                                     NO. COA13-200

                       NORTH CAROLINA COURT OF APPEALS

                                  Filed:    1 April 2014


STATE OF NORTH CAROLINA

    v.                                           Swain County
                                                 Nos. 08 CRS 935-40
TIFFANY LEIGH MARION



    Appeal by defendant from judgments entered 19 March 2012 by

Judge Marvin Pope in Swain County Superior Court.                   Heard in the

Court of Appeals 26 September 2013.


    Roy Cooper, Attorney General, by Mary                         Carla    Hollis,
    Assistant Attorney General, for the State.

    Staples Hughes, Appellate Defender, by Daniel R. Pollitt
    and Paul M. Green, Assistant Appellate Defenders, for
    defendant-appellant.


    DAVIS, Judge.


    Tiffany        Leigh     Marion        (“Defendant”)    appeals      from   her

convictions for two counts of first-degree murder, one count of

attempted murder, two counts of robbery with a dangerous weapon,

and one count of first-degree burglary.                     Defendant’s primary

argument      on   appeal    is    that    there   was    insufficient     evidence

presented at trial to support her convictions under either an

acting   in    concert      theory    or    an   aiding   and   abetting    theory.
                                         -2-
After careful review, we vacate in part and remand in part as

set out below.

                              Factual Background

    The    State’s      evidence      tended   to      establish   the    following

facts:    On    5   August    2008,    Defendant       traveled    from    Atlanta,

Georgia to Cherokee, North Carolina to visit Harrah’s casino.

Defendant was accompanied by Jada McCutcheon (“McCutcheon”) — a

friend from the massage therapy school Defendant attended — and

three men, Jeffrey Miles (“Miles”), Jason Johnson (“Johnson”),

and a man known as “Freak.”             The group used ecstasy and smoked

marijuana during the car trip and during their entire stay in

North Carolina.        Some of the ecstasy they used during their trip

was mixed with other controlled substances, including heroin and

cocaine.        Once   they   arrived,    part    of    the    group   gambled    for

several hours at the casino.             Afterwards, Miles checked into a

hotel    room    and   listed   Defendant        as    his    guest.      The   group

congregated in Miles’ room over the next several days to “chill”

and use drugs.

    On 7 August 2008, Miles, Johnson, and “Freak” went to the

local Wal-Mart, where they met two local residents, Mark Goolsby

(“Goolsby”) and Dean Mangold (“Mangold”).                     Miles asked Goolsby

and Mangold if they wanted to take ecstasy and go to the casino
                                   -3-
with them, and the two replied affirmatively.         Miles eventually

brought them back to his hotel room and showed them an AR-15

firearm that he was interested in selling.           Mangold suggested

trying to sell the gun to a man named Scott Wiggins (“Wiggins”)

and offered to take them up to see Wiggins.          Mangold also told

Miles   that   Wiggins   “had   drugs.”   During    this   conversation,

Defendant was lying on the bed and seemed “messed up.”

    Goolsby, Mangold, Miles, Johnson, McCutcheon, and Defendant

got into their van and drove to Wiggins’ home.               During the

drive, Mangold told Miles that Wiggins owed him money and that

Wiggins had “all this stuff” and “a lot of money.”            Miles was

driving the van and parked it on a gravel logging road where it

could not be seen from Wiggins’ house.             Everyone exited the

vehicle, and Miles told everyone that they were “fixin’ to hit a

lick,” meaning that they were about to rob someone.            Defendant

stayed by the van and told McCutcheon that she “didn’t want to

go up there.”

    Johnson kicked in the door of the residence and proceeded

to hold Wiggins and another person present in Wiggins’ home,

Michael Heath Compton (“Compton”), at gunpoint while the others

began gathering valuables.        While the group was searching for

valuables, another person, Timothy Dale Waldroup (“Waldroup”),
                                         -4-
drove up to the house and was escorted into the residence at

gunpoint.      Miles shot Wiggins, Compton, and Waldroup during the

course of the burglary, and only Waldroup survived.                   Goolsby and

Mangold heard the gunshots, “got scared,” and left the scene.

Defendant then left the area by the van where she had been

waiting, walked towards the house, found Johnson, and informed

him that Goolsby and Mangold had left.              She then returned to the

van.

