An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedur e.

NO. COA 1 3

- 879 NORTH CAROLINA COURT OF APPEALS Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Wayne County No s . 12 CRS 5 0818

- 19 DAVID STEVENSON STOCKS, JR.

Appeal by D efendant from judgment s entered 21 December 201 2 by Judge Arnold O. Jones, II, in Wayne County Superior Court. Heard in the Court of Appeals 27 January 2014
.

A ttorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch , for the State. W. Michael Spivey for Defendant
.

DILLON , Judge.
Defendant appeals from judgments entered upon his conviction of discharging a weapon into a moving vehicle and two counts of assault with a deadly weapon with intent to kill
. After careful r eview, we find no plain error. I. Background The State adduced evidence that on 17 F e bruary 2012,
D efendant’s wife, Laura, announced that she was moving out of- 2
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their residence and taking their eight

- year - old son with her.
Laura also told D efendant that her brother, James Morgan, would be coming to the house the next morning to help her move. Defendant and Morgan had a history of “ill will” due in part t o
D efendant’s relationship with Laura. A lready “upset” about Laura’s decision to move out , D efendant “told [ her ] that he did n’t want [her] brother there.” On th e morning of 18 February 201 2 , D efendant had a drink before borrow ing Laura’s truck to run an errand
. Morgan arrived at the residence with a rented U

- Haul truck , accompanied by his girlfriend, Jen nifer Calarco, a detective with the New Hanover County Sheriff’s Office. Brenda and Daniel Stocks, D efendant’s mother and brother, also came over to the residence while
D efendant was gone. When she had finished packing, Laura called D efendant and asked hi m to bring her truck home so that she could leave. She then warned Morgan and Colarco that D efendant had placed a rifle in a blue van parked in the driveway ; however, Defendant’s mother retrieved the rifle from the van before D efendant returned and took it to her residence next door. Morgan pulled the U

- Haul “out to the main drive that’s in front of t heir house” to wait for Laura.- 3
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Approximately fifteen minutes a fter Laura’s phone call,
D efendant “c[a]me flying in the driveway” in her truck. He exited the vehicle and walked past Morgan’s open window on the driver’s side of the U

- Haul. Seeing Morgan and Calarco,
D efendant became “[v]ery angry” and asked, “[D]o you think that makes a damn?”

– which Morgan interpreted as a referen ce to Calarco’s status as a law enforcement officer. Defendant continued into his house and came back outside with a shotgun. Standing on the top step of his front porch, he loaded the shotgun and “pointed it right at where [Morgan was] sitting, like righ t about where the window was[,]” from a distance of no more than thirty feet. T hough “in awe of the fact that somebody was pointing a loaded gun at me,” Morgan managed to d rive the U

- Haul forward before D efendant fired. The shot hit the back of the vehic le, sending pellets through the rear door and into the cargo area
. Morgan and Calarco called 911 and drove to a nearby church parking lot. While speaking to Morgan and Calarco, the investigating officer s received another call about a “vehicle crash
. . . possibly being the suspect[.]” O fficer s responded to the one vehicle accident and found D efendant standing beside a blue van less than a mile from his residence
. On the way to the- 4
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sheriff’s annex, D efendant stated “that he wasn’t thinking and
was mad a nd that she wa s taking his kid.” During formal questioning , however, D efendant told detectives “that he was upset about his 8 year old child being taken away from him and his wife leaving,” but “said he didn’t own anything, any shotguns or anything like t hat, that he didn’t do the shooting, he hadn’ t shot at anybody that day[.]”
O n appeal, D efendant contends that the trial court committed plain error in failing to instruct the jury on the offense of assault with a deadly weapon as a lesser included offense of assault with a deadly weapon with intent to kill.
See State v. Riley , 159 N.C. App. 546, 55 3

- 5 4, 583 S.E.2d 379, 385 (2003)
. By assigning plain error, D efendant concedes that he failed to requ est the instruction during the charge conference 1 or object to the jury instructions as given. See N.C.R. App. P. 10(a)(2), (4). II. Analysis Our Supreme Court has recently clarified the plain error

1 Although the trial court solicited “ objections or suggestions to either the jury charge or the verdict sheet[,]” the court did not “ specifically ask [] defense counsel if there were any lesser included offenses ” to be submitted to the jury. State v. Gay , 334 N.C. 467, 485, 434 S.E.2d 840, 850 (1993) (holding that
“ defendant foreclosed any inclination of the trial court to instruct on the lesser included offense and is not entitled to any relief on appeal ”)
.- 5
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standard of review as follows :

For error to constitut e plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice

— that, after examination of the entire record, the error had a probable impact on the jury ’ s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. The necessary examination is whether there was a probable impact on the verdict, not a possible one. In other words, the inquiry is whether the defendant has shown that, absent the error, the jury probably would have returned a different verdict.
State v. Carter ,

__ N.C.

__ , __, 739 S.E.2d 548 , 551 (2013) (citations and quotation marks omitted ). A “ ‘ trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that defend ant committed the lesser included offense. ’ ” State v. Petro , 167 N.C. App. 749, 752, 606 S.E.2d 425, 427 (2005) ( citation omitted ). The mere prospect that “ the jury could possibly believe some of the
State ’ s evidence but not all of it ” does not warrant a n instruction on a lesser included offense. State v. Annadale , 329 N.C. 557, 568, 406 S.E.2d 837 , 844 (1991) . Rather,- 6
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w hen the State seeks a conviction of only the greater offense and the case is tried on that all or nothing basis, the State ’ s evidence is not regarded as evidence of the lesser included offense unless it is conflicting; and that the lesser included offense must be submitted only when a defendant presents evidence thereof or when the State ’ s evidence is conflicting.
State v. Bu llard , 97 N.C. App. 496, 498, 389 S.E.2d 123, 124 (1990) (citations omitted)
. Here, t he State proceeded on an “all or nothing basis” on the charge s of assault with a deadly weapon with intent to kill. See i d. “ Thus, the trial judge needed only to instruc t the jury on a lesser included offense if the defendant presented evidence of the lesser i ncluded offense or if the State’ s evidence was conflicting. ” State v. Woody , 124 N.C. App. 296, 307, 477 S.E.2d 462, 467 (1996). N either circumstance appears in this

case .

