Opinion
No. COA11-78
Filed 2 August 2011 This case not for publication
Appeal by defendant from judgments entered on or about 10 September 2010 by Judge Tanya T. Wallace in Superior Court, Rowan County. Heard in the Court of Appeals 25 May 2011.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General Dorothy Powers, for the State. Michael E. Casterline, for defendant-appellant.
Rowan County No. 07CRS050404-05, 50603.
Defendant was convicted of discharging a weapon into occupied property, going armed to the terror of the people, and possession of a firearm by a felon. Defendant appeals. For the following reasons, we find no error.
I. Background
The State's evidence tended to show that on 18 January 2007, between 6:00 p.m. and 7:00 p.m., Ms. Teesha Hillian was asleep on a couch inside her home when she was awakened by gunshots. One of Ms. Hillian's windows was struck by a bullet; witnesses saw defendant outside of her house shooting at Mr. Romus Ellis. Defendant was tried before a jury and found guilty of discharging a weapon into occupied property, going armed to the terror of the people, and possession of a firearm by a felon. Defendant appeals his convictions for discharging a weapon into occupied property and possession of a firearm by a felon.
II. Motion to Dismiss
Defendant argues "the trial court erred by denying defendant's motion to dismiss the charge of discharging a firearm into occupied property, when the State failed to present any substantial evidence that (1) the defendant intentionally fired into the building; or (2) he should have known the building was occupied." (Original in all caps.)
The standard of review on a motion to dismiss is whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.
Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
State v. Clagon, ___ N.C. App. ___, ___, 700 S.E.2d 89, 92 (2010) (citations and quotation marks omitted).
The elements of the offense prohibited by G.S. § 14-34.1 [, discharging certain barreled weapons or a firearm into occupied property,] are (1) the willful or wanton discharging (2) of a firearm (3) into any building (4) while it is occupied. A person violates this statute if he intentionally, without legal excuse or justification, 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 persons.
State v. Jones, 104 N.C. App. 251, 258, 409 S.E.2d 322, 326 (1991).
Defendant first argues that he "shot at Ellis. . . . His bullet was intended for Ellis, not for the house." Defendant misinterprets the elements of N.C. Gen. Stat. § 14-34.1 as "the intent element applies merely to the discharging, not to the eventual destination of the bullet." State v. Canady, 191 N.C. App. 680, 685-86, 664 S.E.2d 380, 383-84 (2008), disc. review denied, 363 N.C. 132, 673 S.E.2d 662 (2009) ("There is no requirement that the defendant have a specific intent to fire into the occupied building, only that he (1) intentionally discharged the firearm at the occupied building with the bullet(s) entering the occupied building, or (2) intentionally discharged the firearm at a person with the bullet(s) entering an occupied building." (citation and ellipses omitted)). As such, defendant's argument regarding his intent is without merit.
Defendant next argues that "the State produced evidence to show that the house was occupied, but no evidence to show that [defendant] knew that the house was occupied at the time of the gunfight." However, this Court has previously determined that "[r]easonable grounds to believe that a building might be occupied can certainly be found where a defendant has shot into a residence during the evening hours, as homeowners are most often at home during these hours. Discharging a weapon into occupied property is a general intent crime." State v. Fletcher, 125 N.C. App. 505, 512, 481 S.E.2d 418, 423, disc. review denied, 346 N.C. 285, 487 S.E.2d 560, cert. denied, 522 U.S. 957, 139 L.Ed. 2d 299 (1997). As the State's evidence tended to show that defendant shot into Ms. Hillian's home between 6:00 p.m. and 7:00 p.m., defendant's argument fails. See id. Accordingly the State presented "substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." Clagon at ___, 700 S.E.2d at 92. We thus conclude that the trial court did not err in denying defendant's motion to dismiss the charge of discharging a firearm into occupied property.
III. Jury Instructions
Lastly, defendant contends that his "conviction for possession of a firearm by a felon must be vacated because the trial court committed plain error when it failed to instruct the jury on the specific predicate felony alleged in the indictment." (Original in all caps.) "Plain error is an error that is so fundamental as to result in a miscarriage of justice or denial of a fair trial. A defendant must demonstrate not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Cunningham, 188 N.C. App. 832, 835, 656 S.E.2d 697, 699 (2008) (citations and quotation marks omitted).
Here, defendant's indictment for possession of a firearm by a felon alleged a prior "felony of Possession with Intent to Sell and Deliver Cocaine . . . committed on 08/24/99 and the defendant pled guilty to this felony on 04/11/00 in Rowan County Superior Court[.]" At trial, the State entered into evidence "a true certified copy of a conviction of this defendant for the felony possession with intent to sell and deliver cocaine, the date of offense 8/24, 1999, conviction date of April 11th, 2000." Defendant also stipulated to "this incident."
The trial court later instructed the jury that
[t]he defendant has been charged with possessing a firearm after having been convicted of a felony. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt:
First, that the defendant was convicted of a felony in Rowan County Superior Court.
And, second, that thereafter the defendant possessed a firearm. As defendant stipulated to the same crime as alleged in the indictment we cannot now say that "the jury probably would have reached a different result" had the trial court more specifically instructed the jury as to defendant's prior offense. See id. Accordingly, this argument is overruled.
IV. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).