               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-188

                            Filed: 21 November 2017

Wayne County, Nos. 12 CRS 55798-99; 13 CRS 3281

STATE OF NORTH CAROLINA

            v.

JUJUAN MAQUIS COX, Defendant.


      Appeal by Defendant from judgment entered 21 October 2015 by Judge J.

Carlton Cole in Wayne County Superior Court. Heard in the Court of Appeals 24

August 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Steven
      M. Arbogast for the State.

      Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Jujuan Maquis Cox (“Defendant”) appeals from a 21 October 2015 judgment

entered after a jury convicted him of first-degree murder, second-degree murder,

attempted first-degree murder, two counts of assault with a deadly weapon with

intent to kill, and five counts of discharging a weapon into occupied property.

Defendant argues the trial court erred by: (1) failing to dismiss the first-degree

murder charge on the theory of lying in wait; (2) failing to dismiss the charge of

second-degree murder; (3) failing to dismiss the charge of assault with a deadly
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weapon with the intent to kill inflicting serious injury (“AWDWIKISI”); and (4) giving

a coercive jury instruction after the jury repeatedly stated it was deadlocked.

Defendant also argues ineffective assistance of counsel. We find the court committed

no error on the issues raised on appeal and dismiss Defendant’s claim of ineffective

assistance of counsel without prejudice to refile the claim in a Motion for Appropriate

Relief.

                           I. Procedural and Factual Background

          On 5 August 2013, a grand jury indicted Defendant on multiple counts of first-

degree murder, attempted first-degree murder, AWDWIKISI, discharging a firearm

into an occupied dwelling, and two counts of discharging a firearm into an occupied

vehicle. The State tried Defendant on the following: two charges of first-degree

murder, two charges of attempted first-degree murder, two charges of AWDWIKISI,

three charges of discharging a firearm into an occupied dwelling, and two charges of

discharging a firearm into an occupied vehicle in operation.

          On 12 October 2015, the trial court called Defendant’s case for trial. The

State’s evidence tended to show the following. The State first called Aaron Michael

Cantwell (“Cantwell”) with the Wayne County Sheriff’s Office. While on duty on 2

December 2012, Cantwell received a “shots fired” call over the radio as he was driving.

Upon arrival at the scene, Cantwell saw another officer’s patrol car approach.

Cantwell then spoke to a man walking on a path crossing Mt. Olive Road, when he



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heard a female voice crying for help. The two officers approached the screaming

woman, who directed them to a trailer. Cantwell entered the trailer through its back

door, and heard a “painful holler.”

        Advancing into the trailer, Cantwell saw three victims lying on the floor. The

first man Cantwell saw was shot and immobile. The second man, later identified as

Trae Stokes (“Stokes”), was also shot, but was “coherent and yelling.” Cantwell

noticed a .40 caliber Glock handgun under some clothing between the unconscious

individual and Stokes. Cantwell instructed the other officer to keep people from

entering the trailer. Cantwell then “secured” the weapon by locking it in the trunk

of his car, and called EMS. Upon arrival, EMS initially treated Stokes in the trailer’s

kitchen. EMS then “removed and transported [Stokes] to Wayne Memorial Hospital.”

While EMS treated Stokes, Cantwell checked the other two individuals for signs of

life.

        The State next called Stokes. Stokes and the victim, Jamal Anthony Kornegay

(“Kornegay”), had a fifteen year-long friendship. Stokes also knew the other victims

Leonard Darden (“Darden”) and Nakiea Felicia Garner (“Garner”). Stokes recognized

Defendant in the courtroom, and stated they attended school together their entire

lives. Stokes was “absolutely” familiar with Defendant’s voice.




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         On 2 December 2012, Stokes drove to Kornegay’s trailer. Upon entering the

trailer, Stokes saw Kornegay, Garner, and Darden sitting around the kitchen table.

Stokes saw Defendant drive his van outside Kornegay’s trailer.

         At this point, Kornegay went outside. Kornegay returned within 10 seconds

and stated, “Juan outside on that bullshit.”          Stokes knew Kornegay referred to

Defendant. Stokes then heard Defendant yell from outside, “tell your bitch ass home

boy [Darden] to come outside.” About three seconds later, Stokes heard gun shots

and ran into another room. “After that it was just multiple shots came [sic] through

the trailer.”

