STEELMAN, Judge.
Defendant, Gary Anthony Williams, appeals his convictions for first-degree murder and discharging a weapon into occupied property. For the reasons discussed herein, we find no prejudicial error.
The State presented evidence at trial tending to show defendant shot and killed the victim, Juhan Davis (Davis), during the early morning hours of 23 February 2003. Defendant and Davis had been involved in an altercation several hours earlier when Davis discovered his girlfriend, Joyce Banks (Banks), and defendant sitting and talking in a parked car together. The two men argued and defendant drove off in his vehicle. Davis and Banks continued to argue on the lighted front porch of her apartment building. At the time, Banks’ minor son and four other children were asleep inside the apartment. Banks’ brother, who also lived at the apartment, came outside and ordered Davis to leave. While the three were on the porch, defendant [643] walked to his vehicle, retrieved a pistol, and immediately began firing at Davis until his pistol was empty. He then returned to his vehicle and drove away. Davis subsequently died of multiple gunshot wounds. Police evidence technicians collected nine spent shell casings, bullets, and bullet fragments from the street, front yard, porch, and inside the apartment. One of the bullets fired by defendant entered an apartment window, ricocheted across the living room, and lodged in the apartment wall. Bullet fragments were also found in a baby carriage located near the front porch.
Defendant’s trial began on the morning of 28 June 2004. The State rested its case shortly after four o’clock on the afternoon of 29 June 2004 and the trial court immediately excused the jury from the courtroom at 4:08 p.m. Defendant moved to dismiss the charges without argument. The trial court immediately denied this motion. Defendant’s attorney then requested that court be recessed for the day so that he could consult with defendant concerning whether he would present evidence. Defense counsel advised the court: “We have talked about this, family has talked about this but couldn’t make a decision until we heard everything.” The trial judge told counsel he would give him five minutes. Defense counsel requested fifteen minutes, but the trial court denied the request. The judge took recess until 4:20 p.m., after which defense counsel informed the court that defendant was not going to present any evidence. The court then conducted the jury charge conference and recessed court until the following morning. When court resumed the next morning, defendant did not move the court to be allowed to present evidence. At no time did defendant advise the trial court of a specific reason why he needed a certain amount of time to decide whether or not to present evidence.
The jury found defendant guilty of first-degree murder and discharging a weapon into occupied property. The trial court sentenced defendant to life imprisonment without parole, and to twenty-nine to forty-four months imprisonment for discharging a weapon into occupied property. Defendant appeals.
In his first argument, defendant contends the trial court erred in refusing to allow him more than five minutes to decide whether to present evidence in his trial for first-degree murder. We disagree.
A trial court is afforded wide latitude in making decisions which affect various procedural matters arising during the course of a trial, including whether to grant a recess, as well as the length of that [644] recess, and such decisions are vested within the trial court’s sound discretion. State v. Goode, 300 N.C. 726, 729-30, 268 S.E.2d 82, 84 (1980). “When a defendant seeks to establish on appeal that the exercise of such discretion is reversible error, he must show harmful prejudice as well as clear abuse of discretion.” Id. at 729, 268 S.E.2d at 84. The trial court is in a much better position to make the decision to grant a recess and the length of that recess than an appellate court reviewing a cold, written transcript. The trial judge will generally have conferred with counsel about scheduling matters, which is often not reflected in the record. More importantly, the trial judge is able to observe the parties and their counsel, observe their interactions, and determine the appropriateness of granting a recess, as well as the length of that recess. Since an appellate court will only reverse the trial court’s ruling on such a matter where there exists a clear abuse of its discretion, defendant in the instant case must show two things in order to prevail on this assignment of error: (1) the trial court abused its discretion in allowing counsel five rather than fifteen minutes to confer with defendant; and (2) defendant was prejudiced by this ruling.
In Goode, our Supreme Court held:
No defendant is automatically entitled to a recess at the close of the State’s evidence because such motion is addressed to the sound discretion of the trial court. Even so, where, as here, the trial judge in the presence of the jury denies unnamed motions before they are made, and then immediately denies defense counsel’s request for a short recess to decide whether defendant would offer evidence, a clear abuse of discretion prejudicial to defendant’s cause is established. This requires a new trial.
