An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-196
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


STATE OF NORTH CAROLINA

      v.                                      Robeson County
                                              Nos. 07 CRS 051866-67
CHANNING ALLAMAR BLACKWELL



      Appeal by Defendant from judgments entered 3 May 2012 by

Judge Tanya T. Wallace in Robeson County Superior Court.                      Heard

in the Court of Appeals 28 August 2013.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General James A. Wellons, for the State.

      Duncan B. McCormick, for Defendant.


      DILLON, Judge.


      Channing      Allamar     Blackwell      (“Defendant”)       appeals     from

judgments entered 3 May 2012 convicting him of two counts of

attempted murder, two counts of assault with a deadly weapon

with intent to kill inflicting serious injury, one count of

attempted robbery with a dangerous weapon,                   and   one count of

discharge of a weapon in an occupied vehicle.                 We find no error,

in part, and we dismiss, in part.
                                              -2-
      The      evidence       of   record          tends      to     show        the    following:

Defendant worked at a Zaxby’s restaurant location in Robeson

County    with       Sherry    Neldon        and    Patsy         Hardin.         In     the    early

morning hours of 31 March 2007, Ms. Neldon, who was an assistant

manager at the restaurant, left work – accompanied by Ms. Hardin

- to make a night deposit of over $3,000 at a local bank on

behalf of her employer.                Upon arriving at the bank, Ms. Neldon

exited the vehicle to make the deposit.                            Ms. Hardin also got out

and walked toward the back of the vehicle, at which time she saw

a   tall,      slim    African     American         male          approaching          and    yelling

expletives.           Both Ms. Neldon and Ms. Hardin got back into the

vehicle, and, as Ms. Neldon struggled to get the vehicle into

gear, the man fired a gun.                         The first bullet shattered the

driver’s       side    window.         The    man    then         tried     to    get        into   the

vehicle by pointing the gun at Ms. Neldon’s head through the

window.         As    Ms.     Neldon    and        the    man      struggled           for    several

seconds, she heard another three or four gunshots. Ms. Neldon

was then able to get the vehicle into gear and drive away.

      One of the bullets had struck Ms. Neldon in the abdomen,

lodging in her spine, which resulted in the required removal of

part of her lower intestine.                   Ms. Neldon had to learn to walk

again    and    needed      the    assistance            of   a    cane.         Another       bullet
                                       -3-
struck Ms. Hardin in the back, which resulted in the required

removal     of    Ms.   Hardin’s     left    kidney,     part   of    her   lower

intestine, and her spleen.

    A witness saw a person fleeing the scene on foot toward a

cemetery.         Officer   Steve    Smith   responded     to   the   scene   and

approached a building near the cemetery.                   Officer Smith saw

Defendant        “peeping   around     the    corner”     of    the    building.

Defendant then “took off running in the opposite direction[.]”

Officer   Smith      apprehended     Defendant   after    Defendant     complied

with his command to “get down.”              However, even after Defendant

“got down[,] . . . he was constantly moving his hands and . . .

[h]e tried to roll back[.]”              Another officer arrived at the

scene and handcuffed Defendant.

    A third officer, Officer Jennifer White, arrived with a

police dog.        The dog “picked up a cap and a few minutes later

she found a handgun that was buried next to the vegetation.”

The gun was discovered “[m]aybe one feet, two feet” from the

place “[D]efendant went down at [the] command” of Officer Smith.

    Defendant was indicted on a number of charges and was tried

during the 30 April 2012 session of Robeson County Superior

Court, the Honorable Tanya Wallace presiding.                   On 3 May 2012,

the jury returned verdicts finding Defendant guilty of the six
                                          -4-
crimes   named    above.         The   trial     court    entered    two    judgments

consistent with the jury’s verdicts.                  In the first judgment, the

trial court consolidated one count of attempted murder and one

count    of   assault     with    a    deadly    weapon    with    intent    to   kill

inflicting serious injury with the count of attempted robbery

with a dangerous weapon, and sentenced Defendant to 220 to 273

months incarceration.            In its second judgment, the trial court

consolidated the second count of attempted murder and second

count    of   assault     with    a    deadly    weapon    with    intent    to   kill

inflicting      serious    injury      with     the   count   of    discharge     of   a

weapon   into    occupied    property,          and   sentenced     Defendant     to   a

second term of 220 to 273 months incarceration, with both terms

to be served consecutively.                From these judgments, Defendant

appeals.

