Appeal by defendant from judgments dated 18 May 2005 by Judge
Paul L. Jones in Wayne County Superior Court. Heard in the Court
of Appeals 11 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
M. Alexander Charns for defendant-appellant.
Jonathan Devon Lofton (defendant) appeals from judgments dated
18 May 2005, entered consistent with a jury verdict finding
defendant guilty of discharging a firearm into occupied property
and assault with a deadly weapon with intent to kill inflicting
serious injury. For the reasons below, we find no error occurred
at defendant's trial and dismiss his assignment of error alleging
ineffective assistance of counsel.
On 3 May 2003, at approximately 5:00 a.m., officers of the
Goldsboro Police Department responded to a shooting at 715 Bain
Street in Goldsboro, North Carolina. Upon their arrival they
discovered that Rosemary McClain, the owner of the residence at 715Bain Street, had been shot several times, suffering injuries to her
left arm, wounds to her chest and upper left leg. Ms. McClain was
taken by emergency medical technicians to Wayne County Memorial
Hospital where she was stabilized and subsequently transported by
helicopter to Pitt County Memorial Hospital, due to the
catastrophic nature of her injuries.
Shortly into their investigation, the investigating officers
received information from an anonymous caller indicating a gold,
four-door sedan with two African-American males wearing white tee-
shirts may have been involved in the shooting. A description of
the vehicle and suspects was transmitted to all police officers on
duty and, shortly thereafter, Officer Karen Powers was passed by a
gold, four-door Nissan sedan. Officer Powers testified that the
Nissan was driven by defendant, that he was wearing a white tee-
shirt, and that there was a passenger in the front seat. Officer
Powers turned around to follow the vehicle and observed it park in
a driveway off the street. By the time Officer Powers reached the
driveway, the two occupants of the gold Nissan had disappeared.
Investigating officers recovered an SKS automatic rifle from
the back seat of the gold Nissan. Defendant admitted the gold
Nissan was his and that he had been driving it all night.
Defendant further admitted the automatic rifle was his, that he
kept it for protection, that he had not loaned it to anyone and it
was in his sole custody the entire evening. In a later statement
to the police, defendant denied being involved in the shooting. Twenty-eight shell casings were found scattered from the back
of the north side to the front of the east side of the McClain
home. The shell casings were recovered at the corner of the house,
in front of the house, and at the back of the house. An analysis
of the shell casings recovered from the crime scene revealed that
there were two separate brands of ammunition used in the shooting;
eighteen were Klimovsk and ten were Ulyanovsk. All but one of the
submitted Klimovsk shell casings were sufficiently marked to have
been positively identified as fired from the rifle recovered from
defendant's vehicle. None of the Ulyanovsk shell casings had
sufficient microscopic indication to conclude they were fired from
the recovered rifle, though all had been fired from the same
weapon. The Ulyanovsk shell casings could not be completely
eliminated as having been fired from the recovered rifle, and it
was possible they were fired from another gun.
On 6 December 2004, defendant was indicted by the Wayne County
Grand Jury for the offenses of discharging a firearm into occupied
property and assault with a deadly weapon with intent to kill
inflicting serious injury. Defendant was tried before a jury in
Wayne County Superior Court on 16 through 18 May 2005, the
Honorable Paul L. Jones presiding. Defendant was found guilty of
both offenses on 18 May 2005. The trial court subsequently entered
judgments consistent with the jury verdict on 18 May 2005,
sentencing defendant to a term of twenty-five to thirty-nine months
imprisonment for discharging a firearm into occupied property andseventy to ninety-three months imprisonment for assault with a
deadly weapon with intent to kill inflicting serious injury. The
trial court ordered that the sentences were to run consecutively
and further ordered defendant to pay restitution to Ms. McClain in
the amount of $834.92. Defendant appeals.
Defendant raises the issues of: (I) whether the trial court
erred in failing to grant defendant's motion to dismiss due to the
insufficiency of the evidence; (II) whether the trial court erred
in giving an instruction to the jury on the theory of acting in
concert; (III) whether the trial court erred by allowing into
evidence repeated references to gangs and defendant's connection to
gangs; and (IV) whether it was ineffective assistance of counsel to
not request complete recordation of the entire trial.