       Johnson, Miles and McCutcheon proceeded to load the stolen

items into Wiggins’ pickup truck.               Defendant attempted to drive

the    van    but   was    unable   to    release    the    parking      brake    so

McCutcheon drove the vehicle.            Defendant and the others traveled

back     to   Georgia      and   moved    the   stolen     items    into     Miles’

apartment.

       On 18 August 2008, the Swain County grand jury returned

bills of indictment charging Defendant with two counts of first-

degree    murder,    one    count   of   attempted    murder,      one    count   of

first-degree burglary, two counts of robbery with a dangerous

weapon, and three counts of first-degree kidnapping.                     The matter

came on for a jury trial during the February and March 2012

Criminal Sessions of Swain County Superior Court.

       Defendant offered evidence at trial and testified in her
                                              -5-
defense.         She testified that she was using drugs during the

entire trip and did not learn what had happened at Wiggins’

house until she returned to Georgia on 11 August 2008.                                           She

further     stated      that    she    never        heard      or   was       a    part   of     any

conversations regarding a plan to rob Wiggins and explained that

she “had no idea what was going on” when the group went to

Wiggins’ house, “had nothing to do with it,” and “would never,

ever be a part of anything like this.”

       The jury found Defendant guilty of two counts of first-

degree     murder,      one    count    of     attempted        murder,           one   count     of

first-degree          burglary,       and     two    counts         of    robbery         with     a

dangerous weapon.             Defendant was found not guilty of the three

kidnapping charges.            The trial court entered judgments based on

the   jury’s      verdicts,      sentencing         Defendant        to   two       consecutive

terms of life imprisonment without parole for the first-degree

murder charges, a presumptive-range term of 125 to 159 months

for the attempted murder conviction, and presumptive-range terms

of    51   to    71   months    imprisonment             for   each      of       the   remaining

charges.        Defendant gave timely written notice of appeal.

                                            Analysis

       Defendant       raises     a    number       of    arguments       on       appeal.        We

address each in turn.
                                        -6-
I. Defendant’s Statement to Detective Posey

      Defendant       first   argues    that    the    trial      court    erred   by

allowing the State to impeach her trial testimony through the

use   of    a    “written     instrument[]       the      prosecutor      improperly

characterized,        described,       and     referred      to    in     court    as

‘defendant’s written statement.’”                Defendant acknowledges that

she did not object to the use of this evidence at trial and

therefore seeks review under the plain error doctrine.                         Under

plain error review, Defendant bears the burden of showing that

the alleged error was such that it “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 marks omitted).

      Relying on State v. Walker, 269 N.C. 135, 152 S.E.2d 133

(1967), Defendant contends that the trial court committed plain

error by admitting into evidence notes prepared by Detective

Carolyn Posey (“Detective Posey”) memorializing a conversation

with Defendant and allowing the State to impeach Defendant’s

testimony with those notes.

      In Walker, our Supreme Court held as follows:

             If a statement purporting to be a confession
             is given by [the] accused, and is reduced to
             writing  by   another  person,   before  the
             written instrument will be deemed admissible
                                            -7-
               as the written confession of [the] accused,
               he must in some manner have indicated his
               acquiescence in the correctness of the
               writing   itself.     If   the   transcribed
               statement is not read by or to [the]
               accused, and is not signed by [the] accused,
               or in some other manner approved, or its
               correctness acknowledged, the instrument is
               not legally, or per se, the confession of
               [the] accused; and it is not admissible in
               evidence as the written confession of [the]
               accused.

Id. at 139, 152 S.E.2d at 137 (citation and quotation marks

omitted).

       Our     Supreme     Court      has     explained,       however,      that      the

authentication         requirements         outlined      in   Walker,       and     later

reiterated      in     State   v.   Wagner,       343   N.C.   250,    470   S.E.2d    33

(1996), do not apply to statements made by a defendant that are

not confessions.          See State v. Moody, 345 N.C. 563, 579, 481

S.E.2d   629,     637    (holding      that    “the     requirements      outlined      in

Wagner    do    not     apply”      because    “[a]t      no   time    was    [the    law

enforcement officer’s] record of his interview with defendant

characterized as defendant’s written confession”), cert. denied,

522 U.S. 871, 139 L.Ed.2d 125 (1997).

       Here, Detective Posey testified that she took notes while

she and Deputy Scott Cody transported Defendant from Georgia to

North Carolina on 20 August 2008.                       Detective Posey explained

that   the     notes    were   taken    in    shorthand,       and    they   were    “not
                                          -8-
exactly word for word.”           She replied affirmatively when asked if

what she wrote was “as best [as] you can recall . . . what

[Defendant] said while she was in the car.”

