An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-453


Filed: 3 January 2006


v .                             Davie County
                                No. 03 CRS 51226

    Appeal by defendant from judgment entered 4 November 2004 by Judge Michael E. Beale in Davie County Superior Court. Heard in the Court of Appeals 19 October 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    CALABRIA, Judge.

    Donna Denise Blankenship (“defendant”) appeals from judgment entered upon a jury verdict finding her guilty of second degree murder. We find no error.
    On 15 September 2003, defendant and Mr. Nichols (“Nichols”) traveled with another couple to Winston-Salem to buy marijuana. Defendant and Nichols brought their baby with them, and on their way home to Mocksville, they stopped at a rest area on I-40 to change the baby's diaper. At the rest area, Ernest Howell (the “victim”) conversed with defendant and Nichols, and defendant and Nichols decided to ride, along with their baby, in the victim'sJeep. While riding with the victim, the three repeatedly bought and used cocaine.
    On 16 September 2003, defendant, Nichols, and the victim drove back toward Mocksville and exited I-40 at Farmington Road. At the next stop sign, Nichols “snapped,” sprayed the victim with mace, and punched him in the face numerous times. The victim resisted, but Nichols sat on him and elbowed him in the face. Nichols told defendant to grab the victim. Defendant put her arm around the victim's neck and pulled the upper portion of his body into the backseat while Nichols continued to sit on the lower portion of his body in the driver's seat. Defendant testified she choked the victim, and he said “[Y]ou're choking me” or “I can't breathe.” Defendant further testified, however, that she “did not know that she had hurt him by choking him” and “was just trying to keep them two from fighting.”
    As defendant choked the victim, he became unconscious and bled. Nichols then stopped the Jeep at an acquaintance's house on Farmington Road. Nichols subsequently stopped a motorist, used the motorist's cell phone to call 911, and reported that defendant had been kidnapped and robbed at gunpoint. Nichols and defendant then removed a bag of clothes from the Jeep, and at trial, defendant testified that when she removed the clothes she noticed the victim snoring. Police officers arrived shortly after the call and found the victim slumped over. Upon further examination, the officers realized that the victim was dead.    At trial, Dr. Patrick Eugene Lantz (“Lantz”) testified for the State since he was the forensic pathologist who performed the victim's autopsy. Lantz testified that the “findings of the hemorrhages around the eyes [and] the trauma around the neck with the bleeding are characteristic of asphyxiation or the lack of blood going to the brain causing someone to die.”
    On 4 November 2004, in Davie County Superior Court, a jury found defendant guilty of one count of second degree murder. Defendant was sentenced within the presumptive range to a minimum of 144 months and a maximum of 182 months in the North Carolina Department of Correction. Defendant appeals.
    Defendant initially argues that the trial court committed plain error when it instructed the jury that it could convict her of second degree murder upon finding that her intentional act was a felony but failed to define the term “felony.” Our Supreme Court has held that “[t]he plain error rule applies only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). “[T]he term 'plain error' does not simply mean obvious or apparent error[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “[T]o reach the level of 'plain error' contemplated in Odom, the error . . . must be '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. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (citations omitted).
    The trial court instructed the jury that        the phrase, intentional killing, refers not to the presence of a specific intent to kill, but rather to the fact that the act which resulted in death was intentionally committed and is an act or an assault which in itself amounts to a felony or is likely to cause death or serious bodily injury.

We hold that, even assuming arguendo that the trial court erred in failing to define “felony,” such error would not amount to plain error since defendant strangled the victim over his protestations that he could not breathe. Such an act amounts to an “act . . . likely to cause death or serious bodily injury” under the jury instruction. Because this basis for determining defendant engaged in a “intentional killing” was clearly shown, we hold that defendant failed to show a different verdict would otherwise have been reached. Accordingly, defendant has failed to show plain error.
    Defendant next argues that “the trial court committed plain error when it instructed the jury . . . that it could convict [defendant] of murder upon finding that her act was 'likely to cause death or serious bodily injury' [because] the State presented insufficient evidence to support such a finding.” The State responds that “[b]y this argument, defendant attempts to convert a sufficiency of the evidence issue into an instructional error in order to circumvent the procedural bar of Rule 10(b)(3).” We agree with the State.
    North Carolina Rules of Appellate Procedure Rule 10(b)(3) (2005) states, in pertinent part,
        A defendant in a criminal case may not assign as error the insufficiency of the evidence toprove the crime charged unless he moves to dismiss the action . . . at trial. . . . [I]f a defendant fails to move to dismiss the action or for judgment as in case of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.

Defendant failed to move to dismiss at the close of the evidence, and we, accordingly, reject defendant's attempt to invoke plain error review to challenge the sufficiency of the evidence. See State v. Bartley, 156 N.C. App. 490, 494, 577 S.E.2d 319, 322 (2003) (stating, “Defendant's attempt to invoke plain error review is inappropriate as this assignment of error concerns the sufficiency of the evidence, not an instructional error or an error concerning the admissibility of evidence.”)
    Defendant failed to argue her remaining assignments of error on appeal. Pursuant to N.C. R. App. P. 28(b)(6) (2005), when assignments of error are not argued on appeal, they are abandoned. As such, we do not address defendant's remaining assignments of error.
    No error.
    Judges HUDSON and BRYANT concur.
    Report per Rule 30(e).    

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