                                NO. COA13-1395

                  NORTH CAROLINA COURT OF APPEALS

                        Filed: 16 September 2014


STATE OF NORTH CAROLINA

    v.                                  Guilford County
                                        No. 11 CRS 082533
JAMES LEWIS WILSON, JR.




    Appeal by Defendant from judgment entered 22 March 2013 by

Judge David L. Hall in Superior Court, Guilford County.             Heard

in the Court of Appeals 12 August 2014.


    Attorney General Roy Cooper, by Special Deputy                Attorney
    General David P. Brenskelle, for the State.

    Kimberly P. Hoppin for Defendant.


    McGEE, Chief Judge.


    James Lewis Wilson (“Defendant”) appeals his conviction of

attempted first-degree murder.        Defendant contends that (1) the

corresponding short form indictment against him for attempted

first-degree   murder     was     defective      and   (2)   he   received

ineffective assistance of counsel at trial.            We agree that the
                                     -2-


indictment against Defendant was defective, but we do not agree

that Defendant received ineffective assistance of counsel.

                              I.    Background

    Around five or six in the evening of 19 July 2011, Timothy

Lynch (“Mr. Lynch”) was walking on a street in the Five Points

area in High Point.        Mr. Lynch was accompanied by a small group

of people.

    A   blue    Cavalier    (“the   Cavalier”)    approached   and    stopped

near where Mr. Lynch and his companions were standing.               Four men

inside the Cavalier, including Defendant, exited the vehicle.

Defendant had been riding in the front passenger seat of the

Cavalier and was carrying a gun.           Defendant testified at trial

that the four men were there to confront Mr. Lynch, whom they

believed had recently beaten up Defendant’s cousin.              Defendant

further testified that, upon exiting the Cavalier, he pointed

his gun at the group with Mr. Lynch in order to get them to

disperse.      Mr. Lynch’s companions fled the scene immediately,

but Mr. Lynch remained.

    There was conflicting testimony as to what happened next.

Multiple witnesses testified that Defendant pulled on the slide

of his gun to cock it and then pointed the gun at Mr. Lynch.

One witness testified that Defendant             next tried to pull the
                                               -3-


trigger three or four times, but the gun jammed and did not

fire.       Defendant testified that he tried to cock the gun after

Mr. Lynch’s companions began running, but the slide itself was

jammed      and    did   not   move       in   spite     of    his     multiple    efforts.

Defendant also testified that he never pointed the gun at Mr.

Lynch or tried to pull the trigger after the crowd dispersed.

       Defendant then left in the Cavalier, along with the three

men who were accompanying him.                   However, the police soon pulled

over     the      vehicle     and       took   Defendant        into    custody.         Upon

performing a protective sweep of the Cavalier, one officer found

Defendant’s gun with its safety still on.

       Defendant was indicted on 7 November 2011 for attempted

first-degree murder.                A    jury found Defendant guilty of                  that

charge on 20 March 2013.                 The following day, Defendant gave oral

notice of appeal in open court.

                             II.     Defective Indictment

                               A. Standard of Review

       On    appeal,        this    Court      reviews        the    sufficiency    of    an

indictment de novo.            State v. McKoy, 196 N.C. App. 650, 652, 675

S.E.2d 406, 409 (2009) (citation omitted).

                                         B. Analysis
                                        -4-


       Defendant   contends      that    the    indictment        against    him   for

attempted first-degree murder was defective because it omitted

an essential element of the offense:                malice aforethought.           The

short    form   indictment    against      Defendant,        in    relevant    part,

states as follows:         “The jurors for the State upon their oath

present that on or about the date of offense shown and in the

county    named    above    the    defendant        named     above    unlawfully,

willfully and feloniously did attempt to murder Timothy Lynch.”

By     contrast,   N.C.    Gen.    Stat.       §    15-144     (2013),       entitled

“Essentials of bill for homicide,” states that in the body of

the indictment, “it is sufficient in describing murder to allege

that    the   accused   person    feloniously,        willfully,       and    of   his

malice    aforethought,    did    kill    and      murder    (naming    the   person

killed), and concluding as is now required by law.”

