Opinion
No. COA09-900
Filed 4 May 2010 This case not for publication
Appeal by Defendant from judgments and commitments entered 9 October 2008 by Judge Jesse B. Caldwell in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 April 2010.
Jarvis John Edgerton, IV for Defendant-Appellant. Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.
Mecklenburg County Nos. 08 CRS 46137, 08 CRS 221476-77, 79.
Rayvonn Howard ("Defendant") appeals from judgments entered upon convictions for possession of a firearm by a felon, assault with a deadly weapon, injury to personal property, and discharging a firearm in the city. He contends the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon for lack of sufficient evidence of the elements of that offense. After review, we find no error.
I. Factual Background and Procedural History
On 14 July 2008, Defendant was indicted on two counts of felony assault, one count of possession of a firearm by a felon, one count of assault with a deadly weapon, one count of injury to personal property, one count of assault on a female, one count of discharging a firearm in the city, and one count of communicating threats.
Defendant's case came on for trial during the 6 October 2008 criminal session of Mecklenburg County Superior Court. At trial, the State presented evidence that tended to show the following: On 4 May 2008, Defendant and his fiancée, Danita Barnes ("Barnes"), had been arguing at their home in Charlotte. Barnes had been having second thoughts about their engagement, and she was cancelling certain plans over the phone with her wedding planner when Defendant overheard the conversation. He asked her to get off the phone, which she did, and they began arguing. Barnes testified, "I had pretty much had it with a lot of lies, you know, cheating." Defendant and Barnes continued their argument into the garage. Defendant told Barnes that "he had to leave[,]" and Barnes kicked the bumper of Defendant's burgundy Cadillac.
Approximately five minutes later, Defendant came back into the house where Barnes was watching television and began to curse at her. He accused her of putting a dent in his car. When she tried to get up, Defendant hit Barnes multiple times with closed fists. Barnes's six-year-old son came into the room. Defendant then grabbed Barnes's purse and took money and credit cards, saying that she was going to pay for the dent. Defendant went out to the garage, and came back with the DVD player that he had ripped out of Barnes's sport utility vehicle ("SUV"). He threw the DVD player at Barnes, along with her credit card.
Barnes testified that Defendant took her "credit cards[,]" but that he "threw back to me my credit card[.]" Thus, it is unclear from the transcript whether Defendant took more than one credit card from Barnes.
Barnes instructed her son to follow her, and they got into her SUV, which was parked in the garage. Barnes started her car, at which point Defendant "started banging out [her] front windshield" with a car jack. Barnes stated that "[Defendant] just started busting out all of the car windows with the jack." In addition to the windshield, Defendant broke the driver's side window. Barnes had cuts on her arms and chest from the broken glass of the car windows. Barnes and her son got out of the vehicle. Barnes picked up a lug wrench for protection in case Defendant tried to hit her again. She went out to the driveway, where Defendant's other car, a tan Cadillac, was parked. Barnes threw the wrench through the Cadillac's window, then reached inside and ripped out a navigation system and threw it at Defendant.
Barnes got into the burgundy Cadillac, which Defendant had moved into the street, but there were no keys in it. She and her son then walked back toward the house and stood in the garage right behind Barnes's SUV. Barnes saw Defendant holding a silver handgun which he pointed at Barnes before saying to her and her son, "`[B]etter your mother's car than your mom.'" Defendant turned and started shooting the gun at the SUV. Barnes and her son took off running down the street. She estimated that Defendant fired "a lot" of shots because there were a lot of holes in the SUV and a few holes in the house from the bullets. Barnes waited until she saw Defendant leave, and then went back to the house. A neighbor called the police, who arrived at the house soon after the incident. Barnes bandaged the bleeding cuts on her arms.
Defendant did not present any evidence. At the close of the State's evidence and again at the close of all evidence, Defendant moved to dismiss the charges. The trial court denied both motions.
After deliberations, the jury acquitted Defendant of the charges of assault by pointing a gun, assault on a female, and communicating threats. The jury found Defendant guilty of possession of a firearm by a felon, injury to personal property, discharging a firearm in the city, and assault with a deadly weapon. Defendant was sentenced to a minimum of 20 months and a maximum of 24 months imprisonment for possession of a firearm by a felon, and was given 120 days credit for time served. He was given a consecutive sentence of 120 days for injury to personal property. For the assault with a deadly weapon conviction, Defendant was given a suspended sentence of 150 days with 24 months probation beginning after the completion of the sentence for the injury to personal property conviction. He was also given a suspended sentence of 20 days for discharging a firearm in the city with 24 months probation, to begin after the completion of the sentence for the deadly weapon conviction. From the judgments and commitments entered, Defendant appeals.
