State v. Stocks

• Court: Court of Appeals of North Carolina
• Decided: February 18, 2014
• Docket: 13-879
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-879 NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Wayne County Nos. 12 CRS 50818-19 DAVID STEVENSON STOCKS, JR.

Appeal by Defendant from judgments entered 21 December 2012

by Judge Arnold O. Jones, II, in Wayne County Superior Court.

Heard in the Court of Appeals 27 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State.

W. Michael Spivey for Defendant.

DILLON, Judge.

Defendant appeals from judgments entered upon his

conviction of discharging a weapon into a moving vehicle and two

counts of assault with a deadly weapon with intent to kill.

After careful review, we find no plain error.

I. Background

The State adduced evidence that on 17 February 2012,

Defendant’s wife, Laura, announced that she was moving out of -2- their residence and taking their eight-year-old son with her.

Laura also told Defendant that her brother, James Morgan, would

be coming to the house the next morning to help her move.

Defendant and Morgan had a history of “ill will” due in part to

Defendant’s relationship with Laura. Already “upset” about

Laura’s decision to move out, Defendant “told [her] that he

didn’t want [her] brother there.”

On the morning of 18 February 2012, Defendant had a drink

before borrowing Laura’s truck to run an errand. Morgan arrived

at the residence with a rented U-Haul truck, accompanied by his

girlfriend, Jennifer Calarco, a detective with the New Hanover

County Sheriff’s Office. Brenda and Daniel Stocks, Defendant’s

mother and brother, also came over to the residence while

Defendant was gone.

When she had finished packing, Laura called Defendant and

asked him to bring her truck home so that she could leave. She

then warned Morgan and Colarco that Defendant had placed a rifle

in a blue van parked in the driveway; however, Defendant’s

mother retrieved the rifle from the van before Defendant

returned and took it to her residence next door. Morgan pulled

the U-Haul “out to the main drive that’s in front of their

house” to wait for Laura. -3- Approximately fifteen minutes after Laura’s phone call,

Defendant “c[a]me flying in the driveway” in her truck. He

exited the vehicle and walked past Morgan’s open window on the

driver’s side of the U-Haul. Seeing Morgan and Calarco,

Defendant became “[v]ery angry” and asked, “[D]o you think that

makes a damn?” – which Morgan interpreted as a reference to

Calarco’s status as a law enforcement officer.

Defendant continued into his house and came back outside

with a shotgun. Standing on the top step of his front porch, he

loaded the shotgun and “pointed it right at where [Morgan was]

sitting, like right about where the window was[,]” from a

distance of no more than thirty feet. Though “in awe of the

fact that somebody was pointing a loaded gun at me,” Morgan

managed to drive the U-Haul forward before Defendant fired. The

shot hit the back of the vehicle, sending pellets through the

rear door and into the cargo area. Morgan and Calarco called

911 and drove to a nearby church parking lot.

While speaking to Morgan and Calarco, the investigating

officers received another call about a “vehicle crash . . .

possibly being the suspect[.]” Officers responded to the one-

vehicle accident and found Defendant standing beside a blue van

less than a mile from his residence. On the way to the -4- sheriff’s annex, Defendant stated “that he wasn’t thinking and

was mad and that she was taking his kid.” During formal

questioning, however, Defendant told detectives “that he was

upset about his 8 year old child being taken away from him and

his wife leaving,” but “said he didn’t own anything, any

shotguns or anything like that, that he didn’t do the shooting,

he hadn’t shot at anybody that day[.]”

On appeal, Defendant contends that the trial court

committed plain error in failing to instruct the jury on the

offense of assault with a deadly weapon as a lesser included

offense of assault with a deadly weapon with intent to kill.

See State v. Riley, 159 N.C. App. 546, 553-54, 583 S.E.2d 379,

385 (2003). By assigning plain error, Defendant concedes that

he failed to request the instruction during the charge

conference1 or object to the jury instructions as given. See

N.C.R. App. P. 10(a)(2), (4).

II. Analysis

Our Supreme Court has recently clarified the plain error

1 Although the trial court solicited “objections or suggestions to either the jury charge or the verdict sheet[,]” the court did not “specifically ask[] defense counsel if there were any lesser included offenses” to be submitted to the jury. State v. Gay, 334 N.C. 467, 485, 434 S.E.2d 840, 850 (1993) (holding that “defendant foreclosed any inclination of the trial court to instruct on the lesser included offense and is not entitled to any relief on appeal”). -5- standard of review as follows:

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice — that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. The necessary examination is whether there was a probable impact on the verdict, not a possible one. In other words, the inquiry is whether the defendant has shown that, absent the error, the jury probably would have returned a different verdict.

State v. Carter, __ N.C. __, __, 739 S.E.2d 548, 551 (2013)

(citations and quotation marks omitted).

A “‘trial court must submit and instruct the jury on a

lesser included offense when, and only when, there is evidence

from which the jury could find that defendant committed the

lesser included offense.’” State v. Petro, 167 N.C. App. 749,

752, 606 S.E.2d 425, 427 (2005) (citation omitted). The mere

prospect that “the jury could possibly believe some of the

State’s evidence but not all of it” does not warrant an

instruction on a lesser included offense. State v. Annadale,

329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991). Rather, -6- when the State seeks a conviction of only the greater offense and the case is tried on that all or nothing basis, the State’s evidence is not regarded as evidence of the lesser included offense unless it is conflicting; and that the lesser included offense must be submitted only when a defendant presents evidence thereof or when the State’s evidence is conflicting.