                I: Petition for Discharge of Imprisonment

    In Defendant’s first argument on appeal, he contends the

trial court lacked jurisdiction, because Defendant’s appeal was

pending, to enter its Order of 13 July 2012 denying his Petition

for Discharge of Imprisonment (the “Petition”) which he filed

pursuant to Chapter 23, Art. 4, of the North Carolina General

Statutes.      We believe this Court does not have jurisdiction to

consider the issue on appeal.
                                     -5-
     Appellate Procedure Rule 4(a) provides that “[a]ny party

entitled by law to appeal from a judgment or order of a superior

or district court rendered in a criminal action may take appeal

by . . . filing notice of appeal with the clerk of superior

court and serving copies thereof upon all adverse parties . . .

.”   N.C. R. App. P. 4(a).         Compliance with the requirements for

entry of notice of appeal is jurisdictional.              Dogwood Dev. &

Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197-98, 657

S.E.2d    361,   365   (2008).      “A   jurisdictional   default    .   .   .

precludes the appellate court from acting in any manner other

than to dismiss the appeal.”             Id. at 197, 657 S.E.2d at 365.

Nothing in the record before us indicates that Defendant gave

notice of appeal from the trial court’s denial of the Petition.

Accordingly, we dismiss this portion of Defendant’s appeal.

                       II: Right to a Speedy Trial

     In    Defendant’s    second    argument   on   appeal,   he    contends

Defendant’s constitutional right to a speedy trial was denied

because there was a five year delay in bringing his case to

trial.1   We disagree.



1
   Defendant also asserts that he “demanded a speedy trial
pursuant to Section 15A-711(c),” but admits that the “prosecutor
prepared at least nine applications and writs of habeas corpus
for the purpose of prosecution between August 2010 and April
2012[,]” and, therefore, “[Defendant] is asserting only a
                                        -6-
       The right of every person formally accused of crime to a

speedy and impartial trial is secured by the fundamental law of

this   State,     State    v.    Hollars,   266    N.C.    45,   145   S.E.2d     309

(1965), and guaranteed by the Sixth Amendment to the federal

constitution, made applicable to the State by the Fourteenth

Amendment, Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d

1 (1967).        “[I]n considering whether the defendant has been

prejudiced because of a delay between indictment and trial, this

Court noted that a speedy trial serves (i) to prevent oppressive

pretrial incarceration; (ii) to minimize anxiety and concern of

the accused; and (iii) to limit the possibility that the defense

will be impaired.”        State v. Grooms, 353 N.C. 50, 63, 540 S.E.2d

713, 722 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54

(2007).

       “To determine whether a defendant’s right to a speedy trial

has been denied, four factors must be examined: the length of

the delay, reasons for the delay, defendant’s assertion of the

right,    and    prejudice      suffered    by   the    defendant.”       State    v.

Joyce, 104 N.C. App. 558, 568, 410 S.E.2d 516, 522 (1991), cert.

denied,    331    N.C.    120,   414   S.E.2d     764   (1992).        “These   four

factors    are     considered       together      to      determine     under     the



violation of his state and federal constitutional rights.”
                                     -7-
circumstances whether a sixth amendment violation has occurred.”

Id.    “[T]he length of the delay is not per se determinative of

whether the defendant has been deprived of his right to a speedy

trial.”    State v. Grooms, 353 N.C. at 62, 540 S.E.2d at 721.              A

long   delay   between      accusation    and   trial,    however,   triggers

consideration of the other factors.             State v. Webster, 337 N.C.