Defendant first argues the trial court erred in failing to
grant defendant's motion to dismiss due to the insufficiency of the
evidence. To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross
, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). 'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'
at 717, 483 S.E.2d at 434 (quoting State v. Olson
, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
In reviewing the sufficiency of the evidence,
the question for the trial court is whether
there is any evidence tending to prove guilt
or which reasonably leads to this conclusionas a fairly logical and legitimate deduction.
Once the court decides a reasonable inference
of defendant's guilt may be drawn from the
evidence, it is for the jurors to decide
whether the facts satisfy them beyond a
reasonable doubt that the defendant is
at 717, 483 S.E.2d at 435 (internal citations and quotations
Defendant was charged with the offenses of discharging a
firearm into occupied property and assault with a deadly weapon
with intent to kill inflicting serious injury. In the instant
case, the State has presented substantial evidence of each
essential element of these two offenses.
A person is guilty of discharging a firearm
into occupied property if he intentionally,
without legal justification or excuse,
discharges a firearm into an occupied building
with knowledge that the building is then
occupied by one or more persons or when he has
reasonable grounds to believe that the
building might be occupied by one or more
State v. Fletcher
, 125 N.C. App. 505, 512, 481 S.E.2d 418, 423
(1997) (citation and quotations omitted); see also
N.C. Gen. Stat.
§ 14-34.1 (2005) (defining the crime of Discharging a Firearm into
Occupied Property). The State presented evidence that at least
seventeen of the twenty-eight rounds fired into the home of
Rosemary McClain were fired from defendant's automatic rifle. The
shooting took place while Ms. McClain and approximately fifteen
other friends and family members were inside the home. Although no
one witnessed the shooting, defendant admitted that the automatic
rifle was in his sole possession that night. This evidence issufficient to establish the elements of the offense of discharging
a firearm into occupied property.
The elements of assault with a deadly weapon with intent to
kill inflicting serious injury are: (1) an assault, (2) with the
use of a deadly weapon, (3) with an intent to kill, and (4)
inflicting serious injury, not resulting in death. State v.
, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004) (citing N.C.
Gen. Stat. § 14-32(a) (2003)), cert. denied sub nom. Queen v. North
, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). Our Supreme
Court has held that an assault is an overt act or attempt, with
force or violence, to do some immediate physical injury to the
person of another, which is sufficient to put a person of
reasonable firmness in fear of immediate physical injury. State
, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995) (citation
omitted). Further, [i]ntent to kill must normally be proved by
circumstantial evidence, and 'an intent to kill 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. Barlowe
, 337 N.C. 371, 379, 446 S.E.2d 352, 357 (1994)
(quoting State v. Thacker
, 281 N.C. 447, 455, 189 S.E.2d 145, 150
Here, the nature of the shooting itself was sufficient to
infer defendant's intent to kill. The State presented further
evidence that Ms. McClain was struck by several of the twenty-eight
rounds fired into her home, and suffered catastrophic injuries
that left her permanently disabled. Thus, the State has presentedsufficient evidence to establish the elements of the offense of
assault with a deadly weapon with intent to kill inflicting serious
injury. This assignment of error is overruled.
Defendant next argues the trial court erred in giving an
instruction to the jury on the theory of acting in concert. We
A trial court must give a requested instruction if it is a
correct statement of the law and is supported by the evidence.
State v. Haywood
, 144 N.C. App. 223, 234, 550 S.E.2d 38, 45 (2001)
Before the court can instruct the jury on the
doctrine of acting in concert, the State must
present evidence tending to show two factors:
(1) that defendant was present at the scene of
the crime, and (2) that he acted together with
another who did acts necessary to constitute
the crime pursuant to a common plan or purpose
to commit the crime.
State v. Robinson
, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319
(1986) (citation omitted). In reviewing whether the evidence
presented at trial is sufficient to support a jury instruction of
acting in concert, the evidence is viewed in the light most
favorable to the State. State v. Taylor
, 337 N.C. 597, 608, 447
S.E.2d 360, 367 (1994).
The evidence presented at trial tends to show that shortly
after the shooting a law enforcement officer saw defendant driving
a car with a passenger in the front seat. The car and its
occupants matched the description given of a car and two people who
might have been involved in the shooting. Both occupants haddisappeared from the vehicle by the time the officer reached it.
Defendant admitted he was in sole possession of the automatic rifle
recovered from the gold Nissan on the night of the shooting.
Defendant's automatic rifle was positively identified as having
fired seventeen of the twenty-eight rounds shot into the house.
