State v. Jenkins

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-889

Filed 6 August 2025

Edgecombe County, Nos. 20 CRS 051207-320, 20 CRS 051208-320, 20 CRS 051209- 320

STATE OF NORTH CAROLINA,

v.

TELVIN JENKINS, Defendant.

Appeal by Defendant from judgment entered 12 February 2024 by Judge

Brenda Green Branch in Edgecombe County Superior Court. Heard in the Court of

Appeals 22 May 2025.

Attorney General Jeff Jackson, by Assistant Attorney General Jeanne Washburn, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez, for Defendant–Appellant.

MURRY, Judge.

Telvin Jenkins (Defendant) appeals the trial court’s (1) jury instruction on self-

defense, (2) finding that the State did not violate pretrial discovery rules, (3) denial

of his motion to dismiss for purportedly misinterpreting N.C.G.S. § 14-34.10, and (4)

entrance of judgment under that same statute. For the reasons below, we dismiss in

part on the first issue, hold no error in part on the second and third issues, and vacate

and remand for resentencing in part on the fourth issue. STATE V. JENKINS

Opinion of the Court

I. Background

On 13 June 2020, Rosa Powell Harris was driving on a local road when

Defendant pulled up beside her and fired into her vehicle. The bullet shattered

Harris’s window, entered her left arm, and lodged into her back near her right

scapula. After being shot, Harris drove herself home where her daughter called the

police.

Harris purportedly identified Defendant by name prior to her hospital transfer.

First to arrive at the scene, Detective Austin V. Holland spoke with Harris before

paramedics arrived. After Harris’s departure for the hospital, Harris’s daughter

identified Defendant as the shooter to Detective Holland. Captain Bryan T. Corey

interviewed Harris at the hospital later that day, at which point she identified

Defendant as the shooter. Captain Corey noted in the post-interview report that

Harris “believed it was” Defendant who shot her and that, when “asked . . . why . . .

she th[ought]” so, she “stated her grandson and [Defendant] ha[d] been having

problems.”

On 24 July 2020, Defendant moved to compel discovery by requesting “copies

of all statements of any . . . witnesses for the State.” In June 2022, the State informed

Defendant’s counsel that discovery was available through North Carolina Criminal

Discovery Automated System, that he could view physical evidence in-person, and

that supplemental discovery remained available. The State provided discovery

related to Harris’s statements that she “believe[d] it was [Defendant]” who shot her.

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On 31 May 2022, a grand jury indicted Defendant for attempted first-degree murder,

assault with a deadly weapon with intent to kill and inflicting serious injury

(AWDWIKISI), discharging a weapon into a conveyance in operation (DW-Into),

discharging a firearm within an occupied enclosure to incite fear (DW-Within), and

possession of a firearm by a convicted felon. N.C.G.S. § 14-17(a) (attempted murder);

id. § 14-32(a) (AWDWIKISI); id. § 14-34.1(b) (DW-Into); id. § 14-34.10 (DW-Within);

id. § 14-415.1(a) (firearm possession). The matter came to trial on 12 February 2024.

In its opening statement, the State noted Harris’s intent to identify Defendant

in open court as the individual who shot her. Harris so identified him, testifying that

she would never “forget the face [she] saw that day when that person was shooting at

[her]” and that she had no “doubt in [her] mind about who [she] saw [shoot] her.” She

also purported to identify Defendant to law enforcement on the day of the incident.

Detective Holland testified that Harris did not identify any suspect when he

interviewed her, while Captain Corey testified that Harris identified the shooter at

the hospital because her grandson and Defendant “ha[d] problems.” At the close of

the State’s evidence, Defendant moved to dismiss all indictments. The trial court

denied Defendant’s motion, finding “ample evidence to go before the jury and let the

jury decide at this time.” Defendant offered no evidence in his own defense.

Thereafter, the trial court conducted a charge conference, where the State

submitted its requested jury instructions. The trial court asked Defendant’s counsel

if he had anything to add. Defendant’s counsel affirmed that “everything else [was]

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fine.” With all parties present, the trial court went through each charge individually.

At the conclusion of the conference, Defendant’s counsel reaffirmed his “satisf[action]

with the way the instructions are to be read to the jury.” The trial court then

instructed the jury on all charges, including first-degree murder, stating that a

finding of self-defense would preclude a guilty verdict as to that charge. It instructed

the jury, in relevant part, to a possible self-defense claim if Defendant “believed it . . .

necessary to use potentially deadly force against the victim in order to save himself

from death or great bodily harm.” The trial court stated that it made this instruction

because, “for you to find . . . [him] guilty of attempted first-degree murder, the State

must first prove beyond a reasonable doubt, . . . that . . . [D]efendant did not act in

self-defense.”

On 14 February 2024, the jury found Defendant guilty of Class B2 felony

attempted first-degree murder, Class C felony AWDWKISI, Class C felony DW-Into,

Class F felony DW-Within, and Class G felony possession of a firearm by a felon.

Following the jury verdict, Defendant’s counsel renewed his motion to dismiss, this

time arguing that the State violated pretrial discovery rules by failing to disclose that

Harris would identify Defendant in the courtroom. He argued that Harris’s in-court

identification “was something that we had not had, in any sort of clear and concise

way, been given additional discovery after there had been a meeting between the

State and [Harris].” In response, the State argued that it was unnecessary to “spell

out” Harris’s testimony and that “the State [wa]s allowed to elicit in-court

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identification.” The trial court denied Defendant’s motion, finding that “enough was

said to put [Defendant’s counsel] on notice that [Defendant] had been identified at

the scene.” Finding Defendant a prior offender with a prior record level (PRL) III, the

trial court consolidated the convictions for AWDWIKISI, DW-Into, and DW-Within

and sentenced him to 96–128 months to run consecutively to the attempted murder

conviction.1 Defendant timely appealed.

