                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-748

                                  Filed: 4 June 2019

Onslow County, No. 14 CRS 54309-10

STATE OF NORTH CAROLINA

                v.

REGINALD LEE JONES, Defendant.


      Appeal by Defendant from judgment entered 22 March 2018 by Judge Ebern

T. Watson III in Onslow County Superior Court. Heard in the Court of Appeals 16

January 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Oliver G.
      Wheeler, IV, for the State.

      The Epstein Law Firm, PLLC, by Drew Nelson, for defendant-appellant.


      MURPHY, Judge.


      Defendant argues the trial court erred in three ways regarding his prosecution

and conviction for discharging a weapon into an occupied dwelling, but fails to show

that the trial court erred (1) in entering its judgment against him for that offense, (2)

proceeding based on the State’s indictment, or (3) in failing to dismiss the charge for

insufficient evidence. We find no error in the trial court’s decisions relating to these

three issues.
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                                   Opinion of the Court



      However, although not properly preserved for appeal, we invoke Rule 2 of our

Rules of Appellate Procedure in order to prevent manifest injustice and vacate

Defendant’s conviction for assault by pointing a gun.

                                  BACKGROUND

      Defendant, Reginald Lee Jones, was found guilty of (1) discharging a firearm

into an occupied dwelling, (2) assault with a deadly weapon, and (3) assault by

pointing a gun. In a separate judgment, Defendant was found guilty of fleeing to

elude arrest, but does not appeal any issues related thereto. The charges stem from

an incident where Defendant fired multiple gunshots in the direction of an individual

and his house.

      On the evening of 6 July 2014, Defendant was seen slowly driving by and

looking at a residence in Onslow County. Eventually, Defendant got out of his car

and started yelling at an individual standing near the residence, “Teekay,” and

“calling out” the individuals inside the house, challenging them to come outside. The

exchange escalated to the point where Defendant pulled out a handgun and fired two

shots at Teekay. At least one of the two shots went into the exterior wall of the house,

at which point the homeowner, Antonio Holley (“Holley”), went to the doorway and

yelled that Defendant “ain’t doing nothing” but firing shots into the air. Defendant

responded by firing two shots at Holley, who was still standing in the doorway of his

house, one of which hit him in the arm. Shortly thereafter, a second man inside the



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house returned fire in Defendant’s direction, and Defendant drove away.          Upon

investigating the scene, police noted damage to Holley’s house and the surrounding

area.

        Defendant was indicted by a Grand Jury for (1) littering, (2) fleeing to elude

arrest with a motor vehicle, (3) assault with a deadly weapon with the intent to kill

inflicting serious injury, (4) assault by intentionally pointing a gun at a person

without legal justification, and (5) discharging a firearm into an occupied dwelling.

At trial, the State abandoned the littering charge. The jury returned guilty verdicts

on the charges of fleeing to elude arrest, assault with a deadly weapon, assault by

pointing a gun, and discharging a firearm into an occupied dwelling, and the trial

court entered judgment accordingly. Defendant timely appeals and presents four

arguments for our consideration.

                                      ANALYSIS

                          A. The Trial Court’s Judgment
        Defendant first argues the trial court’s judgment finding him guilty of Class D

discharging a firearm into an occupied dwelling is inconsistent with the jury verdict

finding him guilty of “felonious discharging a firearm into an occupied property.”

        N.C.G.S. § 14-34.1 sets out three levels of felony offense for “Discharging

certain barreled weapons or a firearm into occupied property.” N.C.G.S. § 14-34.1

(2017). It is a Class C felony to discharge a firearm into an occupied property where

“the violation results in serious bodily injury to any person,” a Class D felony where

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the weapon is discharged “into an occupied dwelling,” and a Class E felony where the

weapon is discharged “into any building, structure, vehicle, aircraft, [etc.]”       Id.

Defendant argues the jury only found him guilty of the Class E offense, so the trial

court erred by entering judgment for the Class D offense under N.C.G.S. § 14-34.1.

The record indicates otherwise.

      Defendant was indicted for discharging “a firearm into an occupied dwelling, a

building, . . . while it was actually occupied by [Holley] and [another man].” As such,

Defendant was on notice from the commencement of this case that the State sought

the Class D offense. On the indictment form, the State listed N.C.G.S. § 14-34.1(c) as

the statute Defendant allegedly violated, but chose to abandon the “serious bodily

injury” portion before charging the jury. After doing so, the State told the trial court

it “should be able to proceed on the [charge of] discharging a weapon into an occupied

property or dwelling.” The trial court agreed and used the State’s imprecise language,

conflating property with dwelling, throughout the remainder of Defendant’s trial.

