An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                NO. COA13-879
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


STATE OF NORTH CAROLINA

      v.                                      Wayne County
                                              Nos. 12 CRS 50818-19
DAVID STEVENSON STOCKS, JR.



      Appeal by Defendant from judgments entered 21 December 2012

by Judge Arnold O. Jones, II, in Wayne County Superior Court.

Heard in the Court of Appeals 27 January 2014.


      Attorney 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 review, we find no plain error.

                                 I. Background

      The    State    adduced    evidence     that    on   17    February     2012,

Defendant’s wife, Laura, announced that she was moving out of
                                                -2-
their residence and taking their eight-year-old son with her.

Laura also told Defendant 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 to

Defendant’s       relationship           with    Laura.        Already          “upset”      about

Laura’s decision            to move out,          Defendant “told [her] that he

didn’t want [her] brother there.”

         On the morning of 18 February 2012, Defendant had a drink

before borrowing Laura’s truck to run an errand.                                Morgan arrived

at the residence with a rented U-Haul truck, accompanied by his

girlfriend, Jennifer Calarco, a detective with the New Hanover

County Sheriff’s Office.                 Brenda and Daniel Stocks, Defendant’s

mother     and    brother,        also    came        over   to    the        residence      while

Defendant was gone.

         When she had finished packing, Laura called Defendant and

asked him to bring her truck home so that she could leave.                                     She

then warned Morgan and Colarco that Defendant had placed a rifle

in   a    blue   van   parked       in    the     driveway;        however,           Defendant’s

mother     retrieved        the    rifle        from     the      van        before    Defendant

returned and took it to her residence next door.                                Morgan pulled

the U-Haul “out to the main drive that’s in front of their

house” to wait for Laura.
                                           -3-
       Approximately        fifteen    minutes      after    Laura’s       phone   call,

Defendant “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,

Defendant became “[v]ery angry” and asked, “[D]o you think that

makes a damn?” – which Morgan interpreted as a reference 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    right    about      where    the   window     was[,]”       from   a

distance of no more than thirty feet.                       Though “in awe of the

fact that somebody was pointing a loaded gun at me,” Morgan

managed to drive the U-Haul forward before Defendant fired.                            The

shot hit the back of the vehicle, 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

officers received another call about a “vehicle crash . . .

possibly being the suspect[.]”                Officers responded to the one-

vehicle accident and found Defendant standing beside a blue van

less   than    a     mile   from    his    residence.         On    the    way    to   the
                                            -4-
sheriff’s annex, Defendant stated “that he wasn’t thinking and

was   mad    and    that    she     was    taking    his    kid.”        During     formal

questioning,       however,       Defendant       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 that, that he didn’t do the shooting,

he hadn’t shot at anybody that day[.]”

      On     appeal,       Defendant       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, 553-54, 583 S.E.2d 379,

385 (2003).         By assigning plain error, Defendant concedes that

he    failed       to   request      the    instruction           during     the    charge

conference1 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-
standard of review as follows:

            For error to constitute 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 defendant 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      an

instruction on a lesser included offense.               State v. Annadale,

329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991).              Rather,
                                   -6-
          when 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. Bullard, 97 N.C. App. 496, 498, 389 S.E.2d 123, 124

(1990) (citations omitted).

     Here, the State proceeded on an “all or nothing basis” on

the charges of assault with a deadly weapon with intent to kill.

See id.   “Thus, the trial judge needed only to instruct the jury

on a lesser included offense if the defendant presented evidence

of the lesser included 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).        Neither 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 553-54, 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-
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, the State’s evidence of Defendant’s

intent was not conflicting.              See Riley, 159 N.C. App. at 554,

583 S.E.2d at 385.             Morgan testified that Defendant 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, where it was intentionally aimed and it hit the

back of the truck[.]”            Calarco likewise testified, “I remembered

seeing [Defendant] 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 Defendant at the time of trial, purported not to

remember exactly where Defendant aimed the shotgun, other than

“[i]n the area of the truck.”              However, she acknowledged giving
                                     -8-
a written statement immediately after the shooting in which she

affirmed that Defendant “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,      “What   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 have 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 said to contradict Morgan’s

more definite account.2

      As Defendant notes, the trial court cited the fact that “no

shots   were   fired   at   the   passenger     area   of    the    vehicle”   in

dismissing the charge of attempted murder at the conclusion of

the State’s evidence.       However, the court viewed Defendant’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 Defendant lacked the intent to kill:

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

2
  Morgan and Laura did offer differing accounts of whether
Defendant “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 to being attempted first degree
            murder . . . .

Inasmuch as Morgan drove the U-Haul forward as Defendant fired

the shotgun, the location of the shot’s impact did not amount to

conflicting evidence of Defendant’s intent.

    Nor did Defendant 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 supported the

defense’s theory that no shooting had occurred.                 Defendant’s

mother and brother denied that Defendant possessed or fired a

gun on 12 February 2012.        They both averred that Defendant 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

this rifle had been left 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 discredit

the State’s eyewitnesses, Defendant’s cross examination focused

on the facts that no gunshot residue testing had been conducted

to determine whether Defendant in fact fired a gun and that no

weapons    or   ammunition   were   found   at   the   scene   or   recovered

thereafter.
                                        -10-
    Even assuming error by the trial court,                      its    failure to

instruct the jury on assault with a deadly weapon did 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    failed     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      casts   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).