Ten of the rounds shot into the house could not be directly shown
to have been fired from defendant's automatic rifle, and could have
been fired from a second rifle. No evidence was presented as to
exactly who fired the rounds into the victim's house; however the
evidence does indicate that defendant may have acted with another
person to commit the offense. This evidence, when viewed in the
light most favorable to the State, is sufficient to justify an
instruction to the jury on the theory of acting in concert. This
assignment of error is overruled.
Defendant also argues the trial court erred by allowing into
evidence repeated references to gangs and defendant's connection to
gangs in that the references were irrelevant and prejudicial,
inadmissible hearsay, and violated defendant's constitutional
rights. We first note that [c]onstitutional questions not raised
and passed on by the trial court will not ordinarily be considered
on appeal. Statutory violations, however, are reviewable
regardless of objections at the trial court. State v. Tirado
N.C. 551, 571, 599 S.E.2d 515, 529 (2004) (citations omitted). At
trial defendant objected several times to testimony from the
State's witnesses, each time objecting to the testimony on thegrounds of relevancy. However, defendant never raised an objection
to the testimony regarding gangs based on a constitutional question
and his constitutional arguments on this issue are thus not
properly before this Court. Further, while defendant states that
the objectionable testimony is also hearsay, he presents no
argument and cites to no authority in support of his contention,
and his argument as to hearsay is deemed abandoned. See
App. P. 28(b)(6) (Assignments of error . . . in support of which
no reason or argument is stated or authority cited, will be taken
We thus only address defendant's arguments as to the relevancy
of the testimony referencing gangs and defendant's connection to
gangs. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2005).
Generally, all relevant evidence is admissible[.] N.C. Gen.
Stat. § 8C-1, Rule 402 (2005). Our Supreme Court has further held
[e]vidence is relevant if it has any logical
tendency to prove a fact at issue in a case,
and in a criminal case every circumstance
calculated to throw any light upon the
supposed crime is admissible and permissible.
It is not required that evidence bear directly
on the question in issue[.]
State v. Arnold
, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973)
(internal citations omitted).
Rule 401 sets a standard to which trial judges
must adhere in determining whether profferedevidence is relevant; at the same time, this
standard gives the judge great freedom to
admit evidence because the rule makes evidence
relevant if it has any logical tendency to
prove any fact that is of consequence. Thus,
even though a trial court's rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the abuse
of discretion standard applicable to Rule 403,
such rulings are given great deference on
State v. Wallace
, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228
(1991) (citations omitted), disc. rev. denied
, 331 N.C. 290, 416
S.E.2d 398, cert. denied
, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).
In the instant case, the State offered the evidence concerning
gangs when establishing the reasoning and conduct of the officers
investigating the shooting. The shooting in this case was one of
three that occurred on 3 May 2003. In fact, Ms. McClain was shot
after returning home from visiting her son who was in the hospital,
a victim of one of the earlier shootings. Officers testified that
Ms. McClain's sons were associated with a local gang and that they
went to an area in which rival gang members were known to hang
around to look for the gold Nissan. This was the reason officers
were able to quickly locate the gold Nissan and observe that
defendant was driving the vehicle. Because the evidence regarding
gangs was relevant to explain the conduct of the officers in the
early moments of their investigation, the trial court did not err
in admitting this testimony. This assignment of error is
Defendant lastly assigns as error that it was ineffective
assistance of counsel to not request complete recordation of the
entire trial. In the case at hand, counsel's opening and closing
arguments, bench conferences and the majority of the jury selection
were not recorded. However, in his brief to this Court, defendant
states that he cannot raise an ineffective assistance of counsel
claim at this time as the bare record does not reveal the contents
of the unrecorded bench conferences, opening statements, or closing
arguments, and thus appellate counsel, who did not represent the
defendant at trial, cannot prove prejudice resulted from this
deficiency in the record. Moreover, defendant concedes that the
present state of the law does not support this argument and that
he raises it now solely as a preservation issue. Our Supreme Court
has held that when it appears to the appellate court further
development of the facts would be required [to properly review an
ineffective assistance of counsel claim], the proper course is for
the Court to dismiss the defendant's assignments of error without
prejudice. State v. Allen
, 360 N.C. 297, 316, 626 S.E.2d 271, 286
(2006). Defendant's ineffective assistance of counsel argument
cannot be adequately reviewed from the record evidence before this
Court. Accordingly, this assignment of error is dismissed without
No error at trial. Defendant's claim of ineffective
assistance of counsel is dismissed.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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