       After reviewing the transcript and record, we have found no

indication that Defendant’s statements to Detective Posey were

ever characterized as Defendant’s confession.                        A confession is

“an    acknowledgment      in    express    words,       by    the    accused    in    a

criminal case, of the truth of the guilty fact charged or of

some essential part of it.”            State v. Jones, 294 N.C. 642, 659,

243    S.E.2d    118,     128    (1978)    (citation      and    quotation       marks

omitted).          Defendant’s       statements          to     Detective        Posey,

conversely, did not admit her guilt or participation in the

crimes.         Rather,    the    notes    memorializing        the     conversation

reflected Defendant’s assertions that she did not know “anything

about robbing anybody”; “did not even know anyone had passed”;

that “nobody said anything to [her] about guns”; and that she

only knew what had happened afterwards because McCutcheon told

her.

       A   defendant’s     statement      that    is   not    purported     to    be   a

written    confession      is    admissible      under   the    exception       to    the

hearsay rule for statements by a party-opponent and does not

require the defendant’s acknowledgement or adoption.                      Moody, 345
                                      -9-
N.C. at 579, 481 S.E.2d at 637; see State v. Randolph, ___ N.C.

App. ___, ___, 735 S.E.2d 845, 852 (2012) (“[S]o long as oral

statements are not obtained in violation of the constitutional

protections     against     self-incrimination       or   due   process,   a

defendant’s own statement is admissible when offered against him

at trial as an exception to the hearsay rule.” (citation and

quotation marks omitted)), appeal dismissed, 366 N.C. 562, 738

S.E.2d 392 (2013).        Accordingly, we hold that the trial court

did not commit error, much less plain error, by allowing the

State    to   impeach     Defendant   with    her    prior   statements    to

Detective Posey.

II. Failure to Arrest Judgment on a Felony Conviction

    Defendant’s second argument on appeal is that the trial

court erred by failing to arrest judgment with respect to any of

her felony convictions.        Defendant asserts that because she was

convicted of two counts of first-degree felony murder, the trial

court was required to arrest judgment on at least two of her

felony    convictions      pursuant    to    the    felony   murder   merger

doctrine.     The State concedes that failing to arrest judgment on

any of Defendant’s felony offenses was error but argues that

judgment need be arrested on only one of the felonies.

    “The felony murder merger doctrine provides that when a
                                             -10-
defendant is convicted of felony murder only, the underlying

felony constitutes an element of first-degree murder and merges

into the murder conviction.”                 State v. Rush, 196 N.C. App. 307,

313-14,     674    S.E.2d   764,       770    (citation,         quotation    marks,    and

brackets omitted), disc. review denied, 363 N.C. 587, 683 S.E.2d

706 (2009).         Thus, if the defendant’s conviction for first-

degree murder is based solely upon the theory of felony murder,

he   or    she    “cannot   be    sentenced         on    the    underlying    felony   in

addition to the sentence for first-degree murder.”                            Id. at 314,

674 S.E.2d at 770 (citation and quotation marks omitted).                               In

this case, because Defendant’s first-degree murder convictions

were exclusively premised on a felony murder theory, the trial

court erred in entering judgment on all of Defendant’s felonies.

       However,     we   are     not   persuaded          by    Defendant’s    contention

that judgment must be arrested with respect to all of her felony

convictions.        Defendant asserts that because the trial court’s

instructions were disjunctive and permitted the jury to find

Defendant guilty of felony murder if it found that she committed

“the      felony    of   robbery        with    a        firearm,    burglary,     and/or

kidnapping,” the trial court should have arrested judgment on

all of the felony convictions on the theory that they all could

have served as the basis for the felony murder convictions.
                                      -11-
    Our Court rejected this same argument in State v. Coleman,

161 N.C. App. 224, 587 S.E.2d 889 (2003).              We explained that the

disjunctive instruction was not error — and did not require the

trial    court   to   arrest   judgment      with   respect    to     all    of   the

defendant’s felony convictions — because the defendant’s right

to a unanimous verdict         was not violated and the instruction

merely allowed the jury to convict the defendant of a single

wrong by alternative acts.          Id. at 234-35, 587 S.E.2d at 896.

