An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1244
                         NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


STATE OF NORTH CAROLINA

      v.                                      Columbus County
                                              Nos. 11 CRS 52691-92, 52694-95
ELIJAH JONES



      Appeal by Defendant from judgments entered 6 June 2013 by

Judge   Douglas     B.    Sasser   in   Columbus     County      Superior   Court.

Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy Cooper, by Special                    Deputy   Attorney
      General L. Michael Dodd, for the State.

      Parish & Cooke, by James R. Parish, for Defendant.


      STEPHENS, Judge.


      On 9 September 2011, Defendant Elijah Jones was indicted

for the first-degree murder of his wife, Joan                      Everette,     the

felonious     assault     of   Bobby    Ray   Shipman,     and    two   counts    of

discharging a weapon into occupied vehicles.                     The evidence at

Defendant’s trial in June 2013 tended to show the following:
                                            -2-
      Defendant      and    Everette        had      a    volatile         relationship           as

evidenced by, inter alia, a domestic violence protective order

(“DVPO”)     against      Defendant     that      Everette           obtained         in    October

2009.     By the date of the murder and assault in August 2011,

Everette had moved out of the marital home and was living at her

mother’s home.       Everette and Shipman had been dating for several

months, despite the fact that each was still married to other

people.        Defendant         was    aware        of       and    unhappy          about      the

relationship between Everette and Shipman.

      On 19 August 2011, Everette’s mother was in the hospital,

and Shipman spent the night with Everette in her mother’s home.

The next morning, Everette and Shipman drove to the hospital

together in Everette’s car.                 Once in the parking lot, Shipman

got   into   his    own    car    and    was      preparing          to    drive      away       when

Defendant’s     car       suddenly      pulled           up     between         his        car   and

Everette’s.         Defendant      emerged        from         his   car       and    pointed      a

handgun at Shipman.           Shipman laid down on the front seat and

pressed the gas pedal as multiple gunshots rang out.                                        Shipman

was   struck   by    three       bullets,      but       was    able      to    drive       to   the

hospital     emergency       room       where        he        underwent         surgery         and

ultimately survived his wounds.                 Everette was not so lucky.                       She
                                    -3-
had been struck and killed by a single gunshot to the head while

still sitting in her car.

    Shortly after the shootings, Defendant turned himself in at

the Columbus County Sheriff’s Department.             In his statement to

law enforcement officers, Defendant said that he had followed

his wife’s car to the hospital and, when he saw Shipman emerge

from the vehicle, Defendant “flipped” and started shooting.                 At

trial, Defendant denied any domestic violence against Everette.

He also testified that he had not fired at Everette and Shipman

to harm them, but rather to scare them and out of fear that

Shipman was going to shoot Defendant.

    The jury returned guilty verdicts on all four counts.                  The

trial court sentenced Defendant to life in prison without the

possibility of parole for Everette’s murder, a concurrent term

of 73 to 97 months in prison for the assault on Shipman, and two

consecutive terms of 25 to 39 months in prison for discharging

his gun into the victims’ vehicles.            Defendant gave notice of

appeal in open court.

                                 Discussion

    Defendant makes three arguments on appeal:             that the trial

court erred in (1) refusing to give his exact proposed jury

instruction   on   transferred    intent,     (2)   refusing   to   give   his
                                      -4-
proposed jury instruction on the absence of                 flight, and (3)

admitting evidence of firearms seized from him as a result of

the DVPO.    We find no error.




      I. Jury instruction on transferred intent

      Defendant   first     argues    that   the    trial    court   erred   in

refusing to give his proposed jury instruction on transferred

intent.     We disagree.

      “Whether a jury instruction correctly explains the law is a

question of law, reviewable by this Court de novo.”                   State v.

Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 29 (citation

omitted),    disc. review denied, 364 N.C. 327, 700 S.E.2d 926

(2010). “However, an error in jury instructions is prejudicial

and   requires    a   new   trial    only    if    there    is   a   reasonable

possibility that, had the error in question not been committed,

a different result would have been reached at the trial out of

which the appeal arises.”            State v. Castaneda, 196 N.C. App.

109, 116, 674 S.E.2d 707, 712 (2009) (citation and internal

quotation marks omitted).

