STATE OF NORTH CAROLINA
v
.
Greene County
No. 04 CRS 50173
JARRY A. LAND
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for the State.
Glen W. Gerding for defendant-appellant.
CALABRIA, Judge.
Jarry A. Land (“defendant”) appeals from jury verdicts finding
him guilty of attempted first-degree murder, assault with a deadly
weapon with intent to kill inflicting serious injury, aggravated
assault on a handicapped person, unauthorized possession of a
weapon capable of inflicting serious injury or death by a prisoner,
and committing an assault with such a weapon. We find no error.
On 16 February 2004, Elmer Castillo Reyes (“the victim”) was
serving time as an inmate of the Eastern Correctional Institution,
a prison under the authority of the North Carolina Department of
Correction. At the time of the incident giving rise to this case,
one of the victim's legs had previously been amputated, and hisother leg was broken. The victim used a prosthetic leg to perform
his duties in the prison's laundry; however, when he removed the
prosthetic leg, he traveled in a wheelchair. Because of these
medical conditions, the Eastern Correctional Institution housed the
victim in a co-op unit with other inmates with handicaps and
medical conditions.
On the day of the incident, the victim was working in the
laundry, and at approximately 10 a.m., he exited the laundry,
traveled to his cell, and removed his prosthetic leg. Then, at the
co-op unit's lunchtime, the victim exited his cell and entered the
hallway, using his wheelchair. After the victim entered the
hallway, two inmates, later identified as defendant and Inmate Sosa
(“Sosa”), approached the victim. State witnesses testified that
Sosa then grabbed the wheelchair from the front and stated, “I got
something for you.” State witnesses also testified that both Sosa
and defendant subsequently stabbed the victim in the back, chest,
and side with objects that were later identified as “shanks,”
weapons made by inmates in prison by sharpening pieces of metal.
Defense witnesses testified to the contrary that it was the victim
who obtained the shank from his wheelchair, and Sosa then obtained
the shank from the victim prior to stabbing him. After the
incident, the victim was transported to Pitt Memorial Hospital
where he underwent surgery. Personnel then transported the victim
to Central Prison Hospital, where he received 50 days of medical
treatment. Based on these and related facts, the State indicted defendant
on three counts of possession of a dangerous weapon in prison, one
count of assault with a deadly weapon with intent to kill
inflicting serious bodily injury, one count of attempted first-
degree murder, and one count of assault on a handicapped person.
The trial court subsequently dismissed one count of possession of
a dangerous weapon in prison, and the jury convicted defendant of
all remaining charges. The trial court then consolidated for
judgment the convictions for possession of a dangerous weapon in
prison and sentenced defendant to a minimum of 34 months and a
maximum of 41 months in the North Carolina Department of
Correction. The trial court also sentenced defendant on the
attempted first-degree murder conviction to a minimum of 250 months
to a maximum of 309 months to run at the expiration of defendant's
other sentences. The trial court also consolidated the convictions
for assault with a deadly weapon with intent to kill inflicting
serious bodily injury and assault on a handicapped person, and it
sentenced defendant to a minimum of 146 months to a maximum of 185
months. Defendant appeals.
Defendant initially argues, “the trial court erred in denying
[his] renewed motion to dismiss because the state offered
insufficient evidence to support the convictions of attempted
murder, assault with a deadly weapon with intent to kill inflicting
serious injury, and aggravated assault on a handicapped person.”
When reviewing a denial of a motion to dismiss, we examine the
evidence in the light most favorable to the State, giving the Statethe benefit of all reasonable inferences. State v. Benson, 331
N.C. 537, 544, 417 S.E.2d 756, 761 (1992). We then consider de
novo
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. If so, the motion is properly
denied. If the evidence is sufficient only to
raise a suspicion or conjecture as to either
the commission of the offense or the identity
of the defendant as the perpetrator of it, the
motion should be allowed.
State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)
(citations omitted).
Defendant's first sub-argument is that “[t]he State failed to
prove the elements of malice, premeditation[,] and deliberation
required for a conviction of attempted murder.” When the State
charges a defendant with attempt to commit a crime, the State must
show beyond a reasonable doubt: “(1) the intent to commit the
substantive offense, and (2) an overt act done for that purpose
which goes beyond mere preparation, but (3) falls short of the
completed offense.” State v. Miller, 344 N.C. 658, 667, 477 S.E.2d
915, 921 (1996).