II. Jurisdiction

Under N.C.G.S. § 7A-27, this Court has jurisdiction to hear Defendant’s appeal

of the trial court’s “final judgment.” N.C.G.S. § 7A-27(b) (2023).

III. Analysis

On appeal, Defendant argues that the trial court erred by (1) instructing the

jury on an opinionated self-defense theory,2 (2) ruling that the State complied with

pre-trial disclosure requirements, (3) misinterpreting § 14-34.10 to find sufficient

evidence of the underlying charge, and (4) entering judgment in violation of the

“ ‘unless covered’ provision” in § 14-34.10. See N.C.G.S. § 14-34.10 (2023). We review

the first, third, and fourth issues de novo, see, e.g., State v. Chavis, 278 N.C. App. 482,

1 The trial court also sentenced Defendant to 207–261 months for attempted first-degree

murder and 17–30 months for possession of firearm by felon.

2 In his reply brief, Defendant raises an ineffective-assistance-of-counsel claim if,

“alternatively, . . . this Court rules that Defendant’s counsel invited the erro[neous]” jury instruction. Because an appellant must limit his reply brief to only “a concise rebuttal” of those “arguments set out in the appellee’s brief” left unaddressed in his “principal brief,” N.C. R. App. P. 28(h), Defendant waives this claim of ineffective assistance of counsel, see id. 28(b)(6).

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487 (2021) (expressed opinions); State v. Bediz, 269 N.C. App. 39, 42 (2019) (evidence

sufficiency); State v. Grappo, 271 N.C. App. 487, 491 (2020) (statutory mandate), but

review discovery-violation claims only for an abuse of discretion. State v. Gillespie,

362 N.C. 150, 154–55 (2008). For the reasons below, this Court holds that the trial

court did not err in determining the first three issues but did err in part by sentencing

Defendant under § 14-34.10.

A. Self-Defense Instruction

First, Defendant claims that “the trial court expressed an opinion on the

evidence by instructing the jury on self-defense . . . [without] evidence [to] support[ ]

the instruction.” We dismiss Defendant’s argument as invited error.

The State argues that Defendant invited error by agreeing to the jury

instructions, thereby barring appellate review. Generally, we review jury instructions

for plain error if a defendant fails to object at trial. State v. Plotz, 295 N.C. App. 404,

411 (2024). But where a defendant fails to object to the jury instructions and instead

expressly agrees with them, he waives any “right to all appellate review concerning

the invited error, including plain[-]error review.” State v. Barber, 147 N.C. App. 69,

74 (2001); see State v. White, 349 N.C. 535, 570 (1998) (“Where a defendant tells the

trial court that he has no objection to an instruction, he [can]not . . . complain on

appeal.”). Here, Defendant did not object to the self-defense instruction, despite

having at least three opportunities to do so. Defendant confirmed his satisfaction

“with the way the instructions are to be read to the jury” and had “nothing to add [or]

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take away, or [any] concern[s] with the jury charge.” Because his counsel repeatedly

affirmed the jury instructions, Defendant waives the right to appellate review on this

issue. See Barber, 147 N.C. App. at 74. Thus, this Court dismisses Defendant’s

argument as unpreserved.

B. Discovery Violations

Second, Defendant argues that the trial court abused its discretion by denying

his motion to dismiss based on the State’s discovery violations under N.C.G.S.

§ 15A-903. For the following reasons, we disagree with Defendant and find no abuse

of discretion on this point.

Our discovery statutes and “procedures . . . protect the defendant from unfair

surprise.” State v. Tucker, 329 N.C. 709, 716 (1991). Upon a defendant’s motion, the

State must “make available to . . . [him] the complete files of all law enforcement

agencies, investigatory agencies, and prosecutors’ offices involved in the investigation

of the crimes committed or [his] prosecution.” N.C.G.S. § 15A-903(a)(1) (2023).

Discovery documents generally include oral statements except those “made by a

witness to a prosecuting attorney outside the presence of a law enforcement officer,”

in which case her statement must be provided only if it contains “significantly new or

different information” from her prior statements. Id. § 15A-903(a)(1)(c) (emphasis

added); see id. § 15A-907 (recognizing State’s “continuing duty to disclose”).

As noted above, questions of discovery-rule compliance are within the trial

court’s sound discretion. See Denton v. Peacock, 97 N.C. App. 97, 100 (1990).

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Defendant claims Harris’s in-court testimony conflicts with her prior statement that

“she believe[d] it was” Defendant because “her grandson and [Defendant] ha[d] been

having problems.” Defendant’s argument is two-fold: (1) Harris’s prejudicial

identification of him evolved from a circumstantial assumption to an eyewitness

identification amounting to “significantly new or different,” id.,” information, and (2)

the State’s failure to disclose it forced him to present “a defense on the fly.”

