State v. Miller, COA19-66
| Citation | 267 N.C.App. 639,833 S.E.2d 644 |
| Decision Date | 01 October 2019 |
| Docket Number | No. COA19-66,COA19-66 |
| Parties | STATE of North Carolina v. Michael Dennis MILLER |
| Court | Court of Appeal of North Carolina (US) |
Attorney General Joshua H. Stein, by Assistant Attorney General Jason Caccamo, for the State.
Richard Croutharmel, Raleigh, for defendant-appellant.
Michael Dennis Miller (Defendant) appeals from Judgments entered upon his convictions for Assault with a Deadly Weapon Inflicting Serious Injury, Possession of a Firearm by a Felon, Discharge of a Weapon into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury, and Discharge of a Weapon into an Occupied Vehicle in Operation. On appeal to this Court, Defendant challenges only the trial court's imposition of judgment and sentencing on Discharging a Weapon into an Occupied Vehicle in Operation. The Record before us tends to show the following:
On 17 December 2016, Defendant, along with his girlfriend Jarrita Roark, Derek Osborne, and Jennifer Martin, attended a holiday party. On 18 December 2016, Defendant and Roark left the party around 1:30 A.M. and returned to Roark's house. Osborne and Martin arrived soon after. Defendant and Osborne remained outside on the porch. Roark and Martin entered the house. Shortly after, Defendant and Osborne began arguing. Defendant opened the door and yelled inside for Martin and Osborne to leave. A scuffle ensued between Defendant and Osborne. Martin and Roark came outside. Osborne and Martin began walking to Martin's car, while Defendant went inside. As Martin and Osborne reached Martin's car, Defendant returned to the porch with his gun and a fired a single shot into the air. Martin and Osborne got into the car. Martin, the driver, started the car and placed it in reverse. As Martin backed up, Defendant fired a second shot at the car. The shot entered the vehicle through the rear passenger window and struck Osborne in the neck. Martin applied pressure to the wound
while 911 was called and the parties waited for first responders. Defendant was identified as the shooter and detained.
Later in the morning of 18 December 2016, Warrants issued for Defendant's arrest on one count of Felonious Assault with Deadly Weapon Intent to Kill Inflicting Serious Injury. The following day, 19 December 2016, Warrants issued charging Defendant with Felonious Possession of Firearm by a Felon, Felonious Discharge of a Firearm into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury naming Osborne as the victim, and Felonious Discharge of a Firearm into an Occupied Vehicle in Operation naming Martin as the victim. Defendant was indicted on all charges on 30 October 2017.
On 11 September 2018, Defendant was tried before a jury in Wilkes County Superior Court. On 13 September 2018, the jury returned verdicts finding Defendant guilty of: Discharging a Weapon into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury; Discharging a Weapon into an Occupied Vehicle in Operation; Possession of a Firearm by a Felon; and Assault with a Deadly Weapon Inflicting Serious Injury.1 The trial court entered judgment and sentenced in four separate Judgments. The trial court entered two Judgments in file number 16 CRS 53498 imposing two concurrent sentences: (1) Discharge of a Weapon into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury, a Class C Felony, in which the trial court sentenced Defendant within the presumptive range to an active sentence of 83 to 112 months; and (2) Discharge of a Weapon into an Occupied Vehicle in Operation, a Class D Felony, in which the trial court sentenced Defendant within the presumptive range to a term of 73 to 100 months’ imprisonment. In file number 16 CRS 53483, the trial court entered Judgment on Defendant's conviction for Assault with a Deadly Weapon Inflicting Serious Injury, a Class E Felony, imposing a suspended sentence in the presumptive range of 29 to 47 months and placing Defendant on supervised probation for 36 months to run upon Defendant's release from incarceration. In file number 17 CRS 436, the trial court entered judgment on the Possession of a Firearm by a Felon conviction, a Class G Felony, within the presumptive range, to a suspended sentence of 14 to 26 months and again placing Defendant on supervised probation for 36 months to run upon his release from incarceration. On 14 September 2018, Defendant timely filed notice of appeal.