    Indeed, this Court has explicitly held that if multiple

felonies support a felony murder conviction, the merger rule

only “requires the trial court to arrest judgment on at least

one of the underlying felony convictions . . . .”                           State v.

Dudley, 151 N.C. App. 711, 716, 566 S.E.2d 843, 847 (2002),

appeal dismissed and disc. review denied,                356 N.C. 684, 578

S.E.2d    314    (2003).       In    cases    where    the     jury     does      not

specifically determine which conviction serves as the underlying

felony,    we    have   held   that    the     trial   court     may,        in   its

discretion, select the felony judgment to arrest.                   See Coleman,

161 N.C. App. at 236, 587 S.E.2d at 897 (“[W]here no specific

underlying felony was noted in the jury instructions on felony

murder, and where there are multiple felony convictions which

could serve as the underlying felony for purposes of the felony
                                          -12-
murder conviction, it is in the discretion of the trial court as

to which felony will serve as the underlying felony for purposes

of sentencing.”).            We therefore remand with instructions that

the trial court arrest judgment with respect to at least one of

Defendant’s felony convictions “in such a manner that would not

subject [D]efendant to a greater punishment.”                      Dudley, 151 N.C.

App. at 716, 566 S.E.2d at 847.

III. Attempted Murder

      Defendant     also      argues     that     the    trial     court       erred    by

entering    judgment     on     the    jury’s     guilty     verdict      of   attempted

murder.     The State concedes error on this issue as well.

      The   trial      court’s    instruction        concerning        the     attempted

murder    offense      was   based     solely     upon   a   theory       of   attempted

felony    murder.        This    Court     has    held     that    “the      offense    of

‘attempted first degree felony murder’ does not exist under our

law.”     State v. Lea, 126 N.C. App. 440, 449, 485 S.E.2d 874, 879

(1997) (cited with approval by State v. Coble, 351 N.C. 448,

452, 527 S.E.2d 45, 48 (2000)).                In so holding, we reasoned that

the     offense   of    felony        murder     “does   not      require      that    the

defendant intend the killing, only that he or she intend to

commit the underlying felony.                  Lea, 126 N.C. App. at 449, 485

S.E.2d at 880.         Attempt, on the other hand, requires the State
                                               -13-
to establish that the defendant specifically intended to commit

the crime charged.             Id.     Thus, “a charge of ‘attempted felony

murder’ is a logical impossibility in that it would require the

defendant       to   intend     what      is    by     definition       an    unintentional

result.”     Id. at 450, 485 S.E.2d at 880.

     Because attempted first-degree felony murder does not exist

under     the    laws    of     North      Carolina,          we    vacate         Defendant’s

conviction with respect to this charge.

IV. Sufficiency of the Evidence of Acting in Concert or Aiding
    and Abetting

     Defendant next asserts that all of her convictions must be

vacated because the State failed to present substantial evidence

concerning her involvement in the crimes under either the theory

of   (1)    acting       in    concert;          or     (2)   aiding         and    abetting.

Defendant’s counsel did not make a motion to dismiss the charges

at the close of all of the evidence, thereby failing to preserve

this issue for appellate review.                        See N.C.R. App. P.10(a)(3)

(“[I]f a defendant fails to move to dismiss the action . . . at

the close of all the evidence, defendant may not challenge on

appeal     the   sufficiency         of    the       evidence      to   prove       the   crime

charged.”).          However, because Defendant also brings forward an

ineffective assistance of counsel claim based on her counsel’s

failure    to    make    the    motion         to     dismiss,     we   elect       to    review
                                               -14-
Defendant’s    sufficiency             of    the    evidence     argument    pursuant      to

Rule 2 of the North Carolina Rules of Appellate Procedure.                                 See

State v. Gayton-Barbosa, 197 N.C. App. 129, 140, 676 S.E.2d 586,

593 (2009) (“[P]ursuant to N.C.R. App. P.2, we will hear the

merits of defendant’s claim despite the rule violation because

defendant also argues ineffective assistance of counsel based on

counsel’s failure to make the proper motion to dismiss.”).

