State v. Galloway

• Citation: 738 S.E.2d 412
• Decision Date: 19 March 2013
• Docket Number: No. COA12–1049.,COA12–1049.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Michael Wayne GALLOWAY.

738 S.E.2d 412

STATE of North Carolina

v.Michael Wayne GALLOWAY.

No. COA12–1049.

Court of Appeals of North Carolina.

March 19, 2013.

Appeal by Defendant from judgment entered 13 April 2012 by Judge William Z. Wood, Jr., in Stokes County Superior Court. Heard in the Court of Appeals 14 February 2013.

Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State.

Bushnaq Law Office, PLLC, by Faith S. Bushnaq, for Defendant.

DILLON, Judge.

On 13 April 2012, Michael Wayne Galloway (Defendant) was convicted by a jury of discharging a firearm into an occupied vehicle in operation, a Class D felony pursuant to N.C. Gen.Stat. § 14–34.1(b), in addition to three other charges. Defendant appeals only from his conviction for discharging a firearm into an occupied vehicle in operation. Defendant contends (1) that the indictment was insufficient to support his conviction because it failed to allege that the vehicle was “in operation”; and (2) that the trial court erred in denying his motion to dismiss this charge for insufficiency of the evidence. We hold that the indictment was sufficient only to support a conviction as to the lesser offense of discharging a firearm into an occupied vehicle, a Class E felony under N.C. Gen.Stat. § 14–34.1(a), and we accordingly vacate and remand to the trial court for entry of judgment as to this lesser offense. We find no error in the trial court's denial of Defendant's motion to dismiss.

I. Factual & Procedural Background

The evidence at trial tended to show the following: On 18 August 2011, Bradley Heath (Mr. Heath) was driving home from work in Walnut Cove, North Carolina, when he observed a dog in the middle of the intersection of Dodgetown Road and Highway 89. Both his driver side and passenger windows were open. Mr. Heath stopped at the intersection and waited for the dog to move out of the road. Mr. Heath then observed Defendant walking along the side of the road with a grocery bag in one hand. Defendant “said something to the dog and the dog came off the side of the road towards him.” Defendant then looked at Mr. Heath and said, “You run over that ... dog, I'll kill you.” Mr. Heath responded that he wasn't going to hit the dog, but that he was merely “waiting on the dern thing to get out of the road so [that he could] go home.” Mr. Heath testified that as he proceeded through the intersection, he “look[ed] back” and, “out of the corner of [his] eye[,]” observed Defendant pull “a small object ... out of his pocket [which] he [then] shot” in the direction of Mr. Heath's vehicle, producing a visible “flame.” Mr. Heath further testified that he knows “what a gun sounds like” based upon his experience with firearms and that he believed that Defendant had fired “a small caliber type gun because of the flash” and because of the sound emitted from the object. Defendant testified that he had set off a bottle rocket, not a firearm, and that he did not even own a firearm.

Mr. Heath contacted the police upon returning home that day to report the incident. Deputy Samuel Pegram (Deputy Pegram) of the Stokes County Sheriff's Office responded to Mr. Heath's 911 call and subsequently located Defendant “sitting off the side of the road beside a large flower pot” by a residence near where the alleged shooting had occurred. Deputy Pegram recovered a .22 caliber pistol from the flower pot and noted that one round had been fired. However, no bullet holes were found in Mr. Heath's vehicle or in the area where Defendant had purportedly fired a weapon.

At the close of all the evidence, Defendant moved to dismiss the charge of discharging a firearm into a vehicle in operation, arguing that even if the windows in Mr. Heath's vehicle had been down at the time of the alleged shooting, it would have been “virtually impossible” for a bullet to have passed through the cabin of the vehicle—based upon where Defendant was standing—without making contact with either Mr. Heath or the vehicle. However, the trial court concluded that there was sufficient evidence to submit the charge to the jury and denied the motion.

After the jury returned guilty verdicts on all charges, the trial court sentenced Defendant for each conviction, including a sentence within the presumptive range of 103 months to 133 months for discharging a firearm into an occupied vehicle in operation. Defendant appeals.

