State v. Hinton ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA 15-219
Filed: 15 September 2015
Pasquotank County, No. 09 CRS 1257
STATE OF NORTH CAROLINA
v.
TYSHAWN HINTON
Appeal by defendant from judgments entered 10 June 2014 by Judge Jerry R.
Tillett in Pasquotank County Superior Court. Heard in the Court of Appeals 10
August 2015.
Roy Cooper, Attorney General, by Christine A. Goebel, Assistant Attorney
General, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
DAVIS, Judge.
Tyshawn Hinton (“Defendant”) appeals from his convictions for assault with a
deadly weapon with intent to kill (“AWDWIK”) and assault with a deadly weapon
with intent to kill inflicting serious injury (“AWDWIKISI”). On appeal, he contends
that the trial court erred in denying his motion to dismiss based on the insufficiency
of the evidence. After careful review, we conclude that Defendant received a fair trial
free from error.
STATE V. HINTON
Opinion of the Court
Factual Background
The State presented evidence at trial tending to establish the following facts:
On 22 February 2009, Daniel Lindsey (“Lindsey”) left the birthday party of his sister,
Valerie Lindsey (“Valerie”), at the American Legion Hut in Elizabeth City, North
Carolina sometime between 1:00 and 2:00 a.m. After leaving the party, Lindsey
stopped at the Sunoco Park ‘N Shop (“the Sunoco”) — a convenience store where
people frequently gathered after leaving local clubs.
Lindsey called Valerie to tell her he was at the Sunoco. While on the phone,
Valerie heard four or five gunshots followed by Lindsey stating, “I’m going to kill
Little Ty. Little Ty is shooting at me.” “Little Ty” is Defendant’s nickname. Valerie
then heard Lindsey running and the phone disconnected shortly thereafter.
Lindsey had observed Defendant come from behind the Sunoco, at which point
Defendant had begun shooting at him. Lindsey recognized Defendant because he had
known Defendant for a long time and Lindsey had previously dated Defendant’s aunt.
In response to Defendant shooting at him, Lindsey jumped into a van belonging
to his friend, Keith Bryant (“Bryant”), along with Bryant and Bryant’s cousin,
McGarrett Bryant. Bryant then drove away from the Sunoco, at which point Lindsey
told Bryant and his cousin, “I can’t believe they are shooting at me.”
Bryant asked Lindsey “what he wanted to do,” to which Lindsey responded
that he wanted Bryant to take him to Pritchard Street — which was approximately
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STATE V. HINTON
Opinion of the Court
a two-minute drive from the Sunoco — where an unidentified female was supposed
to pick him up. While still in Bryant’s van, Lindsey made a phone call, during which
he stated, “they just shot at me.” Bryant then proceeded to drop Lindsey off at
Pritchard Street and drove away.
Shortly thereafter, while standing on Pritchard Street and waiting for his ride,
Lindsey heard someone call his name. Lindsey recognized the voice as that of
Defendant. As Lindsey started to turn around, he was shot once in the neck. Lindsey
did not actually see the person who shot him.
At approximately 2:51 a.m., Officer Paul Perry (“Officer Perry”) with the
Elizabeth City Police Department responded to a call from dispatch concerning a
report about a person who had been shot and was lying on Pritchard Street. Officer
Perry arrived at the scene and discovered Lindsey, who was lying on the ground and
bleeding. Emergency medical personnel were summoned, arrived shortly thereafter
and transported Lindsey to the hospital.
While en route to the hospital, emergency medical personnel performed a
“neuro assessment” of Lindsey. The neuro assessment initially indicated that
Lindsey had no feeling from the waist down. Over the course of the five-minute ride
to the hospital, Lindsey’s paralysis progressed rapidly throughout his body. Lindsey
was ultimately rendered paralyzed from the neck down as a result of the shooting.
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STATE V. HINTON
Opinion of the Court
Approximately one month later, Sergeant Gary Bray (“Sergeant Bray”) with
the Elizabeth City Police Department interviewed Lindsey at the hospital. When
Sergeant Bray asked Lindsey who had shot him, Lindsey responded that Defendant
had done so.
Defendant was indicted on the charges of AWDWIK and AWDWIKISI. A jury
trial was held on 9 June 2014 before the Honorable Jerry R. Tillett in Pasquotank
County Superior Court.
