An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1400
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                      Gaston County
                                              No. 12 CRS 11164
JEFFREY SCOTT HUGHES



      Appeal by defendant from judgments entered 24 July 2013 by

Judge Jesse B. Caldwell, III in Gaston County Superior Court.

Heard in the Court of Appeals 22 April 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Steven M. Arbogast, for the State.

      Russell J. Hollers III, for defendant-appellant.


      HUNTER, Robert C., Judge.


      Jeffrey     S.   Hughes    (“defendant”)       appeals     from    judgments

entered after a jury found him guilty of one count each of first

degree murder based on the felony murder rule, possession of a

firearm by a felon, and discharging a weapon into an occupied

dwelling.       On appeal, defendant argues that the trial court

erred by: (1) instructing the jury that it could convict on

felony murder for the underlying crimes of buying or selling a
                                           -2-
controlled substance while using a firearm where those crimes

either (a) did not support a felony murder conviction, or (b)

were   not    supported      by   the      evidence;    (2)    giving     a    mistaken

instruction on acting in concert for the crime of discharging a

firearm    into      an   occupied    dwelling;     and    (3)       failing    to   give

defendant     accurate      credit    during      sentencing      for    the    days   he

spent in prison awaiting trial.

       After careful review, we find no prejudicial error as to

the    jury        instructions      and    dismiss     defendant’s           contention

regarding credit for pretrial confinement.

                                      Background

       The events of this case took place at 969 Brown Street in

Gastonia, N.C. (“the Brown Street home”).                     Three generations of

the Wright family lived at the Brown Street home – David Wright

(“David”), his father, Jimmy David Wright (“Jimmy”), and Jimmy’s

parents, Vicky and Jimmy Carl Wright.                  In the late evening hours

of 22 August 2011, Victor Malagon (“Malagon”) called David and

arranged      to    purchase     prescription      pills      from    him.      Malagon

regularly purchased pills from David and Jimmy.                       On the night in

question,      Malagon     was    driven     to   the     Brown      Street    home    by

defendant.          Inside the vehicle was another passenger, Amanda

Mabe (“Amanda”).
                                       -3-
      After they arrived, Malagon went inside and purchased over

$400.00      worth    of    Oxycodon   pills   from    David,    which     David

estimated at trial to be around twenty pills.                 While they were

conducting the sale inside, Jimmy had returned home and saw

defendant’s vehicle in the driveway.            Jimmy testified that about

a month-and-a-half prior to his encounter on 22 August 2011, he

had purchased thirty Percocet pills from defendant at a total

cost of $600.00.           Jimmy thought that the pills defendant sold

him   were    fake.        Because   Jimmy   only   knew    defendant    through

Malagon, Jimmy tried to get Malagon to arrange another meeting

with defendant so that he could get his $600.00 back, but before

the night in question he had been unsuccessful.

      When Jimmy saw defendant in his driveway, he confronted him

about the allegedly fake pills that defendant                   had sold him.

When Malagon and David exited the Brown Street home, Jimmy told

Malagon to take five of the pills he had just purchased and put

them on the porch rail.         Jimmy said that this would constitute a

down payment on the money defendant owed him from their previous

transaction.         Malagon put five pills on the porch rail then

handed the rest of the pills to defendant.                 Defendant and Jimmy

began shouting at each other, and Jimmy pointed his handgun at
                                      -4-
defendant.       Defendant shouted      “this    is not right,”      and that

“somebody will have to pay.”

    After the shouting altercation, defendant began backing out

of the driveway.       At this time Amanda had gotten out of the car

and was standing next to Jimmy near David’s truck.                Jimmy had

tucked his handgun into his jeans and was no longer pointing it

at defendant.      As he was backing out of the driveway, defendant

started shooting toward the house.              Jimmy heard Amanda say “Oh

God” and then saw her immediately fall to the ground.                Detective

Robert Bryson (“Detective Bryson”) was on patrol near the Brown

Street home that night and heard gunshots; he was the first

officer at the scene.        Detective Bryson approached Amanda and

checked her vital signs, but could not feel a pulse.              An autopsy

later established that Amanda died from a single gunshot wound

to the back that completely severed her spinal cord, lacerated

her aorta, and perforated her left lung.

    Vicky       Wright,   David’s     grandmother    and   Jimmy’s     mother,

testified that she noticed bullet holes in her home that were

not there prior to the night of the shooting.              Detective Michael

Schwartz   of    the   Gastonia     Police   Department    investigated    the

Brown Street home and testified that he observed two bullet

holes in the side of the house.              One projectile did not enter
                                           -5-
the interior of the home, but the second projectile went through

the exterior wall, a bathroom wall, and a kitchen wall before

finally      settling      in    the     opposite      kitchen       wall    above     the

refrigerator.

         Defendant   was       arrested    on    the   night     of    the     shooting.

Police     recovered      numerous       9-millimeter     shell       casings    in    and

around the driver’s side door of defendant’s vehicle when they

detained him, and after obtaining a search warrant, they found a

9-millimeter Smith & Wesson handgun under the passenger seat.