“Murder in the first degree is the unlawful killing of a human
being with malice and with premeditation and deliberation.” State
v. McCollum, 157 N.C. App. 408, 412, 579 S.E.2d 467, 470 (2003).
Malice that can support a conviction of first-degree murder
includes: (1) actual malice, i.e., “express hatred, ill will or
spite,” (2) an “act which is inherently dangerous to human life .
. . done so recklessly and wantonly as to manifest a mind utterlywithout regard for human life and social duty and deliberately bent
on mischief,” or (3) a “condition of mind which prompts a person to
take the life of another intentionally without just cause, excuse,
or justification.” State v. Reynolds, 307 N.C. 184, 191, 297
S.E.2d 532, 536 (1982). Additionally, “[t]he intentional use of a
deadly weapon gives rise to a presumption that the killing was
unlawful and that it was done with malice.” State v. Russell
Council Judge, 308 N.C. 658, 661, 303 S.E.2d 817, 820 (1983).
Accordingly, both because the State presented evidence that
defendant repeatedly stabbed the handicapped victim with a metal
shank, twice near vital organs, without just cause, excuse, or
justification and because a shank can be considered a deadly
weapon, the State presented substantial evidence of malice, and
defendant's argument is without merit.
Defendant also challenges the elements of premeditation and
deliberation. Premeditation requires that a defendant thought
about the criminal act prior to committing it, no matter how long.
State v. Bullock, 326 N.C. 253, 257, 388 S.E.2d 81, 83 (1990).
Deliberation is a defendant's intent to kill occurring while in a
“cool state of blood.” Id. Because the mental processes of
premeditation and deliberation are not normally susceptible to
proof by direct evidence, they are most commonly proven by
circumstantial evidence. State v. Sierra, 335 N.C. 753, 758, 440
S.E.2d 791, 794 (1994). This Court has recognized that the lack of
provocation by the victim and the manner of the attempted killing
can be circumstantial evidence of the elements of premeditation anddeliberation. State v. Peoples, 141 N.C. App. 115, 118, 539 S.E.2d
25, 28 (2000). In the case sub judice, the State presented the
testimony of both Officer McKeel and the victim that while the
victim was in his wheelchair on his way to lunch, he was approached
by defendant and Sosa. On the State's theory of the case,
defendant and Sosa then took out shanks and began stabbing the
victim 15-20 times, twice near the victim's heart and lungs,
without apparent provocation. We hold that these facts amount to
substantial evidence of premeditation and deliberation such that
the trial court did not err in failing to dismiss the charge of
attempted murder.
In his second sub-argument, defendant argues, “the State
failed to prove the element of intent to kill required for a
conviction of attempted murder, assault with a deadly weapon with
intent to kill inflicting serious injury, and aggravated assault on
a handicapped person.” Intent to kill is a required element of
first-degree murder. State v. Jones, 353 N.C. 159, 166, 538 S.E.2d
917, 923-24 (2000). “To show the 'specific intent to kill'
required to prove first-degree murder, the State must show more
than an intentional act by the defendant resulting in the death of
the victim; the State also must show that the defendant intended
for his action to result in the victim's death.” State v. Keel,
333 N.C. 52, 58, 423 S.E.2d 458, 462 (1992). Likewise, showing
intent to kill is a necessary element of assault with a deadly
weapon with intent to kill inflicting serious injury, N.C. Gen.Stat. § 14-32(a), and is one way of establishing aggravated assault
on a handicapped person. N.C. Gen. Stat. § 14-32.1.
In the absence of direct evidence of intent to kill, it “may
be inferred from the nature of the assault, the manner in which it
was made, the conduct of the parties, and other relevant
circumstances.” State v. Thacker, 281 N.C. 447, 455, 189 S.E.2d
145, 150 (1972). We hold that the same facts that constituted
substantial evidence of premeditation and deliberation also
constitute substantial evidence on the issue of intent to kill,
particularly that defendant and Sosa stabbed the handicapped victim
15-20 times with a metal shank, twice near vital organs including
the area of the heart and lungs. Accordingly, this argument is
without merit.
