Appeal by defendant from Walker, Judge. Judgment entered 12 April 1983 in Superior Court, Forsyth County.
Cecil J. Hill, Judge, wrote the opinion. Judges R. A. Hedrick and Sidney S. Eagles, Jr., concur.
Defendant appeals his convictions of the misdemeanor of malicious damage to personal property and feloniously discharging a firearm into an occupied dwelling. We have examined the record concerning the misdemeanor conviction under G.S. 14-160 and find no basis for reversal. We do find error, however, in the jury charge concerning the offense of feloniously discharging a firearm into an occupied dwelling in violation of G.S. 14-34.1, necessitating a new trial for the felony only.
We first consider defendant's assignment of error to the trial court's denial of his motion to dismiss made at the close of the State's evidence. G.S. 14-34.1 provides in pertinent part: "Any person who willfully or wantonly discharges or attempts to discharge . . . [a] firearm into any building, structure . . . or enclosure while it is occupied is guilty of a Class H felony." A person is guilty of the felony created by this section if he "intentionally, without legal justification or excuse, discharges a firearm into an occupied building . . . when he has reasonable grounds to believe that the building might be occupied by one or more persons." State v. Williams, 284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973).
With regard to this offense, Sheila Vaughn, Donna Morrison, and three police officers were in the Vaughn residence at various times during the shootings. Police officer Lloyd and Sheila Vaughn testified that as the defendant was discharging the firearm toward the Vaughn residence in which they were located, they heard a bullet hit a window, heard window glass break, and heard bullets hit the side of the house. The repeated discharge of the firearm toward the house and the resultant striking of the house by the bullets so discharged is evidence of something more than the firing of a stray bullet which accidentally strikes the dwelling. Such conduct manifests an intentional disregard of and indifference to the rights and safety of others, and supports
elements of the offense of discharging a firearm into an occupied dwelling to require its submission to the jury.
Defendant next contends that the trial court erred in answering the jury's questions concerning sufficiency of the evidence to justify a conviction for intentionally discharging a firearm into an occupied dwelling. The question and instruction with which we find error are as follows:
[Jury:] First if the weapon as (sic) willfully fired at the car and the stray bullet hit the house, can this be considered discharging a firearm into an occupied building?
[The Court:] You remember that I told you the defendant must willfully or wantonly and intentionally discharge a firearm into the building in order to be guilty of that charge. Now, if he intentionally fired a -- or discharged a firearm and intended to fire at one thing and if it did hit another, if you find he intentionally discharged the firearm and it hit the building, that is intentionally fired it and it hit the building, that would be sufficient.
In the case under review, a specific intent was a necessary element in proof of discharging a firearm into an occupied dwelling. See G.S. 14-34.1; State v. Williams, supra. The above-quoted portion of the charge permitted the jury to find the requisite intent solely from the proof of defendant's commission of the unlawful act of malicious damage to property, i.e., firing into the automobile. This is prejudicial error and requires that defendant be given a new trial for failure of the trial court to adequately declare and explain the law relative to the requisite specific intent.
Defendant finally contends that the trial court erred by denying defendant's motion to dismiss on the grounds that defendant had previously been placed in jeopardy of the same offense. Defendant asserts that the guilty plea to discharging a firearm in the city barred subsequent prosecution of the charges of malicious damage to property and discharging a firearm into an occupied building on grounds of double jeopardy. We disagree.
If each of two criminal offenses, as a matter of law, requires proof of some fact, proof of ...