         Defendant was indicted for first degree murder, possession

of a firearm by a felon, and discharging a firearm into an

occupied      dwelling.            The     jury     rejected         the     theory    of

premeditation and deliberation but convicted defendant for first

degree murder under the felony murder rule.                            The underlying

felonies for which the jury found defendant guilty of first

degree murder under the felony murder rule were: (1) discharging

a firearm into an occupied dwelling; and (2) using a deadly

weapon in the sale or attempted sale of a controlled substance.

The jury also convicted defendant for the charges of possession

of   a    firearm    by    a    felon    and    discharging      a    weapon    into   an

occupied dwelling, the latter of which was arrested because it

was an underlying felony supporting the murder conviction.                             The
                                         -6-
trial   court    sentenced     defendant       to    life    imprisonment     without

parole for first degree murder and a concurrent term of 14 to 17

months imprisonment for possession of a firearm by a felon.

Defendant gave timely notice of appeal.

                                     Discussion

     I. Instruction as to the Sale of a Controlled Substance

     Defendant      first     argues    that        the    trial   court   erred    by

instructing the jury that it could convict under the felony

murder rule for buying or selling a controlled substance while

using a firearm.        We find no prejudicial error.

     “[A]n      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 quotation marks omitted).

An   instruction     about     a     material       matter    must    be   based    on

sufficient      evidence.      See     Childress      v.    Johnson   Motor   Lines,

Inc., 235 N.C. 522, 530, 70 S.E.2d 558, 564 (1952).                         However,

“[i]t is well established that ‘the trial court’s charge to the

jury must be construed contextually and isolated portions of it

will not be held prejudicial error when the charge as a whole is
                                       -7-
correct.’”   State v. Hornsby, 152 N.C. App. 358, 367, 567 S.E.2d

449, 456 (2002) (quoting State v. Boykin, 310 N.C. 118, 125, 310

S.E.2d 315, 319 (1984)).

    Here, the State requested that the trial court instruct the

jury that it could convict defendant of felony murder if it

found that he either shot into an occupied dwelling or took “a

deadly   weapon   .   .   .   to   a   drug   deal.”   Over   defendant’s

objection, the trial court instructed the jury as follows:

           [M]embers of the jury, if you find beyond a
           reasonable doubt that on or about the
           alleged date the defendant, acting either by
           himself or together with someone else, . . .
           knowingly sold or attempted to sell, or
           purchased   or   attempted  to   purchase  a
           controlled substance in which a firearm was
           involved or used in the commission of that
           offense, . . . then it would be your duty to
           return a verdict of guilty of first degree
           murder under the felony murder rule.

After the jury requested to be instructed again on the murder

charge, the trial court reiterated that:

           [F]or you to find that the defendant was
           committing or attempting to commit the sale
           or attempted sale of controlled substance
           where a deadly weapon is used in its
           commission, the State would have to prove
           beyond a reasonable doubt, and you would
           have to find beyond a reasonable doubt that
           the State had proven that the defendant
           knowingly sold or attempted to sell, or
           purchased   or   attempted to   purchase  a
           controlled substance.
                                            -8-
    Defendant argues that this instruction was erroneous for

two reasons: (1) evidence did not support an instruction on

selling or attempting to sell a controlled substance, because

defendant       was       not   involved    in     selling       pills       during       this

transaction, and (2) buying or attempting to buy a controlled

substance       is    a     misdemeanor     under       N.C.     Gen.       Stat.   §§     90-

90(1)(a)(14) and -95(d)(2), not a felony, and therefore cannot

support a conviction for first degree murder under the felony

murder rule as a matter of law.

    However,          the    jury   returned      its    verdict       sheet    convicting

defendant      for     first     degree     murder       based    on    two     underlying

felonies: (1) “sale or attempted sale of controlled substance

where    a    deadly      weapon    is   used     in    its    commission”;         and    (2)

“discharging a firearm into an occupied dwelling.”                             Thus, this

case is comparable to State v. Barlowe, 337 N.C. 371, 446 S.E.2d

352 (1994).          In Barlowe, the defendant was convicted for first

degree       murder    under      the    felony     murder       rule       based   on     two

underlying      felonies:        burglary    and       discharging      a    firearm      into

occupied property.              Id. at 378, 446 S.E.2d at 357.                  The Court

held that “[o]nly one underlying felony is necessary to support

a felony-murder conviction, and in this case the record is clear

that the jury found that two separate felonies supported the
                                             -9-
first-degree murder conviction.”                   Id. at 381, 446 S.E.2d at 358.

Thus, even though there was error in the submission of burglary

to the jury due to lack of evidence of that crime, the judgment

for first degree murder was not disturbed, as it was supported

by   a    separate      underlying        felony       for    which    there      was    ample

supporting evidence.            Id.

         Here,   like    in    Barlowe,     defendant’s         conviction        for    first

degree murder was premised on two independent felonies: selling

or   attempting        to     sell    a   controlled         substance   while      using   a

deadly      weapon      and     discharging        a    firearm       into   an    occupied

dwelling.        Defendant does not dispute that there was sufficient

evidence to support the charge of discharging a firearm into an

occupied dwelling; indeed, the undisputed record evidence shows

that defendant willfully discharged a firearm toward the Brown

Street home and a bullet fired from that firearm went through

multiple walls of the home before settling in the kitchen wall.