      “The prime purpose of a court’s charge to the jury is the

clarification of issues, the elimination of extraneous matters,
                               -5-
and a declaration and an application of the law arising on the

evidence.”   State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,

191 (1973) (citations omitted), cert. denied, 418 U.S. 905, 41

L. Ed. 2d 1153 (1974).     Thus, “[i]t is the duty of the trial

court to instruct the jury on all substantial features of a case

raised by the evidence.”   State v. Shaw, 322 N.C. 797, 803, 370

S.E.2d 546, 549 (1988) (citation omitted).      However, “a trial

court is not required to repeat verbatim a requested, specific

instruction that is correct and supported by the evidence, but

that it is sufficient if the court gives the instruction in

substantial conformity with the request.”    State v. Brown, 335

N.C. 477, 490, 439 S.E.2d 589, 597 (1994) (citations omitted).

    Under the doctrine of transferred intent,

         it is an accepted principle of law that
         where one is engaged in an affray with
         another    and   unintentionally   kills    a
         bystander or a third person, his act shall
         be interpreted with reference to his intent
         and conduct towards his adversary. Criminal
         liability, if any, and the degree of
         homicide must be thereby determined. Such a
         person is guilty or innocent exactly as if
         the fatal act had caused the death of his
         adversary.    It has been aptly stated that
         “[t]he malice or intent follows the bullet.”

         The doctrine of transferred intent does not
         require or permit one fact to be presumed
         based upon the finding of another fact.
         Instead, under the doctrine of transferred
         intent,  it   is  immaterial   whether  the
                                  -6-
            defendant intended injury to the person
            actually harmed; if he in fact acted with
            the required or elemental intent toward
            someone, that intent suffices as the intent
            element of the crime charged as a matter of
            substantive law.

State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992)

(citations,   some   internal   quotation   marks,   and   some   brackets

omitted).

    Here, Defendant proposed that the trial court give four

paragraphs of instructions regarding transferred intent to the

jury:

            [1] If at the time Elijah Jones fired his
            revolver, he did so honestly believing in
            the need to protect himself from imminent
            death or serious harm, and if Elijah Jones
            fired his revolver to protect himself from a
            perceived threat from Bobby Shipman (and his
            belief    was     reasonable    under    the
            circumstances as they appeared to Elijah
            Jones at the moment of the perceived
            threat), and if a bullet fired by Elijah
            Jones hit and killed Joan Everett[e], then
            and in that event, Elijah Jones would be
            only as guilty as to Joan Everett[e] as he
            would have been had the bullet struck Bobby
            Shipman.

            [2] That is, if Elijah Jones killed Joan
            Everett[e] unintentionally, but you find he
            intended to shoot Bobby Shipman and instead
            hit Joan Everett[e], Elijah Jones would only
            be as guilty or innocent as if the fatal act
            had caused the death of Bobby Shipman.

            [3] Further, if Elijah Jones’ said use of
            deadly force against Bobby Shipman was
                                              -7-
            otherwise justified, but was executed so
            negligently as to endanger Joan Everett[e],
            nothing else appearing, then Elijah Jones
            would be guilty of involuntary manslaughter.

            [4] That is, if the defendant, Elijah Jones,
            intended to harm one person but instead
            harmed a different person, the legal effect
            would be the same as if the defendant had
            harmed the intended victim, and if a killing
            of the intended person would be with malice,
            then the killing of the different person
            would also be with malice.   Finally, if the
            defendant’s intent was to act in self-
            defense, and without malice, then that
            intent would also be transferred to the
            actual victim.

The court    instructed the jury by reading                           paragraphs one and

four, but not paragraphs two and three.

    As Defendant concedes in his brief, the first paragraph

accurately    states          the    law     regarding          transferred        intent      as

applicable    in    this       case.         However,          Defendant     contends        that

paragraph two was “necessary as a short[,] concise, explanatory

mandate”    and     as   “a     clarification             of    a    complex     concept[.]”

Defendant    cites       no     authority          for    the       proposition       that    an

accurate instruction on a legal concept must be                                  followed by

further    clarification            and    explanation,         and    we   know      of   none.

Indeed,     while    the       trial        court        did    not    “repeat        verbatim

[Defendant’s]       requested,            specific    instruction[,]”            by   his     own

admission     the     court         gave      an     “instruction           in   substantial
                                        -8-
conformity with the request.”             See Brown, 335 N.C. at 490, 439

S.E.2d at 597.      The trial court did not err in instructing the

jury on the doctrine of transferred intent, and accordingly,

Defendant’s argument is overruled.

