An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-984

NORTH CAROLINA COURT OF APPEALS

Filed: 4 April 2006

STATE OF NORTH CAROLINA

v .                         Person County
                            No. 03 CRS 052355
ROBERT EARL REGAN, JR.

    Appeal by defendant from a judgment entered 9 December 2004 by Judge W. Osmond Smith, III in Person County Superior Court. Heard in the Court of Appeals 8 March 2006.

    Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State.

    Glover & Petersen, P.A., by Ann B. Petersen, for defendant.

    BRYANT, Judge.

    Robert Earl Regan, Jr. (defendant) appeals from a judgment entered 9 December 2004 following a guilty verdict of attempted first degree murder and a sentence of 156 months to 197 months imprisonment. Defendant was a Master Trooper with the N.C. State Highway Patrol for over fifteen years. Danielle Regan and defendant were married in 1995. They became estranged when Danielle learned in January 2003 that her husband was having an affair with Linda Lee. Defendant and Danielle separated in May 2003. At that time defendant moved in with Lee.
    On 17 May 2003, during a discussion about presents for Mother's Day, defendant and Danielle argued about ownership of the marital home. Danielle testified defendant pushed her and told her he would kill her if she did not leave the house. Danielle called911, and later that afternoon, obtained a domestic violence protective order (DVPO) to remove defendant from the home. The court hearing for the DVPO was 21 May 2003 at which time defendant and Danielle consented to a formal separation. By their agreement, Danielle assumed financial responsibility for the house and took sole possession. The DVPO against defendant was voluntarily dismissed. However, the DVPO triggered a Highway Patrol Internal Affairs investigation.
    On 9 June 2003, although defendant was living with Linda Lee, defendant and Danielle discussed leaving the beneficiaries on their life insurance policies unchanged until they were formally divorced. On 11 June 2003 Danielle met with the officer conducting the internal affairs investigation and spoke to defendant on the telephone before and after the meeting. After the meeting, Danielle told defendant she asked internal affairs to drop the investigation, that defendant was out of her house and she was satisfied. She also indicated she did not want defendant disciplined or transferred to another county, because it was important for him to be near his family. Danielle told defendant the Training and Standards Division (the agency that confers law enforcement officers' certifications) was also investigating defendant. After her discussion with defendant, Danielle went to the grocery store and returned home around midnight.
    At approximately 2:00 a.m. on 12 June 2003, Danielle took a shower in the master bathroom at the front of the house. The bathroom window, which faced the front yard, had a screen, doublepane glass and vinyl blinds. The window blinds were down and closed. Just after 2:00 a.m., a shot was fired from the front yard into the bathroom window. The bullet went through the screen, the two panes of glass and the vinyl blinds, and struck Danielle in the chest. She called 911 and was taken to the hospital.
    At approximately 5:00 a.m., investigating officers seized a .357 Magnum revolver from Lee's nightstand. Ballistics testing at the State Bureau of Investigation (SBI) crime lab showed the bullet taken from Danielle's body matched the bullets in the .357 Magnum revolver seized from Lee's nightstand.
     At trial, Lee's testimony was as follows: On the morning of 11 June 2003, defendant was sick, took prescription sleeping medication and went to bed. While Lee performed chores and ran errands, defendant awoke to speak on the phone with his supervisor and Danielle, then went back to bed. Lee testified defendant again awoke at about 9:30 p.m., told Lee he wanted to go for a ride and that he wanted her to get drunk. Before they left, defendant handed her a glass of wine that appeared cloudy. Lee asked what was wrong with it and defendant said he put orange juice in it because the wine was bitter. They took the wine with them in Lee's car and left just before 11:00 p.m. Defendant asked Lee if she wanted to go to Durham or Roxboro and she chose Durham. While driving, defendant told Lee to drink the wine because he wanted to see her “get loose.” Defendant drove to Durham Regional Hospital, and called the direct staff line to see if Danielle was working there. Lee testified they drove through the parking lot at thehospital about 11:30 p.m. and that at that point she passed out. Lee testified she later awoke in her car, which was parked behind her house in the bushes, and could not move because she felt as if she had been drugged. Defendant came to her side of the car, slapped her face, told her to wake up and handcuffed her wrists behind her back. Lee testified defendant screamed that she had cost him his marriage, his children and his home, and said this was a night she would not forget. Defendant got in her car and kept slapping her with the back of his hand while he drove them to a remote location. He then got out of the car, loosened one wrist from the handcuffs, put her hands around the gun and fired one shot, then refastened the handcuffs. Lee testified he drove to Danielle's house where he stopped the car, hit Lee on the side of the face, put the gun to her head, cocked it and threatened her and her family. Defendant released the gun, got out of the car and walked into Danielle's yard. Lee testified she heard a gun shot, and then defendant got back in the car, said “look what you did,” and drove away. Lee testified she went to sleep at that point. When she awoke she was being dragged out of the car onto the ground, where she vomited, and was then taken into her house. Lee remembered being awakened by the police in her bedroom later that morning.
    Defendant testified he had been sick all day and awoke at 11:30 p.m. on 11 June 2003 to find Lee holding a wine bottle and telling him she was going for a ride. Next, he remembered hearing a gunshot in Lee's backyard around 2:30 a.m. Defendant said hefound Lee smelling of alcohol and passed out in her car, which was parked in the bushes. Defendant said he helped her to bed, put her .357 Magnum revolver on her nightstand in its carrying case and went back to sleep. Shortly thereafter, the police informed defendant his wife had been shot.
    Other evidence adduced at trial was that defendant is five feet, ten inches tall and Lee is five feet, two inches tall. SBI experts testified the bullet had been fired into the bathroom at a height of five feet, eight inches. The jury returned a verdict finding defendant guilty of attempted first degree murder of Danielle Regan. Defendant appeals.