II. Discussion
By Defendant's sole argument on appeal, he contends the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon for lack of sufficient evidence that he used the car jack in such a manner as to constitute a deadly weapon. We disagree.
In ruling on a motion to dismiss for insufficient evidence, "a trial court must determine whether there is substantial evidence of each essential element of the offenses charged." State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002). "Evidence is substantial if it is relevant and is sufficient to persuade a rational juror to accept a particular conclusion." State v. Goblet, 173 N.C. App. 112, 118, 618 S.E.2d 257, 262 (2005). In deciding whether to deny a motion to dismiss, a trial court must view the evidence in the light most favorable to the State, including all reasonable inferences to be drawn therefrom. Id. "`Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.'" State v. Davis, ___ N.C. App. ___, ___, 678 S.E.2d 709, 713 (2009) (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).
A Defendant is guilty of assault with a deadly weapon if he commits: (1) an assault on a person; (2) with a deadly weapon. N.C. Gen. Stat. § 14-33(c)(1) (2009).
A deadly weapon is "any instrument which is likely to produce death or great bodily harm, under the circumstances of its use. . . . The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself."
State v. Palmer, 293 N.C. 633, 642-43, 239 S.E.2d 406, 412-13 (1977) (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924)).
If there is a conflict in the evidence regarding either the nature of the weapon or the manner of its use, with some of the evidence tending to show that the weapon used or as used would not likely produce death or great bodily harm and other evidence tending to show the contrary, the jury must, of course, resolve the conflict.
Id. at 643, 239 S.E.2d at 413.
Defendant argues that Barnes was never in danger of death or great bodily harm because he did not aim his blows at her, but rather at the windows of her car. He further contends that since the windows were constructed of safety glass, and since Barnes suffered only minor cuts, the evidence was not sufficient to show that the use of the car jack involved a likelihood of death or even great bodily harm.
Defendant's argument is directly contradicted by our Supreme Court's holding in State v. Hobbs, 216 N.C. 14, 3 S.E.2d 431 (1939), in which a defendant was convicted of assault with a deadly weapon after throwing a brick at a truck's windshield. The windshield, although made of shatterproof glass, was broken about six to seven inches across. Id. at 16, 3 S.E.2d at 432. In holding that the trial court's instructions did not amount to prejudicial error, the Court noted that
[t]he court charged the jury in effect that if the defendant intentionally threw a brick at the prosecuting witness and struck and broke the windshield of the truck he was driving, although he may not have stricken the witness, the defendant was guilty of an assault with a deadly weapon, and further, that if the defendant was personally present aiding, abetting and encouraging another, who intentionally threw a brick at the prosecuting witness and broke the windshield of the truck he was driving, he was guilty of an assault with a deadly weapon. This was a correct statement of the law applicable to the facts which the evidence for the State tended to establish.
Id. at 17-18, 3 S.E.2d at 433.
Similarly, in this case, the State's evidence tends to show that Barnes and her son were inside the car when Defendant deliberately hit the car windows with the car jack, breaking the windows. As in Hobbs, the windows broke despite being made of safety glass. We conclude that Defendant's use of the car jack in this manner, even though he did not directly strike the victim, sufficiently demonstrates that the car jack was used as a deadly weapon for purposes of the offense of assault with a deadly weapon. Taking the evidence in the light most favorable to the State, we find sufficient evidence was presented as to each essential element of the offense.
Nonetheless, as part of his argument regarding insufficiency of the evidence, Defendant contends that the State confused the jury in its closing argument by erroneously stating that it could use the evidence of Defendant's use of a gun as proof of the use of a deadly weapon for purposes of the assault with a deadly weapon charge. This argument has no merit.
First, Defendant did not object to the State's closing argument, and thus, this issue has not been properly preserved for review. N.C. R. App. P. 10(b)(1) (2008). Second, Defendant concedes that the trial court properly instructed the jury regarding the deadly weapon used in this case — the car jack. Finally, this argument has no bearing on whether the State presented sufficient evidence in its case in chief of the elements necessary for the jury to consider the offense of assault with a deadly weapon. Defendant's assignment of error is overruled.
Accordingly, we hold that Defendant received a fair trial, free of error.
NO ERROR.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).