                             NO. COA13-1100

                    NORTH CAROLINA COURT OF APPEALS

                          Filed: 15 April 2014


STATE OF NORTH CAROLINA


       v.                            Person County
                                     Nos. 12 CRS 51030—32, 13 CRS
                                     361—62
HUBERT ALLEN,
     Defendant.


       Appeal by defendant from judgments entered 18 April 2013 by

Judge Michael R. Morgan in Person County Superior Court.     Heard

in the Court of Appeals 5 March 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Laura Edwards Parker, for the State.

       Appellate Defender Staples Hughes, by Assistant Appellate
       Defender   Charlesena  Elliott   Walker,  for  defendant-
       appellant.


       BRYANT, Judge.


       A claim of ineffective assistance of counsel will be denied

where defendant cannot show how his counsel’s error prejudiced

him.    Where the trial court gave jury instructions as to self-

defense on four out of five charges and where defendant agreed
                                        -2-
that   he   was    satisfied   with     the   jury   instructions,     defendant

cannot show plain error.

       At 7:00 p.m. on 15 June 2012, the Roxboro Police Department

received a call about a shooting on Highway 501.                  When officers

arrived at the scene, they saw a car with shattered front and

back windows on the passenger’s side and multiple bullet holes

in the front driver’s and passenger’s doors, in the head rest on

the front passenger side, and inside the car.                 The driver of the

car, Crystal Barker, had a bullet graze wound to her shoulder.

Barker’s boyfriend, Bryant Richardson, had also been in the car

at the time of the shooting but was not hurt.                        Barker told

Officer Mills that a red SUV pulled alongside her while she was

driving and the SUV’s driver fired multiple shots into her car

before   speeding     away.    Police    searched    Barker    and   Richardson,

then searched Barker’s car where they found bullets and bullet

fragments but no weapons.

       After receiving information from a confidential informant

regarding    the    shooting,    the     Roxboro     police    responded   to   a

residence on Holeman Ashley Road.                A burgundy SUV was found

parked behind the residence.            Upon entering the residence, the

police encountered defendant Hubert Allen.               Defendant was taken
                                          -3-
into custody, and a loaded handgun was recovered from a table

next to him.

      At the police station, defendant waived his Miranda rights

and gave a statement to Detective Shull in which he admitted to

shooting at Barker’s car.            Defendant stated that while driving

down Highway 501, he received threatening messages, then saw a

man leaning out of a car making a hand gesture towards him in

imitation of a gun.          Defendant told Detective Shull that this

man, later identified as Richardson, then fired shots towards

defendant.       Defendant stated that he returned fire at Barker’s

car because he felt threatened.

      On    15   June    2012,   a   Person     County       grand   jury   indicted

defendant on one count each of assaulting Richardson with a

deadly weapon with intent to kill, assaulting Barker with a

deadly weapon with intent to kill and inflicting serious injury,

discharging a firearm into an occupied vehicle, attempted first-

degree murder of Barker, and attempted first-degree murder of

Richardson.      On 18 April 2013, a jury convicted defendant on all

charges.     The jury also found the existence of an aggravating

factor, that “defendant knowingly created a great risk of death

to   more   than   one    person     by   means   of     a    weapon   which   would

normally be hazardous to the lives of more than one person.”
                                         -4-
The trial court found the aggravating factor outweighed three

mitigating factors and entered two judgments, each sentencing

defendant    to   a    term   of   157    to        201   months,   to   be   served

consecutively.     Defendant appeals.

                              ________________________

    On appeal, defendant raises two issues: (I) whether trial

counsel     provided    defendant     with          ineffective     assistance    of

counsel; and (II) whether the trial court committed plain error

with regard to jury instructions.

                                               I.

    Defendant first argues that trial counsel provided him with

ineffective assistance of counsel.               We disagree.

    "In general, claims of ineffective assistance of counsel

should be considered through motions for appropriate relief and

not on direct appeal."         State v. Stroud, 147 N.C. App. 549, 553,

557 S.E.2d 544, 547 (2001) (citations omitted).

            It is well established that ineffective
            assistance of counsel claims "brought on
            direct review will be decided on the merits
            when the cold record reveals that no further
            investigation is required, i.e., claims that
            may be developed and argued without such
            ancillary procedures as the appointment of
            investigators or an evidentiary hearing."
            Thus, when this Court reviews ineffective
            assistance of counsel claims on direct
            appeal and determines that they have been
            brought prematurely, we dismiss those claims
                              -5-
         without prejudice, allowing defendant[s] to
         bring them pursuant to a subsequent motion
         for appropriate relief in the trial court.