         Stokes knew the shots went through the trailer, “[b]ecause you could see the

debris as they hit.” Stokes stated Kornegay and Garner stayed in the kitchen, on the

floor:

                As I heard shots I’m laying in this doorway, like laying in
                the doorway. As I heard shots I peeked out, and I see that
                [Kornegay] has a pool of blood up under his chest because
                he’s face-down, but he has a pool of blood so I’m trying to
                see where he’s shot. As I’m sliding out, [Garner] raise her
                head up, and I seen that she had got shot . . . I slid across
                the floor like right here. I got in between both of them
                trying to assess their wounds.

As Stokes slid across the room towards Kornegay and Garner, Stokes received a shot

in his leg. After Stokes was shot, he heard more shots. He remained still until the

police arrived.

         The shots subsided, and Darden exited a different room. Stokes told Darden


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to leave and to call an ambulance. Stokes “[saw Darden] go out the back door,” and

he “heard his car leave.” Once Darden “got about to the top of the path pulling out

on to the highway[,]” Stokes heard more shots. Stokes saw Kornegay’s handgun and

took it in case someone entered the trailer.

      At this point, Stokes saw Thompson enter the trailer. Stokes told Thompson

to call an ambulance. Thompson left and the police arrived shortly thereafter.

      Stokes admitted he lied to the Sheriff’s deputies when they interviewed him in

the hospital. Stokes told members of the Sheriff’s Department he did not recognize

Defendant’s voice, when he actually did. Stokes felt “the police that we have in Wayne

County, they don’t really do their job on murders, so I would much rather handle it

myself.”

      The State next called Darden. Darden knew Defendant, Kornegay, and Garner

for ten years. Darden also knew Stokes and Thompson.           According to Darden,

Kornegay lived alone and possessed a .40 caliber Glock handgun. On 2 December

2012, Darden visited Kornegay at Kornegay’s trailer. Stokes and Garner arrived

later. Kornegay received a phone call from Thompson and went outside for about

three to five minutes. Kornegay then came back inside and said, “[Defendant] outside

on that bullshit.”   As Darden stood in the hallway with Kornegay, he heard

approximately ten gunshots. More gunshots continued for fifteen minutes. Kornegay

walked past a window to check on Garner, and he received a shot in the head. Garner



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received a shot in her head as she jumped to grab Kornegay.

      Darden went to Kornegay, and noticed his faint breath. Darden also noticed

Stokes’s leg wound. After the shooting stopped, Darden ran out the back door and

jumped into his vehicle. Defendant stood by the trailer’s driveway with an assault

rifle. Darden drove down the path toward Old Mt. Olive Highway, and Defendant

shot at Darden’s vehicle. Darden saw police lights at the highway. Darden then

pulled up in front of the police, and told them Defendant shot him in the arm.

      Thompson testified next for the State. Thompson and Defendant knew each

other all their lives.     Thompson visited Kornegay the evening of the shooting.

Initially, Thompson remained in his car, and saw Defendant’s van. He also saw

Defendant exit the van while holding a rifle. Thompson yelled for Kornegay to come

outside and also called out Defendant had a rifle. Thompson heard Defendant yell,

“tell your pussy ass home boy[Darden] to come outside.” Thompson testified as he

left Kornegay’s trailer:

             I back up, I go back where [Defendant] was, and ah -- I tell
             him, I said man, you need to leave before you do something
             you regret tonight. He said whatever, whatever I do
             tonight I make bond off tomorrow; so I pull up a little bit, a
             few feet, I stop because I get a feeling like, yo, I roll the
             window down, I said Jujuan Cox, you better not shoot in
             my car when I drive off. He says to me Antonio Thompson,
             I don’t have no problems with you; I got a problem with
             your cousin. So I drives off. I get to the end of the path.
             When I get on the highway I hear gunshots, so I start
             calling [Kornegay’s] phone and he won’t pick up.



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      Thompson then phoned Stokes. Stokes told Thompson everyone in the house

was shot.    Thompson travelled back toward Kornegay’s trailer.           On his way,

Thompson saw the police stop at the trailer. The police talked to an unknown man

by Defendant’s van. Thompson returned and entered the trailer before the police

arrived. Thompson saw everyone was shot. Only Stokes was alive, but he suffered a

shot in his leg. Thompson then heard several more gunshots.

