An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA 15-219

                               Filed: 15 September 2015

Pasquotank County, No. 09 CRS 1257

STATE OF NORTH CAROLINA

              v.

TYSHAWN HINTON


       Appeal by defendant from judgments entered 10 June 2014 by Judge Jerry R.

Tillett in Pasquotank County Superior Court. Heard in the Court of Appeals 10

August 2015.


       Roy Cooper, Attorney General, by Christine A. Goebel, Assistant Attorney
       General, for the State.

       Parish & Cooke, by James R. Parish, for defendant-appellant.


       DAVIS, Judge.


       Tyshawn Hinton (“Defendant”) appeals from his convictions for assault with a

deadly weapon with intent to kill (“AWDWIK”) and assault with a deadly weapon

with intent to kill inflicting serious injury (“AWDWIKISI”). On appeal, he contends

that the trial court erred in denying his motion to dismiss based on the insufficiency

of the evidence. After careful review, we conclude that Defendant received a fair trial

free from error.
                                  STATE V. HINTON

                                  Opinion of the Court



                               Factual Background

      The State presented evidence at trial tending to establish the following facts:

On 22 February 2009, Daniel Lindsey (“Lindsey”) left the birthday party of his sister,

Valerie Lindsey (“Valerie”), at the American Legion Hut in Elizabeth City, North

Carolina sometime between 1:00 and 2:00 a.m. After leaving the party, Lindsey

stopped at the Sunoco Park ‘N Shop (“the Sunoco”) — a convenience store where

people frequently gathered after leaving local clubs.

      Lindsey called Valerie to tell her he was at the Sunoco. While on the phone,

Valerie heard four or five gunshots followed by Lindsey stating, “I’m going to kill

Little Ty. Little Ty is shooting at me.” “Little Ty” is Defendant’s nickname. Valerie

then heard Lindsey running and the phone disconnected shortly thereafter.

      Lindsey had observed Defendant come from behind the Sunoco, at which point

Defendant had begun shooting at him. Lindsey recognized Defendant because he had

known Defendant for a long time and Lindsey had previously dated Defendant’s aunt.

      In response to Defendant shooting at him, Lindsey jumped into a van belonging

to his friend, Keith Bryant (“Bryant”), along with Bryant and Bryant’s cousin,

McGarrett Bryant. Bryant then drove away from the Sunoco, at which point Lindsey

told Bryant and his cousin, “I can’t believe they are shooting at me.”

      Bryant asked Lindsey “what he wanted to do,” to which Lindsey responded

that he wanted Bryant to take him to Pritchard Street — which was approximately



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                                   STATE V. HINTON

                                   Opinion of the Court



a two-minute drive from the Sunoco — where an unidentified female was supposed

to pick him up. While still in Bryant’s van, Lindsey made a phone call, during which

he stated, “they just shot at me.” Bryant then proceeded to drop Lindsey off at

Pritchard Street and drove away.

      Shortly thereafter, while standing on Pritchard Street and waiting for his ride,

Lindsey heard someone call his name.         Lindsey recognized the voice as that of

Defendant. As Lindsey started to turn around, he was shot once in the neck. Lindsey

did not actually see the person who shot him.

      At approximately 2:51 a.m., Officer Paul Perry (“Officer Perry”) with the

Elizabeth City Police Department responded to a call from dispatch concerning a

report about a person who had been shot and was lying on Pritchard Street. Officer

Perry arrived at the scene and discovered Lindsey, who was lying on the ground and

bleeding. Emergency medical personnel were summoned, arrived shortly thereafter

and transported Lindsey to the hospital.

      While en route to the hospital, emergency medical personnel performed a

“neuro assessment” of Lindsey.       The neuro assessment initially indicated that

Lindsey had no feeling from the waist down. Over the course of the five-minute ride

to the hospital, Lindsey’s paralysis progressed rapidly throughout his body. Lindsey

was ultimately rendered paralyzed from the neck down as a result of the shooting.




                                          -3-
                                      STATE V. HINTON

                                     Opinion of the Court



       Approximately one month later, Sergeant Gary Bray (“Sergeant Bray”) with

the Elizabeth City Police Department interviewed Lindsey at the hospital. When

Sergeant Bray asked Lindsey who had shot him, Lindsey responded that Defendant

had done so.

       Defendant was indicted on the charges of AWDWIK and AWDWIKISI. A jury

trial was held on 9 June 2014 before the Honorable Jerry R. Tillett in Pasquotank

County Superior Court.

