'” State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (internal citations omitted). “When considering a motion to dismiss, 'if the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may support reasonable inferences of the defendant's innocence.'” Id. (internal citations omitted) (emphasis in original). “[T]he evidence is to be considered in the light most favorable to the State and . . . the State is entitled to every reasonable inference to be drawn therefrom.” Id.
    Taken in the light most favorable to the State, the evidence presented at trial shows that Defendant and Rainey went to Wilson's house together with the intent to commit a breaking and entering; Wilson unexpectedly entered the home while Defendant and Rainey were there; Rainey ran to the car and retrieved a gun; Defendant or Rainey shouted, “Just shoot [Wilson]” and “Go on and shoot [Wilson]”; and Rainey shot at Wilson. Although Rainey testified that no one shouted “Just shoot [Wilson]” prior to him shooting at Wilson, contradictions in the evidence are for the jury to decide. See State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (“Any contradictions or discrepancies arising from the evidence areproperly left for the jury to resolve and do not warrant dismissal.”). Therefore, a rational juror, in interpreting the evidence presented at trial, could have found Defendant guilty of assault with a deadly weapon with intent to kill because the juror believed the evidence proved that Defendant was acting together with Rainey, who committed the act necessary to constitute the assault with a deadly weapon with intent to kill. Based on this evidence, the trial court properly denied Defendant's motion to dismiss. See Reid, 335 N.C. at 657, 440 S.E.2d at 781.
    Defendant next argues that the trial court erred in instructing the jury on the charges against him. As Defendant concedes that he did not object to the jury instructions and that he failed to assign specific error to any of the jury instructions on appeal, he has requested that we review the jury instructions for plain error. See N.C. R. App. P. 10(b)(1), (c)(4); State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000) (explaining that plain error review will be applied only to matters of evidence and jury instructions); see also State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000). Plain error is error “'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (internal citation omitted).     Defendant was tried for three counts of breaking and entering, which encompassed incidents that occurred at three separate homes on three different occasions. In instructing the jury on the elements of the breaking and entering charges, the trial judge inadvertently substituted the wrong names of the owner of the residences and the incorrect dates for when the crimes allegedly occurred. The trial judge also substituted the wrong name for the owner of the property stolen in instructing the jury on the larceny after breaking and entering charge. Neither the State nor defense counsel objected to the trial judge's errors.
    “A lapsus linguae in the [jury] instruction will not be held to be prejudicial error if not called to the attention of the court and if it does not appear that the jury could have been prejudiced thereby.” State v. Willis, 22 N.C. App. 465, 468-69, 206 S.E.2d 729, 731 (1974) (citing State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966)). While the trial judge's instructions in the instant case were factually incorrect, the erroneous instruction was “a mere slip of the tongue” and certainly does not rise to the level of “plain error.” Id.
Defendant also contends the trial judge committed plain error in refusing the jury's request for a written copy of the elements of the crimes for which Defendant had been charged. However, “[a] trial court has inherent authority, in its discretion, to submitits instructions on the law to the jury in writing.” See State v. McAvoy, 331 N.C. 583, 591, 417 S.E.2d 489, 494 (1992) (citation omitted). Furthermore, the trial judge offered to orally re- instruct the jury to a particular crime, “particular events or any portion of the instructions[.]” We therefore find that the trial court did not abuse its discretion in refusing to give the elements of the crimes charged to the jurors. Accordingly, Defendant's assignment of error is overruled.
    Since Defendant failed to argue his remaining assignments of error, they are deemed abandoned. N.C. R. App. P. 28(b).
    No prejudicial error.
    Judges STEELMAN and LEWIS concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***