Opinion
No. 07-1464.
Filed 6 May 2008.
Forsyth County No. 03CRS060921.
Appeal by defendant from judgment entered 3 April 2007 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 17 April 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. James E. Quander, for defendant-appellant.
Tremos Lamont Williams ("defendant") appeals from judgment entered after a jury found him to be guilty of common law attempted first-degree murder. We find no error.
I. Background
On 17 August 2003, Ronnie Pouncey ("Pouncey") called defendant to arrange a drug purchase. Defendant stated he was in Greensboro and was unable to provide Pouncey with cocaine that evening. Pouncey and Wendy Bell ("Bell"), Pouncey's girlfriend, retired to bed.
At 4:00 a.m. on 18 August 2003, Bell's cell phone rang and a man identified as "Tony" asked to speak with Pouncey. After the conversation ended, Pouncey informed Bell that defendant was thecaller, not "Tony" and stated that he was meeting defendant at a nearby apartment complex to purchase cocaine. Pouncey subsequently left his residence.
As Pouncey approached defendant's vehicle on Glenn Avenue, defendant punched Pouncey in the mouth. Pouncy attempted to run but defendant and two other males chased after Pouncey, brought him back to defendant's vehicle, slammed him on the ground and repeatedly hit and "stomped" him in the face. Preston Webb ("Webb") observed the incident from his vehicle and called 911. Webb drove up to the scene and observed Pouncey lying on the ground bleeding from his mouth, eyes, and nose. Meanwhile, defendant and his two accomplices entered a red Chevrolet Caprice Classic and drove away from the scene. When police officers arrived, Pouncey was incoherent and unable to speak.
Pouncey was transported to the hospital, where doctors diagnosed Pouncey with a subdural hemotoma, a blood clot that pushes on the brain and is "universally life-threatening without an operation." Pouncey also suffered "facial fractures and some contusions across his chest and body." Pouncey underwent surgery to remove the blood clot, spent approximately one month in the hospital, and was discharged to a rehabilitation center. Pouncey now suffers severe long-term limitations as a result of this injury.
On 2 October 2003, Winston-Salem Police Detectives discovered defendant was staying at the La Quinta hotel. Defendant was arrested and transported to the Public Safety Center in an unmarked vehicle. Upon arrival, defendant signed a "Miranda rights waiver" and was interviewed. Defendant admitted his involvement in the assault against Pouncey and described his reasons why the incident had occurred. Defendant told investigators that his brother called earlier that evening and stated that he had been robbed by Pouncey and three other individuals. Defendant called Pouncey to arrange the meeting as a guise to orchestrate the attack.
On 3 May 2004, defendant was indicted for attempted first-degree murder. On 3 April 2007, a jury found defendant to be guilty as charged. The jury also found the following aggravating factors beyond a reasonable doubt: (1) defendant was joined with more than one person in committing the offense and was not separately charged with conspiracy and (2) the victim's injuries were serious, permanent, and debilitating. The trial court determined defendant had a prior record level of IV and sentenced defendant to a minimum of 276 and maximum of 341 months imprisonment. Defendant appeals.
II. Issues
Defendant argues the trial court erred by: (1) failing to instruct the jury on the lesser-included offense of assault inflicting serious injury and (2) failing to grant defendant's motions to dismiss the attempted first-degree murder charge.
III. Jury Instructions
Defendant argues the trial court should have instructed the jury on the lesser-included offense of assault inflicting serious injury. We disagree.
When our Supreme Court has previously ruled upon the necessity of submitting lesser-included offenses for consideration by the jury, it has held:
[w]hen a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding a defendant guilty of a higher degree of the same crime.
State v. Banks, 295 N.C. 399, 415-16, 245 S.E.2d 743, 754 (1978) (citation omitted), overruled on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). "In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense. The determination is made on a definitional, not a factual basis." State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379 (1982) (emphasis original), overruled on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).
Defendant was indicted for attempted first-degree murder with two additional aggravating factors: (1) defendant was joined with more than one person in committing the offense and was not separately charged with conspiracy and (2) the victim's injuries were serious, permanent, and debilitating.
"The elements of attempted first degree murder are: (1) a specific intent to kill another person unlawfully; (2) an overt act calculated to carry out that intent, going beyond mere preparation; (3) the existence of malice, premeditation, and deliberation accompanying the act; and (4) a failure to complete the intended killing." State v. Poag, 159 N.C. App. 312, 318, 583 S.E.2d 661, 666 (citation and quotation omitted), disc. rev. denied, 357 N.C. 661, 590 S.E.2d 857 (2003). The elements of assault inflicting serious bodily injury are: "(1) the commission of an assault on another, which (2) inflicts serious bodily injury." State v. Hannah, 149 N.C. App. 713, 717, 563 S.E.2d 1, 4, disc. rev. denied, 355 N.C. 754, 566 S.E.2d 81 (2002). All of the essential elements of assault inflicting serious bodily injury are not also included in the definition of attempted first-degree murder.
