State v. Jones , 265 N.C. App. 644 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-748
Filed: 4 June 2019
Onslow County, No. 14 CRS 54309-10
STATE OF NORTH CAROLINA
v.
REGINALD LEE JONES, Defendant.
Appeal by Defendant from judgment entered 22 March 2018 by Judge Ebern
T. Watson III in Onslow County Superior Court. Heard in the Court of Appeals 16
January 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Oliver G.
Wheeler, IV, for the State.
The Epstein Law Firm, PLLC, by Drew Nelson, for defendant-appellant.
MURPHY, Judge.
Defendant argues the trial court erred in three ways regarding his prosecution
and conviction for discharging a weapon into an occupied dwelling, but fails to show
that the trial court erred (1) in entering its judgment against him for that offense, (2)
proceeding based on the State’s indictment, or (3) in failing to dismiss the charge for
insufficient evidence. We find no error in the trial court’s decisions relating to these
three issues.
STATE V. JONES
Opinion of the Court
However, although not properly preserved for appeal, we invoke Rule 2 of our
Rules of Appellate Procedure in order to prevent manifest injustice and vacate
Defendant’s conviction for assault by pointing a gun.
BACKGROUND
Defendant, Reginald Lee Jones, was found guilty of (1) discharging a firearm
into an occupied dwelling, (2) assault with a deadly weapon, and (3) assault by
pointing a gun. In a separate judgment, Defendant was found guilty of fleeing to
elude arrest, but does not appeal any issues related thereto. The charges stem from
an incident where Defendant fired multiple gunshots in the direction of an individual
and his house.
On the evening of 6 July 2014, Defendant was seen slowly driving by and
looking at a residence in Onslow County. Eventually, Defendant got out of his car
and started yelling at an individual standing near the residence, “Teekay,” and
“calling out” the individuals inside the house, challenging them to come outside. The
exchange escalated to the point where Defendant pulled out a handgun and fired two
shots at Teekay. At least one of the two shots went into the exterior wall of the house,
at which point the homeowner, Antonio Holley (“Holley”), went to the doorway and
yelled that Defendant “ain’t doing nothing” but firing shots into the air. Defendant
responded by firing two shots at Holley, who was still standing in the doorway of his
house, one of which hit him in the arm. Shortly thereafter, a second man inside the
-2-
STATE V. JONES
Opinion of the Court
house returned fire in Defendant’s direction, and Defendant drove away. Upon
investigating the scene, police noted damage to Holley’s house and the surrounding
area.
Defendant was indicted by a Grand Jury for (1) littering, (2) fleeing to elude
arrest with a motor vehicle, (3) assault with a deadly weapon with the intent to kill
inflicting serious injury, (4) assault by intentionally pointing a gun at a person
without legal justification, and (5) discharging a firearm into an occupied dwelling.
At trial, the State abandoned the littering charge. The jury returned guilty verdicts
on the charges of fleeing to elude arrest, assault with a deadly weapon, assault by
pointing a gun, and discharging a firearm into an occupied dwelling, and the trial
court entered judgment accordingly. Defendant timely appeals and presents four
arguments for our consideration.
ANALYSIS
A. The Trial Court’s Judgment
Defendant first argues the trial court’s judgment finding him guilty of Class D
discharging a firearm into an occupied dwelling is inconsistent with the jury verdict
finding him guilty of “felonious discharging a firearm into an occupied property.”
N.C.G.S. § 14-34.1 sets out three levels of felony offense for “Discharging
certain barreled weapons or a firearm into occupied property.” N.C.G.S. § 14-34.1
(2017). It is a Class C felony to discharge a firearm into an occupied property where
“the violation results in serious bodily injury to any person,” a Class D felony where
-3-
STATE V. JONES
Opinion of the Court
the weapon is discharged “into an occupied dwelling,” and a Class E felony where the
weapon is discharged “into any building, structure, vehicle, aircraft, [etc.]” Id.
Defendant argues the jury only found him guilty of the Class E offense, so the trial
court erred by entering judgment for the Class D offense under N.C.G.S. § 14-34.1.
The record indicates otherwise.
Defendant was indicted for discharging “a firearm into an occupied dwelling, a
building, . . . while it was actually occupied by [Holley] and [another man].” As such,
Defendant was on notice from the commencement of this case that the State sought
the Class D offense. On the indictment form, the State listed N.C.G.S. § 14-34.1(c) as
the statute Defendant allegedly violated, but chose to abandon the “serious bodily
injury” portion before charging the jury. After doing so, the State told the trial court
it “should be able to proceed on the [charge of] discharging a weapon into an occupied
property or dwelling.” The trial court agreed and used the State’s imprecise language,
conflating property with dwelling, throughout the remainder of Defendant’s trial.
