in the Court of Appeals 21 August 2019.
by Defendant from Judgments entered 13 September 2018 by
Judge Angela B. Puckett in Wilkes County, Nos. 16 CRS 54383,
16 CRS 53498, 17 CRS 436 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Jason Caccamo, for the State.
Richard Croutharmel for defendant-appellant.
and Procedural History
Dennis Miller (Defendant) appeals from Judgments entered upon
his convictions for Assault with a Deadly Weapon Inflicting
Serious Injury, Possession of a Firearm by a Felon, Discharge
of a Weapon into an Occupied Vehicle in Operation Inflicting
Serious Bodily Injury, and Discharge of a Weapon into an
Occupied Vehicle in Operation. On appeal to this Court,
Defendant challenges only the trial court's imposition of
judgment and sentencing on Discharging a Weapon into an
Occupied Vehicle in Operation. The Record before us tends to
show the following:
December 2016, Defendant, along with his girlfriend Jarrita
Roark, Derek Osborne, and Jennifer Martin, attended a holiday
party. On 18 December 2016, Defendant and Roark left the
party around 1:30 A.M. and returned to Roark's house.
Osborne and Martin arrived soon after. Defendant and Osborne
remained outside on the porch. Roark and Martin entered the
house. Shortly after, Defendant and Osborne began arguing.
Defendant opened the door and yelled inside for Martin and
Osborne to leave. A scuffle ensued between Defendant and
Osborne. Martin and Roark came outside. Osborne and Martin
began walking to Martin's car, while Defendant went
inside. As Martin and Osborne reached Martin's car,
Defendant returned to the porch with his gun and a fired a
single shot into the air. Martin and Osborne got into the
car. Martin, the driver, started the car and placed it in
reverse. As Martin backed up, Defendant fired a second shot
at the car. The shot entered the vehicle through the rear
passenger window and struck Osborne in the neck. Martin
applied pressure to the wound while 911 was called and the
parties waited for first responders. Defendant was identified
as the shooter and detained.
in the morning of 18 December 2016, Warrants issued for
Defendant's arrest on one count of Felonious Assault with
Deadly Weapon Intent to Kill Inflicting Serious Injury. The
following day, 19 December 2016, Warrants issued charging
Defendant with Felonious Possession of Firearm by a Felon,
Felonious Discharge of a Firearm into an Occupied Vehicle in
Operation Inflicting Serious Bodily Injury naming Osborne as
the victim, and Felonious Discharge of a Firearm into an
Occupied Vehicle in Operation naming Martin as the victim.
Defendant was indicted on all charges on 30 October 2017.
September 2018, Defendant was tried before a jury in Wilkes
County Superior Court. On 13 September 2018, the jury
returned verdicts finding Defendant guilty of: Discharging a
Weapon into an Occupied Vehicle in Operation Inflicting
Serious Bodily Injury; Discharging a Weapon into an Occupied
Vehicle in Operation; Possession of a Firearm by a Felon; and
Assault with a Deadly Weapon Inflicting Serious
Injury. The trial court entered judgment and
sentenced in four separate Judgments. The trial court entered
two Judgments in file number 16 CRS 53498 imposing two
concurrent sentences: (1) Discharge of a Weapon into an
Occupied Vehicle in Operation Inflicting Serious Bodily
Injury, a Class C Felony, in which the trial court sentenced
Defendant within the presumptive range to an active sentence
of 83 to 112 months; and (2) Discharge of a Weapon into an
Occupied Vehicle in Operation, a Class D Felony, in which the
trial court sentenced Defendant within the presumptive range
to a term of 73 to 100 months' imprisonment. In file
number 16 CRS 53483, the trial court entered Judgment on
Defendant's conviction for Assault with a Deadly Weapon
Inflicting Serious Injury, a Class E Felony, imposing a
suspended sentence in the presumptive range of 29 to 47
months and placing Defendant on supervised probation for 36
months to run upon Defendant's release from
incarceration. In file number 17 CRS 436, the trial court
entered judgment on the Possession of a Firearm by a Felon
conviction, a Class G Felony, within the presumptive range,
to a suspended sentence of 14 to 26 months and again placing
Defendant on supervised probation for 36 months to run upon
his release from incarceration. On 14 September 2018,
Defendant timely filed notice of appeal.
sole issue on appeal is whether a defendant may be sentenced
for two convictions for Discharging a Weapon into an Occupied
Vehicle under two separate subsections of N.C. Gen. Stat.
§ 14-34.1 when a single shot was fired into a single
vehicle with two occupants and, therefore, whether the trial
court erred by not arresting judgment on the lesser of the
two charges for Discharging a Weapon into an Occupied Vehicle
in Operation under N.C. Gen. Stat. § 14-34.1(b).
challenges his sentence on legal rather than factual grounds,
asserting the trial court erred as a matter of law by
sentencing him twice under different subsections of N.C. Gen.
Stat. § 14-34.1 for a single act. Thus, the issue before
the Court is a question of law reviewed de novo.
See, e.g., State v. Hayes, 248
N.C.App. 414, 415, 788 S.E.2d 651, 652 (2016) ("Issues