“ The only difference in what the State must prove for the offense of misdemeanor assault with a deadly weapon and felony assault with a deadly weapon with intent to kill is the element of intent to kill. ” Riley , 159 N.C. App. at 55 3

- 5 4, 583 S.E .2d
at 385 . “ An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be- 7
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proven may be reasonably inferred. ” State v. Grigsby , 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (citations and quotation marks omitted). In this regard, our law provides that “ an assailant must be held to intend the natural consequences of his deliberate act. ” Id
. Accordingly, “ [w] here the defendant points a gun at the victim and pulls the trigger, this constitutes evidence from which intent to kill may be inferred. ” State v. Cromartie , 177 N.C. App. 73, 77, 627 S.E.2d 677, 680 (2006). Though circumstantial, t he State ’s evidence of D efendant’s intent was not conflict ing
. See Riley , 159 N.C. App. at 554, 583 S.E.2d at 385
. Morgan testified that D efendant aimed the shotgun directly at him before firing , but Morgan “ managed to go forward enough to where it didn’ t hit the door and the glass where, you know, wher e it was intentionally aimed and it hit the bac k of the truck [.]” Ca l ar c o likewise testified, “ I remembered seeing [D efendant] with a shotgun and looking at us, he then pointed the gun or . . . went to draw the gun up, and I remember looking at [Morgan] and saying you need to go. ” Laura, who had reconciled with D efendant at the time of trial, purported not to remember exactly where D efendant aimed the shotgun, other than

“ [i] n the area of the truck .” However, she acknowledged giving- 8
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a written statement immediately after the shooting in which she affirmed that D efendant “ pointed [the gun] at the cab of the truck [,]” and that “[h]e would have shot Jimmy” if the U

- Haul had not moved forward. Asked at trial, “W hat would have happened if the U

- Haul had not moved when [he] r husband shot [,]” Laura responded, “ I don’ t know. I mean I’ m sure it probably would h ave been ugly, but I mean I can’t speculate because I don’ t remember exactly where everything took place. ” Though equivocal, this testimony cannot be sai d to con trad ict Morgan’s more definite account. 2
As D efendant notes , t he trial court cited the fact that “no shots were fired at the passenger area of the vehicle” in dismiss ing the charge of attempted murder at the conclusion of the State’s evidence. However, the court viewed D efendant’s act of shooting the back of the moving U

- Haul as insufficiently “close” to a completed murder to qualify as an attempt

– not as proof that D ef endant lacked the intent to kill:

THE COURT: . . . Bottom line, I think there’s certainly enough evidence for the

2 M organ and Laura did offer differing accounts of whether D efendant “was reloading” the shotgun after he fired on the U

Haul, or merely “cracked it open and emptied the shell[.]” However, “ [t]he lack of multiple shots fired does not negate intent to kill. ” Cromartie , 177 N.C. App. at 77, 627 S.E.2d at 680.- 9
- assault with a deadly weapon with intent to kill to go to the jury. I do not believe there’s enough evidence that this case came so close t o being attempted first degree murder . . . . Inasmuch as Morgan drove the U

- Haul forward as D efendant fired the shotgun, the location of the shot’s impact did not amount to conflicting evi dence of D efendant’s intent. Nor did D efendant present evidence of the lesser included offense. See Bullard , 97 N.C. App. at 498, 389 S.E.2d at 124
. The defense called three witnesses , each of whom support ed the defense’s theory that no shooting had occurred. Defendant’s mother and brother denied that D efendant possessed or fired a gun on 12 February 2012. They both averred that D efendant had previously pawned or sold all of his guns ; that the blue van and the rifle removed from the van belonged to his mother ; and that th is rifle had been l eft in the van by her youngest son . The third defense witness , a neighbor, reported hearing no gunfire on the date in question. In addition to attempting to discr edit the State’s eyewitnesses, D efendant’s cross examination focused on the facts that no gunshot residue testing had been conducted to determine whether D efendant in fact fired a gun and that no
weapons or ammunition were found at the scene or recovered thereafter.- 10
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E ven a ssuming error by the trial court, its failure to instruct the jur y on assault with a deadly weapon d id not rise to the level of plain error. See Carter ,

__ N.C. at __, 739 S.E.2d at 551 (“ It is not necessary to engage in a discussion of whether an instruction on attempt should have been provided because defendant faile d to show that any such error was prejudicial. ”). Having reviewed the evidence in its entirety , we do not find it probable that the jury would have reached a different verdict if it had been instructed on the misdemeanor.
Nor is this the “ exceptional case ” in which the lack of a lesser included offense instruction ca sts doubt upon “ the fairness, integrity or public reputation of judicial proceedings .” Id
. ( citation omitted).
NO ERROR . Chief Judge MARTIN and Judge HUNTER, JR. concur. Report per Rule 30(e).