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    Defendant's sole issue on appeal is whether the trial court erred in denying his motion to dismiss the attempted first degree murder charge based on the sufficiency of the evidence. Specifically, defendant argues the State failed to prove defendant “intended to and attempted to kill Danielle Regan.” We disagree.
    Our Supreme Court has recently stated:
        In reviewing the trial court's ruling on a defendant's motion to dismiss a charge of [attempted] first-degree murder, this Court evaluates the evidence presented at trial in the light most favorable to the State. The Court considers whether the State presented 'substantial evidence' in support of each element of the charged offense. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. . . . Circumstantial evidence alone may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.
State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005) (citations and quotation marks omitted). “'A defendant's motion to dismiss must be denied if the evidence considered in the light most favorable to the State permits a rational jury to find beyond a reasonable doubt the existence of each element of the charged crime and that defendant was the perpetrator.'” State v. Campbell, 359 N.C. 644, 681, 617 S.E.2d 1, 24 (2005) (quoting State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1988), cert denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999)). The trial court must resolve any contradictions in the evidence in the State's favor. State v. Gibson, 342 N.C. 142, 463 S.E.2d 193 (1995). The trial court is concerned “only with the sufficiency of the evidence to carry the case to the jury; it is not concerned with the weight of the evidence.” State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236 (1983) (citation omitted); see also State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (“The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.”), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Ultimately, the court must decide whether a reasonable inference of defendant's guilt may be drawn from the circumstances. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
    “The elements of attempted first[]degree murder are: (1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and(4) failure to complete the intended killing.” State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied, ___ U.S. ___, 161 L. Ed. 2d 285 (2005). “[I]ntent to kill may be inferred from the nature of [an attack], the manner in which it was made, the conduct of the parties, and other relevant circumstances.” State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988) (citation omitted). “Specific intent to kill is an essential element of first degree murder, but it is also a necessary constituent of the elements of premeditation and deliberation.” State v. Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 838-39 (1981) (citation omitted). “Thus, proof of premeditation and deliberation is also proof of intent to kill.” Id.
    In the case sub judice, the jury examined photographs of the crime scene and heard testimony regarding defendant's actions. Defendant told Lee he wanted to take a ride the night of the shooting and told Lee to bring her .357 Magnum. Defendant drove to Danielle's workplace and called the direct staff line to see if Danielle was working. Lee stated defendant handcuffed her, and drove to a remote location where he put her hands around the gun and fired one shot. He then drove to Danielle's house where he got out of the car and fired a shot, got back in the car, and drove away. SBI expert testimony was introduced indicating the bullet that shot Danielle was consistent with having been fired from the .357 Magnum found in Lee's nightstand. The SBI reported the gunshot was fired into the bathroom window at a height of five feet, eight inches. Defendant is five feet, ten inches tall. Danielle sustained a gun shot wound to the chest, but survived. This is substantial evidence of each element of attempted first degree murder (a specific intent to kill another; an overt act calculated to carry out that intent, which goes beyond mere preparation; malice, premeditation, and deliberation accompanying the act; and failure to complete the intended killing), such that a rational jury could find defendant guilty beyond a reasonable doubt.
    Defendant challenges on appeal the sufficiency of the evidence to show premeditation, deliberation and intent to kill because the evidence is conflicting. We note that defendant's trial testimony, especially regarding the events leading up to the shooting, significantly conflicts with the State's evidence. However, it is well settled that “[i]f the evidence supports a reasonable inference of defendant's guilt based on the circumstances, then 'it is for the [jurors] to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.'” See Campbell at 681, 617 S.E.2d at 24 (citations omitted). The evidence, when viewed in the light most favorable to the State is sufficient to support a finding of premeditation, deliberation and intent to kill. Therefore, the trial court did not err in denying defendant's motion to dismiss the charge of attempted first degree murder at the close of all the evidence. This assignment is overruled.
    No error.
    Judges HUNTER and HUDSON concur.
    Report per Rule 30(e).

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