300 N.C. at 730, 268 S.E.2d at 84. None of the factors cited by the Supreme Court in Goode as constituting prejudice are present here. When the State rested its case, the trial judge, without request of counsel, excused the jury from the courtroom. Defendant then made his motion to dismiss, which was denied. Finally, the court did not deny counsel’s request for a short recess. It granted the request, albeit for a shorter period of time than defendant requested. Even assuming arguendo that the trial judge abused his discretion in refusing to grant defendant fifteen rather than five minutes for a recess, defendant has failed to show he was prejudiced. State v. Haywood, 144 N.C. App. 223, 233, 550 S.E.2d 38, 45 (2001). In effect, both defendant and the dissent would have this Court to hold that granting a shorter [645] recess in this case than defendant requested was per se prejudicial to defendant. Such a holding is contrary to the law of this state. See id; Goode, 300 N.C. at 730, 268 S.E.2d at 84. This argument is without merit.
In his second argument, defendant contends the trial court erred in allowing Banks to testify regarding a police-taped telephone conversation with defendant following the shooting. Defendant contends Banks’ testimony regarding the conversation was inaccurate and highly prejudicial. We disagree.
Banks testified, in part, to the telephone conversation with defendant as follows: “[Banks]: And so then I asked him, I said, ‘[w]hy did you shoot [Davis]?’ He said, T didn’t know if he had a gun. I did-n’t know if he had a gun.’ ” The transcript of the taped conversation between Banks and defendant reads, in part, as follows:
Banks: Hey look man, why you, why you come back and do that to [Davis] like that, man?
[Defendant]: Huh?
Banks: Why you come back and do that to [Davis] like that?
[Defendant]: Uum.
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STEELMAN, Judge.
Defendant, Gary Anthony Williams, appeals his convictions for first-degree murder and discharging a weapon into occupied property. For the reasons discussed herein, we find no prejudicial error.
The State presented evidence at trial tending to show defendant shot and killed the victim, Juhan Davis (Davis), during the early morning hours of 23 February 2003. Defendant and Davis had been involved in an altercation several hours earlier when Davis discovered his girlfriend, Joyce Banks (Banks), and defendant sitting and talking in a parked car together. The two men argued and defendant drove off in his vehicle. Davis and Banks continued to argue on the lighted front porch of her apartment building. At the time, Banks’ minor son and four other children were asleep inside the apartment. Banks’ brother, who also lived at the apartment, came outside and ordered Davis to leave. While the three were on the porch, defendant [643] walked to his vehicle, retrieved a pistol, and immediately began firing at Davis until his pistol was empty. He then returned to his vehicle and drove away. Davis subsequently died of multiple gunshot wounds. Police evidence technicians collected nine spent shell casings, bullets, and bullet fragments from the street, front yard, porch, and inside the apartment. One of the bullets fired by defendant entered an apartment window, ricocheted across the living room, and lodged in the apartment wall. Bullet fragments were also found in a baby carriage located near the front porch.
Defendant’s trial began on the morning of 28 June 2004. The State rested its case shortly after four o’clock on the afternoon of 29 June 2004 and the trial court immediately excused the jury from the courtroom at 4:08 p.m. Defendant moved to dismiss the charges without argument. The trial court immediately denied this motion. Defendant’s attorney then requested that court be recessed for the day so that he could consult with defendant concerning whether he would present evidence. Defense counsel advised the court: “We have talked about this, family has talked about this but couldn’t make a decision until we heard everything.” The trial judge told counsel he would give him five minutes. Defense counsel requested fifteen minutes, but the trial court denied the request. The judge took recess until 4:20 p.m., after which defense counsel informed the court that defendant was not going to present any evidence. The court then conducted the jury charge conference and recessed court until the following morning. When court resumed the next morning, defendant did not move the court to be allowed to present evidence. At no time did defendant advise the trial court of a specific reason why he needed a certain amount of time to decide whether or not to present evidence.
The jury found defendant guilty of first-degree murder and discharging a weapon into occupied property. The trial court sentenced defendant to life imprisonment without parole, and to twenty-nine to forty-four months imprisonment for discharging a weapon into occupied property. Defendant appeals.
In his first argument, defendant contends the trial court erred in refusing to allow him more than five minutes to decide whether to present evidence in his trial for first-degree murder. We disagree.
