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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1429

NORTH CAROLINA COURT OF APPEALS

    
Filed: 3 July 2007

STATE OF NORTH CAROLINA
    Plaintiff,

    v.                        Wake County
                            No.    05CRS020158
CORY SEAN HEARD,                    05CRS020159
    Defendant.

    Appeal by defendant from judgment entered on or about 1 September 2005 by Judge Ripley E. Rand in Superior Court, Wake County. Heard in the Court of Appeals 10 May 2007.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Karen E. Long, for the State.

    Russell J. Hollers, III, for defendant-appellant.

    STROUD, Judge.

    On 1 September 2005, a jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury [AWDWIKISI] and assault with a deadly weapon with intent to kill [AWDWIK]. Defendant assigns error to the denial of his motion to dismiss the charges of AWDWIKISI and AWDWIK. The dispositive questions before this Court are (1) whether the State presented sufficient evidence from which a reasonable juror could find the shooter intended to kill the victims and (2) whether the State presented sufficient evidence to show that defendant acted in concert with the shooter. We conclude the State presented substantial evidence of the shooter's intent to kill and of defendant's actions being in concert with the shooter. Accordingly, we hold the trial court did not err in denying defendant's motion to dismiss.

I. Background

    The evidence presented at trial tended to show that on 8 March 2005, a group of men, including: Darnell Johnson, Brandon Moore, Todd Harris, Milton, David, and Allen, drove to a home near Gorman Apartments occupied by two other men, Mark and Bishop.   (See footnote 1)  The group of men was traveling to the house in a blue Ford Explorer to talk to Mark and Bishop about an altercation that occurred the day before between Mark, Bishop, and Moore. The evidence showed that at least one of Mark's friends at the house was a member of the Crips gang while at least one of the men in the vehicle was a member of the Bloods gang. Someone threw a brick and hit the blue Explorer as the men were leaving Mark and Bishop's house. Johnson, the driver, turned the car around and drove towards the individual who threw the brick, but did not hit him.
    The men in the blue Explorer then drove to Kentwood where Harris approached Takisha Clemons, Taneka McDuffie, and McDuffie's sister. Harris asked the women about the location of a certain group of men who lived in the neighborhood. Harris was interested in locating these men because the day before someone fired a gun at his house, and he wanted to know if the individuals living at Kentwood had anything to do with it. Harris specifically asked about Clemons' brother Curt. Because of Harris' interrogation, thewomen were frightened for Curt's safety. After Harris and the other men drove away, the women were unable to locate Curt to warn him.
    While the men were driving around in the blue Ford Explorer, David suggested that they get a gun. They drove to a Jiffy Lube to talk to David's cousin but were not able to get a gun from him. David then mentioned that defendant had a gun, and they drove to defendant's house. Defendant got into the blue Explorer with a gun.
    After picking up defendant, the men went back to Kentwood looking for the individuals with whom they had the earlier confrontation. When they arrived in the Kentwood neighborhood, the men, including defendant, masked their faces and threw gang signs with their hands. Testimony showed that defendant handed the gun to Harris who proceeded to roll down the window of the Explorer, lean out of the vehicle, and start shooting in the direction of a group of people. McDuffie, Clemons, and another individual were struck by the gunfire. Clemons was struck twice in the pelvic area.
    On 14 March 2005, defendant was arrested for AWDWIKISI and AWDWIK. Defendant was tried in Superior Court, Wake County, and on 1 September 2005, the jury found defendant guilty of AWDWIKISI and AWDWIK. Defendant assigns error to the trial court's denial of his motion to dismiss the charges of AWDWIKISI and AWDWIK.

II. Standard of Review

    This Court reviews the trial court's denial of a motion to dismiss de novo. State v. Hyatt, 355 N.C. 642, 653, 566 S.E.2d 61, 69 (2002) (Questions of law are reviewed de novo.), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003); State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d 885, 890 (1986) (Defendant's motion to dismiss is a question of substantial evidence.); State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433 (Substantial evidence is a question of law.).
    In considering a defendant's motion to dismiss, the trial court must determine 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 (1980). This Court has defined substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Cummings, 46 N.C. App. 680, 683, 265 S.E.2d 923, 925 (1980) (internal quotation omitted), aff'd, 301 N.C. 374, 271 S.E.2d 277 (1980). When determining whether the State has presented substantial evidence “the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom.” State v. Smith, 40 N.C. App. 72, 80, 252 S.E.2d 535, 540 (1979).