II. Analysis

A. Jury Instructions/Indictment

Defendant first contends that the trial “court erred by instructing the jury, and accepting its verdict of guilty, for the offense of shooting into an occupied vehicle in operation, a crime for which [Defendant] was not indicted.” (Emphasis added).

N.C. Gen.Stat. § 15A–924(a)(5) requires that an indictment set forth the following:

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 or defendants of the conduct which is the subject of the accusation.

N.C. Gen.Stat. § 15A–924 (a)(5) (2011); see also State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (“An indictment charging a statutory offense must allege all of the essential elements of the offense.”). “It is well settled that ‘a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.’ ” State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994) (citation omitted). Lack of jurisdiction in the trial court due to a fatally defective indictment requires “ ‘the appellate court ... to arrest judgment or vacate any order entered without authority.’ ” State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 836 (1993) (citation omitted).

Here, Defendant was charged with the offense of discharging a firearm into an occupied vehicle under N.C. Gen.Stat. § 14–34.1, which consists of three subsections:

(a) Any person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon ... into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class E felony.

(b) A person who willfully or wantonly discharges a weapon described in subsection (a) of this section into an occupied dwelling or into any occupied vehicle, aircraft, watercraft, or other conveyance that is in operation is guilty of a Class D felony.

(c) If a person violates this section and the violation results in serious bodily injury to any person, the person is guilty of a Class C felony.

N.C. Gen.Stat. § 14–34.1 (2011) (emphasis added). The trial court instructed the jury on the offense of discharging a firearm into a vehicle “that is in operation” under subsection (b), supra, and the jury returned a verdict convicting Defendant of that offense. Defendant now argues, in substance, that this conviction cannot stand because the charging indictment failed to specify that the vehicle was “in operation” at the time in question. We agree.

The indictment at issue reads as follows:

THE JURORS FOR THE STATE upon their oath present that on or about the 18th day of August, 2011 in the county named above, [Defendant] unlawfully, willfully, and feloniously did discharge a .22 caliber revolver, a firearm, into a 2000 Ford F–350 pick-up truck, a vehicle, at the intersection of Dodgetown Road and Highway 89 East in Walnut Cove, North Carolina, while it was actually occupied by Bradley Austin Heath.”

The indictment is captioned “DISCHARGING INTO OCCUPIED DWELLING/CONVEYENCE (CL.D)” and describes the charged offense as an “Offense in Violation of G.S. 14–34.1.”

We conclude that the indictment failed to properly allege the offense described under N.C. Gen.Stat. § 14–34.1(b), as it failed to specify that the vehicle was “in operation” at the time in question. The critical distinction between the Class E felony offense described under N.C. Gen.Stat. § 14–34.1(a) and the Class D felony offense described under N.C. Gen.Stat. § 14–34.1(b) is that the latter, elevated offense requires an additional element, namely that the vehicle be “in operation” at the time of the shooting. Here, the indictment's failure to draw this distinction by including the requisite “in operation” element rendered it insufficient to charge the elevated offense. Neither the language of the indictment—for instance, its placement of the vehicle “at the intersection of Dodgetown Road and Highway 89 East”—nor the caption's reference to a Class D felony with the notation “CL.D” cures this defect. Thus, the trial court's instruction on the charge of discharging a firearm into a vehicle in operation was error.

This Court's prior ruling in State v. Rodriguez, 192 N.C.App. 178, 664 S.E.2d 654 (2008), dictates our disposition of this issue. In Rodriguez, the defendant appealed from his two first degree kidnapping convictions, contending that the indictments were insufficient to support those convictions because they lacked the language required to elevate a kidnapping charge from second degree to first degree. Id. at 184–85, 664 S.E.2d at 658–59. This Court agreed and held as follows:

Because the indictments did not clearly allege the essential elements of first degree kidnapping—that the victims were seriously injured or not released in a safe place—they are insufficient to charge kidnapping in the first degree. However, the indictments are valid for second degree kidnapping. Because the jury found all of the elements of second-degree kidnapping beyond a reasonable doubt by virtue of its guilty verdict of first degree kidnapping, defendant stands convicted of second degree kidnapping under this indictment.

Id. at 185, 664 S.E.2d at 659 (emphasis added).

Here, the jury found all of the elements for the Class E felony offense of discharging a firearm into an occupied vehicle by virtue of its guilty verdict...