       II. Jury instruction on absence of flight

       Defendant next argues that the trial court erred in denying

his proposed jury instruction on the absence of flight.                        We

disagree.

       Defendant requested that the court give an instruction on

the “logical converse” of the pattern jury instruction which

permits a jury to consider a defendant’s                    flight as evidence

suggesting    consciousness        of   guilt,   to   wit,    that   absence   of

flight (or turning oneself in to the authorities, as occurred

here) can be considered as showing the lack of any consciousness

of guilt.     Defendant acknowledges that “[o]ur Courts have held

differently[,]” citing State v. Burr, 341 N.C. 263, 461 S.E.2d

602 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526

(1996); State v. Wilcox, 132 N.C. 1120, 44 S.E. 625 (1903); and

State v. Thomas, 34 N.C. App. 594, 239 S.E.2d 288 (1977), disc.

review denied, 294 N.C. 445, 241 S.E.2d 846, cert. denied, 439

U.S.   926,   58   L.   Ed.   2d    318   (1978),     but    asserts   that    the

“position of the court flies in the face of logic.”                  Defendant’s
                                           -9-
argument    on    this    issue    flies    in   the   face   of   precedent,    the

guiding principle of this Court.                 See, e.g., In re Appeal from

Civil    Penalty,     324   N.C.    373,    384,   379   S.E.2d     30,   37   (1989)

(“Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the

same    court    is   bound   by    that    precedent,     unless    it   has   been

overturned       by   a   higher    court.”).          Defendant’s    argument     is

overruled.



       III. Admission of evidence of additional firearms

       Finally, Defendant argues that the trial court erred in

admitting evidence of firearms seized from him as a result of

the     DVPO.    Specifically, Defendant contends that this evidence

was not relevant and was thus inadmissible.                   Defendant has not

preserved his right to appellate review of this issue.

       As a result of the           DVPO Everette obtained, four firearms

were seized from Defendant,1 including the .44 Magnum revolver

Defendant would later use to shoot Everette and Shipman.                          The

other three firearms seized in 2009 were not involved in the

1
  The DVPO expired on 5 November 2010 and was not renewed.
Thereafter, Defendant filed a motion for the return of the
weapons he surrendered. By order entered 10 December 2010, the
district court directed the sheriff’s department to return the
seized weapons to Defendant.
                                      -10-
attack.    Citing Rule of Evidence 404(b), Defendant objected when

the State sought to introduce a copy of the DVPO and related

documents as State’s Exhibit 80.             Exhibit 80 was some ten pages

long with some pages printed on both sides.                 Included in the

exhibit was a list of the firearms Defendant turned over to the

Columbus   County   Sheriff’s      Department      in   compliance       with   the

order.     The   court     admitted   the    domestic    violence    order      and

related testimony, but agreed to give a limiting instruction

pursuant to Rule 404(b).         A deputy clerk of the superior court

in Columbus County used the exhibit to illustrate her testimony

and, inter alia, read the list of seized firearms to the jury.

    “In order to preserve a question for appellate review, a

party must have presented the trial court with a timely request,

objection or motion, stating the specific grounds for the ruling

sought if the specific grounds are not apparent.”                        State v.

Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also

N.C.R. App. P. 10(a)(1). Defendant did not object to Exhibit 80

on the basis of relevance per Rules of Evidence 401 or 402, but

rather under Rule 404(b).         Where a defendant argues a different

basis    for   exclusion    of   evidence     on   appeal   than    he    brought

forward at trial, his objection is not preserved for appellate

review.    See State v. Rayfield, __ N.C. App. __, __, 752 S.E.2d
                                     -11-
745, 762 (2014); see also State v. Benson, 323 N.C. 318, 322,

372   S.E.2d   517,   519   (1988)   (“Defendant     may    not   swap   horses

[concerning    his    argument]   after     trial   in   order    to   obtain   a

thoroughbred      upon   appeal.”)    (citation      omitted).         “Because

Defendant did not argue plain error in the alternative, he may

not seek appellate review of this issue.”                  Rayfield, __ N.C.

App. at __, 752 S.E.2d at 762.

      NO ERROR.

      Judges BRYANT and DILLON concur.

      Report per Rule 30(e).
