Opinion
No. COA11–1390.
2012-08-21
STATE of North Carolina v. Jonathan LEWIS.
Roy Cooper, Attorney General, by Lauren D. Tally, Assistant Attorney General, for the State. Parish & Cooke, by James R. Parish, for the defendant.
On writ of certiorari by defendant from judgment entered 21 April 2011 by Judge Paul C. Ridgeway in Durham County Superior Court. Heard in the Court of Appeals 11 June 2012. Roy Cooper, Attorney General, by Lauren D. Tally, Assistant Attorney General, for the State. Parish & Cooke, by James R. Parish, for the defendant.
THIGPEN, Judge.
Jonathan Lewis (“defendant”) appeals from judgment entered upon his convictions of four gun offenses. He contends the trial court erred in denying his motion to dismiss the charges for lack of sufficient evidence. We find no error.
On 7 September 2010, defendant was indicted for three counts of discharging a firearm into an occupied dwelling, one count of assault with a deadly weapon with intent to kill, and one count of possession of a firearm by a felon.
The State's evidence at trial tends to show that on 10 August 2010, Quashenique Cash, her uncle Kenneth Lee, and Lee's friend Terrill Williams were on Cash's porch when a man came up and asked for a cigarette. Cash went inside and left the three men talking. Cash's grandparents and another uncle were inside the house. About five minutes later, Cash heard gunshots from outside. Williams came running into the house after the shots were fired. The shots were fired into the house, causing holes in the wall and ceiling of the front room.
Lee identified defendant as the man who approached and asked for a cigarette. After Lee gave defendant a cigarette, defendant received a phone call on his cell phone. Lee testified that he then turned his head away and heard five or six loud gunshots in a row. He saw Williams run into the house when the shooting started. Lee stated he did not run because he wasn't scared, and the shots were not fired in his direction.
Officer Edwin Genao responded to the scene and was informed by Lee and Williams that a person named “John” had “opened fire” at them while they were standing on the porch. Lee told the officer that he himself was not a target, that the shots were fired at Williams.
The day after the shooting, Lee gave a statement to a police investigator. Lee stated that after defendant took a phone call, defendant reached down to his waist and pulled out a gun, either a .357 or .44 revolver. Lee said that defendant started shooting towards the front porch in Williams' direction, and that six shots were fired. Lee drew a diagram to indicate where the three men were standing when the shooting took place. He also viewed a photographic lineup, in which he identified defendant as the person who fired the gunshots at the house. Thereafter, defendant was arrested.
After the State presented its evidence at trial, defendant moved to dismiss the charges based on insufficient evidence. The trial court denied the motion. Defendant did not present any evidence.
The jury returned verdicts of guilty of two counts of discharging a firearm into an occupied dwelling, not guilty of a third count of the same charge, and guilty of assault with a deadly weapon and possession of a firearm by a felon. The trial court consolidated the offenses into one judgment and sentenced defendant to an active term of 84 to 110 months imprisonment. On 26 August 2011, this Court allowed defendant's petition for writ of certiorari seeking review of the judgment.
Defendant contends the trial court erred in denying his motion to dismiss for lack of sufficient evidence that defendant was the perpetrator of each of the offenses.
“Upon defendant's motion for dismissal, the question for the Court is 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. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quotation omitted), cert. denied, 531 U.S. 890, 121 S.Ct. 213 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (citations omitted). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted), cert. denied,515 U.S. 1135, 115 S.Ct. 2565 132 L.Ed.2d 818 (1995).
The elements of discharging a firearm into occupied property pursuant to N.C. Gen.Stat. § 14–34.1 are: “(1) the willful or wanton discharging (2) of a firearm (3) into any building (4) while it is occupied.” State v. Jones, 104 N.C.App. 251, 258, 409 S.E.2d 322, 326 (1991); se also N.C. Gen.Stat. § 14–34.1 (2011). Defendant contends there was insufficient substantive evidence that he was the person who fired gunshots toward the house. We do not agree.
The evidence at trial showed that defendant was standing with Kenneth Lee and Terrill Williams on the steps of Lee's house when shots were fired toward the house. No one else besides the three men was standing outside when the shots were fired. Lee identified defendant in a photographic lineup as the person who shot at the house, and he gave a statement to a police investigator that defendant pulled out a gun and fired shots. Defendant contends that since Lee's own testimony at trial indicated he did not directly see defendant shoot a gun, there was insufficient evidence that defendant was the shooter. However, testimony was also taken from police officers and a police department investigator regarding Lee's identification of defendant as the shooter a day after the incident took place. Thus, considering all of the evidence in the light most favorable to the State, we conclude the evidence was sufficient for a jury to conclude that defendant was the person who fired the gunshots. The trial court therefore did not err in denying the motion to dismiss the charges of discharging a firearm into occupied property.
“[T] he elements of assault with a deadly weapon with intent to kill include: (1) an assault; (2) with a deadly weapon; (3) with the intent to kill, N.C. Gen.Stat. § 14–32(c)[.]” State v. Coria, 131 N.C.App. 449, 456, 508 S.E.2d 1, 5 (1998). Defendant argues there was insufficient evidence to show that defendant was shooting at Terrill Williams. He contends that the only eyewitness who could prove that defendant was the perpetrator of this offense is Kenneth Lee, and his testimony was insufficient since he stated he turned his head before the shots were fired and he did not see defendant do the shooting. We do not agree.
Here, evidence was presented that Lee and Williams were standing on the porch, with Williams next to the mailbox. Defendant was standing on the steps to the porch. When the shots were fired, one bullet hit the house just beneath the mailbox, and Williams ran into the house. Lee told investigators that the shots were not fired in his direction, but in Williams' direction. As stated previously, Lee identified defendant as the shooter in a photographic lineup and in a statement he gave to the police. We are thus satisfied that the evidence, taken in the light most favorable to the State, is sufficient to show defendant committed the offense of assault with a deadly weapon against Terrill Williams.
Defendant also argues the charge of possession of a firearm by a felon should have been dismissed where the State failed to show defendant was in possession of a firearm on 10 August 2010. We disagree.
In order to prove the offense of possession of a firearm by a felon, the State must show that defendant was previously convicted of a felony and thereafter possessed a firearm. N.C. Gen.Stat. § 14–415.1 (2011). Here, we have already concluded that the evidence was sufficient for the jury to find that defendant committed the offenses of discharging a firearm into occupied property and assault with a deadly weapon with intent to kill. Both of those offenses as applied in this case involved defendant brandishing a firearm. As such, the evidence was sufficient to show that defendant possessed a firearm, which is the only element challenged by defendant. Therefore, the trial court did not err in denying defendant's motion to dismiss this charge.
NO ERROR. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).