Further, this Court has previously stated that "an indictment charging `that defendant unlawfully, willfully and feloniously and of malice aforethought did kill and murder the victim [was] insufficient to support a verdict of guilty of assault, assault inflicting serious injury or assault with intent to kill.'" State v. Parker, ___ N.C. App. ___, ___, 653 S.E.2d 6, 10 (2007) (alteration original) (quoting State v. Whiteside, 325 N.C. 389, 403, 383 S.E.2d 911, 919 (1989)). Here, the short-form indictment against defendant contained virtually the same language: "defendant named above unlawfully, willfully and feloniously did with malice aforethought attempt to kill and murder Ronnie Aaron Pouncey."
Defendant argues "[t]he aggravating factor submitted by the superceding indictment necessarily injects the additional element of `serious injury' into this case[]" and therefore all the elements for assault inflicting serious injury were included in the greater offense of attempted first-degree murder. We disagree.
Aggravating factors are used to determine whether enhanced sentencing is appropriate and are not essential elements of the crime. See N.C. Gen. Stat. § 15A-1340.16(a) (2007) ("The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate[.]"); State v. Baldwin, 330 N.C. 446, 454, 412 S.E.2d 31, 36 (1992) ("[A]ggravating factors are not elements of the offense charged. . . .").
The trial court was not required to instruct the jury on the elements of assault inflicting serious bodily injury as a lesser-included offense of attempted first-degree murder. This assignment of error is overruled.
IV. Motions to Dismiss
Defendant argues the trial court should have granted defendant's motions to dismiss and to set aside the verdict because the State failed to present sufficient evidence tending to establish that defendant formed the specific intent to kill accompanied by premeditation and deliberation. We disagree.
A. Standard of Review
On a motion to dismiss for insufficiency of the evidence, a trial court must determine 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. A trial court views the evidence in the light most favorable to the State, drawing all inferences in the State's favor.
State v. Johnson, ___ N.C. App. ___, ___, 646 S.E.2d 123, 126 (2007) (internal citations and quotations omitted).
B. Analysis
"[S]ubstantial evidence tending to show premeditation and deliberation is also substantial evidence of [defendant's] intent to kill." State v. Vause, 328 N.C. 231, 239, 400 S.E.2d 57, 62 (1991) (citation omitted). Premeditation and deliberation must ordinarily be proved by circumstantial evidence. State v. Saunders, 317 N.C. 308, 312, 345 S.E.2d 212, 215 (1986). Our Supreme Court has set forth certain circumstances, which are indicative of premeditation and deliberation:
(1) want of provocation on the part of the [victim], (2) conduct and statements of the defendant before and after the [attempted] killing, (3) threats made against the victim by defendant, (4) ill will or previous difficulty between the parties, and (5) evidence that the [attempted] killing was done in a brutal manner.
State v. Crawford, 344 N.C. 65, 74, 472 S.E.2d 920, 926 (1996) (citation and quotation omitted).
Here, the State presented evidence which tended to show: (1) prior to the attack, defendant admitted he was searching for Pouncey to retaliate for an earlier altercation that involved Pouncey and defendant's brother; (2) defendant intentionally called Pouncey to arrange a meeting in order to facilitate the attack; (3) after defendant initially assaulted Pouncey, defendant and his accomplices chased Pouncey as he attempted to escape and dragged him back to their original location; (4) defendant held Pouncey down while one of defendant's accomplices searched for a crowbar; (5) when the crowbar could not be found, defendant admitted to punching and "stomping" Pouncey in his face repeatedly while Pouncey laid on the ground motionless; and (6) defendant only stopped the brutal attack when Webb drove up to the scene.
Viewed in a light most favorable to the State, sufficient evidence was presented to establish defendant formed the required specific intent to kill Pouncey, which was accompanied by premeditation and deliberation. This assignment of error is overruled.
V. Conclusion
The trial court was not required to instruct the jury on assault inflicting serious bodily injury. Assault inflicting serious bodily injury is not a lesser-included offense of attempted first-degree murder. Parker, ___ N.C. App. at ___, 653 S.E.2d at 10.
The State presented sufficient evidence tending to show defendant formed the specific intent to kill accompanied by premeditation and deliberation. The trial court properly denied defendant's motions to dismiss and to set aside the verdict. Defendant received a fair trial, free from the prejudicial errors he preserved, assigned, and argued.
No error.
Judges McCULLOUGH and STROUD concur.
Report per Rule 30(e).