State v. Hinson , 85 N.C. App. 558 ( 1987 )

355 S.E.2d 232 (1987)

STATE of North Carolina
v.
Leo HINSON.

No. 863SC1001.

Court of Appeals of North Carolina.

May 5, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Laura E. Crumpler, for the State.

Hulse & Hulse by Herbert B. Hulse, and Braswell & Taylor by Roland C. Braswell, Goldsboro, for defendant.

MARTIN, Judge.

By his exceptions and assignments of error brought forward on appeal, defendant challenges the sufficiency of the bills of indictment in those cases in which he was charged with assault with a deadly weapon with intent to kill, the sufficiency of the evidence to support his convictions, and the denial of his requests for certain instructions to the jury. We have considered his contentions and find no error in his trial.

In cases 85CrS13969, 85CrS13970, 85CrS13971, 85CrS13972 and 85CRS13973, each of the bills of indictment included the following language:

... the defendant named above unlawfully, willfully and feloniously did assault [named victim], ... with a 21/2 ton truck, a deadly weapon. The assault was committed with the intent to kill.

Defendant moved to dismiss each of the indictments insofar as it purported to charge a felony on the grounds that the language was insufficient to allege the use of a deadly weapon. His first assignment of error is directed to the denial of the motions.

Defendant bases his argument upon the failure of the bills of indictment to allege the operation of the truck in any manner which would render it a "deadly weapon" within the meaning of G.S. 14-32(c). He asserts that, in order to properly allege the use of a motor vehicle as a deadly weapon, the indictment "must allege the acts which constitute unlawful operation of the motor vehicle and must further allege injury to some person as the result of the unlawful operation." We disagree.

The requirements for an indictment charging the offense of assault with a deadly weapon were fully discussed and set out by our Supreme Court in State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 410-411 (1977).

Specifically, with regard to an indictment or warrant charging the offense of assault with a deadly weapon, we said in State v. Wiggs, supra, 269 N.C. [507] at 513, 153 S.E.2d [84] at 89 [ (1967) ]:

"The requisites of an indictment or warrant charging the criminal offense of assault with a deadly weapon are set forth in 6 C.J.S., Assault and Battery § 110g(2), as follows: `In an indictment for an assault with a deadly or dangerous weapon, the dangerous or deadly character of the weapon must be averred, either in the language of the statute, or by a statement of facts from which the court can see that it necessarily was such. It is only necessary, however, to describe and charge the weapon to be deadly or dangerous where it is a weapon the ordinary name of which does not, ex vi termini, import its deadly or dangerous character; if it is a weapon the ordinary name of which imports its deadly or dangerous character, ex vi termini, it is sufficient to describe it by its name, without alleging that it was a deadly or dangerous weapon.'"

Guided by the foregoing principles, we hold that it is sufficient for indictments or warrants seeking to charge a crime in which one of the elements is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a "deadly weapon" or to allege such facts as would necessarily demonstrate the deadly character of the weapon. Whether the state can prove the allegation is, of course, a question of evidence which cannot be determined until trial. (emphasis original)

In Palmer, the Supreme Court held that an indictment which alleged that the defendant assaulted the victim "with a stick, a deadly weapon, by beating him about the body and head" was sufficient to allege the use of a deadly weapon.

Each of the indictments challenged by defendant names the two and one-half ton truck as the weapon used by defendant in committing the assault and expressly alleges that it was a "deadly weapon." The indictments were, therefore, sufficient to support the verdicts of guilty of felonious assault with a deadly weapon and the judgments based thereon.

By his second, third and fourth assignments of error, defendant challenges the sufficiency of the evidence to support his convictions of possession of a firearm by a convicted felon, felonious assault with a deadly weapon with intent to kill, and willful and wanton injury to personal property. He asserts error in the denial of his motions, made at the close of all the evidence, to dismiss each of those charges.

A motion for dismissal of criminal charges requires the trial court to determine whether there is substantial evidence of each essential element of the crime charged, or of a lesser included offense, and that the defendant is the person who committed the offense. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984). In ruling on the motion, the court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference which may be drawn from the evidence and resolving all inconsistencies in the State's favor. Id. The defendant's evidence, unless favorable to the State, is not to be considered. Id.