The trial court did not abuse its discretion here. Defendant was on notice that

he “had been identified at the scene . . . as being the perpetrator.” The trial court

found that the State did not violate discovery rules because there were “enough

indicators” for the Defendant “to prepare and mount a proper defense . . . based on

what was in discovery.” The trial court’s determination that the State complied with

discovery under N.C.G.S. § 15A-903 was not so “manifestly unsupported by reason or

so arbitrary that it could not have been the result of a reasoned decision.” Hammond

v. Saini, 229 N.C. App. 359, 370 (2013), aff’d, modified on other grounds, 367 N.C.

607 (2014). Thus, this Court holds that the trial court did not abuse its discretion in

finding that the State complied with discovery.

C. Evidence Insufficiency

Third, Defendant argues that the trial court erred in denying his motion to

dismiss because the State offered insufficient evidence to support the charge of

“discharging a firearm within an occupied enclosure with intent incite fear.” N.C.G.S.

§ 14-34.10 (citation modified). Both he and the State characterize this argument as a

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matter of statutory misinterpretation, suggesting that the “evidence . . . support[s] a

conviction for discharging a weapon into an occupied property” à la N.C.G.S.

§ 14-34.1(b) “but not [for] discharging a weapon within a vehicle” under N.C.G.S.

§ 14-34.10.3 (Second emphasis added).

Defendant expressly recognizes the sufficiency of the State’s evidence under

the former interpretation, just not the latter. We thus analyze this question only in

terms of the challenged statutory language because his motion to dismiss hinges on

§ 14-34.10’s meaning. If § 14-34.10 required the trial court to instruct the jury that

both Defendant and Harris must have been “within [one] occupied motor vehicle” as

of “discharge” to merit conviction, then it erred by instructing the jury on that count.

N.C.G.S. § 14-34.10. But if that same statute requires that only he “discharge[d] a

firearm within” either his or Harris’s “occupied . . . vehicle,” then the trial court did

not so err. Id. For the reasons discussed below, we read § 14-34.10 as the latter

meaning and thus find no error.

1. Statutory Interpretation Generally

Given our heightened responsibility to prudentially interpret punitive

3 As discussed further below, § 14-34.10 criminalizes multiple separate elements. On appeal,

Defendant purports to challenge only whether he “discharge[d] a firearm within any occupied . . . motor vehicle” as a question of statutory interpretation. N.C.G.S. § 14-34.10 (2023). Thus, we assume arguendo that Defendant stipulates to the remaining elements. We also make no distinction between a “motor vehicle” and any of the statute’s other five types of enumerated “enclosure[s]” for the purposes of this analysis. Id.; see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (1st ed. 2012) [hereinafter Scalia & Garner, Reading Law] (“When there is a straightforward, parallel construction . . . [of] all nouns in a series, a . . . modifier normally applies to [its] entire[ty].”).

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statutes, we pause to outline certain principles that guide our comparative analysis

of §§ 14-34.9 and -34.10. See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 296 (1st ed. 2012) [hereinafter Scalia & Garner,

Reading Law] (“The rule of lenity . . . rest[s] . . . at least on the judge-made public

policy that a legislature ought not to” “decree punishment without making clear what

conduct incurs [it] . . . .”). When interpreting statutes, we first “examin[e] . . . the[ir]

plain words.” Belmont Ass’n v. Farwig, 381 N.C. 306, 310 (2022) (quotation omitted).

The foundational statute relevant for our purposes, § 14-34.1, criminalizes “[a]ny

person who willfully discharges any firearm into any vehicle while it is occupied.”

N.C.G.S. § 14-34.1(a) (2023) (emphases added; ellipses omitted), enacted as amended

by Act of Apr. 28, 1969, ch. 341, 1969 N.C. Sess. Laws 291. A subsequent statute built

upon § 14-34.1’s language, § 14-34.9, similarly sanctions “any person who willfully

discharges a firearm, as a part of criminal gang activity, from within any motor

vehicle toward a person not within that [vehicle].” Id. § 14-34.9 (emphases added;

ellipses omitted), amended by Act of Dec. 1, 2017, S.L. 2017-194, sec. 6, 2017 N.C.

Sess. Laws 1370, 1372 [hereinafter 2017 Amendment] (amending “a pattern of

criminal street gang activity” to only “criminal gang activity” (emphases added)).

Finally, the statute directly challenged by Defendant here, § 14-34.10, criminalizes

“any person who willfully discharges a firearm within any occupied motor vehicle

with the intent to incite fear in another.” Id. § 14-34.10 (emphases added; ellipses

omitted), enacted by Act of June 19, 2013, S.L. 2013-144, 2013 N.C. Sess. Laws 351.

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We apply “[o]rdinary rules of grammar” to construe these material terms so

emphasized “according to the context and approved usage of the[ir] language.” Dunn

v. Pac. Emps. Ins. Co., 332 N.C. 129, 134 (1992). We further “employ[ ] canons of

statutory interpretation” to supplement these grammatical strictures, 4 State v.

Campbell, 285 N.C. App. 480, 487 (2022), all of which we presume “the General

Assembly . . . to have acted . . . with a knowledge of,” People’s Bank v. Loven, 172 N.C.

666, 670 (1916). One general canon most appropriately applies here: the Related-

Statutes Canon,5 see Scalia & Garner, Reading Law 252, where “statute[s] dealing

with the same subject matter must be considered and interpreted as” a single organic

act. State v. Rankin, 371 N.C. 885, 889 (2018) (quotation omitted). Within these

challenged statutes, basic and complex grammar rules govern “[t]he particular

meaning of a qualifying modifier,” Günter Radden & René Dirven, Cognitive English

Grammar 144 (Cognitive Linguistics in Prac. Vol. 2, 2007) [hereinafter Radden &

Dirven, Grammar], i.e., “within any occupied . . . motor vehicle,” N.C.G.S. § 14-34.10.

