Converted WP file 060525-1

Appeal by defendant from judgment entered 30 September 2005 by Judge Henry H. Hight in Durham County Superior Court. Heard in the Court of Appeals 6 December 2006.

Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.

Amos G. Tyndall for the defendant-appellant.

    ELMORE, Judge.

    Quincy J. Hunt (defendant) was convicted of three counts of assault with a deadly weapon with intent to kill. It is from these convictions that defendant appeals.
    A shooting occurred on Berkeley Street in Durham on 26 June 2004. Three men, including defendant, emerged from the side of defendant's mother's house and triggered a motion-detecting light on the side of the house, thereby illuminating the ensuing action. These three men shot in the direction of a group of people located across the street, who then returned fire. During the gun battle, Robert Owens was shot. He subsequently died.    During the trial, four witnesses identified defendant as one of the shooters on the night in question. A witness testified that the night before the shooting, on 25 June 2004, defendant was riding in the passenger seat of a burgundy Jeep Cherokee, and leaned out of the passenger seat window firing a gun at him. During the same drive-by incident, defendant also shot Robert Owens from the car window.
    During the investigation, police seized a blue Lincoln Town Car belonging to defendant's mother. Police investigators testified that the car had several bullet holes in it, contained as a receipt bearing defendant's name, and that the two front seats were somewhat reclined.
    Defendant makes four arguments in support of his contention that he is entitled to a new trial, or, in the alternative, is entitled to judgment of acquittal on the assault with a deadly weapon with intent to kill convictions. After careful review, we find no error and affirm the order of the trial court.
    Defendant first argues that the trial court erred by admitting evidence that the blue Lincoln had likely been involved in a prior shooting. Although defendant had not been in the blue Lincoln on the evening of the shootout, the State presented evidence that suggested that the bullet holes in the car had been caused by someone shooting at the car, and the front seats were reclined, suggesting that the car had been driven during a drive-by shooting. The witnesses did not testify that the car appeared to have beenused during a drive-by shooting, but defendant argues that such a prejudicial inference could have been drawn by the jury.
    Defendant failed to preserve this issue for appellate review. Defendant did not object to the substance of the testimony concerning damage to the blue Lincoln. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires that “a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context” in order to preserve a question for appellate review. N.C.R. App. P. 10(b)(1) (2007). Defendant did not object to the introduction of this testimony and therefore did not preserve the question of its admissibility for appellate review.
    Defendant further argues that the trial court erred by admitting evidence that defendant had been involved in a prior shooting against the same gang on 25 June 2004. Defendant argues this evidence should have been excluded because it was was not substantially similar to the events at issue here and did not tend to support any proposition except that defendant was “a bad character.”
    Rule 404(b) of the North Carolina Rules of Evidence provides, in pertinent part:
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). Rule 404(b) is a “general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
    In this case, the State proffered this evidence for the purpose of showing motive and identity. The State explained that “[o]ne of the reasons [the witness] knows it's this defendant is because the very night before, he's leaning out of a Jeep Cherokee shooting at him.” The trial court, after hearing the State's explanation, overruled defendant's objection to the evidence and made a finding that the evidence's probative value outweighed “any undue prejudicial effect towards the defendant and that there would be no unfair prejudice to the defendant by the admission of that testimony.”
    North Carolina Rules of Evidence 402 and 403 state that relevant evidence is generally admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2005). It is within the trial court's discretion to determine whether such evidence should be excluded, and such a decision “will not be overturned absent an abuse of discretion.” State v.Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005). Here, there is no evidence of abuse of discretion. Accordingly, we overrule this assignment of error.
    Defendant next argues that the trial court erred by not instructing the jury on the lesser-included offense of assault with a deadly weapon with intent to kill, which is assault with a deadly weapon. Defendant failed to request this instruction or object to the trial court's instructions. Because defendant failed to object during the trial, he argues that the jury instructions constitute plain error. Accordingly, we review for plain error.
    “In criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(c)(4) (2007). Plain error is error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988) (citing State v. Walker, 316 N.C. 33, 340 S.E.2d 80 (1986); State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)).
    “Where the State's evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required.” State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citation omitted). The elements of assault with adeadly weapon with intent to kill are: (1) an assault; (2) with a deadly weapon; and (3) with the intent to kill. See N.C. Gen. Stat. § 14-32(c) (2005). This Court has held:
            A person will not be found guilty of assault with a deadly weapon if his conduct is covered under some other provision of law providing greater punishment for the assault. Assault with a deadly weapon with intent to kill pursuant to N.C. Gen. Stat. § 14-32(c) is one such provision of law which provides a greater punishment for assault, in that it is punishable by imprisonment of up to ten years. Thus, if the additional element of intent to kill is shown by the evidence, defendant was not entitled to the instruction on the lesser offense.
            Intent to kill is a mental attitude which must normally be proven by circumstantial evidence. Such intent 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. Owen, 111 N.C. App. 300, 308, 432 S.E.2d 378, 384 (1993) (internal citations and quotations omitted).
    Four witnesses identified defendant as a shooter on the night in question. Defendant presented evidence of an alibi, but otherwise presented no evidence to contradict the testimony of the four witnesses. This Court has held that there is sufficient evidence of a defendant's intent to kill when a defendant fires a handgun into a crowd of people standing eighteen feet away and shouts words to the effect of, “I got you now, I got you now[.]” State v. Riley, 159 N.C. App. 546, 544, 583 S.E.2d 379, 385 (2003). We hold, therefore, that the State presented sufficient evidence to infer intent to kill from defendant's actions on the night in question. Accordingly, this assignment of error is overruled.    Defendant next argues that the trial court should have allowed defendant to impeach Charles Jones, a State witness, with cross- examination about discrepancies between the address Jones gave during his testimony and the address listed on the court documents from a recent arrest. During cross-examination of Jones, defense counsel established that Jones lived on Atka Street in Durham. Defense counsel then asked Jones, “Were you involved in another shooting this past weekend?” in an attempt to elicit from Jones that he had recently told police that he lived on Spruce Street in Durham, rather than Atka Street. The State objected, and the jury was excused. Defendant argued then as he argues now that his line of questioning regarding the shooting was relevant to impeach Jones's credibility. When asked during voir dire, Jones stated that he had not told police that he lived on Spruce Street, but that they had found the address on his I.D. card. The trial court sustained the objection and defense counsel made no further objection or offer of proof.
    “The credibility of a witness may be attacked by any party, including the party calling him.” N.C. Gen. Stat. § 8C-1, Rule 607 (2005). However,
        extrinsic evidence of prior inconsistent statements may not be used to impeach a witness where the questions concern matters collateral to the issues. Such collateral matters have been held to include testimony contradicting a witness's denial that he made a prior statement when that testimony purports to reiterate the substance of the statement.

