Heard September 10, 2014
N.C. Court of Appeals. No. 13-470. Donna Stroud, Judge. Pasquotank County. Nos. 10CRS2126, 10CRS51362, 10CRS51372. Jerry R. Tillett, Judge.
Roy Cooper, Attorney General, by Mary Carla Babb, Assistant Attorney General, for the State-appellant.
Staples S. Hughes, Appellate Defender, by Charlesena Elliott Walker and Constance E. Widenhouse, Assistant Appellate Defenders, for defendant-appellee.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, __ N.C.App. __, 753 S.E.2d 399 (2013), finding no error in part and reversing in part judgments entered on 17 July 2012 by Judge Jerry R. Tillett in Superior Court, Pasquotank County. Heard in the Supreme Court on 10 September 2014.
MARTIN, Chief Justice.
From the safety of a car, defendant drove by Patrice Harney's home, shouted a phrase used by gang members, and then returned to shoot at her and repeatedly fire bullets into her home when she retreated from his attack. We hold defendant's actions provided sufficient evidence of premeditation and deliberation to survive a motion to dismiss an attempted murder charge.
Around two in the morning on 12 August 2010, Patrice Harney was sitting on her front porch talking with her cousin and brother while her three children slept inside. While Patrice and her companions were on the porch, a silver car and a green car drove by. The road was no more than sixty feet from the house in a well-lit area, and Patrice recognized defendant as the driver of the silver car. Someone in the silver car yelled out, " [W]hat's popping." Patrice testified the phrase was used by gang members, but she " didn't take offense to it" [367 N.C. 694] because she was not part of a gang. The cars did not stop at this point. A few minutes later, the silver car returned and came to " a dead stop" in front of Patrice's house, and defendant rolled down his window and " just started shooting."
After Patrice and her cousin saw the gun pointed in their direction, they ran inside the house. Patrice sprinted to her children's room to pull them onto the floor and shield them from the bullets that were then coming through the walls of the house. Once the shooting stopped, Patrice ran to the front of her home, where police had already arrived. Bullets had pierced the window in front of which Patrice had been sitting and the exterior of the residence. Bullet holes were also found in the children's room. Between six and twelve shots were fired overall. Before the shooting, Patrice did not have any problem with defendant, and later said she was surprised at what he had done.
Defendant was apprehended several weeks later. He was subsequently indicted for one count of attempted murder and six counts of discharging a firearm into occupied property. At the close of the State's evidence, the trial court dismissed one count of discharging a firearm into occupied property. At the close of all evidence, after not having put on any evidence in his defense, defendant moved to dismiss all charges. Specifically, defendant claimed that the State had failed to produce evidence of intent for the attempted murder charge. The trial court denied his motion. The jury found defendant guilty of the remaining five counts of discharging a firearm into occupied property and of attempted first-degree murder. The trial court sentenced defendant to consecutive terms of 36 to 53 months for each of the five firearms convictions followed by 185 to 231 months of imprisonment for the attempted murder conviction.
Defendant appealed to the Court of Appeals. In a unanimous, unpublished opinion, the court concluded that the State had failed to produce sufficient evidence of defendant's premeditation and deliberation. State v. Childress, __ N.C.App. __, 753 S.E.2d 399, 2013 WL 5947787, at *5 (2013) (unpublished). Accordingly, the court held that the trial court's denial of defendant's motion to dismiss was error and reversed the attempted murder conviction. Id. We allowed the
State's petition for discretionary review of that issue ...