State v. Johnson ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1170
Filed: 5 May 2015
STATE OF NORTH CAROLINA
Mecklenburg County
v.
No. 11 CRS 212187
DERRICK OLANDO JOHNSON
Appeal by defendant from judgment entered 28 January 2014 by Judge Forrest
D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 17
April 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard H.
Bradford, for the State.
Russell J. Hollers III for defendant-appellant.
TYSON, Judge.
Defendant appeals from a judgment entered upon the jury’s conviction for
discharging a firearm into an occupied dwelling. We find no error.
I. Background
STATE V. JOHNSON
Opinion of the Court
Defendant fired two shots into the side of his neighbor’s home on 14 March
2011. Prior to the incident, the neighbor had hosted a cookout for her family.
Defendant stopped by the cookout, appeared to be intoxicated, got into an argument
with the neighbor’s sister, and made threatening remarks as he left the cookout.
Following a trial, the jury found Defendant guilty of discharging a firearm into
an occupied dwelling. The trial court made findings of aggravating and mitigating
factors, and imposed a sentence within the mitigated range of 40 to 57 months.
Defendant gave timely notice of appeal.
II. Issues
Defendant solely argues his indictment was insufficient because it failed to
allege an essential element of the offense.
III. Analysis
A. Discharging a Firearm Into An Occupied Dwelling
“The elements of [discharging a weapon into an occupied dwelling] are (1) the
willful or wanton discharging (2) of a firearm (3) into any building (4) while it is
occupied.” State v. Jones, 104 N.C. App. 251, 258, 409 S.E.2d 322, 326 (1991).
An indictment must give “[a] plain and concise
factual statement in each count which, without allegations
of an evidentiary nature, asserts facts supporting every
element of a criminal offense and the defendant’s
commission thereof with sufficient precision clearly to
apprise the defendant . . . of the conduct which is the
subject of the accusation.”
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STATE V. JOHNSON
Opinion of the Court
State v. Canady, 191 N.C. App. 680, 691, 664 S.E.2d 380, 387 (2008) (quoting N.C.
Gen. Stat. § 15A-924(a)(5) (2007)), disc. review denied, 363 N.C. 132, 673 S.E.2d 662(2009) (emphasis added).
The indictment alleged that Defendant “did unlawfully, willfully, and
feloniously discharge a .22 caliber rifle, a firearm, into a dwelling, a building, located
[in] Charlotte, North Carolina, while it was actually occupied.” The indictment is
sufficient to apprise Defendant of the offense for which he was charged.
B. State v. Williams
Defendant cites State v. Williams, and contends that the indictment was
insufficient because it failed to allege that he knew or had reasonable grounds to
believe that the dwelling was actually occupied. 284 N.C. 67, 199 S.E.2d 409 (1973).
Defendant argues such proof is an essential element of the offense and must be
alleged in the indictment.
We have repeatedly rejected Defendant’s argument, holding that knowledge of
occupancy need not be alleged in the indictment:
We think the holding in Williams pertaining to the
accused’s knowledge of occupancy relates to evidence
required at trial and not to allegations required in the bill
of indictment. Consequently, we hold that an indictment
under G.S. 14-34.1 which, as in the instant case, charges
the offense substantially in the words of the statute,
contains allegations sufficient to apprise an accused of the
offense with which he is charged and to enable the court to
proceed to judgment.
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STATE V. JOHNSON
Opinion of the Court
State v. Walker, 34 N.C. App. 271, 274, 238 S.E.2d 154, 156, cert. denied, 293 N.C.
743, 241 S.E.2d 516 (1977) (internal citation omitted); see also Canady, 191 N.C. App.
at 691-92, 664 S.E.2d at 387 (noting that this Court has previously rejected the
argument that an indictment failed to allege an essential element of the offense where
it failed to allege knowledge of occupancy).
Defendant acknowledges our holdings in Walker and Canady, and, in essence,
invites us to revisit them. We have no authority to revisit previous decisions rendered
by our Court, unless modified or overturned by a higher court. See In re Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals
has decided the same issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by a higher court.”).
IV. Conclusion
Defendant has raised no other issues for review. We are bound by our decisions
in Walker and Canady. Defendant received a fair trial, free from prejudicial errors
he preserved, presented, and argued.
NO ERROR.
Judge BRYANT and DIETZ concur.
Report per Rule 30(e).
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