III. Motion to Dismiss

    Defendant assigns error to the trial court's denial of his motion to dismiss the AWDWIKISI and AWDWIK charges at the close of trial. In support of his assignment, defendant argues that the State did not present sufficient evidence from which a reasonable juror could conclude that the shooter, Harris, had the specific intent to kill when he fired the gun into the crowd. Also, defendant argues that the State did not present sufficient evidence to show that defendant acted in concert with Harris. We disagree and hold that the State presented substantial evidence from which a reasonable juror could conclude that Harris acted with the specific intent to kill and that defendant acted in concert with Harris to commit AWDWIKISI and AWDWIK. Accordingly, we conclude that the trial court did not err in denying defendant's motion to dismiss the charges of AWDWIKISI and AWDWIK.
A. Intent to Kill
    Specific intent to kill is an element of both AWDWIKISI and AWDWIK. N.C. Gen. Stat. § 14-32 (a),(c) (2005); See, e.g., State v. Cain, 79 N.C. App. 35, 46, 338 S.E.2d 898, 905, disc. rev. denied, 316 N.C. 380, 342 S.E.2d 899 (1986); See also State v. Parks, 290 N.C. 748, 754, 228 S.E.2d 248, 252 (1976). The Supreme Court of North Carolina has described intent to kill as “a mental attitude [that] ordinarily . . . must be proved . . . by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred.” State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956). Additionally, 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. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988). “[E]vidence tending to show such [an] intent [to kill] include[s] the viciousness of the assault and the deadly character of the weapon used.” Id.
    Here, the State presented evidence to show that Harris and his cohorts went looking for a gun, asking at least two individuals including David's cousin and defendant. After obtaining the gun, Harris and the others sought out individuals who they believed to be in the Kentwood neighborhood and with whom some of them had an earlier conflict. When they arrived in Kentwood, Harris covered his face, threw gang signs with his hands, rolled down the window, leaned out of the car, and fired the gun into a crowd of people. Harris shot three people, including Clemons and McDuffie to whom he had communicated threats earlier that day. This is substantial evidence from which a reasonable juror could conclude that Harris had the specific intent to kill when he fired the gun.
B. Acting in Concert
    The Supreme Court of North Carolina has defined “acting in concert” as “act[ing] together, in harmony or in conjunction one with another pursuant to a common plan or purpose.” State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). With reference to a defendant who acts in concert with another, the Supreme Court of North Carolina has explained:
        If two persons join in a purpose to commit a crime, each of them, if actually orconstructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.

State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (internal quotation omitted), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). The State need not prove that defendant committed any specific act that constitutes part of the crime, “so long as he is present at the scene of the crime” and the evidence shows he is “acting together with another” who actually commits the crime, “pursuant to a common plan or purpose to commit the crime.” Joyner, 297 N.C. at 357, 255 S.E.2d at 395.
    Here the State presented evidence to show that defendant brought the gun into the Explorer and then traveled with Harris and the others to the Kentwood neighborhood, where they believed they would find individuals with whom some of them had an earlier conflict. When they arrived in Kentwood, defendant, like Harris, covered his face and threw gang signs with his hands. Defendant gave the gun to Harris, who leaned out of the car and fired the gun into a crowd, hitting Clemons, McDuffie, and one other individual. This is substantial evidence from which a reasonable juror could conclude that defendant acted in concert with Harris to commit the AWDWIKISI and AWDWIK.
IV. Conclusion

    For the reasons stated above we hold that the State presented substantial evidence that Harris acted with intent to kill and thatdefendant acted in concert with Harris. Accordingly, we conclude that the trial court properly denied defendant's motion to dismiss.
    NO ERROR.
    Judges MCCULLOUGH and BRYANT concur.
    Report per Rule 30(e).


Footnote: 1
     The record does not contain the full proper names of Milton, David, Allen, Mark and Bishop.

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