              The purpose of an indictment is to inform
              the defendant of the charge against him with
              sufficient   certainty  to   enable   him  to
              prepare a defense.        An indictment is
              insufficient if it fails to allege the
              essential elements of the crime charged as
              required by Article I, Section 22 of the
              North   Carolina    Constitution    and   our
              legislature in N.C.G.S. § 15-144.     When an
              indictment   has   failed   to   allege   the
              essential elements of the crime charged, it
              has failed to give the trial court subject
              matter jurisdiction over the matter, and the
              reviewing court must arrest judgment.
                                             -5-


State v. Bullock, 154 N.C. App. 234, 244–45, 574 S.E.2d 17, 23–

24 (2002) (citations omitted).

    In this case, the indictment on its face failed to include

the essential element of “malice aforethought” as required by

Article    I,     Section      22     of    the    North       Carolina      Constitution,

N.C.G.S.   §     15-144,       and    Bullock.          As     a   result,     just    as   in

Bullock, we arrest the judgment in Defendant’s attempted first-

degree murder conviction.                   See id. at 245, 574 S.E.2d at 24

(arresting       the    judgment      in     an    attempted         first-degree      murder

conviction where the short form indictment failed to allege that

the defendant acted with malice aforethought).

    However, again, as in Bullock, “where the indictment does

sufficiently allege a lesser-included offense, we may remand for

sentencing and entry of judgment thereupon.”                             Id.       Voluntary

manslaughter      consists       of    an    unlawful         killing    without      malice,

premeditation,          or    deliberation.             See    id.    (citing      State    v.

Robbins,    309        N.C.   771,    777,        309   S.E.2d       188,    191   (1983)).

Because    the    jury's       guilty       verdict      of    attempted       first-degree

murder necessarily means that they found all of the elements of

the lesser-included offense of attempted voluntary manslaughter,

we remand this matter to the trial court for sentencing and

entry of judgment for attempted voluntary manslaughter.                               See id.
                                     -6-


(citing State v. Wilson, 128 N.C. App. 688, 696, 497 S.E.2d 416,

422 (1998)).

               III. Ineffective Assistance of Counsel

                           A. Standard of Review

    On    appeal,   this    Court    reviews   whether    a   defendant   was

denied effective assistance of counsel de novo.                See State v.

Martin, 64 N.C. App. 180, 181, 306 S.E.2d 851, 852 (1983).

                               B. Analysis

    In his next assignment of error, Defendant contends that he

received ineffective assistance of counsel at trial, purportedly

because his counsel made concessions of Defendant’s guilt during

closing     arguments      without     Defendant's       express   consent.

Specifically, during closing arguments, Defendant’s counsel told

the jury:

            You have heard my client basically admit
            that while pointing the gun at someone, he
            basically committed a crime:     Assault by
            pointing a gun.  Pointing the gun with what
            was some sort of guilt in mind, some intent
            to use the gun, that can be a crime:
            Assault with a deadly weapon, intent to
            kill.

            So if this guilty mind points a weapon at
            someone, assault with a deadly weapon,
            intent to kill.    But, again, what are we
            here for?   Attempted first-degree murder of
            Timothy Lynch.     And you're thinking to
            yourself, those of you who have worked with
            attorneys, those lawyers need to split
                                         -7-


           hairs.    Mr. Green was talking about                         my
           client splitting hairs; maybe I am.

           But, ladies and gentlemen, this is a case
           about details. Hopefully, you saw that with
           the questions that I was asking witnesses.
           Attempted first-degree murder, intent to
           kill, pointing the weapon at Timothy Lynch.
           This is mere preparation; moving the slide.
           Moving the slide is mere preparation.

           The Judge will instruct you on that; mere
           preparation is not enough.   Intent to kill.
           [T]here has to -- what is that?    Mr. Green
           argued to you in his opening statement and
           so did I is the pulling of the trigger.
           That is what this case is about.

           Guilty mind, intent to kill Timothy Lynch by
           my client pointing the weapon at Timothy
           Lynch.    Not moving the slide; pointing,
           clicking the trigger.     That is what this
           case is about, amd [sic] that is also what
           you'll need to decide if that has been
           proven beyond a reasonable doubt.

    “In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504,

507–08   (1985),       cert.   denied,    476       U.S.   1123,   90    L.Ed.2d       672

(1986), [the North Carolina Supreme Court] held that a defendant

receives ineffective assistance of counsel per se when counsel

concedes   the    defendant's     guilt        to    the   offense      or    a    lesser-

included offense without the defendant's consent.”                                State v.