During the jury charge, the trial court instructed, “[D]efendant has been
charged with discharging a firearm into occupied property.” However, the trial court
went on to describe that property exclusively and repeatedly as Holley’s “house[:]”
The defendant has been charged with discharging a
firearm into occupied property. For you to find the
defendant guilty of this offense, the state must prove three
things, beyond a reasonable doubt. First, that the
defendant willfully or wantonly discharged a firearm into
a house at [Holley’s address]. . . . Second, that [Holley’s]
-4-
STATE V. JONES
Opinion of the Court
house . . . was occupied by one or more persons at the time
that the firearm was discharged. Third, that the defendant
knew that [Holley’s] house . . . was occupied by one or more
persons.
Based on that instruction, when the jury found Defendant guilty of “discharging a
firearm into an occupied property[,]” the property to which they referred was Holley’s
“house” described throughout their instruction.
We have previously held that “dwelling” under N.C.G.S. § 14-34.1(b) is
synonymous with “apartment,” State v. Bryant, 244 N.C. App. 102, 107-08, 779 S.E.2d
508, 512-13 (2015), and “residence.” State v. Curry, 203 N.C. App. 375, 382, 692
S.E.2d 129, 136 (2010). Similarly, Black’s Law Dictionary defines “house” as “[a]
dwelling;” and the word “dwelling” is itself shorthand for “dwelling-house.” Black's
Law Dictionary (9th ed. 2009). Furthermore, in Curry we held a verdict sheet finding
the defendant “guilty of discharging a firearm into occupied property”—the same as
the verdict sheet here—was a sufficient basis for the trial court to enter judgment for
the Class D offense under N.C.G.S. § 14-34.1(b). Curry, 203 N.C. App. at 382-83, 692
S.E.2d at 136. The trial court’s judgment sentencing Defendant for the Class D felony
of discharging a firearm into an occupied dwelling is consistent with the record and
the jury’s guilty verdict.
B. Indictment
Defendant next argues we “should arrest the judgment against [Defendant] for
discharging a weapon into an occupied dwelling due to a fatal defect in the
-5-
STATE V. JONES
Opinion of the Court
indictment.” Defendant argues the indictment was fatally flawed because it charged
him with discharging a weapon into occupied property causing serious bodily injury,
but “failed to allege that any injury resulted from the discharging of the firearm into
the occupied property.” We disagree.
Defendant’s argument is based on the indictment’s reference to “[N.C.G.S. §]
14-34.1(c)” as being the violated statute. However, we have previously held that the
statutory reference on an indictment “is surplusage and can be disregarded.” State
v. Jones, 110 N.C. App. 289, 292, 429 S.E.2d 410, 412 (1993). The body of Defendant’s
indictment charges him, in relevant part, with “unlawfully, willfully, and feloniously
[discharging] . . . a firearm into an occupied dwelling . . . .” “[I]t is not the function of
an indictment to bind the hands of the State with technical rules of pleading; rather,
its purposes are to identify clearly the crime being charged.” State v. Sturdivant, 304
N.C. 293, 311, 283 S.E.2d 719, 731 (1981). Here, Defendant’s indictment clearly
identifies the crime being charged. Furthermore, as was the case in Jones,
“Defendant cannot complain that [he] was unaware of the acts for which [he] was
charged and if anything . . . benefited by the State’s decision to proceed [under
N.C.G.S. § 14-34.1(b)] because it reduced [his] level of punishment from a Class C to
a Class D felony.” Jones, 110 N.C. App. at 292, 429 S.E.2d at 413. The indictment
was not fatally defective, and we need not arrest judgment.
C. Dismissal for Insufficient Evidence
1. Discharging a Firearm into an Occupied Dwelling
-6-
STATE V. JONES
Opinion of the Court
Defendant’s third argument is that the trial court “erred by failing to dismiss
the charge of discharging a weapon into an occupied property.” Specifically,
Defendant argues the State “failed to demonstrate that [Defendant] knew the
property was occupied when he fired the first two shots” into Holley’s house and that
the charge should have been dismissed for insufficient evidence.
“When reviewing a sufficiency of the evidence claim, this Court considers
whether the evidence, taken in the light most favorable to the [S]tate and allowing
every reasonable inference to be drawn therefrom, constitutes substantial evidence
of each element of the crime charged.” State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d
239, 261 (2008) (internal quotation marks omitted). “Substantial evidence” is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Id.
One is guilty of felony discharging a firearm into an occupied dwelling where
he intentionally discharges a firearm into a building that he knows, or “has
reasonable grounds to believe,” is occupied by one or more persons. State v. Williams,
284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973). Eyewitness Gary John (“John”) testified
that, before discharging his firearm, Defendant stepped out of his car and loudly
“called out” the individuals inside Holley’s house, challenging them to come outside.
John had been standing in the doorway of Holley’s house and speaking with Holley
just a few minutes earlier when Defendant slowly drove past, looking at the dwelling.
-7-
STATE V. JONES
Opinion of the Court
Viewed in the light most favorable to the State, a reasonable mind might certainly
accept the above evidence as adequate to support the conclusion that Defendant
knowingly discharged a firearm into a dwelling he knew to be occupied.