4 By “canons,” we mean only those generally accepted jurisprudential “rules of interpretation

. . . so commonsensical” as to merit blackletter status themselves. Antonin Scalia, A Matter of Interpretation 25–26 (new ed. 2018). We recognize that “[e]very canon is simply one indication of meaning” that “must yield” to “more contrary indications.” Id. at 27. See generally 27 N.C. Index 4th Statutes § 25, Westlaw (database updated July 2025) (outlining North Carolina’s “[b]asic principles of statutory construction”).

5 Although it goes by many names, this canon reflects the longstanding principle that “statutes

addressing the same subject matter generally should be read” “in para materia” “as if they were one law.” Lisa Schultz Bressman et al., The Regulatory State 208–09 (3d ed. 2020) (describing various “Whole Code Canons”) (quotation omitted). But see Scalia & Garner, Reading Law 167 (defining as singular “whole-text canon”).

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Certain secondary interpretive canons also reflect these core indications of syntax,

e.g., the “last-antecedent canon,” Scalia & Garner, Reading Law 144, the “series-

qualifier canon,” id. at 147, and the “nearest-reasonable-referent canon,” id. at 152.

And as a last resort before finding a particular statute ambiguous, we “examine . . .

clarifying . . . amendments” to its “previously enacted words” for reliable “evidence of

legislative intent” in concert with these interpretive tools. Hanson v. Charlotte–

Mecklenburg Bd. of Educ., 387 N.C. 445, 446–47 (2025) (Newby, C.J. concurring).

With these principles in mind, we now turn to the relevant General Statutes’ article

on firearm discharges as interpreted in para materia. N.C.G.S. ch. 14, subch. III, art.

8 [hereinafter Article 8]. This Court has not specifically interpreted within as used in

Article 8 and thus reviews it now as an issue of first impression.

2. Section 14-34.10 Considered

As noted above, Defendant asserts that he could not have “discharg[ed] a

weapon within a vehicle” under § 14-34.10 because, even though he “was inside a

vehicle and fired a gun ‘into’ Harris’s occupied vehicle[, n]either . . . [he] nor the gun

were within” the latter vehicle as of the discharge. (Emphases in original.) As shown

below, we disagree with Defendant because his argument incorrectly interprets this

statute on its own terms.

In relevant part, § 14-34.10 states that (1) “any person” (2) “who willfully” (3)

“discharge[s] a firearm” (4) “within any occupied motor vehicle” (5) “with the intent

to incite fear” (6) “in another” is guilty of a felony. N.C.G.S. § 14-34.10 (ellipses

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omitted). The question is to what extent, if any, the fourth element of within any

occupied motor vehicle modifies its surrounding elements. The contextual meaning of

within as either a “prenominal . . . or postnominal modifier[ ]” is “determined by three

elements: its lexical meaning[ ], its grammatical form, and its syntactic position

relative to the head noun.” Radden & Dirven, Grammar 144 (emphasis added;

boldface omitted). No one contests either the lexical meaning or grammatical form of

within in a vacuum, at least as part of its core prepositional phrase.6 It denotes a

required position “inside the limits” or “interior part of” a vehicle; nothing less,

nothing more. Within, Black’s Law Dictionary (6th ed. 1990) [hereinafter Black’s

Law]. That leaves us to identify the statute’s head noun that within syntactically

modifies by “analy[zing] . . . the position of these words in the sentence” itself. Ingo

Plag et al., Introduction to the English Linguistics 126–27 (3d rev. & enl’d ed. 2015)

[hereinafter Plag et al., Introduction]; accord Elly van Gelderen, An Introduction to

the Grammar of English 45 (rev. ed. 2010) (describing a prepositional “phrase [a]s a

group of words . . . united around a head, e.g., a noun or a verb”).

a. Plain Meaning of “Within”

To determine § 14-34.10’s plain meaning of within, we contextualize the

6 Nor could they in any plausible sense. See, e.g., Within, Merriam-Webster’s Collegiate

Dictionary (11th ed. 2020) (defining as “into the interior” and “as a function word to indicate enclosure or containment”); Within, Cambridge Advanced Learner’s Dictionary (4th ed. 2013) (defining as “inside or not beyond (a particular area)”); Within, American Heritage College Dictionary of the English Language (5th ed. 2011) (defining prepositional form as “[i]n the inner parts or parts of; inside”).

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statutory language “in a manner which harmonizes . . . the other provisions of the

statute and . . . gives effect to [its] reason and purpose.” Burgess v. Your House of

Raleigh, Inc., 326 N.C. 205, 215 (1990). The General Statutes’ Chapter 14 does not

define within despite using it 281 times throughout. See N.C.G.S. ch. 14 (delineating

“Criminal Law”); e.g., id. § 14-27.20 (defining material terms of Article 7B’s “Rape

and Other Sex Offenses”). Therefore, our interpretation of § 14-34.10 begins with a

grammatical analysis of its terms.

The prepositional phrase within any occupied motor vehicle most reasonably

modifies its head noun person because, although a “postpositive modifier normally

applies only to [its] nearest reasonable referent,” Scalia & Garner, Reading Law 152,

“the head projects its properties onto the phrase as a whole,” Plag et al., Introduction

125 (emphasis added; boldface omitted); cf., e.g., Bryan A. Garner, Garner’s Modern

English Usage 1213 (5th ed. 2022) [hereinafter Garner, Modern English] (“For

example, in the tall man in the front row, the word man is the head of the noun

phrase.”).