Berry, 356 N.C. 490, 512, 573 S.E.2d 132, 147 (2002).                         Admission

by defense counsel of an element of a crime charged, while still

maintaining      the    defendant’s      innocence,        does    not       necessarily
                                           -8-


amount to a Harbison error.             See State v. Fisher, 318 N.C. 512,

533, 350 S.E.2d 334, 346 (1986) (“Although counsel stated [at

closing that] there was malice, he did not admit guilt . . . .

[Therefore,] this case does not fall with the Harbison line of

cases[.]”).

      In the case before us, Defendant’s trial counsel did state

that “my client basically admit[ed] that while pointing the gun

at someone, he basically committed a crime:                  Assault by pointing

a   gun.”       Notably,    at    trial,    Defendant     testified     and   openly

admitted to pointing a gun at the crowd with Mr. Lynch in order

to get them to disperse.            Although Defendant’s counsel used the

singular “someone” to describe those at whom Defendant pointed a

gun, dispersing the crowd was the only time Defendant admitted

to pointing the gun at anyone.                   Indeed, throughout direct and

cross-examination, Defendant consistently denied that he pointed

the gun at Mr. Lynch after the crowd dispersed, despite the

State’s repeated attempts to elicit such an admission.

      Defendant was not charged with the offense of assault by

pointing    a    gun   at   the   crowd;     he    was   charged   with   attempted

first-degree      murder    of    Mr.   Lynch     after   the   crowd     dispersed.

Even if we were to assume arguendo that Mr. Lynch was in fact

the “someone” referred to by Defendant’s trial counsel, assault
                                           -9-


by pointing a gun is not a lesser-included offense of attempted

first-degree murder.            Cf. State v. Dickens, 162 N.C. App. 632,

638, 592 S.E.2d 567, 572 (2004) (holding that “[a]ssault by

pointing a gun is not a lesser-included offense of assault with

a   firearm    on    a    law     enforcement      officer      because     the   latter

offense does not include the element of pointing a gun at a

person.” (emphasis added)).               Because this purported admission by

Defendant’s counsel did not refer to either the crime charged or

to a lesser-included offense, counsel’s statements in this case

fall outside of Harbison.               At best, an admission by Defendant’s

trial counsel that Defendant pointed a gun at Mr. Lynch, while

still    maintaining       Defendant’s         innocence     of    attempted      first-

degree murder, would appear to place counsel’s statements within

the rule in Fisher, and thus still outside of Harbison.                              See

Fisher at 533, 350 S.E.2d at 346 (finding no Harbison error

where    the   defendant’s        counsel      admitted    an     element    of   first-

degree    murder     at    trial    but    still    maintained      the     defendant’s

innocence).

      Also,    the   declaration          by   Defendant’s      trial     counsel   that

“[p]ointing the gun with what was some sort of guilt in mind,

some intent to use the gun, that can be a crime:                        Assault with a

deadly    weapon,        intent    to     kill”    was    merely     a    hypothetical
                                     -10-


statement, not an admission.          (emphasis added).           Next, counsel

described    the   crime   with    which    Defendant      had    been   charged:

“Attempted   first-degree      murder,     intent   to    kill,    pointing    the

weapon at Timothy Lynch” and then contrasted this to Defendant’s

theory of the case that Defendant’s acts during the incident

with Mr. Lynch amounted to “mere preparation; moving the slide.

Moving the slide is mere preparation.”                   Here, too, Defendant

himself testified that he tried to move the slide on the gun

after pointing it at the crowd.

    Defendant’s      counsel      concluded    by   highlighting         the   key

point:   “Guilty mind, intent to kill Timothy Lynch by my client

pointing the weapon at Timothy Lynch.               Not moving the slide;

[but] pointing, clicking the trigger. . . .                 [Y]ou'll need to

decide if that has been proven beyond a reasonable doubt.”

    In total, and despite Defendant’s contention that his trial

counsel admitted Defendant “pointed a gun at Timothy Lynch with

the intent to kill him,” we find no such admission in the record

before us.    Although Defendant’s counsel’s statements were less

than clear at closing, none of his statements amount to Harbison

error.

    We find no other basis for supporting Defendant’s claim of

ineffective assistance of counsel.
                                    -11-


    Judgment      arrested    on    attempted    first-degree      murder;

remanded   for   sentencing   and   entry   of   judgment   on   attempted

voluntary manslaughter.

    Judges BRYANT and STROUD concur.