      During the jury charge, the trial court instructed, “[D]efendant has been

charged with discharging a firearm into occupied property.” However, the trial court

went on to describe that property exclusively and repeatedly as Holley’s “house[:]”

             The defendant has been charged with discharging a
             firearm into occupied property. For you to find the
             defendant guilty of this offense, the state must prove three
             things, beyond a reasonable doubt.          First, that the
             defendant willfully or wantonly discharged a firearm into
             a house at [Holley’s address]. . . . Second, that [Holley’s]


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                                   Opinion of the Court



              house . . . was occupied by one or more persons at the time
              that the firearm was discharged. Third, that the defendant
              knew that [Holley’s] house . . . was occupied by one or more
              persons.

Based on that instruction, when the jury found Defendant guilty of “discharging a

firearm into an occupied property[,]” the property to which they referred was Holley’s

“house” described throughout their instruction.

       We have previously held that “dwelling” under N.C.G.S. § 14-34.1(b) is

synonymous with “apartment,” State v. Bryant, 244 N.C. App. 102, 107-08, 779 S.E.2d

508, 512-13 (2015), and “residence.” State v. Curry, 203 N.C. App. 375, 382, 692

S.E.2d 129, 136 (2010). Similarly, Black’s Law Dictionary defines “house” as “[a]

dwelling;” and the word “dwelling” is itself shorthand for “dwelling-house.” Black's

Law Dictionary (9th ed. 2009). Furthermore, in Curry we held a verdict sheet finding

the defendant “guilty of discharging a firearm into occupied property”—the same as

the verdict sheet here—was a sufficient basis for the trial court to enter judgment for

the Class D offense under N.C.G.S. § 14-34.1(b). Curry, 203 N.C. App. at 382-83, 692

S.E.2d at 136. The trial court’s judgment sentencing Defendant for the Class D felony

of discharging a firearm into an occupied dwelling is consistent with the record and

the jury’s guilty verdict.

                                    B. Indictment
       Defendant next argues we “should arrest the judgment against [Defendant] for

discharging a weapon into an occupied dwelling due to a fatal defect in the


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indictment.” Defendant argues the indictment was fatally flawed because it charged

him with discharging a weapon into occupied property causing serious bodily injury,

but “failed to allege that any injury resulted from the discharging of the firearm into

the occupied property.” We disagree.

       Defendant’s argument is based on the indictment’s reference to “[N.C.G.S. §]

14-34.1(c)” as being the violated statute. However, we have previously held that the

statutory reference on an indictment “is surplusage and can be disregarded.” State

v. Jones, 110 N.C. App. 289, 292, 429 S.E.2d 410, 412 (1993). The body of Defendant’s

indictment charges him, in relevant part, with “unlawfully, willfully, and feloniously

[discharging] . . . a firearm into an occupied dwelling . . . .” “[I]t is not the function of

an indictment to bind the hands of the State with technical rules of pleading; rather,

its purposes are to identify clearly the crime being charged.” State v. Sturdivant, 304

N.C. 293, 311, 283 S.E.2d 719, 731 (1981). Here, Defendant’s indictment clearly

identifies the crime being charged.          Furthermore, as was the case in Jones,

“Defendant cannot complain that [he] was unaware of the acts for which [he] was

charged and if anything . . . benefited by the State’s decision to proceed [under

N.C.G.S. § 14-34.1(b)] because it reduced [his] level of punishment from a Class C to

a Class D felony.” Jones, 110 N.C. App. at 292, 429 S.E.2d at 413. The indictment

was not fatally defective, and we need not arrest judgment.

                       C. Dismissal for Insufficient Evidence
1.     Discharging a Firearm into an Occupied Dwelling

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      Defendant’s third argument is that the trial court “erred by failing to dismiss

the charge of discharging a weapon into an occupied property.”           Specifically,

Defendant argues the State “failed to demonstrate that [Defendant] knew the

property was occupied when he fired the first two shots” into Holley’s house and that

the charge should have been dismissed for insufficient evidence.

      “When reviewing a sufficiency of the evidence claim, this Court considers

whether the evidence, taken in the light most favorable to the [S]tate and allowing

every reasonable inference to be drawn therefrom, constitutes substantial evidence

of each element of the crime charged.” State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d

239, 261 (2008) (internal quotation marks omitted). “Substantial evidence” is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion. Id.

      One is guilty of felony discharging a firearm into an occupied dwelling where

he intentionally discharges a firearm into a building that he knows, or “has

reasonable grounds to believe,” is occupied by one or more persons. State v. Williams,

284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973). Eyewitness Gary John (“John”) testified

that, before discharging his firearm, Defendant stepped out of his car and loudly

“called out” the individuals inside Holley’s house, challenging them to come outside.

John had been standing in the doorway of Holley’s house and speaking with Holley

just a few minutes earlier when Defendant slowly drove past, looking at the dwelling.



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                                   Opinion of the Court



Viewed in the light most favorable to the State, a reasonable mind might certainly

accept the above evidence as adequate to support the conclusion that Defendant

knowingly discharged a firearm into a dwelling he knew to be occupied.

