State v. Stocks

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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.
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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
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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”).
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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,
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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
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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
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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.
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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.
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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).