State v. Lynch
| Decision Date | 02 December 2014 |
| Docket Number | No. COA13–1193.,COA13–1193. |
| Citation | 767 S.E.2d 705 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Tremayne Antione LYNCH. |
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State.
McCotter Ashton, P.A., by Rudolph A. Ashton, III, for defendant-appellant.
Tremayne Antione Lynch (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of felony assault with a deadly weapon with the intent to kill (“AWDWIK”) and felony discharge of a weapon into an occupied vehicle. We find no error in defendant's trial. However, we remand for correction of a clerical error.
On 29 March 2012, the driver of a white van (“the van”) on Barnes Street in Sharpsburg, North Carolina, positioned his vehicle close to a Toyota Camry (“the Camry”) driven by Terrance Carr (“Carr”). Defendant, along with another man, Matthew Leake (“Leake”), exited the van. Both men carried handguns. Defendant, wearing a blue bandana covering his face, chased Carr around the Camry. Carr attempted to escape by jumping into the Camry's front seat. Defendant fired a shot through the front windshield, opened the driver's side door, and tried to remove Carr from the vehicle by pulling his legs. In the process, Carr's shorts and underwear were also removed. Defendant aimed another shot at Carr, but missed. After Leake's firearm jammed as he attempted to shoot into the back window of the Camry, he reached through the open door and struck Carr in the face with his firearm.
As Carr attempted to leave the parking space, his Camry struck a parked vehicle. Carr reversed the Camry with the driver's side door still open, dragging defendant and Leake. The Camry hit the van, and Carr escaped from his assailants.
Officer Willie Hopkins, III (“Officer Hopkins”), Captain Ron Thompson (“Capt.Thompson”), and other Sharpsburg Police Department officers responded to investigate. The officers discovered bullet holes in the Camry's windshield, bullets lodged in the driver's seat and back seat, and numerous shell casings of various sizes and calibers. The officers also found $1,840 in cash, 21 grams of a hard off-white substance, and a plastic bag containing a green leafy substance inside Carr's discarded shorts.
Capt. Thompson interviewed defendant, Carr, Leake, and Andrew Leake (“Andrew”). Carr identified the men who assaulted him as Leake and “Pocco,” defendant's nickname. Carr also identified defendant in a photo lineup. Leake indicated that he, his brother Andrew, Tavoris Battle, and defendant were the men in the white van on the day of the incident.
Defendant was arrested and charged with AWDWIK and discharging a firearm into an occupied vehicle. At trial, the State presented several witnesses, including Carr, Leake, Officer Hopkins, and Capt. Thompson. At the close of the State's evidence, defendant unsuccessfully moved to dismiss the offenses. Defendant did not present any evidence and renewed the motion to dismiss. The trial court again denied the motion. On 5 June 2013, the jury returned verdicts finding defendant guilty of both offenses. Defendant was sentenced to two consecutive sentences of a minimum of 33 months to a maximum of 52 months in the custody of the North Carolina Division of Adult Correction. Defendant appeals.
Defendant argues that the trial court erred by overruling his objection to Capt. Thompson's testimony and allowing him to testify that Carr was “confident” as to the identity of the man who fired the weapon at him. Specifically, defendant contends that Capt. Thompson offered an opinion regarding Carr's credibility. We disagree.
“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” N.C. Gen.Stat. § 8C–1, Rule 602 (2013). “The purpose of Rule 602 is to prevent a witness from testifying to a fact of which he has no direct personal knowledge, and [p]ersonal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.” State v. Sharpless,––– N.C.App. ––––, ––––, 725 S.E.2d 894, 899 (2012) (citations and internal quotation marks omitted).
In the instant case, defendant challenges the following portion of Capt. Thompson's testimony:
[The Court]: Overruled.
[Capt. Thompson]: Yes, sir.
[District Attorney]: And who did he say that was?
A: It was Pocco, Tremayne Lynch.
Defendant cites State v. Hewett,93 N.C.App. 1, 376 S.E.2d 467 (1989) to support his contention that his objection to Capt. Thompson's testimony should have been sustained because it was impermissible on direct examination. Defendant contends that the State was basically trying to vouch for the character and truthfulness of Carr, the prosecuting witness. In Hewett,a child victim was asked during re-direct examination whether she had testified truthfully. Id.at 15, 376 S.E.2d at 476. On appeal, the defendant argued that the victim's testimony in response to the State's questions regarding truthfulness constituted improper character evidence. Id.,376 S.E.2d at 475. This Court held that the victim's testimony was not improper since the question was analogous to a question in which a witness makes an in-court identification of someone and the State asks “Are you sure that person was the one you saw?” Id.,376 S.E.2d at 476.
In the instant case, the State asked Capt. Thompson whether the person he interviewed was confident about the identity of his assailant. The State did not ask Capt. Thompson any questions regarding whether he believed Carr was being truthful or whether Carr had testified truthfully. Capt. Thompson asked Carr the same type of question that this Court held was proper in Hewett.In essence, Capt. Thompson asked Carr, “Are you sure that person was the one who fired the weapon?” Since Capt. Thompson had an opportunity to observe Carr during the interview, and testified regarding Carr's demeanor during the interview according to his own personal observations that Carr appeared confident in his identification of defendant as one of the individuals involved in the assault, Capt. Thompson did not offer an opinion that he believed Carr was being truthful. Therefore, this argument is overruled.
Defendant argues that the trial court erred in denying his motion to dismiss the AWDWIK offense. Defendant contends there was insufficient evidence to support the element of the intent to kill. We disagree.
“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). “When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” Id.N.C. Gen.Stat. § 14–32(c) (2013) provides that “[a]ny person who assaults another person with a deadly weapon with intent to kill shall be punished as a Class E felon.”
In making a determination regarding a motion to dismiss, “the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose,339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994). Moreover, “if the trial court determines that a reasonableinference of the defendant's guilt maybe drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Alexander,337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (citation omitted).
In the instant case, since defendant concedes that shooting into an occupied vehicle with a handgun is an assault with a deadly weapon, there is no dispute that defendant is the perpetrator. However, defendant claims that an essential element of the offense is missing because he only intended to scare Carr, and did not intend to kill Carr. Defendant cites three cases, State v. Ferguson,261 N.C. 558, 135 S.E.2d 626 (1964), State v. Thacker,281 N.C. 447, 189 S.E.2d 145 (1972), and State v. White,307 N.C. 42, 296 S.E.2d 267 (1982), to support his contention that an assault with a deadly weapon, even one inflicting serious injury, does not establish the intent to kill. In Ferguson,the Court stated that “[a]n intent to kill is a mental attitude” which must be proved by circumstantial evidence. 261 N.C. at 561, 135 S.E.2d at 629 (citation omitted). The Court granted the defendant a new trial because the trial court's jury instructions indicated that the jury could find the defendant guilty of AWDWIK even if the jury found that the defendant only intended to “inflict great bodily harm” upon the victim. Id.,135 S.E.2d at 628.
In Thacker,the Court reiterated the premise in Ferguson,stating that 281 N.C. at 455, 189 S.E.2d at 150.
In White,the defendant stabbed the victim over twenty times in the neck and chest with an ice pick before announcing that he intended to kill the victim with a switchblade knife. 307 N.C. at 49, 296 S.E.2d at 271. The Court held that “mere proof of an assault with a deadly weapon inflicting serious injury does not by itself establish an intent to kill[,]” and that “the nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances are all matters from which an intent to...
To continue reading
Request your trial