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State v. Miller

Court of Appeals of North Carolina

October 1, 2019

STATE OF NORTH CAROLINA
v.
MICHAEL DENNIS MILLER

          Heard in the Court of Appeals 21 August 2019.

          Appeal 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.

          HAMPSON, JUDGE.

         Facts and Procedural History

         Michael 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:

         On 17 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.

         Later 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.

         On 11 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.[1] 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.

         Issue

         The 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).

         Standard of Review

         Defendant 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 of ...


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