State v. O'BRIANT , 43 N.C. App. 341 ( 1979 )

258 S.E.2d 839 (1979) 43 N.C. App. 341

STATE of North Carolina
v.
Jimmy Ray O'BRIANT.

No. 7810SC552.

Court of Appeals of North Carolina.

October 16, 1979.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

Purser & Barrett by George R. Barrett, Raleigh, for defendant-appellant.

PARKER, Judge.

Appellant's sole contention is that the court erred in entering judgment against him because as a matter of law the evidence was insufficient to sustain the verdict. We do not agree.

At the outset we note that the appellant is entitled to present for appellate review the question of whether the evidence was sufficient as a matter of law to sustain the verdict even though at trial he failed to renew at the close of all of the evidence the motion for nonsuit which he made at the close of the State's evidence. G.S. 15A-1446(d)(5), which replaced former G.S. 15-173.1, expressly so provides, and the contention to the contrary in the State's brief is not sustained.

Viewing the evidence in the light most favorable to the State, we find it sufficient to sustain the verdict. In this State a criminal assault may be accomplished either by an overt act on the part of the accused evidencing an intentional offer or attempt by force and violence to do injury to the person of another or by the "show of violence" on the part of the accused sufficient to cause a reasonable apprehension of immediate bodily harm on the part of the person assailed which causes him to engage in a course of conduct which he would not otherwise have followed. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (1967); State v. Lassiter, 18 N.C.App. 208, 196 S.E.2d 592 (1973); State v. Hill, 6 N.C.App. 365, 170 S.E.2d 99 (1969). Thus, in North Carolina, there are two rules, either or both of which may be applied in prosecuting a person accused of an assault. The first places emphasis on the intent or state of mind of the person accused. Under the second, which is sometimes referred to as the "show of violence" rule, emphasis is shifted to a consideration of the apprehension of the person assailed and the reasonableness of that apprehension. State v. Roberts, supra; See Note, "Show of Violence" Rule in North Carolina, 36 N.C.L.Rev. 198 (1958). While the evidence in the present case would probably support a jury verdict finding defendant guilty of assault with a deadly weapon no matter which of the above rules is applied, see State v. Sawyer, 29 N.C.App. 505, 225 S.E.2d 328 (1976), we find it unnecessary so to decide. In our opinion the evidence was clearly sufficient under the second, or "show of violence," rule.

The evidence in this case, when viewed in the light most favorable to the State, would support a jury finding that the defendant, armed with a loaded shotgun, went searching for his estranged wife with the avowed intent to "blow her head off;" while so engaged he came upon her while she was walking along a public road; on seeing her, he stopped the automobile in which he was driving, picked up the shotgun, and thrust the barrel of the gun out of the car window; the shotgun was fired, and defendant's wife, in reasonable apprehension for her safety, fled across the road to seek the shelter of a nearby store. On these facts, defendant would be guilty of committing an assault with a deadly weapon, a misdemeanor under G.S. 14-33(b)(1) which is a lesser included offense of the felony charged in the bill of indictment. It is immaterial that the shotgun may never have been actually pointed at defendant's wife or that when discharged the pellets may not have traveled in her direction. It is even immaterial whether the gun was fired at all. Under the circumstances disclosed by the evidence in this case, the assault with use of a deadly weapon was complete when defendant thrust the barrel of the shotgun out of the car window. On this evidence a rational finder of the facts could reasonably have found defendant guilty beyond a reasonable doubt of the offense of which the jury found him guilty. See Jackson v. Virginia, ___ U.S. ___, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

Appellant did not except to any portion of the court's charge to the jury. As above noted, his sole contention is that the evidence was insufficient to support the verdict.

We find

No Error.

ROBERT M. MARTIN and HARRY C. MARTIN, JJ., concur.