A trial court is afforded wide latitude in making decisions which affect various procedural matters arising during the course of a trial, including whether to grant a recess, as well as the length of that [644] recess, and such decisions are vested within the trial court’s sound discretion. State v. Goode, 300 N.C. 726, 729-30, 268 S.E.2d 82, 84 (1980). “When a defendant seeks to establish on appeal that the exercise of such discretion is reversible error, he must show harmful prejudice as well as clear abuse of discretion.” Id. at 729, 268 S.E.2d at 84. The trial court is in a much better position to make the decision to grant a recess and the length of that recess than an appellate court reviewing a cold, written transcript. The trial judge will generally have conferred with counsel about scheduling matters, which is often not reflected in the record. More importantly, the trial judge is able to observe the parties and their counsel, observe their interactions, and determine the appropriateness of granting a recess, as well as the length of that recess. Since an appellate court will only reverse the trial court’s ruling on such a matter where there exists a clear abuse of its discretion, defendant in the instant case must show two things in order to prevail on this assignment of error: (1) the trial court abused its discretion in allowing counsel five rather than fifteen minutes to confer with defendant; and (2) defendant was prejudiced by this ruling.
In Goode, our Supreme Court held:
No defendant is automatically entitled to a recess at the close of the State’s evidence because such motion is addressed to the sound discretion of the trial court. Even so, where, as here, the trial judge in the presence of the jury denies unnamed motions before they are made, and then immediately denies defense counsel’s request for a short recess to decide whether defendant would offer evidence, a clear abuse of discretion prejudicial to defendant’s cause is established. This requires a new trial.
300 N.C. at 730, 268 S.E.2d at 84. None of the factors cited by the Supreme Court in Goode as constituting prejudice are present here. When the State rested its case, the trial judge, without request of counsel, excused the jury from the courtroom. Defendant then made his motion to dismiss, which was denied. Finally, the court did not deny counsel’s request for a short recess. It granted the request, albeit for a shorter period of time than defendant requested. Even assuming arguendo that the trial judge abused his discretion in refusing to grant defendant fifteen rather than five minutes for a recess, defendant has failed to show he was prejudiced. State v. Haywood, 144 N.C. App. 223, 233, 550 S.E.2d 38, 45 (2001). In effect, both defendant and the dissent would have this Court to hold that granting a shorter [645] recess in this case than defendant requested was per se prejudicial to defendant. Such a holding is contrary to the law of this state. See id; Goode, 300 N.C. at 730, 268 S.E.2d at 84. This argument is without merit.
In his second argument, defendant contends the trial court erred in allowing Banks to testify regarding a police-taped telephone conversation with defendant following the shooting. Defendant contends Banks’ testimony regarding the conversation was inaccurate and highly prejudicial. We disagree.
Banks testified, in part, to the telephone conversation with defendant as follows: “[Banks]: And so then I asked him, I said, ‘[w]hy did you shoot [Davis]?’ He said, T didn’t know if he had a gun. I did-n’t know if he had a gun.’ ” The transcript of the taped conversation between Banks and defendant reads, in part, as follows:
Banks: Hey look man, why you, why you come back and do that to [Davis] like that, man?
[Defendant]: Huh?
Banks: Why you come back and do that to [Davis] like that?
[Defendant]: Uum.
Banks: Hey man, that was f-— up.
[Defendant]: Hum?
Banks: That was f-— up what you did, man.
[Defendant]: I’m saying I thought [he] was [going to] shoot me.
Banks: He didn’t have no gun on him though.
[Defendant]: I didn’t know that.
Defendant contends Banks’ question to him, “[w]hy you come back and do that to [Davis] like that?” in the transcript of the taped conversation differs substantially from her testimony at trial, which was “[a]nd so then I asked him, I said, ‘[w]hy did you shoot [Davis]?’ ” Defendant argues this inaccuracy rendered Banks’ testimony inadmissible hearsay. We disagree.
Banks’ recollection of her telephone conversation with defendant was admissible under Rule 801 of the North Carolina Rules of Evidence as an admission by a party-opponent. N.C. Gen. Stat. [646] § 8C-1, Rule 801(d) (2005); State v. White, 340 N.C. 264, 285, 457 S.E.2d 841, 853 (1995). The jury also listened to the audio tape of the conversation between defendant and Banks. Any inaccuracies or discrepancies between the audio tape and Banks’ testimony go to issues of credibility and the weight to be given to the evidence. “These are matters solely within the province of the jury.” State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619 (1988). Moreover, while Banks’ testimony was not verbatim identical to the language of the taped conversation, the import of Banks’ testimony was consistent with the transcript of the audio tape. This argument is without merit.
