State v. Bland

Court of Appeals of North Carolina

State v. Bland

238 S.E.2d 199, 34 N.C. App. 384, 1977 N.C. App. LEXIS 1704

CourtCourt of Appeals of North Carolina

DecidedNovember 2, 1977

DocketNo. 775SC476

StatusPublished

Cited by3 cases

This text of 238 S.E.2d 199 (State v. Bland) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bland, 238 S.E.2d 199, 34 N.C. App. 384, 1977 N.C. App. LEXIS 1704 (N.C. Ct. App. 1977).

Pincite

Opinion

ARNOLD, Judge.

Defendant contends that the trial court erred by failing to grant defendant’s motion to dismiss at the close of the State’s evidence and at the close of all the evidence. He argues that there was a fatal variance between the indictments against defendant and the evidence adduced at his trial, and that jeopardy did not attach under either of the bills of indictment. Defendant’s contention is without merit.

The record shows that one indictment charged defendant with discharging a firearm into an occupied building and the second indictment charged him with discharging a firearm into an occupied 1969 Volkswagen. At the close of the State’s evidence, the Court dismissed the latter charge upon motion for judgment as of nonsuit. Where a judgment as of nonsuit is entered in a criminal prosecution on the ground that the evidence offered by the State is insufficient to warrant submission to the jury, the defendant has been subjected to jeopardy. State v. Vaughan and State v. Catena and State v. Smith, 268 N.C. 105, 150 S.E. 2d 31 (1966).

As to the first indictment, defendant argues that the State put on evidence showing that defendant discharged a firearm not into an occupied building as alleged in the indictment but into an occupied trailer. The indictment, however, specifically noted that the occupied building was located at 5313 Park Avenue, the address of the Reeves trailer in Wilmington. Under the facts, therefore, there was no fatal variance which would warrant dismissal.

Defendant also contends that the trial court incorrectly instructed the jury as to “acting in concert” and “aiding and abet[386]*386ting.” Defendant, however, points out, and in reviewing the instructions, we find, no error prejudicial to defendant.

Defendant’s final contention, that the court erred by failing to instruct as to lesser included offenses, namely assault with a deadly weapon and assault by pointing a gun, is also without merit. Since assault with a deadly weapon (G.S. 14-32) and assault by pointing a gun (G.S. 14-34) each involve the element of assault on a person, these two criminal offenses contain an element not essential to discharging a firearm into an occupied building and are not, therefore, lesser included offenses.

We have reviewed defendant’s other contentions, and find

No error.

Chief Judge BROCK and Judge PARKER concur.

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ARNOLD, Judge.

Defendant contends that the trial court erred by failing to grant defendant’s motion to dismiss at the close of the State’s evidence and at the close of all the evidence. He argues that there was a fatal variance between the indictments against defendant and the evidence adduced at his trial, and that jeopardy did not attach under either of the bills of indictment. Defendant’s contention is without merit.

The record shows that one indictment charged defendant with discharging a firearm into an occupied building and the second indictment charged him with discharging a firearm into an occupied 1969 Volkswagen. At the close of the State’s evidence, the Court dismissed the latter charge upon motion for judgment as of nonsuit. Where a judgment as of nonsuit is entered in a criminal prosecution on the ground that the evidence offered by the State is insufficient to warrant submission to the jury, the defendant has been subjected to jeopardy. State v. Vaughan and State v. Catena and State v. Smith, 268 N.C. 105, 150 S.E. 2d 31 (1966).

As to the first indictment, defendant argues that the State put on evidence showing that defendant discharged a firearm not into an occupied building as alleged in the indictment but into an occupied trailer. The indictment, however, specifically noted that the occupied building was located at 5313 Park Avenue, the address of the Reeves trailer in Wilmington. Under the facts, therefore, there was no fatal variance which would warrant dismissal.

Defendant also contends that the trial court incorrectly instructed the jury as to “acting in concert” and “aiding and abet[386]*386ting.” Defendant, however, points out, and in reviewing the instructions, we find, no error prejudicial to defendant.

Defendant’s final contention, that the court erred by failing to instruct as to lesser included offenses, namely assault with a deadly weapon and assault by pointing a gun, is also without merit. Since assault with a deadly weapon (G.S. 14-32) and assault by pointing a gun (G.S. 14-34) each involve the element of assault on a person, these two criminal offenses contain an element not essential to discharging a firearm into an occupied building and are not, therefore, lesser included offenses.

We have reviewed defendant’s other contentions, and find

No error.

Chief Judge BROCK and Judge PARKER concur.

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238 S.E.2d 199, 34 N.C. App. 384, 1977 N.C. App. LEXIS 1704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bland-ncctapp-1977.

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