Opinion
No. COA02-436
Filed 7 January 2003 This case not for publication
Appeal by defendant from judgment entered 19 October 2001 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 23 December 2002.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State. John T. Hall for defendant appellant.
Pitt County No. 99CRS64866.
Defendant Anthony Jerome Jackson was tried before a jury at the 15 October 2001 Criminal and Civil Session of Pitt County Superior Court and was convicted of one count of discharging a weapon into occupied property. The State's evidence tended to show the following: On the night of 2 September 1999, defendant picked up Timothy Harper at his residence on Sherwin Court. Defendant was armed with a Tec nine-millimeter handgun and gave Harper a loaded SKS rifle. Also with defendant were Chris Cherry, Larry Barnhill and Ty Jackson, each of whom had a gun. The group rode in two cars to Myrtle Avenue. When they arrived, they spread out in a field with their weapons. Defendant pointed out a residence on Myrtle Avenue, which he believed to contain men who had "shot up his house" on Mosby Circle the previous week. Defendant "said what he had to say" to the occupants of the dwelling, and Harper and at least one other person opened fire toward it. When they had finished shooting, the group returned to their cars and drove to defendant's house. Defendant put his guns away.
Ms. Deborah Holloway was living with her three children in one-half of the duplex at 1008 Myrtle Avenue. Adjacent to the duplex was an open field. Shortly before midnight on 2 September 1999, Ms. Holloway was awakened by the sound of gunshots coming into her children's bedroom, which was located at the front of the house. As Ms. Holloway's room filled with smoke, dust, and the smell of gunpowder, her daughter, Tequoia ran to her, bleeding from the face and saying she had been "hit." Ms. Holloway called the police.
Soon thereafter, Greenville Police Officer Keith Knox was dispatched to the duplex to investigate a report that "a juvenile had been shot in the face." When Officer Knox arrived, Ms. Holloway was in the residence at 1008-B Myrtle Street with her children, Tequoia, Tianca and Jyaisah. The left side of Tequoia's face was bleeding. Officer Knox found several bullet holes in the living room and the east windows of Tequoia's bedroom. Blood was on the bedroom windows and floor. Officer Knox also noticed "a haze" inside the residence. A vehicle parked in front of the residence was covered with bullet holes, as were the north and east exterior walls of the duplex.
A police investigation of the shooting took place. On 9 September 1999, police stopped Cherry's vehicle as he left defendant's residence. Inside the vehicle, they found a nine-millimeter and a .40 caliber handgun. A search of defendant's residence yielded a semi-automatic pistol, a .40 caliber handgun, a .32 caliber handgun, and two nine-millimeter handguns, an SKS rifle, and a stock of ammunition. Police found defendant hiding under his bed and placed him in custody.
Defendant presented no evidence. After deliberating, the jury found defendant guilty of discharging a firearm into an occupied dwelling. The trial court determined defendant had a prior record level of IV and sentenced him to 58-79 months' imprisonment. Defendant appealed.
On appeal, defendant contends the trial court committed prejudicial error by (I) overruling his objection to Agent Mishoe's testimony; (II) denying his motion for a mistrial; and (III) denying his motion to dismiss at the close of the evidence. For the reasons stated herein, we disagree with defendant's arguments and conclude he received a trial free from error.
I.
By his first assignment of error, defendant contends the trial court erroneously allowed the State Bureau of Investigation (SBI) Special Agent David C. Mishoe to testify about the results of fingerprint analysis performed by his subordinate, Rick Navarro, on guns and ammunition seized from defendant's home. However, Mishoe testified only that Navarro found "`no latent prints of value for identification purposes[.]'" The absence of fingerprint evidence did not tend to inculpate defendant in the shooting. Therefore, he was not prejudiced by Mishoe's testimony. See N.C. Gen. Stat. § 15A-1443(a) (2001); but cf. State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403 (1981), appeal dismissed and disc. review denied, 304 N.C. 732, 288 S.E.2d 804 (1982) ("Defense counsel's failure to move for discovery of the fingerprint test does not constitute ineffective assistance of counsel, because the . . . prints were unidentifiable."). As defendant cannot demonstrate prejudicial error, his first assignment of error is overruled.
II.
Defendant next brings forward two claims stemming from the following exchange between defense counsel and Harper on cross-examination:
Q. And you have now determined, Mr. Harper, that you need to do whatever you have to do to save your own skin; isn't that true?
A. I mean, I ain't going to get burned by the grease when the case — you know, every man should own up to their part. If that man — if that man was having problems with them, and he paralyzed that man back then, he should —
[DEFENSE COUNSEL]: Objection. Move to strike.
The Court: Objection sustained. Motion is allowed.
Defendant moved for a mistrial, based on Harper's allusion to "the person that he paralyzed, or something to that effect[.]" The trial court denied the motion, stating, "I instructed the jury on the motion to strike. And I really believe that it was so brief I don't think anybody really picked up on it." Defendant now argues that the trial court abused its discretion in refusing to grant a mistrial in response to Harper's improper testimony. In a related claim, he faults the trial court for failing to give a timely curative instruction after granting his motion to strike.