First, firearm is logically closer to the postpositive modifier within than either

of the two other possible head nouns, person or another. The phrase could plausibly

modify a firearm in addition to any person7 but certainly not the subsequent in

7 Addressing this secondary distinction would hardly be an exercise in hair-splitting. In State

v. Mancuso, 321 N.C. 464 (1988), our Supreme Court had to assess “discharging a firearm into any vehicle” when “the gun was inside the victim’s car when discharged” but “the defendant was standing

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another that already postpositively modifies its own head noun, fear. Second, person

forms a syntagm with within any occupied motor vehicle. N.C.G.S. § 14-34.10. This

adjunct adverbial prepositional phrase syntactically “answers the questions” of

“ ‘when?’, ‘where?’, and ‘how?’ ” Defendant must “express the place or manner” of his

firearm discharge. Laurel J. Brinton & Donna M. Brinton, The Linguistic Structure

of Modern English 220 (rev. ed. 2010) (citation modified) [hereinafter Brintons,

Linguistic Structure]. And as a postpositive modifier, the phrase forms a “one-way

dependency” with person as the “essential center of the constituent” syntax. Id. at

188. Within likely does not act upon either firearm or person when comparing the

grammatical integrity of would-be § 14-34.10s that respectively omit any person who,

a firearm, and in another:

(1) . . . [W]illfully discharges a firearm within any occupied motor vehicle with the intent to incite fear in another shall be punished. (2) Any person who willfully discharges . . . within any occupied motor vehicle with the intent to incite fear in another shall be punished. (3) Any person who willfully discharges a firearm within any occupied motor vehicle with the intent to incite fear . . . shall be punished.

N.C.G.S. § 14-34.10 (citation modified). The statutory “sentence is

grammatical without” either a firearm or in another. Brintons, Linguistic Structure

220. An element that requires “the intent to incite,” N.C.G.S. § 14-34.10, an abstract

outside of it.” Id. at 468 (emphases added; citation modified) (quoting N.C.G.S. § 14-34.1(2) (1987)). But because Defendant here only asserts that “discharge . . . within any motor vehicle” must occur with both him and Harris in the same vehicle, we need not conclusively resolve this possible “modification ambiguity” here. Bryan A. Garner, Garner’s Modern English Usage 1192 (5th ed. 2022).

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“negative feeling that a person experiences,” Fear, Black’s Law (12th ed. 2024)

(emphasis added), also more readily implies in another than would any person imply

absent a firearm, N.C.G.S. § 14-34.10. Within any occupied motor vehicle clearly

“expresses some quality” of person and “can[ ] occur without” another in the same

sentence. Brintons, Linguistic Structure 188. By contrast, a premodified reading of

this prepositional phrase would impermissibly broaden the plain text of this statute.

See Scalia & Garner, Reading Law 152.

b. Plain Meaning of “Occupied”

Having addressed the meaning of within, we now turn to occupied. Sections

14-34.1(b), 14-34.9, and 14-34.10 do not define this latter term despite all requiring

it as part of an element. Absent a compelling contextual or controlling judicial

definition, our courts rely on accepted dictionaries to determine plain meaning. See

Scalia & Garner, Reading Law 415–24; Clark v. Sanger Clinic, PA, 142 N.C. App.

350, 356 (2001). Reflecting this principle, an individual “occupies a particular place,”

Garner, Modern English 769, by “tak[ing] possession” or “control of [that] place,”

however “briefly,” Occupy, Black’s Law (parentheses omitted). Accord Occupy,

American Heritage Dictionary of the English Language (5th ed. 2011) (“To fill up (time

or space)”); Occupy, Merriam-Webster’s Collegiate Dictionary (11th ed. 2020) (“To take

up (a place or extent in space)”).

Here, Defendant admits to “firing a gun ‘into’ Harris’s occupied vehicle” while

“inside his vehicle,” i.e., while “occupying” it. (Brackets omitted.) Coupled with

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§ 14-34.10’s textual allowance for “any motor vehicle” and thus not only the victim’s,

the plain meaning of “discharg[ing] a firearm within any motor vehicle” clearly

encompasses these facts for the purpose of characterizing Defendant’s conduct.

N.C.G.S. § 14-34.10 (ellipses omitted). He would have this Court rewrite the statute

to instead punish “discharg[ing] a firearm within any occupied motor vehicle with the

intent to incite fear in [some] [ ]other” (person also located within the occupied

vehicle). Id. (ellipses omitted). In reviewing Defendant’s motion to dismiss on appeal,

we need only determine whether the State offered sufficient evidence that Defendant

himself fired his gun “within any occupied motor vehicle”—a standard it met here.

Id. (emphasis added). Thus, we hold that only the “person who willfully . . . discharges

a firearm” must be “within a[ ] vehicle” according to the plain, self-contained meaning

of N.C.G.S. § 14-34.10. Id.

3. Section 14-34.9 Contrasted

Filtered through jurisprudential canons more abstract than basic English

grammar, though, § 14-34.9’s specific language further implies § 14-34.10’s more

general applicability to Defendant’s conduct. As noted above, the former statute

punishes “any person who willfully discharges a firearm from within any motor

vehicle toward a person not within that enclosure” “as part of criminal gang activity.”