On 10 June 2014, the jury found Defendant guilty of both charges. Defendant
was sentenced to consecutive sentences of 73-97 months for AWDWIKISI and 22-36
months for AWDWIK. Defendant gave notice of appeal in open court.
Analysis
Defendant’s sole argument on appeal is that the trial court erred in denying
his motion to dismiss the charge of AWDWIKISI. Specifically, Defendant claims that
the State’s evidence was insufficient to establish Defendant’s identity as the
perpetrator of the shooting. We disagree.1
“This court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). To survive a
defendant’s motion to dismiss, there must be substantial evidence of (1) each
essential element of the offense charged; and (2) defendant’s being the perpetrator of
1Defendant does not challenge his conviction for AWDWIK on appeal. Any issues Defendant
might have raised as to that claim are therefore deemed abandoned. See N.C.R. App. P. 28(b)(6).
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STATE V. HINTON
Opinion of the Court
that offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied,
531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Smith, 186
N.C. App. at 62, 650 S.E.2d at 33 (citation and quotation marks omitted).
In reviewing a motion to dismiss, we must consider the evidence in the light
most favorable to the State and afford the State every reasonable inference. State v.
Lyons, 340 N.C. 646, 658, 459 S.E.2d 770, 776 (1995). “Circumstantial evidence may
withstand a motion to dismiss and support a conviction even when the evidence does
not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373
S.E.2d 430, 433 (1988). If the evidence presented is circumstantial, the trial court
must determine whether the circumstances give rise to a reasonable inference of the
defendant’s guilt. Fritsch, 351 N.C. at 379, 526 S.E.2d at 455. “Once the court decides
that a reasonable inference of defendant’s guilt may be drawn from the
circumstances, then it is for the jury to decide whether the facts, taken singly or in
combination, satisfy it beyond a reasonable doubt that the defendant is actually
guilty.” Id. (citation, quotation marks, and brackets omitted).
Where, as here, a defendant only disputes the sufficiency of the evidence
establishing his identity as the perpetrator of the crime, we review the evidence for
“proof of motive, opportunity, capability and identity, all of which are merely different
ways to show that a particular person committed a particular crime.” State v. Bell,
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STATE V. HINTON
Opinion of the Court
65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983), aff’d per curiam, 311 N.C. 299, 316
S.E.2d 72-73 (1984). These factors, while not essential elements of the crime, are
relevant in identifying the defendant as the perpetrator of a crime. Id. “In order for
this Court to hold that the State has presented sufficient evidence of defendant’s
opportunity to commit the crime in question, the State must have presented at trial
evidence not only placing the defendant at the scene of the crime, but placing him
there at the time the crime was committed.” State v. Hayden, 212 N.C. App. 482, 488,
711 S.E.2d 492, 497, disc. review denied, 365 N.C. 349, 717 S.E.2d 737-38 (2011).
In the present case, the State produced substantial circumstantial evidence
from which the jury could reasonably conclude that Defendant committed the offense
of AWDWIKISI. Lindsey testified that he saw Defendant come from behind the
Sunoco station and shoot at him — a fact Defendant does not challenge. Lindsey was
familiar with Defendant, as he had known Defendant for some time and at one point
had dated Defendant’s aunt. Valerie also testified as to Lindsey’s having identified
Defendant as the shooter at the Sunoco while she was on the phone with him.
Furthermore, the shooting incident at the Sunoco and the shooting incident on
Pritchard Street were close in time and in distance. Pritchard Street is
approximately a “two minute” drive from the Sunoco station, which supports the
inference that Defendant pursued Lindsey from the Sunoco to Pritchard Street.
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STATE V. HINTON
Opinion of the Court
Moreover, Lindsey repeatedly stated at trial that he heard Defendant call out
his name right before being shot. This identification of Defendant by Lindsey
provides circumstantial evidence that Defendant had the opportunity and the means
to commit the crime in question as it placed Defendant — who was shown to be armed
with a firearm given his attempted shooting of Lindsey minutes before at the Sunoco
— at the scene of the crime at the time the crime was committed. See State v. McNeil,
359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (“If there is substantial evidence —
whether direct, circumstantial, or both — to support a finding that the offense
charged has been committed and that the defendant committed it, the case is for the
jury and the motion to dismiss should be denied.” (citation, quotation marks, and
alteration omitted)). Therefore, we conclude that sufficient evidence existed for
resolution by the jury as to this charge.
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial
free from error.
NO ERROR.
Judges STROUD and INMAN concur.
Report per Rule 30(e).
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