State v. McCormick
| Decision Date | 04 February 2020 |
| Docket Number | No. COA19-680,COA19-680 |
| Citation | 837 S.E.2d 383 (Table) |
| Parties | STATE of North Carolina v. Damion MCCORMICK |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Katherine A. Murphy, for the State.
William D. Spence, for defendant.
Damion McCormick ("defendant") appeals from judgment entered on his conviction for assault with a deadly weapon with intent to kill inflicting serious injury. Defendant contends the trial court erred by denying his motion to dismiss the charge against him and plainly erred in instructing the jury on flight. Defendant also raises an ineffective assistance of counsel claim. For the following reasons, we find no error and decline to review his claim of ineffective assistance of counsel.
On 11 August 2014, defendant was indicted on charges of assault with a deadly weapon with intent to kill inflicting serious injury, attempted robbery with a dangerous weapon, and attempted first-degree murder. On 6 September 2016, a grand jury issued a superseding indictment for assault with a deadly weapon with intent to kill inflicting serious injury and attempted first-degree murder. The matter came on for trial on 19 February 2018. The evidence at trial tended to show the following.
On 20 February 2014, William T. Washington, Jr. ("Mr. Washington") hosted a cookout at the mobile home he lived in with his son, his girlfriend Kimberly Turpin ("Ms. Turpin"), and Ms. Turpin’s three children. Around 6:30 p.m., Adrienna McCormick ("Ms. McCormick"), defendant’s mother, went into the mobile home and began speaking with Ms. Turpin. Defendant went over as well and asked his mother what she was doing there. Ms. McCormick and Mr. Washington had previously had a sexual relationship which had ended prior to the date of the cookout. Ms. McCormick told defendant she would return home soon. While Ms. Turpin and Ms. McCormick continued their conversation, Mr. Washington went into the kitchen to make himself a salad.
As Mr. Washington was making his salad, defendant asked to speak with him about his mother. Mr. Washington told defendant there was nothing to talk about because their relationship was over. Defendant then asked Mr. Washington to step outside with him, so they went out onto the small back porch. While on the porch, defendant asked Mr. Washington if he was selling drugs to his mother, and Mr. Washington said that he was not. Defendant then asked Mr. Washington what was in his pockets, and began reaching for them. Mr. Washington had by then noticed defendant was carrying a gun, so he pushed defendant back and reached for the doorknob to his home. Before he could return inside, defendant shot at him several times. Mr. Washington collapsed onto the porch when the first bullet hit his leg, and then felt more bullets strike his body. Ultimately, defendant shot Mr. Washington five times, hitting him three times in the leg, once in the stomach, and once in the wrist. Defendant then took off running. Mr. Washington called out for his son, telling him that he had been shot.
Ms. Turpin witnessed some of the altercation between defendant and Mr. Washington. She noticed them "tussling" with each other shortly before she heard several gunshots. Once the gunfire stopped, Ms. Turpin went out onto the porch and found Mr. Washington sitting on the porch steps bleeding from several wounds. She called 911 and instructed her children to bring towels and place pressure on the wounds until an ambulance arrived. Mr. Washington was transported to the hospital and treated for gunshot wounds to his leg, abdomen, and wrist. Doctors were unable to remove the bullet from his abdomen. Mr. Washington was unable to recover full use of his arm, and he required several months of physical therapy before he was able to walk again.
On 5 March 2014, Mr. Washington identified defendant from a photo lineup, but the Robeson County Sherriff’s Office was unable to locate defendant because he had so many addresses. On 13 March 2014, defendant was apprehended following a traffic stop. During the traffic stop, defendant ran from the car and was chased by Officer Joseph Smith ("Officer Smith") of the Lumberton Police Department. Officer Smith saw defendant toss a gun onto a nearby roof as he was running. Officer Smith was able to apprehend defendant and retrieve the .38 caliber gun, which was the same type of gun used to shoot Mr. Washington. Defendant’s case was originally set for trial on 22 May 2017, but was rescheduled after defendant failed to appear on that date. On 23 February 2018, a jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was sentenced to a minimum of 70 months to a maximum of 96 months in prison. On 27 September 2018, we granted defendant’s petition for writ of certiorari to review the trial court’s judgment.