      Here,    the       State        relied       on   two    theories     to     establish

Defendant’s criminal responsibility for the                         murder, burglary,

and robbery with a dangerous weapon offenses:                              (1) acting in

concert, and (2) aiding and abetting.                         Under a theory of acting

in concert, a defendant may be found guilty of an offense if she

“is present at the scene of the crime and . . . [s]he is acting

together with another who does the acts necessary to constitute

the crime pursuant to a common plan or purpose to commit the

crime.”   State v. Barnes, 91 N.C. App. 484, 487, 372 S.E.2d 352,

353   (1988)   (citation         and        quotation     marks    omitted),       aff’d   as

modified, 324 N.C. 539, 380 S.E.2d 118 (1989).

      Under    a    theory       of    aiding       and   abetting,   the        State   must

present evidence “(1) that the crime was committed by another;

(2)    that        the    defendant            knowingly        advised,         instigated,

encouraged, procured, or aided the other person; and (3) that
                              -15-
the defendant’s actions or statements caused or contributed to

the commission of the crime by the other person.”       State v.

Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996), cert. denied,

521 U.S. 1124, 138 L.Ed.2d 1022 (1997).

         A person may be guilty as an aider and
         abettor if that person . . . accompanies the
         actual perpetrator to the vicinity of the
         offense and, with the knowledge of the
         actual perpetrator, remains in that vicinity
         for the purpose of aiding and abetting in
         the offense and sufficiently close to the
         scene of the offense to render aid in its
         commission, if needed, or to provide a means
         by which the actual perpetrator may get away
         from the scene upon the completion of the
         offense.

State v. Pryor, 59 N.C. App. 1, 7, 295 S.E.2d 610, 615 (1982)

(citation and quotation marks omitted).

    When determining whether there is substantial evidence to

sustain a conviction,

         all of the evidence actually admitted,
         whether competent or incompetent, which is
         favorable to the State is to be considered
         by the court in ruling on the motion.   The
         evidence is to be considered in the light
         most favorable to the State; the State is
         entitled to every reasonable intendment and
         every reasonable inference to be drawn
         therefrom[.]

State v. Spencer, 192 N.C. App. 143, 147, 664 S.E.2d 601, 604

(2008) (internal citation and quotation marks omitted), disc.

review denied, 363 N.C. 380, 680 S.E.2d 208 (2009).
                                      -16-
    Evidence       offered   by    the     defendant    is    disregarded       when

considering    a    motion    to     dismiss    unless        the    evidence    is

“favorable to the State or does not conflict with the State’s

evidence.”    State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866,

869 (2002).        Finally, our Supreme Court has made clear that

“[c]ircumstantial evidence may withstand a motion to dismiss and

support a conviction even when the evidence does not rule out

every hypothesis of innocence.”            State v. Fritsch, 351 N.C. 373,

379, 526 S.E.2d 451, 455 (citation and quotation marks omitted),

cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).

    We conclude that the evidence offered at trial, taken in

the light most favorable to the State, was sufficient to support

Defendant’s    convictions         under     both     theories       of   criminal

liability.     Although      Defendant       argues    that    she    never     said

anything to the other participants to indicate that she had a

common plan or an intent to aid them in their crimes, neither

acting in concert nor aiding and abetting require a defendant to

expressly vocalize      her assent to the criminal conduct.                      See

State v. Hill, 182 N.C. App. 88, 93, 641 S.E.2d 380, 385 (2007)

(“The theory of acting in concert does not require an express

agreement between the parties.               All that is necessary is an

implied mutual understanding or agreement to do the crimes.”
                                          -17-
(citation and quotation marks omitted)); State v. Allen, 127

N.C. App. 182, 185, 488 S.E.2d 294, 296 (1997) (“Communication

of intent [to aid or abet] to the perpetrator may be inferred

from   the    defendant’s        actions      and   from   his    relation      to   the

perpetrator.       .    .   .    [A   defendant’s]     presence        alone   may     be

sufficient when the [defendant] is a friend of the perpetrator

and the perpetrator knows the friend’s presence will be regarded

as encouragement and protection.”).