The sole issue on appeal is whether a defendant may be sentenced for two convictions for Discharging a Weapon into an Occupied Vehicle under two separate subsections of N.C. Gen. Stat. § 14-34.1 when a single shot was fired into a single vehicle with two occupants and, therefore, whether the trial court erred by not arresting judgment on the lesser of the two charges for Discharging a Weapon into an Occupied Vehicle in Operation under N.C. Gen. Stat. § 14-34.1(b).
Defendant challenges his sentence on legal rather than factual grounds, asserting the trial court erred as a matter of law by sentencing him twice under different subsections of N.C. Gen. Stat. § 14-34.1 for a single act. Thus, the issue before the Court is a question of law reviewed de novo . See , e.g ., State v. Hayes , 248 N.C. App. 414, 415, 788 S.E.2d 651, 652 (2016) ().
"A defendant properly preserves the issue of a sentencing error on appeal despite his failure to object during the sentencing hearing." State v. Paul , 231 N.C. App. 448, 449, 752 S.E.2d 252, 253 (2013). N.C. Gen. Stat. § 15A-1446(d)(18) (2017).
Defendant concedes he was properly indicted and tried on the two separate charges of Discharging a Weapon into an Occupied Vehicle. Rather, he appeals the imposition of judgment and his sentence under N.C. Gen. Stat. § 14-34.1(b) for Discharging a Weapon into an Occupied Vehicle in Operation. Specifically, he contends his act of firing a single shot into the vehicle occupied by Martin and Osborne only amounts to one violation of N.C. Gen. Stat. § 14-34.1, and therefore, the trial court should not have imposed judgment and sentenced him for both Discharging a Weapon into an Occupied Vehicle Inflicting Serious Bodily Injury under Section 14-34.1(c) and for Discharging a Weapon into an Occupied Vehicle in Operation under Section 14-34.1(b). Instead, he argues, the trial court was required to arrest judgment on the lesser offense once the jury found the Defendant guilty of both counts. We agree.
In relevant part, Section 14-34.1 provides:
N.C. Gen. Stat. § 14-34.1 (2017).
Section 14-34.1 is comprised of three subsections—(a), (b), and (c). Each subsection enumerates the class of felony constituted by a violation of Section 14-34.1, elevating the class when specific factors are satisfied. Subsection (a) lays out the initial Felony, a Class E. To elevate the offense enumerated in subsection (a) to that in subsection (b), a Class D Felony, the vehicle must be in operation. See State v. Galloway , 226 N.C. App. 100, 104, 738 S.E.2d 412, 414 (2013) ().
Subsection (c), a Class C Felony, provides the highest felony offense under Section 14-34.1. A violation of subsection (c) occurs when "a person violates this section and the violation results in serious bodily injury to any person[.]" N.C. Gen. Stat. § 14-34.1(c). Unlike subsection (b), which expressly refers to subsection (a), subsection (c) states "this section[,]" referring to Section 14-34.1 as a whole. A violation of Section 14-34.1 (a) or (b) may be elevated to a Class C Felony in accord with subsection (c) where serious bodily injury results to "any person[.]" Id. § 14-34.1(c) (emphasis added).
"The protection of the occupant(s) of the building was the primary concern and objective of the General Assembly when it enacted G.S. 14-34.1." State v. Williams , 284 N.C. 67, 72, 199 S.E.2d 409, 412 (1973).
[A] person is guilty of the felony created by G.S. 14-34.1 if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.
Id. at 73, 199 S.E.2d at 412. State v. Jones , 339 N.C. 114, 148, 451 S.E.2d 826, 844 (1994). As such, the required elements of the crime are: "(1) the willful or wanton discharging (2) of a firearm (3) into any building [or vehicle] (4) while it is occupied." State v. Jones , 104 N.C. App....
To continue reading
Request your trial