State v. Thompson, 359 N.C. 77, 122—23, 604 S.E.2d 850, 881

(2004) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d

500, 524—25 (2001)).

              Criminal defendants are entitled to the
         effective assistance of counsel.      When a
         defendant attacks his conviction on the
         basis that counsel was ineffective, he must
         show that his counsel's conduct fell below
         an objective standard of reasonableness. In
         order to meet this burden [the] defendant
         must satisfy a two part test.

              First, the defendant must show that
         counsel's performance was deficient.     This
         requires showing that counsel made errors so
         serious that counsel was not functioning as
         the “counsel” guaranteed the defendant by
         the Sixth Amendment.   Second, the defendant
         must show that the deficient performance
         prejudiced the defense.       This requires
         showing   that  counsel's  errors   were   so
         serious as to deprive the defendant of a
         fair   trial,  a   trial  whose   result   is
         reliable.

              In considering [ineffective assistance
         of counsel] claims, if a reviewing court can
         determine at the outset that there is no
         reasonable probability that in the absence
         of counsel's alleged errors the result of
         the proceeding would have been different,
         then the court need not determine whether
         counsel's    performance     was    actually
         deficient.

State v. Boozer, 210 N.C. App. 371, 382—83, 707 S.E.2d 756, 765
                                        -6-
(2011) (citations and quotation omitted), disc. review denied,

365 N.C. 543, 720 S.E.2d 667 (2012).                   “Judicial scrutiny of

counsel's performance must be highly deferential.”                       Strickland

v. Washington, 466 U.S. 668, 689 (1984).                      "Trial counsel are

necessarily      given   wide   latitude      in    these     matters    [of   trial

strategy].       Ineffective assistance of counsel claims are not

intended   to    promote   judicial     second-guessing         on    questions    of

strategy as basic as the handling of a witness."                          State v.

Milano,    297    N.C.   485,   495—96,       256    S.E.2d    154,     160    (1979)

(citation and quotation omitted), overruled on other grounds by

State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).

            A fair assessment of attorney performance
            requires that every effort be made to
            eliminate    the     distorting     effects    of
            hindsight, to reconstruct the circumstances
            of counsel's challenged conduct, and to
            evaluate    the    conduct     from    counsel's
            perspective at the time.         Because of the
            difficulties     inherent     in    making    the
            evaluation, a court must indulge a strong
            presumption   that    counsel's conduct     falls
            within   the    wide    range    of   reasonable
            professional assistance . . . .

Strickland, 466 U.S. at 689 (citation omitted).

    Defendant       contends     that     his       counsel     was     ineffective

because: she “pro-actively elicited a hearsay statement” that

conflicted with his claim of self-defense; she failed to object

to evidence that he sold drugs on a prior occasion; and she
                                              -7-
failed    to   move      to    dismiss      the     charges    at     the    close    of     the

evidence.      Because the record reveals no further investigation

is   required,      we   review       defendant’s        ineffective        assistance       of

counsel claims.

       Defendant pursued a self-defense strategy at trial and now

argues on appeal that his counsel elicited hearsay testimony

that    contradicted          his    self-defense      claim.         The    testimony       in

question concerned the statements of a confidential informant

that were included in Officer Williams’ police report.                                      The

State     questioned          Officer      Williams      as    to    his     role     in    the

investigation, to which Officer Williams responded that his job

was to find the shooter and that he solicited information to

that     effect.         On     cross-examination,            defense       counsel        asked

“follow-up”        questions         seeking      further       explanation          of    what

Officer     Williams           had     done     to    “find         the     shooter,”        and

specifically,         what     the    confidential          informant       had   told     him.

Officer Williams testified that the confidential informant said

that the shooting was a result of a “drug deal that went bad”

and that Richardson had been “in Roxboro in a silver and gray

vehicle,       just      like        the      victim’s        vehicle,       looking        for

[defendant]”        because          defendant       owed     him     money,      and      that
                                             -8-
Richardson had told defendant “to have his money or there would

be war.”