      Substantial evidence indicates Defendant intentionally discharged a firearm

into a dwelling he knew or had reasonable grounds to believe was occupied at the

time, and the trial court did not err in declining to dismiss this charge for insufficient

evidence.

2.    Assault by Pointing a Gun

      In his final argument on appeal, Defendant contends the trial court erred in

failing to dismiss one of the assault charges against him because the evidence

presented at trial “supported only a single assault charge.” At trial, Defendant’s

counsel never moved to dismiss the assault charges against him, which renders this

argument unpreserved for appellate review.           N.C. R. App. P. 10(a)(1) (2019).

Nevertheless, Defendant argues we should invoke Rule 2 to reach this error and

“prevent manifest injustice.”

      In urging us to invoke Rule 2, Defendant argues he could not properly be

charged for two separate assaults on Holley—one by pointing a gun and the other

with a deadly weapon (as a result of the gunshots)—based on the evidence presented

at trial. These charges are related but distinct, and Defendant was indeed convicted

of both based upon his actions directed toward Holley.



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                                   Opinion of the Court



      After careful review of the record, we agree with Defendant’s contention that

the only evidence regarding the two alleged assaults came from John’s testimony

that, “the victim . . . Holley, comes out yelling, ‘You ain’t doing nothing. You’re just

shooting in the air.’ That was—the reaction from that was two more bam bams, quick

double taps, from the shooter.” This testimony is the sole evidence for Defendant’s

two assault convictions. The State does not argue otherwise, or point us to any other

facts from which a reasonable mind might infer Defendant assaulted Holley. We

invoke Rule 2 in order to reach this issue and prevent manifest injustice to Defendant.

      We have held, “In order for a defendant to be charged with multiple counts of

assault, there must be multiple assaults.        This requires evidence of a distinct

interruption in the original assault followed by a second assault.” State v. Maddox,

159 N.C. App. 127, 132-33, 583 S.E.2d 601, 604-05 (2003) (internal citation and

quotation marks omitted) (declining to find multiple distinct assaults where the

evidence “indicate[d] that all five shots were fired in rapid succession”); see also State

v. Brooks, 138 N.C. App. 185, 190, 530 S.E.2d 849, 852-53 (2000) (allowing only one

assault charge where three gunshots were fired almost simultaneously).               “The

elements of the offense of assault by pointing a gun are: (1) pointing a gun at a person;

(2) without legal justification.” State v. Dickens, 162 N.C. App. 632, 638, 592 S.E.2d

567, 572 (2004); see N.C.G.S. § 14-34 (2017). “The elements of the offense of assault

with a deadly weapon are: (1) an assault of a person; (2) with a deadly weapon.” Id.;



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                                  Opinion of the Court



see N.C.G.S. § 14-33(c)(1) (2017).     An individual could be charged with both

substantive offenses for acts broken up by a distinct interruption—such as keeping

the gun aimed at the victim for a brief period or taking a moment of contemplation

before firing the gun at the victim and thereby committing a distinct assault with the

deadly firearm—but the cold record in this case evinces no such interruption.

       Defendant’s two assault charges arise out of two acts that occurred in rapid

succession and seemingly without interruption: raising his gun and firing.        The

evidence here is not sufficient to allow a reasonable mind to conclude there was any

interruption in Defendant’s act of raising his gun and firing at Holley such that he

could have been convicted of two separate assaults. We vacate the trial court’s

judgment as to the assault by pointing a gun conviction in order to prevent a manifest

injustice.

       During sentencing, the trial court ordered, “under the Class D felony of

discharging a weapon into occupied property, assault by pointing a gun and assault

with a deadly weapon, all of those are consolidated for one judgment, under the Class

D[.]” Defendant’s prior felony record level was I, and he was sentenced to an active

sentence, near the top of the presumptive range, of 60 to 84 months. Where multiple

convictions are consolidated into one judgment “but one of the convictions was

entered in error, the proper remedy is to remand for resentencing when the appellate

courts are unable to determine what weight, if any, the trial court gave each of the



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separate convictions in calculating the sentences imposed upon the defendant.” State

v. Hardy, 242 N.C. App. 146, 160, 774 S.E.2d 410, 420 (2015) (internal alterations

and citation omitted). As we are unable to determine what weight, if any, the trial

court gave to the erroneously entered assault conviction, we must remand for

resentencing.

                                   CONCLUSION

      Defendant fails to show that the trial court erred in entering its judgment

against him for discharging a firearm into an occupied dwelling, proceeding based on

the State’s indictment, or in failing to dismiss the charge of discharging a firearm

into an occupied dwelling. Although not properly preserved for appeal, we invoke

Rule 2 to vacate the charge of assault by pointing a gun in order to prevent a manifest

injustice, and remand for resentencing.

    NO ERROR           IN   PART;    VACATED         IN   PART;   REMANDED        FOR
RESENTENCING.

      Judges DILLON and ARROWOOD concur.




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