Opinion
No. 07-861.
Filed April 15, 2008.
Guilford County No. 05CRS75405.
Appeal by Defendant from judgment entered 5 December 2006 by Judge Ronald E. Spivey in Superior Court, Guilford County. Heard in the Court of Appeals 24 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Mike Heavner, for the State. D. Tucker Charns for Defendant-Appellant.
Defendant was convicted on 1 December 2006 of voluntary manslaughter in the death of Juan Pablo Malpica-Enriquez (Juan Pablo). The trial court sentenced Defendant to a term of 72 months to 102 months in prison. Defendant appeals his conviction.
The State's evidence at trial tended to show the following: Greensboro police received a 911 call on 17 April 2005 reporting gunfire at an apartment complex. Officer F.R. Banks (Officer Banks) was the first officer to arrive at the apartment complex. As Officer Banks drove into the apartment parking lot, she observed Defendant attempting to leave the parking lot in a burgundy Ford Explorer. Defendant got out of the Explorer, approached Officer Banks' patrol car, and pointed toward a red Nissan Frontier pickup truck parked behind a black Ford Mustang. Officer Banks approached the vehicles and observed two men lying on the pavement near the vehicles. One of the men, Cesar Malpica-Enriquez (Cesar), had been shot in the leg and was transported to Moses Cone Hospital. The other man, Jose Javier Ramirez-Flores (Javier), died on the scene from gunshot wounds. Police later discovered that Juan Pablo had also been shot twice in the altercation and had fled to a nearby residence. Guilford County EMS transported Juan Pablo to the hospital and he was pronounced dead a short time thereafter.
At trial, witnesses testified that they had heard multiple gunshots fired in the apartment parking lot. Witnesses also identified Defendant as one of the shooters, and they testified that Defendant had chased and shot at Juan Pablo as he ran away from Defendant.
Defendant testified that he lived in the apartment complex with his girlfriend Sonia Ramirez (Sonia), Sonia's young daughter, and Javier, who was Sonia's brother. Sonia had previously been married to Juan Pablo, and Juan Pablo was the father of her young daughter. According to Defendant, Juan Pablo had been harassing Sonia for some time, and had threatened to kill her. On the day of the shootings, Defendant and Javier had left the apartment complex in Javier's black Ford Mustang (the Mustang) around noon to purchase some beer. When Defendant and Javier returned to the apartment complex, a red Nissan Frontier pickup truck (the truck) driven by Juan Pablo pulled in quickly behind them, blocking the Mustang in its parking space. Juan Pablo's brother, Cesar, rode in the truck's passenger seat. Cesar exited the truck, walked toward the Mustang, and shot Javier multiple times. Defendant immediately exited the Mustang and Cesar then fired a number of shots at Defendant. Defendant then shot Cesar.
Defendant apparently was not charged in connection with his shooting of Cesar because police determined that Cesar was the aggressor in the altercation, and that Defendant was justified in shooting Cesar in self-defense.
Defendant testified that after he shot Cesar, he observed Juan Pablo exit the truck. Officer Leslie Holder also testified at Defendant's trial, and read into evidence a written statement that Defendant gave to police regarding his encounter with Juan Pablo:
The driver of the red truck, Juan Pablo, then gets out of the truck and starts running away toward the exit to West Avenue. I told Juan Pablo, "You stop, you son of a bitch, or I'm going to shoot." I then fired my gun at Juan Pablo once and he grabbed his side like I hit him (his left side, I think). He was about 10 to 15 meters away at that point. He kept running, so I shot at him again because "the son of a bitch wouldn't stop." I shot at him two times total while I was chasing him.
Defendant testified at trial that he shot Juan Pablo because Defendant believed Juan Pablo was armed, and "[h]e was either going to kill Javier or was going to kill me." After Juan Pablo fled the scene, Defendant called Sonia on his cellular telephone. Sonia arrived shortly thereafter, driving a burgundy Ford Explorer (the Explorer). Defendant got into the Explorer and was attempting to exit the apartment parking lot when police arrived.