       The    State     offered       evidence,     through      the   testimony      of

several      of   the    other    participants,1      that    Defendant        (1)    was

present for the discussions and aware of the group’s plan to rob

Wiggins; (2) noticed Mangold’s gun because it was similar to the

one “she had got shot with prior in her life;” (3) was sitting

next to Miles in the van when he loaded his shotgun; (4) told

the group that she did not want to go up to the house but

remained outside the van; (5) walked toward the house to inform

the    others     that      Mangold     and    Goolsby     had    fled;    (6)       told

McCutcheon and Johnson “y’all need to come on;” (7) attempted to

start the van when McCutcheon returned but could not release the

parking brake; and (8) assisted in unloading the goods stolen

1
  McCutcheon died before Defendant’s trial, but her interview
with law enforcement officers on 17 September 2008 was
introduced at trial under Rule 804 of the North Carolina Rules
of Evidence.
                                           -18-
from Wiggins’ house into Miles’ apartment once they returned to

Georgia.

    This evidence — and the reasonable inferences that may be

drawn from it — is relevant evidence that a reasonable juror

could   conclude        was    adequate       to    support    the    conclusion        that

Defendant       remained      in    the   vicinity     of     the    crime    scene,     was

willing    to    render       assistance,      and    did,    in    fact,    aid   in   the

perpetration       of    the       offenses    by    informing       the     others     that

Goolsby and Mangold “ran off” and encouraging everyone to hurry

up and leave.           Defendant’s testimony that she was not aware of

what was happening and did not act pursuant to a common plan or

intend to offer assistance is not considered when ruling on the

sufficiency of the evidence and did not warrant a dismissal of

the charges.       See State v. Agustin, ___ N.C. App. ___, ___, 747

S.E.2d 316, 318 (2013) (“Contradictions and discrepancies do not

warrant dismissal of the case; rather, they are for the jury to

resolve.        Defendant’s evidence, unless favorable to the State,

is not to be taken into consideration.”                      (citation and quotation

marks omitted)).           Thus, the determination of whether Defendant

was criminally responsible for these offenses under either an

aiding and abetting theory or an acting in concert theory was a

question for the jury.
                                    -19-
V. Ineffective Assistance of Counsel

       Finally,    Defendant   contends      that    her    trial    counsel’s

failure to make a motion to dismiss at the close of all of the

evidence deprived her of her constitutional right to effective

assistance of counsel.      We disagree.

       In order to establish ineffective assistance of counsel,

“[a]   defendant    must   first   show    that   [her]    defense   counsel’s

performance was deficient and, second, that counsel’s deficient

performance prejudiced [her] defense.”              State v. Thompson, 359

N.C. 77, 115, 604 S.E.2d 850, 876 (2004), cert. denied, 546 U.S.

830, 163 L.Ed.2d 80 (2005).

           Deficient performance may be established by
           showing that counsel’s representation fell
           below     an    objective    standard     of
           reasonableness.    Generally, to establish
           prejudice, a defendant must show that there
           is a reasonable probability that, but for
           counsel’s unprofessional errors, the result
           of the proceeding would have been different.
           A reasonable probability is a probability
           sufficient to undermine confidence in the
           outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal

citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L.Ed.2d 116 (2006).

       However, “if a reviewing court can determine at the outset

that there is no reasonable probability that in the absence of
                                        -20-
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.

Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).

       As discussed above, the State presented sufficient evidence

to withstand a motion to dismiss the charges against Defendant

under the acting in concert and aiding and abetting theories of

criminal liability.         As such, we cannot conclude that Defendant

was prejudiced by her counsel’s failure to make a proper motion

to   dismiss    the    charges.        Therefore,     Defendant’s     argument   is

overruled.

                                      Conclusion

       For   the      reasons   stated     above,      we    vacate   Defendant’s

conviction for attempted murder and remand to the trial court so

that it may arrest judgment with respect to at least one of

Defendant’s felony convictions pursuant to the merger doctrine.

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

       Judges HUNTER, JR. and ERVIN concur.