A trial court's denial of a defendant's motion for a mistrial is reviewed for abuse of discretion. An abuse of discretion will be found "`only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.'" State v. Hogan, 321 N.C. 719, 722, 365 S.E.2d 289, 290 (1988) (quoting State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986)). "`Where a trial court sustains an objection to incompetent evidence and instructs the jury to disregard it, the refusal to grant a mistrial based on the introduction of the evidence will ordinarily not constitute an abuse of discretion.'" Id. at 722-23, 365 S.E.2d at 290-91 (quoting Barts, 316 N.C. at 682, 343 S.E.2d at 839).
We find no abuse of discretion by the trial court. Harper's remark about the prior incident was brief, oblique, and immediately addressed by the trial court. The trial court sustained defendant's objection and granted his motion to strike Harper's testimony. The trial court reasonably concluded that it had cured any possible prejudice to defendant and that the extraordinary precaution of declaring a mistrial was unwarranted. Defendant correctly notes that the trial court did not specifically direct the jury to disregard Harper's testimony. However, it instructed the jury at the beginning of trial as follows:
When the Court sustains an objection to a question, you must disregard the question and the answer, if one has been given. You are not to draw any inference from the question or answer. . . .
. . . If the Court grants a motion to strike all or any portion of a question and answer of a witness to a question — just if I grant a motion to strike, you are to disregard it or not consider that evidence, and follow my directions as to what to strike.
We presume that a jury follows the trial court's instructions. State v. Wiley, 355 N.C. 592, 637, 565 S.E.2d 22, 52 (2002). While the better practice may have been to give an additional curative instruction immediately after granting the motion to strike, we conclude the omission did not constitute prejudicial error in this case. See State v. Vines, 105 N.C. App. 147, 153, 412 S.E.2d 156, 161 (1992).
III.
Defendant next contends that the State's evidence was insufficient to withstand his motion to dismiss. Specifically, he claims there was no evidence that he fired his gun or that he intended to fire into the Holloway residence. We do not agree.
A motion to dismiss is properly denied if the evidence, viewed in the light most favorable to the State, is sufficient to allow a reasonable jury to find defendant guilty of each element of the offense beyond a reasonable doubt. See State v. Earnhardt, 307 N.C. 62, 69, 296 S.E.2d 649, 654 (1982). The elements of discharging a firearm into occupied property "are (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied." State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995). "There is no requirement that the defendant have a specific intent to fire into the occupied building, only that he, alone or acting in concert with others, . . . intentionally discharged the firearm at the occupied building with the bullet(s) entering the occupied building[.]" State v. Byrd, 132 N.C. App. 220, 222, 510 S.E.2d 410, 412 (1999), disc. review denied, 350 N.C. 596, 537 S.E.2d 484 (1999). The State must also prove defendant knew or reasonably should have known that the building was occupied. State v. Jones, 104 N.C. App. 251, 258, 409 S.E.2d 322, 326 (1991). However, "[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[.]" 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).
We believe the State presented substantial evidence to support the jury's guilty verdict. Testimony established that defendant led a group of armed men to Ms. Holloway's duplex on the night of 2 September 1999, in order to retaliate for a shooting at his residence. Defendant was carrying a nine millimeter handgun and supplied at least one of the shooters, Harper, with a loaded rifle. Defendant identified the duplex to the group as the appropriate target. After defendant "said what he had to say" to the occupants, at least two members of the group opened fire at the building. Several bullets entered Ms. Holloway's residence, which was occupied at the time. Even if defendant did not fire his handgun, the jury was entitled to hold him responsible for the acts of his associates under the doctrine of acting in concert. See State v. Musselwhite, 54 N.C. App. 68, 72, 283 S.E.2d 149 (1981), aff'd, 305 N.C. 295, 287 S.E.2d 897 (1982). Likewise, the fact that the gunfire was intended for the dwelling adjacent to Ms. Holloway's is immaterial. Discharging a firearm into an occupied property is a general intent crime to which the doctrine of transferred intent applies. See Byrd, 132 N.C. App. at 222, 510 S.E.2d at 412. This assignment of error is overruled.
IV.
In his final argument, defendant challenges the validity of his indictment on the ground that it "fails to allege an intentional violation and does not cite a proper statute reference." The State's pleading charged that defendant "unlawfully and willfully did discharge a rifle, a firearm, into an occupied dwelling, located at 1008-B Myrtle Avenue, . . . in violation of G.S. 34.1." The indictment tracks the applicable statutory language and is proper in all respects. State v. Walker, 34 N.C. App. 271, 274, 238 S.E.2d 154, 156, disc. review denied, 293 N.C. 743, 241 S.E.2d 516 (1977). The reference to "G.S. 34.1" instead of G.S. § 14-34.1 is a typographical error of no consequence. See N.C. Gen. Stat. § 15A-924(a)(6) (2001).
The record on appeal contains an assignment of error not addressed by defendant's brief to this Court. By rule, we deem it abandoned. See N.C.R. App. P. 28(b)(6). Upon careful consideration of the record and the arguments presented by the parties, we conclude defendant received a fair trial, free from error.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).