674, 678, 447 S.E.2d 349, 351 (1994).               “[The] defendant has the

burden of showing that the delay was caused by the neglect or

willfulness of the prosecution.”            Grooms, 353 N.C. at 62, 540

S.E.2d at 721 (2000).         “A criminal defendant who has caused or

acquiesced in a delay will not be permitted to use it as a

vehicle in which to escape justice.”             Id. at 63, 540 S.E.2d at

722 (2000) (quoting State v. Tindall, 294 N.C. 689, 695-96, 242

S.E.2d 806, 810 (1978)).

       Defendant argues on appeal that because the “case was tried

five years after [Defendant’s] arrest . . . [t]he delay . . .

may have hindered his ability to locate witnesses who could

corroborate his testimony.”          This, Defendant asserts, violated

Defendant’s    right   to    a   speedy    trial.      However,   Defendant’s

argument on appeal fails to assert, in any way, how “the delay

was caused by the neglect or willfulness of the prosecution.”

Grooms, 353 N.C. at 62, 540 S.E.2d at 721.              Moreover, the record
                                     -8-
tends to show the opposite may have been, at least partially,

true.     In this case, the State sought continuances due to a full

docket, an unavailable witness, and a coinciding week-long first

degree murder case; Defendant sought or agreed to continuances

because counsel was unavailable or needed to review the case

file.     Defendant also sought a continuance because replacement

counsel needed additional time to prepare.            The record in this

case does not affirmatively show that the delay was due to the

neglect    or    willfulness   of   the    prosecution;   rather,   several

continuances benefitted defense counsel.           Because Defendant has

failed to meet his burden of showing that “the delay was caused

by the neglect or willfulness of the prosecution[,]” Grooms, 353

N.C. at 62, 540 S.E.2d at 721, we find Defendant’s argument

without merit.

                    III: Right to Self-Representation

      In Defendant’s third argument on appeal, he contends the

trial court erred by failing to allow Defendant to proceed pro

se.     We disagree.

      “It is well settled that an accused is entitled to the

assistance of counsel at every critical stage of the criminal

process     as   constitutionally    required     under   the   Sixth    and

Fourteenth Amendments to the United States Constitution.”               State
                                         -9-
v. Taylor, 354 N.C. 28, 35, 550 S.E.2d 141, 147 (2001), cert.

denied, 535 U.S. 934, 122 S. Ct. 1312, 152 L. Ed. 2d 221 (2002).

“[W]aiver of the right to counsel and election to proceed pro

se[,]” however, “must be expressed clearly and unequivocally.”

State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992)

(citation   and     quotation     marks    omitted).        “Once    a    defendant

clearly and unequivocally states that he wants to proceed pro

se, the trial court, to satisfy constitutional standards, must

determine whether the defendant knowingly, intelligently, and

voluntarily   waives      the    right    to   in-court      representation        by

counsel.”     Id.    at   673,    417     S.E.2d    at    476.      “In   order    to

determine   whether    the      waiver    meets    that   standard,       the   trial

court must conduct a thorough inquiry[,] [and] [t]his Court has

held that the inquiry required by N.C.G.S. § 15A-1242 satisfies

constitutional requirements.”            Id.

    N.C. Gen. Stat. § 15A-1242 (2011) provides the following:

            A defendant may be permitted at his election
            to proceed in the trial of his case without
            the assistance of counsel only after the
            trial judge makes thorough inquiry and is
            satisfied that the defendant:

            (1)   Has been clearly advised of his right
                  to the assistance of counsel, including
                  his right to the assignment of counsel
                  when he is so entitled;

            (2)   Understands        and          appreciates       the
                                    -10-
                  consequences of this decision; and

            (3)   Comprehends the nature of the charges
                  and   proceedings  and   the range of
                  permissible punishments.

Id.

       In this case, Defendant filed a pro se handwritten document

on 19 January 2011 “seeking to file for a motion for dismissal.”

The trial court responded, stating the following:              “According to

our records you are represented by an attorney.               Please discuss

your concerns with your attorney.            You must act through your

attorney when filing court documents.”              Almost a year later,

Defendant    filed    a   motion    to    dismiss   and,    purportedly,     a

concurrent motion to waive counsel,2 in which Defendant stated

that he “knowingly, voluntarily, and intelligently proceeds pro

se.”    The trial court responded on 5 March 2012, again stating

the    following:      “According    to    our   court     records   you   are

represented by an attorney.         Please discuss your concerns with

your attorney.       You must act through your attorney when filing

court documents.”