N.C.G.S. § 14-34.9 (2023) (emphases added; ellipses omitted). Read in para materia

with § 14-34.10, § 14-34.9’s “material variation” in prepositional phrasing, Scalia &

Garner, Reading Law 170—to say nothing of its gang-related “subsequent

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enactment,” id. at 255—support our conclusion that both Defendant and the State

too strictly construe the former statute to match the latter in meaning.

At the outset, § 14-34.9 is a conspicuously detailed statute relative to its

comparable proscriptions. It specifically forbids anyone from firing a gun using three

discrete adjunct adverbial prepositional phrases, from within, toward, and not within,

which collectively denote an interaction between two distinct “person[s] . . . from

within any enclosure” and “not within that [same] enclosure.” N.C.G.S. § 14-34.9. But

its sibling statutes merely forbid one “person” from doing so either “into,” id.

§ 14-34.1(b), “at or into,” id. § 14-34.1A(b), or “within any occupied . . . motor vehicle,”

id. § 13-34.10.

We presume that the General Assembly “purposefully . . . includes or excludes”

“particular language in one section” when “omitting it in another section of the same

Act.” N.C. Dep’t of Rev. v. Hudson, 196 N.C. App. 765, 768 (2009) (quotation and

brackets omitted). Our appellate courts over the decades have interpreted § 14-34.1’s

use of into to the exclusion of any other directional preposition. E.g., State v. Mancuso,

321 N.C. 464, 468 (1988) (interpreting N.C.G.S. § 14-34(2) (1987)); State v. Canady,

191 N.C. App. 680, 687 (2008) (interpreting N.C.G.S. § 14-34(a) (2007)); State v.

Hicks, 241 N.C. App. 345, 353 (2015) (interpreting N.C.G.S. § 14-34.1 (2013)). Our

research reveals only one decision to so much as mention within, State v. McLean,

251 N.C. App. 850 (2017), which threw out the defendant’s conviction because his

original “indictment alleged that [he] discharged a firearm ‘into’ an occupied

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structure” even though § 14-34.10 required he do so “within” one. Id. at 854 (citing

N.C.G.S. § 14-34.10(a) (2015)).

Albeit elongated, the multi-prepositional phrase “from within any motor

vehicle toward a person not within that enclosure” collectively modifies “any person,”

N.C.G.S. § 14-34.9 (2023) (ellipses omitted), in the same way as does “within any

occupied vehicle” alone, id. § 14-34.10 (ellipses omitted). The additional not within

that enclosure subclause does not change this analysis because it merely postmodifies

a person as a secondary “phrasal preposition” within the larger sentence, Garner,

Modern English 1234 (boldface omitted). One leading English grammar treatise

helpfully analogizes two distinct prepositional modifications of the example phrase a

book in the library on campus:

Here, “in the library” modifies “book” and “on campus” modifies “the library.” A cat on the mat in the hallway would have the same structure, but the superficially similar a cat on the mat with long whiskers would not since “with long whiskers” modifies “the cat,” not “the mat.”

Brintons, Linguistic Structure 201 (citation modified). Section 14-34.9 uses the same

syntax as this feline example while addressing a much weightier issue. From within

and toward jointly modify any person in the same way as with long whiskers and on

the mat jointly modify cat. The additional specificity of from and toward merely the

gild the lily of the General Assembly’s textualized intent to address “criminal gang

activity,” N.C.G.S. § 14-34.9, occurring between “premises owned by one person [and]

premises owned by another,” From One Place to Another, Black’s Law (6th ed. 1990).

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They do not retroactively alter Article 8’s use of within to describe the “interior part

of,” Within, Black’s Law, “any . . . motor vehicle.” N.C.G.S. §§ 14-34.9–.10 (emphasis

added).

The General Assembly’s 2017 “altering amendment” to further particularize

§ 14-34.9’s focus on gang activity informs this choice of detailed verbiage. Hanson,

387 N.C. at 446. Our courts frequently look to “statutory history” to interpret a

particular statute because “a change in [its] language . . . presumably connotes a

change in meaning.” Scalia & Garner, Reading Law 256 (emphasis omitted); e.g., Ray

v. N.C. Dep’t of Transp., 366 N.C. 1, 8–9 (2012) (distinguishing between “clarifying

amendments” that merely inform a “law’s application from its original enactment”

and “altering amendments” that actually “change its substance” (citation modified));

State v. Dickerson, 125 N.C. App. 592, 595 (1997). The original § 14-34.9 punished the

aforementioned conduct only if committed “as a part of a pattern of criminal street

gang activity.” North Carolina Street Gang Suppression Act, S.L. 2008-214, sec. 2,

2008 N.C. Sess. Laws 935, 935 (strikethroughs added). In pursuit of “enhanced

punishment of criminal gang activity” at a more granular level, 2017 Amendment

pmbl. at 1370, the General Assembly deleted the “pattern of” language from § 14-34.9

and other related statutes while leaving § 14-34.10 entirely untouched between then

and now, e.g., id. sec. 6, § 14-34.9; id. sec. 12, § 14-50.23(a). These materially specific

legislative changes to § 14-34.9’s substantive language speak to a General Assembly

that sought to address the specific public policy issue of drive-by shootings. The

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similarly tightened “from within . . . toward” language thus does not constrict the

meaning of comparable conduct otherwise “[un]related to gang activity.” N.C.G.S

§ 14-34.10. Instead, we read § 14-34.10 as an umbrella statute that intentionally

captures fear-causing gunfire from any occupied enclosure.