       Defendant’s      self-defense           theory        was        that     Richardson

believed defendant owed him money for drugs, that Richardson

threatened     defendant,      and      that       Richardson         came     looking    for

defendant.     Richardson started shooting at defendant when he saw

him,    at   which     point    defendant           shot    back        in   self-defense.

Therefore,     it    appears    from     the       record        that    defense       counsel

elicited     the    hearsay    testimony       as     part       of     defendant’s     self-

defense      trial     strategy,        as     the     confidential             informant’s

statements     bolstered       defendant’s            self-defense             strategy    by

showing why defendant felt threatened by Richardson and fired at

Barker’s car.         Such evidence does not contradict defendant’s

self-defense strategy.            Further, even without the admission of

the confidential informant’s statement concerning a “drug deal

that went bad,” there was sufficient evidence presented by which

a jury could determine if defendant fired at Barker’s car in

self-defense,        regardless    of    whether           the    shooting       was    drug-

related.

       Defendant next contends he received ineffective assistance

of counsel because his            counsel          failed to object to evidence

concerning defendant’s selling of drugs on a prior occasion.
                                    -9-
When defendant testified on his own behalf, his counsel asked

him questions regarding when he purchased a handgun and why;

defendant responded that he purchased the gun in March 2012

after   he   began   receiving    threatening     messages.         Defendant

further testified that he had “never been convicted of nothing.”

On   cross-examination,     the   State   asked   defendant    to    further

clarify his statements concerning the handgun, the threatening

messages, and his record.         Perhaps, as defendant alleges, his

counsel may have been deficient in failing to object to evidence

of defendant selling drugs.       However, as we discuss infra, even

if defense counsel was deficient in that one instance, there is

no reasonable possibility that this error affected the outcome

of the case.

      Defendant   further    argues   that   he    received    ineffective

assistance of counsel because his          counsel failed to move to

dismiss the charges at the close of the evidence.             Specifically,

defendant contends that had defense counsel moved to dismiss the

charges at the close of the evidence, the trial court “likely

would have dismissed” the attempted murder and assault charges

because the evidence was insufficient to show an intent to kill.

Likewise, defendant contends, the trial court “likely would have

dismissed” the charge of assault on Barker with a deadly weapon
                              -10-
with intent to kill inflicting serious injury because Barker’s

bullet graze wound was not serious.

               In weighing the sufficiency of the
         evidence, the trial court considers all
         evidence    admitted   at   trial,    whether
         competent or incompetent: . . . in the light
         most favorable to the State, giving the
         State   the   benefit  of  every   reasonable
         inference that might be drawn therefrom.
         Any contradictions or discrepancies in the
         evidence are for resolution by the jury.
         The trial judge must decide whether there is
         substantial evidence of each element of the
         offense charged. Substantial evidence is
         such relevant evidence as a reasonable mind
         might accept as adequate to support a
         conclusion.

State v. Cox, 190 N.C. App. 714, 720, 661 S.E.2d 294, 299 (2008)

(citations omitted).   The trial judge must merely ensure that

there exists   substantial evidence    as to   each element of the

offense; the jury’s job is to     determine beyond a reasonable

doubt whether the evidence proves the defendant was guilty of

the offense.   State v. Matias, 354 N.C. 549, 551—52, 556 S.E.2d

269, 270 (2001) (citations omitted).

    "The elements of attempted first-degree murder are: (1) a

specific intent to kill another; (2) an overt act calculated to

carry out that intent, which goes beyond mere preparation; (3)

malice, premeditation, and deliberation accompanying the act;

and (4) failure to complete the intended killing."        State v.
                                    -11-
Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004) (citations

omitted).     "The elements of assault with a deadly weapon with

intent to kill inflicting serious injury are: (1) an assault,

(2) with the use of a deadly weapon, (3) with an intent to kill,

and (4) inflicting serious injury, not resulting in death."            Id.

"The requisite 'intent to kill' 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."     State    v.

Musselwhite, 59 N.C. App. 477, 480, 297 S.E.2d 181, 184 (1982)

(citation omitted).