2
  Defense counsel states in his brief that “[u]ndersigned counsel
went to Robeson County to review the Clerk’s file twice . . .
for the specific purpose of determining whether a separate,
concurrently filed motion was in the file, and counsel could not
locate one.”
                                          -11-
       At trial, Defendant did not express a desire to proceed pro

se, and the trial court did not conduct an inquiry.                                   Despite

repeated inquiries from the trial court as to whether there were

any other matters before the jury came in, neither Defendant nor

his    court-appointed         counsel       informed       the   trial         court     that

Defendant desired to waive in-court representation by counsel so

that   Defendant       could   proceed       pro     se.     “Only       if    a    defendant

clearly expresses his desire to have counsel removed and to

proceed pro se is the trial court obligated to make further

inquiry     pursuant      to     N.C.G.S.        §   15A-1242       to        determine      if

defendant      understands       the    consequences         of   his         decision      and

voluntarily and intelligently wishes to waive his right to the

representation of counsel.”                  State v. Johnson, 341 N.C. 104,

111, 459 S.E.2d 246, 250 (1995) (citation omitted).                                We believe

the facts of this case – because there is no motion to waive

counsel,    only   a    reference       to    one,    and    because       there      was   no

mention at trial of Defendant’s desire to proceed pro se – do

not support the proposition that Defendant clearly expressed his

desire to have counsel removed and to proceed pro se.                               As such,

the    trial   court     had     no    obligation      to    make    further          inquiry

pursuant    to   N.C.     Gen.    Stat.      §   15A-1242.          This       argument      is

without merit.
                                      -12-
       IV: Motion to Dismiss; Ineffective Assistance of Counsel

       In Defendant’s next arguments, he contends the trial court

erred by denying his motion to dismiss the charges of attempted

murder and assault with a deadly weapon with the intent to kill

inflicting     serious    injury.         Defendant    admits       that   defense

counsel failed to renew Defendant’s motion to dismiss at the

close of all      evidence, but      nonetheless argues the denial of

Defendant’s motion to dismiss was error, and further contends

that    defense   counsel’s     failure      to     renew     the    motion   was

ineffective assistance of counsel.

       Our appellate rules provide that, “if a defendant fails to

move to dismiss the action or for judgment as in case of nonsuit

at the close of all the evidence, he may not challenge on appeal

the sufficiency of the evidence to prove the crime charged.”

N.C.R. App. P. 10(b)(3).         Because Defendant presented his own

evidence and failed to renew his motion to dismiss at the close

of all evidence,        Defendant waived his right to contest this

issue    on   appeal.     Id.       The   portion     of    Defendant’s    appeal

pertaining to the trial court’s denial of his motion to dismiss

is, resultantly, dismissed.           See State v. Blackmon, 208 N.C.

App. 397, 400, 702 S.E.2d 833, 836 (2010); State v. Tanner, 193
                                               -13-
N.C. App. 150, 666 S.E.2d 845 (2008), rev'd on other grounds,

364 N.C. 229, 695 S.E.2d 97 (2010).

      Defendant also asserts that defense counsel’s failure to

renew   the       motion    to        dismiss       at     the    end     of    all     evidence

constitutes ineffective assistance of counsel.

      “To     prevail      on     a     claim       of     ineffective         assistance      of

counsel,      a    defendant          must     first       show    that        his    counsel’s

performance        was    deficient         and     then    that    counsel’s         deficient

performance prejudiced his defense.”                         State v. Allen, 360 N.C.

297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S. 867, 166

L. Ed. 2d 116 (2006) (citations and quotation marks omitted).

“Deficient        performance         may      be     established         by    showing       that

counsel’s     representation            fell      below     an    objective         standard    of

reasonableness.”           Id.         “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.”            Id.        “A     reasonable

probability is a probability sufficient to undermine confidence

in the outcome.”          Id.