Defendant's second assignment of error is directed to the denial of his motion to dismiss the charge of possession of a firearm by a convicted felon. His argument is based upon the third paragraph of G.S. 14-415.1(a), which creates an exception to the offense defined by the subsection. The exception provides: "Nothing in this subsection would prohibit the right of any person to have possession of a firearm within his own home or on his lawful place of business." Defendant contends that he brought himself within the exception by testifying that he was on his own property, which adjoins the Whitfield property, when he fired the pistol, and that the State failed to offer substantial evidence that he possessed the firearm while off his own premises. See State v. McNeill, 78 N.C.App. 514, 337 S.E.2d 172 (1985), disc. rev. denied, 316 N.C. 383, 342 S.E.2d 904 (1986). We reject his argument.

According to the State's evidence, Randy Whitfield saw defendant arrive at the Whitfield residence in a pickup truck which "turned into my yard" and that the truck "stopped in the yard." James Walston testified that when he saw defendant with the pistol, defendant was standing "kind of at the back of his truck." The pistol appeared to Walston to be a .25 caliber pistol. After defendant threw the pistol on the ground, Mrs. Whitfield took it into her house. An S.B.I. agent testified that a .25 caliber pistol was found in the Whitfield residence after the incident and that spent .25 caliber rounds were found in the Whitfield's yard.

Viewed in the light most favorable to the State, the evidence that defendant's truck was in the Whitfield yard, that he was "kind of at the back" of the truck when he fired and that spent shells were found in the Whitfield's yard is sufficient to support a reasonable inference that defendant was on the Whitfield property at the time he fired the pistol. This assignment of error is overruled.

By his third assignment of error, defendant contends that each of the five charges of assault with a deadly weapon with intent to kill should have been dismissed. He argues that the State's evidence was insufficient to show that defendant used the two and one-half ton truck as a deadly weapon or that defendant possessed the specific intent to kill each of the five deputies who were named as victims in the five bills of indictment. We disagree.

The State's evidence tended to show that as defendant drove the truck toward the road where the deputies were located, he was waving one arm out the window and was screaming "Stand right there, you son of a bitches. I'll kill you." He drove the truck straight at the deputies before colliding with the two automobiles and running into the ditch. Viewed in the light most favorable to the State, the evidence raises reasonable inferences sufficient to take to the jury the issues of defendant's use of the truck as a deadly weapon and whether he acted with the requisite specific intent to kill the deputies.

For similar reasons, we overrule defendant's fourth assignment of error in which he contends that, because of his intoxication and his mental and emotional state, there was insufficient evidence that he "willfully and wantonly" ran into the two automobiles with the truck. The words "willful" and "wanton," when identifying the requisite state of mind for violation of a criminal statute, mean "the wrongful doing of an act without justification or excuse, or purposely and deliberately in violation of the law." State v. Murchinson, 39 N.C.App. 163, 170, 249 S.E.2d 871, 876 (1978). We hold that the evidence which we have previously recited is sufficient, when tested by the standards applicable to motions for dismissal, for submission to the jury on the issue of whether defendant acted "willfully and wantonly" in damaging the two automobiles.

Defendant's next assignment of error is directed to the denial of his oral request "that the jury be instructed on temporary insanity." We find no error in the court's ruling with respect to the request. Defendant offered no expert testimony tending to show that he was suffering from a mental disease or defect at the time of the events giving rise to the charges; his evidence merely tended to show voluntary intoxication as a result of alcohol and drug use. The trial court correctly instructed the jury that defendant's intoxication could be considered in determining whether defendant had the ability to form the specific intent to kill necessary for conviction of assault with a deadly weapon with intent to kill. This assignment of error is overruled.

Finally, defendant contends that the trial court erred in denying his oral request that the jury be instructed that defendant would not be responsible if his operation of the truck "was affected by the firing of weapons at him...." Again, we find no evidence to support such an instruction. There is no suggestion in the record that defendant was not in complete control of the truck at the time the alleged assaults and property damage took place. To the contrary, there was testimony tending to show that no shots were fired at defendant until after he had driven toward the officers and had struck Mrs. Whitfield's car and the patrol car. Even after shots were fired at defendant, Deputy Elks testified that defendant "was looking at me in the face and steering the truck in my direction" before running into the ditch. Defendant's evidence tended only to show that he could not remember the events. Absent any evidence to support the requested instruction, the trial court properly refused to give it. It would have been error for the court to instruct upon hypothetical facts not supported by the evidence. State v. Ferdinando, 298 N.C. 737, 260 S.E.2d 423 (1979).

No error.

PARKER and COZORT, JJ., concur.