See N.C. Gen. Stat. § 14-34.1 (2013) (“Any person who willfully

or wantonly discharges a weapon . . . into an occupied dwelling

. . . is guilty of a Class D felony.”)

         Thus,   because       there      was   a      separate       underlying        felony

supporting       the    conviction        for   first        degree   murder      under   the

felony      murder      rule,        we   conclude       that     defendant        has    not
                                          -10-
demonstrated a reasonable possibility that a different outcome

would have occurred but for the trial court’s instruction as to

the sale of a controlled substance.                      See Castaneda, 196 N.C.

App. at 116, 674 S.E.2d at 712.                This argument is overruled.

                 II. Instruction as to Acting in Concert

      Defendant        next    argues    that     the     trial     court   erred    by

initially instructing the jury that it could convict defendant

for discharging a firearm into an occupied dwelling if he acted

with a common purpose with someone else to do so.                           Defendant

asserts    in    his     brief    on    appeal    that     “evidence    showed      that

[defendant] was either guilty of shooting into the Wrights’ home

by himself or not at all.”

      It   is    clear    from    the    record     that    the   trial     court   did

initially instruct the jury that it could apply the theory of

acting in concert to the felony of discharging a firearm into an

occupied dwelling.            However, upon realizing the error, the trial

court corrected itself and instructed the jury that the theory

of   acting     in   concert     was    only     applicable    to    the    underlying

felony of selling or attempting to sell a controlled substance

while using a deadly weapon, not the felony of discharging a

firearm into an occupied dwelling.                 “[W]hen a trial judge makes

an improper instruction earlier in the charge and then corrects
                                          -11-
it,   the    error    is     completely      lacking   in     prejudicial       effect.”

State v. Reid, 335 N.C. 647, 667, 440 S.E.2d 776, 787 (1994)

(citation and internal quotation marks omitted).                          Thus, given

that the trial court’s initial error is “completely lacking in

prejudicial effect,” id., due to its later correction, defendant

has failed to meet his burden of establishing prejudice by this

error.      See Castaneda, 196 N.C. App. at 116, 674 S.E.2d at 712.

Thus, his argument is overruled.

                              III. Confinement Credit

      Defendant’s final argument is that the trial court erred by

failing to accurately credit defendant for the time he spent in

jail awaiting trial.             Under N.C. Gen. Stat. § 15-196.1 (2013), a

defendant shall be credited with any amount of time spent in

confinement as a result of the charge that culminated in the

sentence.       Here,      the     transcript     shows     that    the   trial      court

directed     the     clerk    of    court    to   credit      the   number      of   days

defendant spent in pretrial confinement, but no specific amount

of credit was included in the judgment.                     Thus, it appears that

defendant     is     entitled      to   at    least    some    amount      of    credit.

However, this argument is not properly before us.                         See State v.

Miller, 205 N.C. App. 291, 295, 695 S.E.2d 149, 152 (2010).

This Court has held that:
                                        -12-
              [T]he proper procedure to be followed by a
              defendant seeking to obtain credit for time
              served in pretrial confinement in addition
              to that awarded at the time of sentencing or
              the revocation of the defendant’s probation
              is for the defendant to initially present
              his or her claim for additional credit to
              the trial court, with alleged errors in the
              trial   court’s  determination   subject  to
              review in the Appellate Division following
              the trial court’s decision by either direct
              appeal or certiorari, as the case may be.
              Such an approach makes sense given the
              reality that, in at least some instances,
              factual issues will need to be resolved
              before a proper determination of the amount
              of credit to which a particular defendant is
              entitled can be made, and such issues are
              best addressed, as an initial matter, in the
              trial courts rather than in the Appellate
              Division.

Id. (quoting State v. Cloer, 197 N.C. App. 716, 720-21, 678

S.E.2d   399,    402-03    (2009)     (dismissing       without         prejudice   the

defendant’s      contention     on    appeal     that     he      was    entitled   to

additional     credit    for   time    served     in   pretrial         confinement)).

Thus,    we   are   unable     to    address     the    merits      of    defendant’s

contention.         However,    as    was      noted    in     Miller     and   Cloer,

defendant maintains the right to “file a motion for an award of

additional      credit    in   the    superior    court      of    [Gaston]     County

pursuant to N.C. Gen. Stat. § 15-196.4.”                  Miller, 205 N.C. App.

at 295, 695 S.E.2d at 152; Cloer, 197 N.C. App. at 722, 678

S.E.2d at 404.
                                -13-
                             Conclusion

    Because   defendant   has   failed   to   establish   a   reasonable

possibility of a different outcome but for the trial court’s

alleged errors in its jury instructions, we conclude that any

such errors were not prejudicial.         Defendant’s argument as to

pretrial confinement is dismissed without prejudice.



    NO PREJUDICIAL ERROR IN PART; DISMISSED IN PART.

    Judges BRYANT and STEELMAN concur.

    Report per Rule 30(e).