State v. Bullard, 97 N.C. App. 496, 498, 389 S.E.2d 123, 124

(1990) (citations omitted).

Here, the State proceeded on an “all or nothing basis” on

the charges of assault with a deadly weapon with intent to kill.

See id. “Thus, the trial judge needed only to instruct the jury

on a lesser included offense if the defendant presented evidence

of the lesser included offense or if the State’s evidence was

conflicting.” State v. Woody, 124 N.C. App. 296, 307, 477

S.E.2d 462, 467 (1996). Neither circumstance appears in this

case.

“The only difference in what the State must prove for the

offense of misdemeanor assault with a deadly weapon and felony

assault with a deadly weapon with intent to kill is the element

of intent to kill.” Riley, 159 N.C. App. at 553-54, 583 S.E.2d

at 385. “An intent to kill is a mental attitude, and ordinarily

it must be proved, if proven at all, by circumstantial evidence,

that is, by proving facts from which the fact sought to be -7- proven may be reasonably inferred.” State v. Grigsby, 351 N.C.

454, 457, 526 S.E.2d 460, 462 (2000) (citations and quotation

marks omitted). In this regard, our law provides that “an

assailant must be held to intend the natural consequences of his

deliberate act.” Id. Accordingly, “[w]here the defendant

points a gun at the victim and pulls the trigger, this

constitutes evidence from which intent to kill may be inferred.”

State v. Cromartie, 177 N.C. App. 73, 77, 627 S.E.2d 677, 680

(2006).

Though circumstantial, the State’s evidence of Defendant’s

intent was not conflicting. See Riley, 159 N.C. App. at 554,

583 S.E.2d at 385. Morgan testified that Defendant aimed the

shotgun directly at him before firing, but Morgan “managed to go

forward enough to where it didn’t hit the door and the glass

where, you know, where it was intentionally aimed and it hit the

back of the truck[.]” Calarco likewise testified, “I remembered

seeing [Defendant] with a shotgun and looking at us, he then

pointed the gun or . . . went to draw the gun up, and I remember

looking at [Morgan] and saying you need to go.” Laura, who had

reconciled with Defendant at the time of trial, purported not to

remember exactly where Defendant aimed the shotgun, other than

“[i]n the area of the truck.” However, she acknowledged giving -8- a written statement immediately after the shooting in which she

affirmed that Defendant “pointed [the gun] at the cab of the

truck[,]” and that “[h]e would have shot Jimmy” if the U-Haul

had not moved forward. Asked at trial, “What would have

happened if the U-Haul had not moved when [he]r husband shot[,]”

Laura responded, “I don’t know. I mean I’m sure it probably

would have been ugly, but I mean I can’t speculate because I

don’t remember exactly where everything took place.” Though

equivocal, this testimony cannot be said to contradict Morgan’s

more definite account.2

As Defendant notes, the trial court cited the fact that “no

shots were fired at the passenger area of the vehicle” in

dismissing the charge of attempted murder at the conclusion of

the State’s evidence. However, the court viewed Defendant’s act

of shooting the back of the moving U-Haul as insufficiently

“close” to a completed murder to qualify as an attempt – not as

proof that Defendant lacked the intent to kill:

THE COURT: . . . Bottom line, I think there’s certainly enough evidence for the

2 Morgan and Laura did offer differing accounts of whether Defendant “was reloading” the shotgun after he fired on the U- Haul, or merely “cracked it open and emptied the shell[.]” However, “[t]he lack of multiple shots fired does not negate intent to kill.” Cromartie, 177 N.C. App. at 77, 627 S.E.2d at 680. -9- assault with a deadly weapon with intent to kill to go to the jury. I do not believe there’s enough evidence that this case came so close to being attempted first degree murder . . . .

Inasmuch as Morgan drove the U-Haul forward as Defendant fired

the shotgun, the location of the shot’s impact did not amount to

conflicting evidence of Defendant’s intent.

Nor did Defendant present evidence of the lesser included

offense. See Bullard, 97 N.C. App. at 498, 389 S.E.2d at 124.

The defense called three witnesses, each of whom supported the

defense’s theory that no shooting had occurred. Defendant’s

mother and brother denied that Defendant possessed or fired a

gun on 12 February 2012. They both averred that Defendant had

previously pawned or sold all of his guns; that the blue van and

the rifle removed from the van belonged to his mother; and that

this rifle had been left in the van by her youngest son. The

third defense witness, a neighbor, reported hearing no gunfire

on the date in question. In addition to attempting to discredit

the State’s eyewitnesses, Defendant’s cross examination focused

on the facts that no gunshot residue testing had been conducted

to determine whether Defendant in fact fired a gun and that no

weapons or ammunition were found at the scene or recovered

thereafter. -10- Even assuming error by the trial court, its failure to

instruct the jury on assault with a deadly weapon did not rise

to the level of plain error. See Carter, __ N.C. at __, 739

S.E.2d at 551 (“It is not necessary to engage in a discussion of

whether an instruction on attempt should have been provided

because defendant failed to show that any such error was

prejudicial.”). Having reviewed the evidence in its entirety,

we do not find it probable that the jury would have reached a

different verdict if it had been instructed on the misdemeanor.

Nor is this the “exceptional case” in which the lack of a lesser

included offense instruction casts doubt upon “the fairness,

integrity or public reputation of judicial proceedings.” Id.

(citation omitted).

NO ERROR.

Chief Judge MARTIN and Judge HUNTER, JR. concur.

Report per Rule 30(e).