       On 10 June 2014, the jury found Defendant guilty of both charges. Defendant

was sentenced to consecutive sentences of 73-97 months for AWDWIKISI and 22-36

months for AWDWIK. Defendant gave notice of appeal in open court.

                                          Analysis

       Defendant’s sole argument on appeal is that the trial court erred in denying

his motion to dismiss the charge of AWDWIKISI. Specifically, Defendant claims that

the State’s evidence was insufficient to establish Defendant’s identity as the

perpetrator of the shooting. We disagree.1

       “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).                 To survive a

defendant’s motion to dismiss, there must be substantial evidence of (1) each

essential element of the offense charged; and (2) defendant’s being the perpetrator of


       1Defendant does not challenge his conviction for AWDWIK on appeal. Any issues Defendant
might have raised as to that claim are therefore deemed abandoned. See N.C.R. App. P. 28(b)(6).

                                             -4-
                                   STATE V. HINTON

                                   Opinion of the Court



that offense. 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). “Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Smith, 186

N.C. App. at 62, 650 S.E.2d at 33 (citation and quotation marks omitted).

      In reviewing a motion to dismiss, we must consider the evidence in the light

most favorable to the State and afford the State every reasonable inference. State v.

Lyons, 340 N.C. 646, 658, 459 S.E.2d 770, 776 (1995). “Circumstantial 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. Stone, 323 N.C. 447, 452, 373

S.E.2d 430, 433 (1988). If the evidence presented is circumstantial, the trial court

must determine whether the circumstances give rise to a reasonable inference of the

defendant’s guilt. Fritsch, 351 N.C. at 379, 526 S.E.2d at 455. “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.” Id. (citation, quotation marks, and brackets omitted).

      Where, as here, a defendant only disputes the sufficiency of the evidence

establishing his identity as the perpetrator of the crime, we review the evidence for

“proof of motive, opportunity, capability and identity, all of which are merely different

ways to show that a particular person committed a particular crime.” State v. Bell,



                                          -5-
                                  STATE V. HINTON

                                  Opinion of the Court



65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983), aff’d per curiam, 311 N.C. 299, 316

S.E.2d 72-73 (1984). These factors, while not essential elements of the crime, are

relevant in identifying the defendant as the perpetrator of a crime. Id. “In order for

this Court to hold that the State has presented sufficient evidence of defendant’s

opportunity to commit the crime in question, the State must have presented at trial

evidence not only placing the defendant at the scene of the crime, but placing him

there at the time the crime was committed.” State v. Hayden, 212 N.C. App. 482, 488,

711 S.E.2d 492, 497, disc. review denied, 365 N.C. 349, 717 S.E.2d 737-38 (2011).

      In the present case, the State produced substantial circumstantial evidence

from which the jury could reasonably conclude that Defendant committed the offense

of AWDWIKISI. Lindsey testified that he saw Defendant come from behind the

Sunoco station and shoot at him — a fact Defendant does not challenge. Lindsey was

familiar with Defendant, as he had known Defendant for some time and at one point

had dated Defendant’s aunt. Valerie also testified as to Lindsey’s having identified

Defendant as the shooter at the Sunoco while she was on the phone with him.

      Furthermore, the shooting incident at the Sunoco and the shooting incident on

Pritchard Street were close in time and in distance.            Pritchard Street is

approximately a “two minute” drive from the Sunoco station, which supports the

inference that Defendant pursued Lindsey from the Sunoco to Pritchard Street.




                                         -6-
                                   STATE V. HINTON

                                   Opinion of the Court



      Moreover, Lindsey repeatedly stated at trial that he heard Defendant call out

his name right before being shot.       This identification of Defendant by Lindsey

provides circumstantial evidence that Defendant had the opportunity and the means

to commit the crime in question as it placed Defendant — who was shown to be armed

with a firearm given his attempted shooting of Lindsey minutes before at the Sunoco

— at the scene of the crime at the time the crime was committed. See State v. McNeil,

359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (“If there is substantial evidence —

whether direct, circumstantial, or both — to support a finding that the offense

charged has been committed and that the defendant committed it, the case is for the

jury and the motion to dismiss should be denied.” (citation, quotation marks, and

alteration omitted)).   Therefore, we conclude that sufficient evidence existed for

resolution by the jury as to this charge.

                                     Conclusion

      For the reasons stated above, we conclude that Defendant received a fair trial

free from error.

      NO ERROR.

      Judges STROUD and INMAN concur.

      Report per Rule 30(e).




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