An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 July 2006
STATE OF NORTH CAROLINA
No. 03 CRS 56697
BILLY THOMAS PEARSON
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.
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
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.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
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