      “[I]f 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
                                       -14-
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).                            The

issue in this case, therefore, turns on whether there was a

reasonable    probability       the    trial    court     would     have    ruled   in

Defendant’s    favor     had    defense      counsel     renewed    the    motion   to

dismiss at the conclusion of all evidence.                 We believe there was

not.

       “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”         State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).           “Upon defendant’s motion for dismissal,

the    question   for    the   Court    is     whether    there    is     substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense.                    If so, the motion is

properly denied.”         State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000)   (citation      and    quotation     marks     omitted).        “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”                       State v. Smith,

300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).

            Circumstantial evidence may withstand a
            motion to dismiss and support a conviction
                                         -15-
            even when the evidence does not rule out
            every   hypothesis  of  innocence.   If  the
            evidence presented is circumstantial, the
            court must consider whether a reasonable
            inference of defendant’s guilt may be drawn
            from the circumstances. Once the court
            decides that a reasonable inference of
            defendant’s guilt may be drawn from the
            circumstances, then it is for the jury to
            decide whether the facts, taken singly or in
            combination,    satisfy   [it]    beyond   a
            reasonable doubt that the defendant is
            actually guilty.

Fritsch,    351     N.C.   at    379,    526    S.E.2d      at    455    (citation       and

quotation marks omitted).               “In making its determination, the

trial    court      must    consider      all        evidence     admitted,       whether

competent or incompetent, in the light most favorable to the

State,     giving    the     State      the     benefit      of     every      reasonable

inference and resolving any contradictions in its favor.”                           State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert.

denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

                                i: Attempted Murder

      Defendant      argues     the     trial    court      erred    by       denying    his

motion to dismiss the charges of attempted murder because there

was   neither     insufficient        evidence       to   support       the    element   of

premeditation       and    deliberation        nor    the   element       of    intent   to

kill.    We address each argument in turn.
                                        -16-
       “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.

Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004); see also

N.C. Gen. Stat. § 14-17 (2011).

                    a: Premeditation and Deliberation

       Defendant first argues there was insufficient evidence to

support the element of premeditation and deliberation.                        “In the

context of attempted first-degree murder, circumstances that may

tend   to   prove    premeditation      and     deliberation     include,       among

others:     (1)   lack   of     provocation     by     the   intended    victim    or

victims; and (2) conduct and statements of the defendant both

before and after the attempted killing.”                     State v. Reid, 175

N.C. App. 613, 619, 625 S.E.2d 575, 582 (2006).                     “Premeditation

and deliberation, both processes of the mind, must generally be

proven by circumstantial evidence.”                   State v. Smith, 357 N.C.

604, 616, 588 S.E.2d 453, 461 (2003), cert. denied, __ U.S. __,

159 L. Ed. 2d 819, 124 S. Ct. 2915 (2004); see also State v.

Cozart,     131   N.C.   App.    199,   202,    505    S.E.2d   906,    909    (1998)

(stating     that   “[i]n       the   context    of     attempted      first-degree
                                   -17-
murder, circumstances that may tend to prove premeditation and

deliberation include: (1) lack of provocation by the intended

victim or victims; (2) conduct and statements of the defendant

both before and after the attempted killing; (3) threats made

against the intended victim or victims by the defendant; and (4)

ill will or previous difficulty between the defendant and the

intended victim or victims”).          “The nature and number of the

victim’s wounds is . . . a circumstance from which an inference

of   premeditation   and    deliberation     can    be   drawn.”         State    v.

Bullard,   312   N.C.   129,    161,   322    S.E.2d      370,     388    (1984).

“Premeditation    and      deliberation    may     be    inferred    from        the

multiple shots fired by defendant.”           State v. Chapman, 359 N.C.

328, 376, 611 S.E.2d 794, 828 (2005).              “[A] defendant’s attempt

to cover up his participation in the shooting by hiding the

[gun] is evidence from which premeditation and deliberation may

be inferred.”    Id. at 376, 611 S.E.2d at 829.