      To show defendant had intent to kill Barker and Richardson,

the State presented evidence that: defendant admitted he sped up

to reach Barker’s car before firing into it; defendant fired

directly into Barker’s car at close range; defendant’s multiple

shots fired directly at the car resulted in bullet holes in the

front driver and passenger doors, the front passenger seat, and

the   front   passenger’s   seat    headrest;   bullets   shattered    both

windows on the passenger’s side; and Barker sustained a bullet

wound to her shoulder.         Defendant admitted that he could have,

but did not, call 911 at any time between when he received the

threats and the shooting.          This evidence, viewed in the light

most favorable to the State,          is   sufficient to establish     the
                                         -12-
element    of   intent     for   the     charges      of   attempted      murder   and

assault.     See id.; see also State v. Davis, 349 N.C. 1, 37, 506

S.E.2d 455, 475 (1998) (holding that to show intent where a

firearm    is   used   against      a    victim,      "[t]he   malice       or   intent

follows the bullet." (citations omitted)).

    Defendant also contends that because Barker’s bullet graze

wound was not serious the trial court would have dismissed the

offense of assault with a deadly weapon with intent to kill

inflicting      serious    injury       upon    a   proper   motion    to    dismiss.

Defendant contends Barker’s injury was not serious because its

treatment did not require hospitalization or medication, nor did

it cause Barker to miss work.                  “Serious injury” means physical

or bodily injury, but not death, resulting from an assault with

a deadly weapon.          State v. Joyner, 295 N.C. 55, 65, 243 S.E.2d

367, 373—74 (1978) (citations omitted).                    Whether serious injury

has been inflicted depends on the particular facts of each case

and is a question for the jury.                     State v. Ferguson, 261 N.C.

558, 560, 135 S.E.2d 626, 628 (1964).                   “[A]s long as the State

presents evidence that the victim sustained a physical injury as

a result of an assault by the defendant, it is for the jury to

determine    the   question      of     whether      the   injury   was     serious."

State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994)
                                       -13-
(citation omitted).           "The trial court is required to submit

lesser included degrees of the crime charged in the indictment

when . . . there is evidence of guilt of the lesser degrees."

State v. Simpson, 299 N.C. 377, 381, 261 S.E.2d 661, 663 (1980)

(citations omitted).

      The trial court, at the request of defense counsel and in

light    of     the   evidence     presented   as    to    the    seriousness     of

Barker’s injury, instructed the jury as to all lesser-included

charges for the offense of assault with a deadly weapon with

intent to kill inflicting serious injury: assault with a deadly

weapon    with     intent    to    kill,   assault    with    a    deadly    weapon

inflicting serious injury, and assault with a deadly weapon.

The     trial     court     also    defined    “serious      injury”        in   its

instructions to the jury.             As such, “[w]hether serious injury

ha[d] been inflicted” to Barker was a question for the jury to

decide based upon the evidence presented.                 Ferguson, 261 N.C. at

560, 135 S.E.2d at 628; see also State v. Stephens, 347 N.C.

352, 493 S.E.2d 435 (1997) (bullet graze wound to the face was a

serious injury); Alexander, 337 N.C. 182, 446 S.E.2d 83 (cuts to

the victim’s arm from glass shattered by a bullet constituted a

serious injury); State v. Bell, 87 N.C. App. 626, 362 S.E.2d 288

(1987) (bullet graze wound above the eye was a serious injury).
                                            -14-
Where “the evidence is sufficient to support a conviction, the

defendant is not prejudiced by his counsel's failure to make a

motion to dismiss at the close of all the evidence.”                               State v.

Fraley,    202    N.C.      App.    457,    467,    688    S.E.2d    778,     786    (2010)

(citation omitted).            Given the record in this case and the case

law    noted    above       regarding      what    facts    may    constitute       serious

injury,    there       is    no    likelihood      the     trial    court     would    have

dismissed the charge of assault with a deadly weapon with intent

to kill inflicting serious injury had defense counsel made a

motion to dismiss.

       Reviewing        the       record     in     its     entirety,         plaintiff’s

ineffective       assistance        of     counsel       claim     must    fail.       Even

assuming arguendo that defense counsel was deficient in failing

to     object    to     testimony        regarding       defendant        selling    drugs,

defendant has failed to show how this testimony prejudiced him.