A grand jury indicted Defendant for the first-degree murder of Juan Pablo on 23 May 2005. The case proceeded to trial on 27 November 2006. At the close of the State's evidence, defense counsel moved to dismiss the murder charge against Defendant on the ground that the State's evidence was only sufficient to support a charge of voluntary manslaughter. The trial court denied Defendant's motion. Defense counsel renewed the motion to dismiss at the close of all evidence, and the trial court again denied Defendant's motion. The trial court instructed the jury on the elements of first-degree murder, second-degree murder, and voluntary manslaughter, and also instructed the jury on self-defense. The jury convicted Defendant of voluntary manslaughter.
I.
Defendant argues on appeal that the trial court erred in denying his motion to dismiss at the conclusion of the evidence. We find that Defendant's motion to dismiss did not encompass the voluntary manslaughter charge, and therefore Defendant has not preserved this argument for appellate review.
At the close of the State's evidence, defense counsel raised a motion to dismiss the murder charge against Defendant:
I would like to move to dismiss at this point. . . . [T]he only evidence the State has presented as to how this incident began is the defendant's own statement.
. . . [W]here the State introduces the defendant's statement and it's not contradicted or found conflicting with other evidence, the State is bound by that evidence, and . . . while the statement itself may be sufficient to get to the jury on voluntary manslaughter, I think it clearly does not get to the jury on first degree murder or second degree murder.
Specifically, defense counsel stressed that according to Defendant's allegedly uncontroverted statement, Defendant only shot Juan Pablo after Cesar, the initial aggressor in the altercation, shot Javier and then attempted to shoot Defendant. Therefore, according to defense counsel, the uncontroverted evidence demonstrated that Defendant shot Juan Pablo in response to provocation but without premeditation and deliberation, which negated an essential element of first-degree murder. In addition, defense counsel asked that the trial court
go further than that, go beyond just first degree murder and take out second degree murder too, because the provoking event is not just mere words, but it is an assault, it is a shooting, and that is adequate provocation by law, and, therefore, what this Court ought to do is send this case to the jury on nothing more than voluntary manslaughter.
Defense counsel concluded his argument by repeating his request that the trial court submit to the jury only the lesser included charge of voluntary manslaughter:
[I]n light of the fact that the State has introduced the defendant's own statement, which is, again, although not completely exculpatory, I would argue it's certainly exculpatory as it goes to the question of first and second degree murder, I think the Court should dismiss the case as it relates to those two charges and proceed only in terms of voluntary manslaughter.
The trial court denied Defendant's motion to dismiss. Defense counsel renewed the motion to dismiss at the close of all evidence by stating: "Your Honor, I would simply renew the prior motion to dismiss." The trial court denied Defendant's renewed motion.
Defendant now argues that the trial court erred by failing to dismiss the voluntary manslaughter charge. Defendant surmises that the jury returned the voluntary manslaughter conviction based upon a theory of imperfect self-defense, but argues that the State did not introduce sufficient evidence that Defendant acted in imperfect self-defense; namely, that Defendant was the initial aggressor, or that he used excessive force to defend himself.
Under the North Carolina Rules of Appellate Procedure, "[i]n order to preserve a question for appellate review, 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." N.C.R. App. P. 10(b)(1). The Rules further provide that a criminal defendant "may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial." N.C.R. App. P. 10(b)(3). The record before us confirms that Defendant's motion to dismiss only encompassed the first-degree and second-degree murder charges, and did not encompass the voluntary manslaughter charge. In fact, the trial transcript indicates that defense counsel explicitly invited the trial court to proceed on the voluntary manslaughter charge. Defendant did not specifically move to dismiss the voluntary manslaughter charge, nor did Defendant move to dismiss all charges due to the insufficiency of the State's evidence in general.