      The State rested. At the close of the State’s evidence, Defendant moved to

dismiss the two first-degree murder charges, the attempted first-degree murder

charges, the assault with a deadly weapon with intent to kill, and the shooting into

an occupied dwelling and an occupied vehicle. Defendant’s trial counsel specifically

argued “there’s been not one scintilla of evidence that the [D]efendant, with malice

aforethought, which is intent to kill or premeditation or deliberation has been

presented in this case concerning either Jamal Anthony Kornegay or Neekea Felicia

Garner.” Defendant’s counsel further argued, “there’s been no evidence whatsoever

presented in this courtroom by anyone that the [D]efendant unlawfully, willfully and

feloniously and of malice aforethought, which again is intent to kill with

premeditation and deliberation, attempted to kill or murder Trey Stokes.”            In

response, the State argued, “looking at the evidence in the light most favorable to the

State . . . [the evidence sufficiently] shows an intent to kill.” The trial court denied

Defendant’s motions.



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      Counsel for the defense presented an alibi witness, Maurice Whitehead

(“Whitehead”). Whitehead was friends with Defendant’s aunt, Dorothy Cox (“Cox”).

Whitehead recalled at the time of the shooting, Defendant was with him at Cox’s

house watching a football game.      However, Whitehead also recalled Defendant

leaving with his van sometime after 10:00 p.m.

      At the close of all the evidence, Defendant renewed his motions to dismiss the

charge of first-degree murder of Kornegay, the charge of first-degree murder of

Garner, and the charge of assault with a deadly weapon with intent to kill inflicting

serious injury of Stokes.   Defense counsel argued, “there is not one scintilla of

evidence that’s been offered that the Defendant fired any shots killing anybody.” The

trial court denied both Defendant’s motions.

      During the charge conference, defense counsel objected to the jury instruction

of acting in concert.   The trial court allowed the instruction to go to the jury.

Defendant’s counsel also objected to the trial court’s instructing the jury on three

different theories of murder. The State responded, “the State’s not required to pick a

theory. We contend the evidence is there for all three of these [theories].” The trial

court noted for the record Defendant did not object to the State proceeding on the

felony murder rule. However, the trial court noted Defendant’s objection to the case

proceeding on the theories of premeditation and deliberation and lying in wait. In its

discretion, the trial court allowed instructions on all three murder theories to go to



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the jury. Defendant did not object to the jury instruction for AWDWIKISI.

       The jury began to deliberate at 10:57 a.m. About an hour and a half later, the

jury submitted a note to the trial court stating “We cannot come to a unanimous

decision on any of the charges against [Defendant].” The trial court said to counsel,

“I’ll hear from you at this time as to how we can proceed.” The State responded, “at

some point we need to give the Allen charge[.]” Defense counsel agreed.

       After lunch, the trial court gave the jury an Allen charge:

                     Jurors have a duty to consult with one another and
              to deliberate with a view to reaching an agreement, it if can
              be done without violence to individual judgment. Each
              juror must decide the case for himself or herself, as the case
              may be, but only after impartial consideration of the
              evidence with his fellow jurors - - his or her fellow jurors.
              In the course of deliberations a jury should not hesitate to
              re-examine his or her own views and change his opinion if
              convinced it is erroneous, and no juror should surrender his
              or her honest conviction as to the weight or effect of
              evidence solely because of the opinion of his or her fellow
              jurors, or for the mere purpose of returning a verdict. I’m
              going to ask that you go back in and continue your
              deliberations.

At 2:22 p.m., the jury requested copies of Darden’s, Stokes’s, Thompson’s and

Whitfield’s transcripts. The trial court denied the request and instructed the jury to

rely on its recollection. Defense counsel did not object. At 2:55 p.m., the jury sent the

trial court a note stating, “After several attempts to resolve the issues the dissenting

jurors have . . . it is impossible for the jurors to agree with the majority of the jurors.”

The trial court stated:


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             What I would propose is that we - - I read those instructions
             again, jurors have a duty to consult with one another, to
             deliberate with a view toward . . . with a view to reaching
             an agreement if it can be done without violence to
             individual judgment. Each juror must decide the case for
             him or herself, but only after an impartial consideration of
             the evidence with his or her fellow jurors. . . .

Defense did not object, but stated:

                    Just, your Honor, the only thing that kind of
             concerned me was telling them that they needed to try to
             reach a verdict, and then I just - - I, I mean if they can’t
             they can’t, you know. I don’t know. That would be the only
             issue; everything else was fine.

At 3:43 p.m., the trial court received a third note from the jury stating, “[W]e cannot

come to a same verdict. Neither side is going to agree. The jurors are still firm to

their decision.” The jury had been deliberating for less than 5 hours at this point,

and the trial court stated “I am, at this time, not prepared, in my discretion, to declare

a mistrial.” The trial court gave the following instructions:

             I’m going to send you back with those same instructions
             that I’ve given you earlier. And while you are back there,
             you decide whether you all want to work after 5:00 or end
             at 5:00 and come back tomorrow. You take a vote and let
             us know. But after 5 days of testimony and less than 5
             hours of deliberations, these folks deserve better.