“The    fact    that    counsel      made    an    error,     even    an     unreasonable

error, does not warrant reversal of a conviction unless there is

a reasonable probability that, but for counsel's errors, there

would have been a different result in the proceedings.”                               State

v.    Braswell,       312   N.C.    553,    563,    324    S.E.2d    241,     248    (1985)

(citation omitted).               “After examining the record we conclude

that there is no reasonable probability that any of the alleged
                                          -15-
errors    of    defendant's       counsel    affected     the    outcome   of    the

trial.”         Id.   at   563,     324     S.E.2d   at   249.         Accordingly,

defendant’s       arguments       are     overruled,      and    his     claim    of

ineffective assistance of counsel denied.

                                          II.

    Defendant next argues that the trial court committed plain

error in failing to instruct the jury on self-defense for the

charge of discharging a firearm into an occupied vehicle.                         We

disagree.

                    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.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotation omitted).

    Defendant contends the trial court committed plain error in

failing to instruct the jury on self-defense as it related to

the charge of discharging a firearm into an occupied vehicle.

Specifically, defendant argues that “the trial court acted under

a misapprehension of the law” in its decision not to give a

self-defense instruction.           Defendant’s argument lacks merit, as
                                      -16-
a   review   of   the    record   indicates      that   the    trial      court   gave

sufficient instruction to the jury on self-defense.

      In its instructions to the jury on the charges of attempted

first-degree murder and assault, the trial court instructed the

jury as to self-defense for each charge.                      For the charge of

discharging a firearm into an occupied vehicle, the trial court

did not give the full instruction on self-defense, but rather

stated that the jury must find whether defendant committed this

offense without justification or excuse.                In a jury instruction

conference held outside of the jury’s presence, defendant agreed

to this instruction, stating that: “Your Honor, the defendant

agrees    that    the     self-defense       instruction       has     been       given

multiple, multiple times here, and also that your Honor gave

within his instructions on this particular charge, added without

justification qualifications.           The defendant is satisfied, your

Honor.”

      This   Court      has   held   that   "a    charge      must   be    construed

contextually,     and    isolated    portions     of    it    will   not    be     held

prejudicial when the charge as a whole is correct."                         State v.

Gaines, 283 N.C. 33, 43, 194 S.E.2d 839, 846 (1973) (citations

omitted).

             Where the charge as a whole presents the law
             fairly and clearly to the jury, the fact
                                        -17-
            that isolated expressions, standing alone,
            might be considered erroneous affords no
            grounds for a reversal.   Technical errors
            which are not substantial and which could
            not have affected the result will not be
            held prejudicial.

State v. Jones, 294 N.C. 642, 653, 243 S.E.2d 118, 125 (1978)

(citations omitted).

      Here, it is clear from the record that “the trial court

unmistakably       placed    the   burden      of    proof       upon   the    State    to

satisfy the jury beyond a reasonable doubt that defendant did

not act in self-defense” when he shot at Barker’s car.                          See id.

at 654, 243 S.E.2d at 125.              Furthermore, as the jury convicted

defendant     of    the     attempted    first-degree        murder      and    assault

charges even though each of these offenses was given with a

self-defense instruction, it seems unlikely that the jury would

have reached a different result had the trial court given a full

instruction    on    self-defense       for    the    charge       of   discharging      a

firearm into an occupied vehicle.               Moreover, defendant accepted

the   trial    court’s       proposed     instruction,            stating     that     the

repetition of the self-defense instruction for the other four

charges, coupled with a clear instruction that the jury must

determine     whether       defendant    discharged          a     firearm     into     an

occupied      vehicle        without     justification            or    excuse,        was

sufficient.        As defendant has failed to show fundamental error
                                     -18-
or prejudice, his argument is accordingly overruled.                  See id. at

654, 243 S.E.2d at 125. (“We think the jury clearly understood

that   the    burden   was   upon   the   State   to   satisfy   it    beyond   a

reasonable doubt that defendant did not act in self-defense and

clearly      understood   the   circumstances     under    which      it   should

return a verdict of not guilty by reason of self-defense.”); see

also State v. Creasman, No. COA02-1498, 2003 N.C. App. LEXIS

1249 (July 1, 2003) (holding that where the trial court gave

full self-defense instructions for the first two charges against

the defendant, the defendant was not prejudiced where the trial

court did not give a full self-defense instruction as to a third

charge).           We find no error in the judgment of the trial

court.    Defendant’s claim of ineffective assistance is denied.

       No error.

       Judges STEPHENS and DILLON concur.