State v. Williams, 355 N.C. 501, 533, 565 S.E.2d 609, 628 (2002) (quoting State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757(1989)). Here, the location of Jones's residence is collateral to the primary issue of whether defendant committed an assault with a deadly weapon with the intent to kill. Defendant attempted to impeach Jones's credibility by introducing evidence of a prior inconsistent statement while also sneaking in mention of a pending criminal charge. Such a line of questioning was not only irrelevant, but also inappropriate. The trial court made no error in sustaining the prosecution's objection.
    In defendant's final and most confusing argument, defendant contends that the trial court erred by denying his motion to dismiss the charge of trafficking in cocaine by transportation. The State overlooked this obvious gaffe in preparing its brief, and so do we.
    At the close of evidence, defendant moved to dismiss the charges against defendant, which motion was denied. When ruling on a motion to dismiss for insufficiency of the evidence, the trial court must view the evidence “in the light most favorable to the State and give the State the benefit of every reasonable inference to be drawn therefrom.” In re J.H., ___ N.C. App. ___, 630 S.E.2d 457, 458 (2006). “If the State has offered substantial evidence against defendant of every essential element of the crime charged, a defendant's motion to dismiss must be denied.” Id. (quoting State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981) (internal quotations omitted)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to supporta conclusion.” Id. (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).
    The State presented substantial evidence against defendant of the crime charged, and thus defendant's motion to dismiss was properly denied. Accordingly, the trial court committed no error by denying defendant's motion to dismiss.
    For the foregoing reasons, we find
    NO ERROR.
    Judges HUNTER and MCCULLOUGH concur.
    Report per Rule 30(e).

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