An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1306


Filed: 18 July 2006


v .                         Harnett County
                            No. 03 CRS 56697

    Appeal by defendant from judgment entered 1 April 2005 by Judge Gregory A. Weeks in Harnett County Superior Court. Heard in the Court of Appeals 11 May 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Ronald M. Marquette, for the State.

    M. Alexander Charns for defendant-appellant.

    ELMORE, Judge.

    Billy Pearson (defendant) was convicted of second degree murder. Defendant appeals.
    The State's evidence tended to show that defendant, the victim, and others were congregated in and around the residence of defendant's brother, James Pearson, during the early evening hours of 25 October 2003. In response to loud engine revving, defendant walked outside with a .38 caliber handgun. He found Gary Stephens in the yard. In the commotion that ensued, defendant shot Gary Stephens four times. One of the shots entered Stephens's chest, fatally wounding him.
    Defendant was charged with first degree murder. At trial, defendant claimed that he shot Gary Stephens in self-defense. Defendant filed a motion to dismiss the charges at the conclusion of the evidence, and the trial court denied the motion. The judge instructed the jury on the elements of self-defense, omitting a portion of defendant's requested instruction regarding the victim's reputation for violence. The jury found defendant guilty of second degree murder.
    Defendant now contends that (1) the trial court erred as a matter of law in not granting defendant's motion to dismiss; (2) the trial court erred by not instructing the jury to consider the victim's reputation for violence; and (3) the trial court erred by allowing into evidence testimony about defendant's tattoos.

    First, defendant assigns error to the trial court's denial of his motion to dismiss for insufficiency of the evidence. In considering a motion to dismiss, the trial court determines “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1985). The court must view the evidence in the light most favorable to the State and may not consider defendant's evidence if it conflicts with the State's evidence. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982). This is because “contradictions and discrepancies do not warrant dismissal of the case_they are for the jury to resolve.” Id., 296 S.E.2d at 653. Second degree murder is a lesser included offense of first degreemurder, and is defined as “(1) the unlawful killing, (2) of another human being, (3) with malice, but (4) without premeditation and deliberation.” State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46, (2000). “Malice may be presumed upon proof beyond a reasonable doubt of a killing by the intentional use of a deadly weapon, nothing else appearing.” State v. Weeks, 322 N.C. 152, 172, 367 S.E.2d 895, 907 (1988).
    The State's evidence tended to show that defendant intentionally shot Gary Stephens with a handgun. This evidence creates the presumption of malice. Defendant's contention that he fired in self-defense contradicts the State's evidence that (1) the victim's knife was in a closed case on his belt when he was found by authorities; (2) defendant told the victim's girlfriend, Elaine Pearson, that he “just got rid of [her] drama”; and (3) defendant fled from the scene. Any contradictions between the State's evidence and defendant's evidence were matters to be resolved by the jury. Thus, the trial judge did not err in denying defendant's motion to dismiss.
    Second, defendant contends that the trial court erred by not giving defendant's requested instruction on “the reasonableness of his apprehension of the deceased.” The trial court is not required to give its instruction in the exact language requested by defendant. State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976). “If a request is made for a jury instruction which is correct in itself and supported by evidence, the trial court mustgive the instruction at least in substance.” State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993) (citations omitted). Here, the trial court gave defendant's requested jury instruction in substance, to the extent that it was supported by the evidence.
    The victim told defendant that he had been in prison fights and had committed armed robbery. This evidence related to defendant's knowledge of prior bad acts committed by the victim. No witness testified as to the victim's general reputation for violence in his community. Therefore, the trial court did not err in instructing the jury to consider “whether or not the defendant was aware of or knew about any alleged prior violent acts of William Gary Stephens at the time of the encounter,” rather than “the reputation, if any, of the victim for danger and violence.” See N.C.P.I. Crim. 308.45.
    The instructions otherwise adequately informed the jury of the law of self-defense. We find no error.
    Third, defendant contends that the trial judge erred in allowing testimony about defendant's tattoos. While we see little probative value in evidence about defendant's tattoos, we overrule the assignment of error because defendant fails to carry his burden of showing prejudicial error.
    In order to show prejudicial error, the burden is on defendant to show that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” See N.C.Gen. Stat. § 15A-1443(a) (2005). Defendant gives no indication that the jury would have reached a different result without having heard testimony about his tattoos. We therefore overrule his assignment of error.
    No error.
    Judges McGEE and STEELMAN concur.
    Report per Rule 30(e).

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