Appeal by defendant from judgments entered 14 October 2005 by
Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard
in the Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
John A. Payne, for the State.
Haral E. Carlin, for defendant-appellant.
Eltwoyne Terrell Carter (defendant) was charged with attempted
first degree murder, possession of a firearm by a felon and assault
with a deadly weapon with intent to kill inflicting serious injury.
He was found guilty of possession of a firearm by a felon and
assault with a deadly weapon inflicting serious injury and appeals
from judgments entered 14 October 2005.
The State presented evidence tending to show that on the
evening of 22 March 2005, Officer Rudolph Oxendine of the
Greenville Police Department received a call to report to 809 West
Fourteenth Street in the city. Officer Oxendine arrived at this
location and found Charles Godley lying down behind an apartmentbuilding and bleeding from his upper right leg. Officer Oxendine
determined that Godley had been shot. Godley did not identify the
person who shot him. Bystanders told Officer Oxendine they saw
running from the scene a black male by the street name of Twon,
wearing black jeans and a dark coat, and having long dreadlocks
extending halfway down his back. The bystanders declined to
identify themselves. Officer Oxendine remained with Godley at the
scene until he was taken by emergency medical personnel to a
Officer R. W. Coltrain, Jr. of the Greenville Police
Department also went to the scene of the shooting on the evening of
22 March 2005 and collected evidence, including a spent shell
casing found in the walkway between two apartment units in the 809
apartment building. Officer Coltrain identified the make and
caliber of the shell casing as a Winchester 45 cartridge.
Officer Coltrain also subsequently examined the bullet recovered
from Godley's body and determined that it was a 45 caliber bullet,
most likely fired by a handgun.
Detective Steve Pass of the Greenville Police Department took
over the investigation. He visited Godley in the intensive care
unit of the hospital approximately three days after the incident.
He saw that Godley was not in any condition to talk so he departed
and returned to the hospital about a week later. Again Godley was
not able to talk so Detective Pass left his business card and asked
Godley to contact him when he got out of the hospital. About a
month later Godley called him. Godley stated that EltwoyneCarter, whom he also called by the name of Twon, shot him.
Detective Pass assembled a photographic lineup that contained a
photograph of Eltwoyne Carter, the defendant. Godley selected
Carter's photograph as the person who shot him. At the time of his
arrest, defendant had long dreadlocks extending to his shoulders.
Godley testified that he remembered being shot that evening,
but when asked by the prosecutor to identify the person who shot
him, Godley would not give an intelligible answer. When asked to
identify the person whom he told Detective Pass had shot him,
Godley pointed to defendant. Godley conceded that he did not want
to testify against defendant because he's my dude with whom he
had been hanging out. Godley testified that defendant probably
did it but he didn't mean it. Godley also acknowledged that some
people call defendant by the name of Twon. When asked by
defendant's attorney whether someone other than defendant could
have shot him, Godley failed to answer. Godley sustained a
fractured thigh bone as a result of the shooting and spent a month
and one week in the hospital. He could not walk on his own for
three months. At the time of trial his leg was still not back to
Defendant testified that he was at home with his girlfriend on
the evening of the shooting. Defendant appeals.
Defendant raises two issues on appeal, whether the trial court
by denying his motion to dismiss the charge of assault
with a deadly weapon inflicting serious injury and (II)
byperemptorily instructing the jury that as a matter of law, the
victim sustained serious injury and the gun constituted a deadly
Defendant first contends the trial court erred by denying his
motion to dismiss the charge of assault with a deadly weapon
inflicting serious injury.
the State failed to
present sufficient evidence to show defendant assaulted Godley by
intentionally shooting him in the right leg. We disagree.
A motion to dismiss requires the court to determine whether
there is substantial evidence to establish each element of the
offense charged and to identify the defendant as the perpetrator.
State v. Earnhardt
, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
In deciding a motion to dismiss,
the court must consider the
evidence in the light most favorable to the State, giving it the
benefit of every reasonable inference that may be drawn from the
evidence. State v. Brown
, 310 N.C. 563, 566, 313 S.E.2d 585, 587
(1984). The court
is required to take the State's evidence as true
and to disregard conflicts and discrepancies therein, leaving them
for the jury to resolve. State v. Mize
, 315 N.C. 285, 290, 337
S.E.2d 562, 565 (1985). The court considers all of the evidence
that is actually admitted, whether competent or incompetent, that
is favorable to the State. State v. McKinney
, 288 N.C. 113, 117,
215 S.E.2d 578, 581-82 (1975).
Intent is an attitude or emotion of the mind, and is seldom,
if ever, susceptible of proof by direct evidence. It mustordinarily be proven by facts and circumstances from which it may
be inferred. State v. Little
, 278 N.C. 484, 487, 180 S.E.2d 17,
19 (1971). In determining the presence or absence of intent, the
jury may consider the acts and conduct of the defendant and the
general circumstances existing at the time of the alleged
commission of the offense charged. State v. Riggsbee
, 72 N.C.
App. 167, 171, 323 S.E.2d 502, 505 (1984).
Viewed in the light most favorable to the State, the evidence
shows that Godley identified defendant, whom he considered as his
friend, as the person who demanded money then shot him in the leg
from behind. After shooting Godley, defendant fled the scene,
leaving Godley lying in a pool of blood. An accused's flight is
'universally conceded' to be admissible as evidence of
consciousness of guilt and thus of guilt itself. State v. Jones
292 N.C. 513, 525, 234 S.E.2d 555, 562 (1977).
We hold a jury
could find, based upon this evidence, that defendant intentionally
assaulted Godley by shooting him in the leg. This assignment of
error is overruled.
By his remaining assignment of error, defendant contends the
trial court erred by peremptorily instructing the jury that as a
matter of law, the victim sustained serious injury and the gun
constituted a deadly weapon. He argues the trial court improperly
removed these elements from jury determination.
Defendant did not
object to the trial court's instructions to the jury. In order to
obtain appellate review of this issue, he must show that he isexcepted from the requirement of making an objection at trial by
some exception or rule of law. State v. Walker
, 316 N.C. 33, 39,
340 S.E.2d 80, 83 (1986).
Defendant has not made this showing.
Therefore, any review is by the plain error standard. Id.
this standard, an appellate court must be convinced that absent
the error the jury probably would have reached a different
. (citing State v. Odom
, 307 N.C. 655, 661, 300 S.E.2d
375, 378-89 (1983)). We are not persuaded the jury probably would
have reached a different verdict had the instruction not been
given. This assignment of error is overruled.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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