Defendant's third sub-argument states, “[t]he State failed to
prove the elements of serious injury required for a conviction of
assault with a deadly weapon with intent to kill inflicting serious
injury and aggravated assault on a handicapped person.” See N.C.
Gen. Stat. §§ 14-32(a); 14-32.1(e)(2). Our Supreme Court has held,
“as long as the State presents evidence that the victim sustained
a physical injury as a result of an assault by the defendant, it is
for the jury to determine the question of whether the injury was
serious.” State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87
(1994). The State presented evidence that the victim had puncture
wounds resulting from the attack by defendant and Sosa that
required surgery at Pitt Memorial Hospital and 50 days of medical
treatment at the Central Prison Hospital. We hold this evidenceamounts to substantial evidence of an injury such that the trial
court properly denied defendant's motion to dismiss. See id.
Defendant's fourth sub-argument states, “[t]he State failed to
prove beyond a reasonable doubt that Defendant did not act in self-
defense.” Upon a defendant's motion to dismiss, the trial court
reviews evidence in the light most favorable to the State and
determines whether the State has presented substantial evidence of
each element of the crimes with which it has charged a defendant.
Benson, supra. In this case, viewing the evidence in the light
most favorable to the State, the evidence showed that defendant and
Sosa attacked the victim without provocation. Although defendant
presented some evidence that the victim was the first aggressor,
courts of this State have repeatedly held that “contradictions and
discrepancies do not warrant dismissal of the case--they are for
the jury to resolve.” State v. Earnhardt, 307 N.C. 62, 67, 296
S.E.2d 649, 653 (1982). Thus, the trial court did not err in
denying defendant's motion to dismiss.
Defendant also argues that the State failed to present
substantial evidence that defendant possessed a dangerous weapon in
prison because the State failed to produce sufficient evidence that
defendant was in custody of the Division of Prisons. See N.C. Gen.
Stat. § 14-258.2. Defendant has failed to preserve this argument
for appellate review because in his motions to dismiss he never
urged dismissal on the basis that the State failed to produce
substantial evidence that defendant was in the custody of the
Division of Prisons. See N.C. R. App. P. 10(b)(1) (“In order topreserve a question for appellate review, a party must have
presented to the trial court a timely . . . motion, stating the
specific grounds for the ruling the party desired”). Thus, we do
not address this assignment of error.
Additionally, defendant argues that the State failed to
provide substantial evidence of the greater offense that he
possessed a dangerous weapon in prison that he used to commit an
assault inflicting bodily injury. See N.C. Gen. Stat. § 14-258.2.
As stated supra, we hold that the State presented substantial
evidence that defendant inflicted bodily injury on the victim
including puncture wounds near the victim's heart and lungs that
required surgery at Pitt Memorial Hospital and 50 days of medical
treatment at the Central Prison Hospital. Thus, we reject this
argument.
Defendant's final argument on appeal states, “[t]he trial
court committed plain error when it instructed the jury that it
could convict defendant of aggravated assault on a handicapped
person if it found defendant inflicted 'serious injury or serious
damage' when the indictment alleged that defendant inflicted only
'serious injury.'” “It is a well-established rule in this
jurisdiction that it is error, generally prejudicial, for the trial
judge to permit a jury to convict upon some abstract theory not
supported by the bill of indictment.” State v. Taylor, 301 N.C.
164, 170, 270 S.E.2d 409, 413 (1980). When determining whether an
instructional error amounts to plain error, this Court
“determine[s] if the instructional error had a probable impact onthe jury's finding of guilt.” State v. Tucker, 317 N.C. 532, 539,
346 S.E.2d 417, 421 (1986).
The State argues that plain error “is always to be applied
cautiously and only in the exceptional case where, after reviewing
the entire record, it can be said the claimed error is a
fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done[.]” See State
v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation
omitted).. Moreover, the State argues that defendant cannot meet
the burden of showing plain error because defendant was also
convicted of assault with a deadly weapon with intent to kill
inflicting serious injury. Because the jury found that the element
of serious injury was met in that offense, the State argues it
would be inconsistent for the jury to determine that the serious
injury element of aggravated assault on a handicapped person was
not met. We agree with the State and hold that defendant has
failed to show plain error on the facts of this case.
Defendant has failed to argue his remaining assignments of
error on appeal, and we deem them abandoned pursuant to N.C. R.
App. P. 28(b)(6) (2006).
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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