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.
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.
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)
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
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
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
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
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
N.C. App. 680, 683, 265 S.E.2d 923, 925 (1980) (internal quotation
, 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
, 79 N.C. App. 35, 46, 338 S.E.2d 898, 905, disc. rev.
, 316 N.C. 380, 342 S.E.2d 899 (1986); See also State v.
, 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.
, 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
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.
, 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.
, 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.
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.
Judges MCCULLOUGH and BRYANT concur.
Report per Rule 30(e).