4. Facts at Hand

As noted above, Defendant acknowledges the evidence’s tendency to show that

he “fired a gun ‘into’ Harris’s occupied vehicle” while “inside [his] vehicle.” He shot

“within any occupied . . . motor vehicle,” id.—here, his own. Viewing “the evidence in

the light most favorable to the State,” State v. Franklin, 327 N.C. 162, 171 (1990),

Defendant “pulled up beside [Harris] and opened fire” from the “interior part of,”

Within, Black’s Law, his own “Gray Honda” into Harris’s occupied “white Dodge

Caravan” “to incite fear in” her, N.C.G.S. § 14-34.10. The State’s evidence reasonably

leads” to a “logical and legitimate deduction,” Franklin, 327 N.C. at 171, satisfiable

to “a reasonable juror,” id. at 173, that Defendant “discharge[d] a firearm within” his

own “occupied . . . motor vehicle” when he shot at Harris “with intent to incite fear,”

N.C.G.S. § 14-34.10. Thus, this Court holds that the trial court did not err in denying

his motion to dismiss on contrary grounds.

D. Conviction under N.C.G.S. § 14-34.10

Fourth and finally, Defendant argues that the trial court erred by convicting

him of DW-Within when other statutes cover his conduct and “provid[e] greater

punishment,” compare id. § 14-34.10 (“punished as a Class F felon”), with id.

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§ 14-17(b) (“punished as a Class B2 felon”), id. § 14-32(a) (“punished as a Class C

felony”), and id. § 14-34.1(b) (“guilty of a Class D felony”).8 We agree with Defendant

on this point. Although the trial court did not err by finding sufficient evidence for

the DW-Within offense, it did err by sentencing him under the organic statute when

others carried greater sentences within the same indictment. Once the trial court

sentenced Defendant for attempted murder, AWDWIKISI, and DW-Into, it should

have arrested judgment on his DW-Within conviction. Thus, this Court vacates the

DW-Within sentence and remands in part with instructions to arrest judgment and

resentence Defendant.

1. Preservation

At the outset, Defendant impliedly concedes that he did not expressly object to

the alleged error at trial. As a result, “we must decide whether [he] preserved his

argument[ ] for appellate review.” State v. Davis, 364 N.C. 297, 301 (2010). Section

14-34.10 (among other statutes) prohibits a trial court from entering a sentencing

judgment if “some other provision of law provid[es] greater punishment” for the

statute’s proscribed conduct. N.C.G.S. § 14-34.10; accord, e.g., id. § 20-141.4 (criminal

death by vehicle); id. § 50B-4.1(d), (f)–(g1) (protective-order violation). This prefatory

8 We that note the trial court misclassified Defendant’s DW-Into conviction as a Class C felony

instead of a Class D felony. See N.C.G.S. § 14-34.1(b) (2023). Although not raised on appeal, this error is harmless because Defendant’s consolidated sentence includes AWDWIKISI as a Class C felony. While the trial court may wish to correct this judgment for accuracy, doing so will not change Defendant’s sentence. We more appropriately characterize Defendant’s DW-Into conviction as a Class D felony throughout this opinion.

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clause is “a statutory mandate” that a trial court must follow. State v. Ashe, 314 N.C.

28, 39 (1985). The record does not indicate whether the trial court “review[ed]

[D]efendant’s argument that . . . [it] lacked statutory authority to sentence him for”

the felony DW-Within. Davis, 364 N.C. at 302. Because a possible conclusion that it

lacked this authority could have resulted in at least one less sentence, this lack of

documented assessment prejudiced Defendant’s case at bar. Id. Thus, his “right to

appeal the [trial] court’s action is preserved, notwithstanding [his] failure to object at

trial.” Ashe, 314 N.C. at 39.

2. Interpretation

We implement a clear and unambiguous statute “according to the plain

meaning of its terms so long as it is reasonable to do so.” N.C. Farm Bureau Mut. Ins.

Co. v. Lunsford, 378 N.C. 181, 189 (2021) (quotation omitted). Section 14-34.10’s

proscribed conduct is punishable “[u]nless covered under some other provision of law

providing greater punishment.” N.C.G.S. § 14-34.10. The trial court may enter

judgment for this Class F felony only when the conduct remains unpunished by a

higher-class offense. Because we “presum[e] that [our] legislature carefully chose

each word used” in this statute, this language indicates that the General Assembly

knew higher-class offenses might apply to the same conduct at issue here. N.C. Dep’t

of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201 (2009) (citing Rhyne v. K-Mart Corp. 358

N.C. 160, 188 (2004)). By incorporating this prefatory clause, “the General Assembly

intended an alternative: that punishment is either imposed for the more heavily

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punishable” § 14-34.1(b) conduct “or for the” less heavily punishable § 14-34.10

conduct, “but not both.” Davis, 364 N.C. at 304.

Our Supreme Court’s State v. Davis decision controls our analysis of this issue.

In Davis, the defendant was driving down a highway when he collided with a family

of three. Id. at 298–99. The husband and wife died at the scene, while the daughter

suffered severe injuries but ultimately survived. Id. at 300. A grand jury indicted the

defendant in relevant part for Class B2 felony second-degree murder, Class E felony

assault, Class D felony death by vehicle, and Class F felony serious injury by vehicle.