Substantial evidence indicates Defendant intentionally discharged a firearm
into a dwelling he knew or had reasonable grounds to believe was occupied at the
time, and the trial court did not err in declining to dismiss this charge for insufficient
evidence.
2. Assault by Pointing a Gun
In his final argument on appeal, Defendant contends the trial court erred in
failing to dismiss one of the assault charges against him because the evidence
presented at trial “supported only a single assault charge.” At trial, Defendant’s
counsel never moved to dismiss the assault charges against him, which renders this
argument unpreserved for appellate review. N.C. R. App. P. 10(a)(1) (2019).
Nevertheless, Defendant argues we should invoke Rule 2 to reach this error and
“prevent manifest injustice.”
In urging us to invoke Rule 2, Defendant argues he could not properly be
charged for two separate assaults on Holley—one by pointing a gun and the other
with a deadly weapon (as a result of the gunshots)—based on the evidence presented
at trial. These charges are related but distinct, and Defendant was indeed convicted
of both based upon his actions directed toward Holley.
-8-
STATE V. JONES
Opinion of the Court
After careful review of the record, we agree with Defendant’s contention that
the only evidence regarding the two alleged assaults came from John’s testimony
that, “the victim . . . Holley, comes out yelling, ‘You ain’t doing nothing. You’re just
shooting in the air.’ That was—the reaction from that was two more bam bams, quick
double taps, from the shooter.” This testimony is the sole evidence for Defendant’s
two assault convictions. The State does not argue otherwise, or point us to any other
facts from which a reasonable mind might infer Defendant assaulted Holley. We
invoke Rule 2 in order to reach this issue and prevent manifest injustice to Defendant.
We have held, “In order for a defendant to be charged with multiple counts of
assault, there must be multiple assaults. This requires evidence of a distinct
interruption in the original assault followed by a second assault.” State v. Maddox,
159 N.C. App. 127, 132-33, 583 S.E.2d 601, 604-05 (2003) (internal citation and
quotation marks omitted) (declining to find multiple distinct assaults where the
evidence “indicate[d] that all five shots were fired in rapid succession”); see also State
v. Brooks, 138 N.C. App. 185, 190, 530 S.E.2d 849, 852-53 (2000) (allowing only one
assault charge where three gunshots were fired almost simultaneously). “The
elements of the offense of assault by pointing a gun are: (1) pointing a gun at a person;
(2) without legal justification.” State v. Dickens, 162 N.C. App. 632, 638, 592 S.E.2d
567, 572 (2004); see N.C.G.S. § 14-34 (2017). “The elements of the offense of assault
with a deadly weapon are: (1) an assault of a person; (2) with a deadly weapon.” Id.;
-9-
STATE V. JONES
Opinion of the Court
see N.C.G.S. § 14-33(c)(1) (2017). An individual could be charged with both
substantive offenses for acts broken up by a distinct interruption—such as keeping
the gun aimed at the victim for a brief period or taking a moment of contemplation
before firing the gun at the victim and thereby committing a distinct assault with the
deadly firearm—but the cold record in this case evinces no such interruption.
Defendant’s two assault charges arise out of two acts that occurred in rapid
succession and seemingly without interruption: raising his gun and firing. The
evidence here is not sufficient to allow a reasonable mind to conclude there was any
interruption in Defendant’s act of raising his gun and firing at Holley such that he
could have been convicted of two separate assaults. We vacate the trial court’s
judgment as to the assault by pointing a gun conviction in order to prevent a manifest
injustice.
During sentencing, the trial court ordered, “under the Class D felony of
discharging a weapon into occupied property, assault by pointing a gun and assault
with a deadly weapon, all of those are consolidated for one judgment, under the Class
D[.]” Defendant’s prior felony record level was I, and he was sentenced to an active
sentence, near the top of the presumptive range, of 60 to 84 months. Where multiple
convictions are consolidated into one judgment “but one of the convictions was
entered in error, the proper remedy is to remand for resentencing when the appellate
courts are unable to determine what weight, if any, the trial court gave each of the
- 10 -
STATE V. JONES
Opinion of the Court
separate convictions in calculating the sentences imposed upon the defendant.” State
v. Hardy, 242 N.C. App. 146, 160, 774 S.E.2d 410, 420 (2015) (internal alterations
and citation omitted). As we are unable to determine what weight, if any, the trial
court gave to the erroneously entered assault conviction, we must remand for
resentencing.
CONCLUSION
Defendant fails to show that the trial court erred in entering its judgment
against him for discharging a firearm into an occupied dwelling, proceeding based on
the State’s indictment, or in failing to dismiss the charge of discharging a firearm
into an occupied dwelling. Although not properly preserved for appeal, we invoke
Rule 2 to vacate the charge of assault by pointing a gun in order to prevent a manifest
injustice, and remand for resentencing.
NO ERROR IN PART; VACATED IN PART; REMANDED FOR
RESENTENCING.
Judges DILLON and ARROWOOD concur.
- 11 -