      In this case, the evidence of record tends to show that

Defendant worked with Ms. Neldon and Ms. Hardin at Zaxby’s and

knew when and where the night deposit was made.                  Evidence does

not show that there was any ill will among Ms. Neldon, Ms.

Hardin and Defendant prior to the shooting.                 Evidence further

shows that Defendant was waiting in the bank parking lot after
                                         -18-
1:00   A.M.    with   a    gun    on    the    night   of    the   shooting;      that

Defendant reached through the shattered vehicle window to shoot

Ms. Neldon at point blank range; and that Defendant fired four

shots at Ms. Neldon and Ms. Hardin.                Defendant attempted to hide

his gun in the grass when he was arrested.                         We believe the

evidence       supporting        the     element       of     premeditation       and

deliberation     in    this      case    was    substantial,       such    that   the

question of whether Defendant committed attempted first degree

murder was properly one for the jury.                  We believe the evidence

was    such    that    the       jury    could     have      inferred      from   the

circumstances that Defendant fired shots in a cool state of

blood, planning to take the bank deposit.                   See Chapman, 359 N.C.

at 377, 611 S.E.2d at 829.

                          b:   Specific Intent to Kill

       Defendant next argues there was insufficient evidence to

support the element of specific intent to kill.

       Intent to kill is an element of both the crime of attempted

first degree murder and assault with a deadly weapon with intent

to kill inflicting serious injury.               See Cozart, 131 N.C. App. at

202, 505 S.E.2d at 909.           “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
                                       -19-
circumstances.”    State v. Musselwhite, 59 N.C. App. 477, 480,

297 S.E.2d 181, 184 (1982).             In this case, we reiterate that

Defendant reached through the shattered vehicle window to shoot

Ms. Neldon at point blank range; and that Defendant fired four

shots at Ms. Neldon and Ms. Hardin.                 One bullet struck Ms.

Neldon in the abdomen, lodging in her spine, which resulted in

the required removal of part of Ms. Neldon’s lower intestine by

doctors.   Another bullet struck Ms. Hardin in the back, which

resulted in the required removal of Ms. Hardin’s left kidney,

part of her lower intestine, and her spleen.                  We believe this

evidence   supporting      the    element      of   intent     to     kill    was

substantial,   such     that     the    question    of   whether      Defendant

committed attempted first degree murder was properly one for the

jury.   See State v. Cain, 79 N.C. App. 35, 47, 338 S.E.2d 898,

905, disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986)

(stating   that   “[t]he       requisite      ‘intent    to   kill’     can    be

reasonably inferred by         the defendant’s use of a .357 magnum

revolver, fired numerous times”); see also State v. Maddox, 159

N.C. App. 127, 131, 583 S.E.2d 601, 604 (2003).

  ii: Assault With Deadly Weapon With Intent to Kill Inflicting
                          Serious Injury

    Defendant also argues the trial court erred by denying his

motion to dismiss the charges of assault with a deadly weapon
                                     -20-
with intent to kill inflicting serious injury because there was

insufficient evidence to support the element of intent to kill.

We disagree.

    “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.”              State v.

Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004); see also

N.C. Gen. Stat. § 14-32(a) (2011).          Intent to kill is an element

of both the crime of attempted first degree murder and assault

with a deadly weapon with intent to kill inflicting serious

injury.   See Cozart, 131 N.C. App. at 202, 505 S.E.2d at 909

(1998).

    Defendant again argues there was insufficient evidence to

support the element of specific intent to kill.          For the reasons

discussed previously concerning whether there was substantial

evidence to support the element of intent to kill in the context

of attempted first degree murder, we disagree.

    Based on the evidence, we believe there was no reasonable

probability    the   trial   court    would   have   granted   Defendant’s

motion to dismiss had he made one at the end of all evidence.
                             -21-
Therefore, Defendant’s ineffective assistance of counsel claim

must necessarily fail.

    NO ERROR in part; DISMISSED in part.

    Judge BRYANT and Judge STEPHENS concur.

    Report per Rule 30(e).