Id. The trial court entered judgment after the jury convicted him on all counts, to

which he “did not object at sentencing.” Id. Even so, the defendant appealed to the

Supreme Court after this Court held that he “did not preserve his objection to a

purported double[-]jeopardy violation.”9 Id. (quotation omitted).

The Davis Court reversed the trial court’s affirmation of the two vehicle-related

felony convictions because § 20-141.4 conditioned their respective punishment levels

on no “other provision of law providing greater punishment.” Id. at 302 (quoting

N.C.G.S. § 20-141.4(b) (2009)). The Court reasoned that its prefatory clause

demonstrated the General Assembly’s awareness of “other, higher[-]class offenses”

9 Although both the Davis defendant and Defendant here “advanced . . . double[-]jeopardy

argument[s] on appeal,” both “analys[e]s turn[ ] on” whether “some other provision of law providing greater punishment” covered each defendants’ conduct. State v. Davis, 364 N.C. 297, 304–05 (quoting N.C.G.S. § 14-32.4(a)–(b) (2009)). Thus, we do not read this opinion as a double-jeopardy analysis.

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that “might apply to the same conduct” “when it enacted the [then-]current version

of [§] 20-141.4.” Id. at 304. “In such situations, as in this case, the General Assembly

intended an alternative: that punishment is either imposed for the more heavily

punishable offense or for the [vehicular-injury] offense, but not both.” Id. So too with

§ 14-34.10’s identical provision relative to § 14-34.1(b), this challenged language

limits “a trial court’s authority to impose punishment for th[at] . . . offense[ ] when

punishment is imposed for higher[-]class offenses that apply to the same conduct.”

Id. at 302.

Here, Defendant’s conviction under § 14-34.1(b) carries a presumptive Class D

felony sentence that is higher than the one stemming from his simultaneous

conviction under § 14-34.10, which carries its own Class F felony sentence.10 See

N.C.G.S. § 15A-1340.17(c) tbl. (2023) (listing sentencing ranges by offense class and

PRL). Based on Defendant’s PRL III, his felony convictions under § 14-34.1(b) and

§ 14-34.10 subjected him to presumptive sentencing ranges of 67–84 and 17–21

months, respectively. Id. Both statutes “punish the same conduct,” Davis, 364 N.C.

at 305, even though the former “provision of law provid[es] greater punishment” than

the latter. N.C.G.S. § 14-34.10. Because § 14-34.10 “does not authorize the trial court

to impose” [a] sentence[ ]” for its violation, this Court holds that the trial court erred

10 Defendant’s Class B2 felony conviction under § 14-17(a) and Class C felony conviction under

§ 14-32(a) also subjects him to a presumptive sentencing range of 165–207 months and 77–96 months, respectively. N.C.G.S. § 15A-1340.17(c) tbl. (2023).

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in part by sentencing Defendant for discharging a weapon within an enclosure to

incite fear. Davis, 364 N.C. at 305.

3. Arresting Judgment

As noted above, we vacate Defendant’s sentence and remand to the trial court

with instructions to arrest judgment on Defendant’s sentence under N.C.G.S.

§ 14-34.10. See State v. Fields, 374 N.C. 629, 636–37 (2020) (arresting judgment when

a defendant was convicted under an “unless covered” and greater offense). Arresting

a defendant’s judgment can have one of two effects: (1) vacating the underlying

judgment “because of a fatal flaw which appears on the face of the record, such as a

substantive error on the indictment,” State v. Pakulski, 326 N.C. 434, 439 (1990), or

(2) “withhold[ing] the entry of judgment based on a valid jury verdict,” State v.

Pendergraft, 238 N.C. App. 516, 528 (2014) (citing Pakulski, 326 N.C. at 439), aff’d by

an equally divided court, 368 N.C. 314 (2015). The latter occurs “for the purpose of

addressing double jeopardy or other concerns”; in those cases, “the underlying guilty

verdict remains intact.” Pendergraft, 238 N.C. App. at 529 (emphasis added); see

Fields, 374 N.C. at 636 (“Although . . . not directly based upon principles of double

jeopardy,” arresting judgment when convicting a defendant contrary to a statute’s

prefatory language “applies with equal force.”).

The trial court’s lack of authority to sentence Defendant for his DW-Within

conviction is not due to any defect in the record. Rather, “it is based on the effect of

the prefatory language” in § 14-34.10 “coupled with” Defendant’s convictions arising

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from the same conduct. Fields, 374 N.C. at 637. We do not disturb Defendant’s guilty

verdict. See Pendergraft, 238 N.C. App. at 529. Thus, this Court vacates Defendant’s

DW-Within conviction and remands it to the trial court with instructions to arrest

judgment and resentence consistent with this opinion. See State v. Wortham, 318

N.C. 669, 674 (1987).

IV. Conclusion

For the reasons above, this Court dismisses Defendant’s challenge to the jury

instructions as an invited error. This Court holds that the trial court did not err (1)

by finding that the State adhered to pretrial discovery rules and (2) by denying

Defendant’s motion to dismiss for purportedly misinterpreting N.C.G.S. § 14-34.10.

But this Court also holds that the trial court erred in part by entering judgment under

that same statute, thus vacating and remanding Defendant’s sentence under

§ 14-34.10 with instructions to arrest judgment and resentence consistent with this

opinion.

DISMISSED IN PART; NO ERROR IN PART; VACATED AND REMANDED

IN PART.

Judges FLOOD and STADING concur.

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