Our Court has held that where a defendant's motion to dismiss for insufficient evidence does not encompass the crime for which the defendant was ultimately convicted, the defendant may not assign such error on appeal. In State v. Boyd, 162 N.C. App. 159, 595 S.E.2d 697 (2004), the defendant was charged with Conspiracy to Sell a Controlled Substance, Sale of a Controlled Substance, Contributing to the Delinquency of a Minor, and Employing and Using a Minor to Commit a Controlled Substance Offense. Id. at 161, 595 S.E.2d at 698. At the close of the State's evidence, the defense counsel stated to the trial court: "I think, taking the evidence in the light most favorable to the [S]tate, their strongest case seems to be for conspiracy. And so, I don't care to be heard on that . . . I'll ask you to dismiss the sale, at the close of evidence." Id. at 161, 595 S.E.2d at 698. At the close of all the evidence, the defense counsel stated that the defense "would rest and renew our motions to dismiss." Id. at 162, 595 S.E.2d at 699. Our Court concluded that the defendant had not preserved his sufficiency challenge for appellate review:
[At the close of all the evidence], defense counsel renewed his argument that he "didn't care to be heard" on the conspiracy charge because "their strongest evidence seems to be for conspiracy." Defense counsel did not avail himself of his opportunity to move to dismiss the conspiracy charge at the close of the State's evidence, and thus, he could not renew a nonexistent motion at the close of all evidence. Accordingly, we are precluded from reviewing the merits of Defendant's argument.
Id.; see also State v. Freeman, ___ N.C. App. ___, ___, 648 S.E.2d 876, 881 (2007) (finding the defendant's appeal based on insufficient evidence precluded by N.C.R. App. P. 10(b)(1), where the defendant's motions to dismiss at trial were grounded solely on "his contention that the State failed to prove that the crime alleged occurred in North Carolina," and did not include a general insufficiency challenge).
In the present case, Defendant's motions to dismiss specifically encompassed only the first-degree and second-degree murder charges. Defendant's motions to dismiss were not based on insufficiency of the State's evidence on the charge of voluntary manslaughter. In fact, defense counsel conceded that the State had introduced sufficient evidence to reach the jury on the voluntary manslaughter charge. Therefore, Defendant's argument is not properly before this Court, and we dismiss Defendant's assignment of error.
II.
Defendant also assigns error to the trial court's denial of his motion to dismiss the first-degree and second-degree murder charges. Our Courts have previously held that when a defendant is convicted of a lesser-included offense, he or she cannot challenge error in a jury instruction on a greater offense unless the defendant can show that his or her conviction for the lesser-included offense was somehow affected by the error. See, e.g., State v. Mangum, 245 N.C. 323, 330-31, 96 S.E.2d 39, 45 (1957) (where the defendant assigned error to the trial court's denial of his motion that the jury be instructed to disregard a charge of second-degree murder, and the Court held that the issue "is not material on this appeal, because the defendant was convicted of the lesser offense of manslaughter, and there is nothing to show that the verdict of guilty of manslaughter was thereby affected"); State v. Lassiter, 160 N.C. App. 443, 459-60, 586 S.E.2d 488, 499-500, disc. review denied, 357 N.C. 660, 590 S.E.2d 853 (2003) (where the defendant was convicted of voluntary manslaughter and assigned error to the trial court's instructions on first-degree murder, and our Court, relying on Mangum, held that "[t]he verdict finding [the] defendant guilty of the lesser offense of voluntary manslaughter rendered harmless any errors in the court's instructions on the greater offense, absent a showing that the verdict was affected thereby").
Assuming, arguendo, that it was error for the trial court to instruct the jury on first-degree and second-degree murder, any such error was harmless unless inclusion of such instructions affected Defendant's conviction for voluntary manslaughter. Defendant has not alleged that the trial court's denial of his motions to dismiss the charges of first-degree and second-degree murder in any way affected his conviction for voluntary manslaughter. Therefore, we hold that any error resulting from the trial court's denial of Defendant's motions to dismiss was harmless error.
Defendant's remaining assignments of error are not argued in his brief and are therefore deemed abandoned. See N.C.R. App. P. 28(b)(6).
No prejudicial error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).