Defendant next argues the trial court erred in denying his motion to dismiss the charge of discharging a firearm into occupied property. He contends the State presented insufficient evidence that he knew or should have known the property was occupied at the time he discharged his weapon. We disagree.
Defendant’s motion to dismiss requires the trial court to consider all the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence. State v. Stewart, 292 N.C. 219, 223-24, 232 S.E.2d 443, 447 (1977). “[T]he question is whether there is substantial evidence— direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the accused committed it.” Id. at 224, 232 S.E.2d at 447.
A person is guilty of discharging a firearm into occupied property if he “intentionally, without legal justification or excuse, discharges a firearm into an occupied building with the knowledge that the building is occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.” State v. James, 342 N.C. 589, 596, 466 S.E.2d 710, 715 (1996); N.C. Gen. Stat. § 14-34.1 (2005). “Reasonable grounds to believe that a building might be occupied can certainly be found where a defendant has shot into a residence during the evening hours, as homeowners are most often at home during these hours.” State v. Fletcher, 125 N.C. App. 505, 512, 481 S.E.2d 418, 423 (1997); see also State v. Hicks, 60 N.C. App. 718, 721, 300 S.E.2d 33, 35 (1983) (upholding the denial of a defendant’s motion to dismiss the charge of discharging a weapon into occupied property and noting that people are usually at home at 5:00 a.m., when the offense occurred).
Here, the State presented evidence tending to show that shortly after 3:00 a.m. on 23 February 2003 defendant fired multiple shots at [647] Davis, who was standing on a lighted front porch of an apartment building near a baby carriage. Investigating officers traced one of the bullets fired by defendant through a hole in the apartment window and into the window frame in the living room. The bullet crossed the living room and lodged in the wall beside a door opening. Bullet fragments were also found in the baby carriage near the porch. At the time of the shooting, five children occupied the apartment. Before the shooting, defendant sat and spoke with Banks in a parked car. Banks testified she spoke with defendant in the car, rather than inside her apartment because her “family was in there asleep, my nieces and nephews in there asleep, and it was late.” From the evidence presented, we conclude the jury could find that defendant had reasonable grounds to believe the apartment was occupied at the time he discharged his weapon. This argument is without merit.
In his fourth and final argument, defendant contends the trial court committed reversible error when it refused to instruct the jury on the lesser included offense of voluntary manslaughter based on the theory of imperfect self-defense. We disagree.
“[A] trial court does not commit prejudicial error in failing to give a voluntary manslaughter instruction when a jury rejects a verdict of guilty of second-degree murder and instead finds defendant guilty of first-degree murder.” State v. Lyons, 340 N.C. 646, 663, 459 S.E.2d 770, 779 (1995). This rule applies regardless of whether defendant asserts he is entitled to an instruction on voluntary manslaughter based on theories of heat of passion or imperfect self-defense. Id. at 663-64, 459 S.E.2d at 779; State v. Price, 344 N.C. 583, 590, 476 S.E.2d 317, 321 (1996). The rationale behind the rule is that by “finding the defendant guilty beyond a reasonable doubt of first-degree murder based on premeditation and deliberation and rejecting second-degree murder, the jury necessarily rejected, beyond a reasonable doubt, the possibilities that the defendant acted in the heat of passion or in imperfect self-defense (voluntary manslaughter) . ...” Id.
In the instant case, the judge presented the jury with the possible verdicts of first-degree murder, second-degree murder, and not guilty. When the jury returned a verdict of guilty of first-degree murder based on premeditation and deliberation, this rendered harmless any error of the trial court, if there was any, in failing to submit the crime of voluntary manslaughter to the jury. Accord id. This argument is without merit.
[648] The remaining assignments of errors asserted in the record on appeal, but not argued in defendant’s brief, are deemed abandoned. N.C. R. App. P. 28(b)(6).
In conclusion, we hold: (1) the trial court did not abuse its discretion in refusing to allow defendant fifteen rather than five minutes to confer with his attorney and decide whether to present evidence in his trial for first-degree murder; (2) the trial court did not err in admitting testimony by Banks regarding her telephone conversation with defendant; (3) the trial court properly denied defendant’s motion to dismiss the charge of discharging a firearm into occupied property; and (4) the trial court did not commit reversible error in failing to instruct the jury on the lesser offense of voluntary manslaughter.
NO PREJUDICIAL ERROR.
Judge TYSON concurs.
Judge HUNTER concurs in part and dissents in part by separate opinion.