Defendant raises three arguments on appeal, contending that the trial court erred in the first place by denying his motion to dismiss the charges against him for insufficient evidence. In the event this Court deems his motion to dismiss was not properly made, defendant argues he was denied effective assistance of counsel. Lastly, defendant contends the trial court committed plain error by instructing the jury on flight. We disagree.
This Court reviews the denial of a motion to dismiss for insufficient evidence de novo . State v. Bagley , 183 N.C. App. 514, 526, 644 S.E.2d 615, 623 (2007) (citations omitted). The motion is properly denied if "there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch , 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citing State v. Mercer , 317 N.C. 87, 96, 343 S.E.2d 885, 890 (1986) ). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Miller , 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (quotation marks and citations omitted). "When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Rouse , 198 N.C. App. 378, 381, 679 S.E.2d 520, 523 (2009) (citing State v. Mitchell , 109 N.C. App. 222, 224, 426 S.E.2d 443, 444 (1993) ).
At trial, defendant properly made a general motion to dismiss the charges against him for insufficient evidence at both the close of the State’s evidence and at the close of all the evidence. The trial court denied both motions. Upon his conviction of assault with a deadly weapon with intent to kill inflicting serious injury, defendant now argues the trial court erred in denying his motion because the State failed to present sufficient evidence of his intent to kill, an essential element of the crime charged. See State v. McLean , 211 N.C. App. 321, 324, 712 S.E.2d 271, 275 (2011) (quoting State v. Reid , 335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994) ) ( that "[t]he essential elements of assault with a deadly weapon with intent to kill inflicting serious injury are: ‘(1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death.’ ").
An intent to kill is a mental attitude that may be proven by circumstantial evidence, "that is, by proving facts from which the fact sought to be proven may be reasonably inferred." State v. Stewart , 231 N.C. App. 134, 146, 750 S.E.2d 875, 882 (2013) (quoting State v. Cauley , 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956) ). Such intent "may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances." Id., (quoting Cauley , 244 N.C. at 708, 94 S.E.2d at 921 ).
In State v. Wilkes , we held the evidence presented at trial was sufficient to support an inference that the defendant intended to kill his victim where the defendant repeatedly hit his then-wife over the head with a baseball bat until she lost consciousness. 225 N.C. App. 233, 237, 736 S.E.2d 582, 586 (2013). The evidence showed the wounds could have been fatal, the victim did not fight back, and the assault continued even after she fell to her knees. Id. at 237-38, 736 S.E.2d at 586. In addition, the parties’ volatile domestic relationship and the defendant’s admission he assaulted his wife out of fear he would lose her to another man following her petition for divorce further supported an inference of the defendant’s intent to kill. Id. at 238, 736 S.E.2d at 586.
In State v. Maddox , the defendant shot at the victim five times as the victim attempted to flee. 159 N.C. App. 127, 132, 583 S.E.2d 601, 604 (2003). Reasoning that the nature and manner of the assault and the weapon used constituted substantial evidence that the defendant intended to kill the victim, we upheld the denial of the defendant’s motion to dismiss for insufficient evidence of intent to kill. Id. We reached a similar conclusion in State v. Cain , holding that the defendant’s "requisite ‘intent to kill’ can be reasonably inferred by the defendant’s use of a .357 magnum revolver, fired numerous times." 79 N.C. App. 35, 47, 338 S.E.2d 898, 905 (1986).
In the present case, the evidence showed defendant shot Mr. Washington five times, at close range. In keeping with our reasoning in Cain and Maddox , defendant’s intent to kill can be reasonably inferred from his use of a handgun, fired numerous times at Mr. Washington. Though that alone suffices, other facts provide further evidence of defendant’s intent to kill. Similar to the facts of Wilkes , Mr. Washington’s wounds could have been fatal and defendant continued his assault even after Mr. Washington collapsed on the porch steps after the first gunshot to his leg. The evidence also showed defendant...
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