Defense counsel did not object. The jury decided to continue deliberations after a

recess. The trial court arranged to have a meal delivered to the jury.

      At 6:10 p.m., the jury reached a verdict, finding Defendant guilty of the

following: (1) first-degree murder of Kornegay on the theory of lying in wait; (2)


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second-degree murder of Garner; (3) attempted first-degree murder of Darden; (4)

two counts of assault with a deadly weapon with intent to kill inflicting serious injury

of Darden and Stokes;      (5) three counts of discharging a weapon into occupied

property; and (6) two counts of discharging a firearm into an occupied vehicle.

      As to the first-degree murder of Kornegay, the trial court sentenced Defendant

to life without parole. As to the second-degree murder of Garner, the trial court

sentenced Defendant to a minimum of 276 months and a maximum of 344 months, to

run at the expiration of Defendant’s sentence of life without parole. The trial court

consolidated the rest of the judgments into the attempted first-degree murder of

Darden.    For that charge, the trial court sentenced Defendant to a minimum of 180

months and a maximum of 228 months, to run at the expiration of the second-degree

murder sentence. Defendant then orally gave notice of appeal.

      On 29 January 2016, Defendant, through trial counsel, filed a motion for

appropriate relief in Wayne County Superior Court. The trial court heard the motion

on 6 April 2016. In the motion, Defendant contended Defendant’s counsel learned

juror Number 4 approached Defendant’s family in the parking lot after the verdict.

Juror Number 4 was crying and told Defendant’s family the “Judge forced [the jury]

to make a guilty verdict.” Upon receiving this information, defense counsel contacted

a private investigator to investigate this issue. Juror Number 4 told the private

investigator “the judge did enter the jury room before deliberations were met.”



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Another juror also “stated the judge did enter the jury room before the jury

deliberated and [that juror] felt pressured to find [Defendant] guilty.” Based on these

assertions, Defendant’s counsel requested the trial court to hold an evidentiary

hearing.

      The trial court responded, “Well, under State statute a juror is not competent

to testify as to what goes on in the jury room.” Therefore, the trial court denied

Defendant’s motion and Defendant’s request for an evidentiary hearing. On that

same day, the trial court issued a written order denying Defendant’s motion and

finding:

             1. The Motion consists only of general and conclusory
             allegations and fails to state sufficient grounds in its
             support.

             2. The Defendant has failed to allege any underlying set of
             facts or develop any factual basis supported by affidavit or
             documentary evidence which might show a substantial
             denial of constitutional rights.

             3. The Motion does not meet the criteria of Article 88 of
             Chapter 15A of the North Carolina General Statutes;
             neither does it adequately state a basis in law or fact for
             the relief requested.

Also on that same day, Defendant, through trial counsel, appealed the trial court’s

decision in open court.

      On 10 July 2017, Defendant filed with this Court a “Motion to Withdraw

Appeal Taken on 6 April 2016 and to Vacate Order on Motion for Appropriate Relief



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For Lack of Jurisdiction.” In this motion, Defendant’s appellate counsel states:

                    4. After knowing discussions between [Defendant]
             and undersigned counsel, [Defendant] has elected to
             dismiss his 6 April 2016 appeal regarding his motion for
             appropriate relief. [Defendant] has been made aware that
             the decision to pursue or dismiss the 6 April 2016 appeal is
             his decision alone and that by dismissing the 6 April 2016
             appeal, he loses his only opportunity to pursue it.

              ....

                    6. [Defendant] also moves to vacate the trial court’s
             order on his motion for appropriate relief because the trial
             court lacked jurisdiction to hear the motion.

              ....

                    11.    Because [Defendant] filed his motion for
             appropriate relief in the trial court after the trial court had
             been divested of jurisdiction, the trial court lacked
             jurisdiction to consider his motion[.]

This Court allows Defendant’s motion to dismiss his motion for appropriate relief and

vacates the trial court’s order on the motion due to lack of jurisdiction.

                              II. Standard of Review

      This Court “reviews the denial of a motion to dismiss for insufficient evidence

de novo.” State v. Taylor, 203 N.C. App. 448, 458, 691 S.E.2d 755, 763 (2010) (citation

and quotation marks omitted), cert. dismissed, 366 N.C. 408, 736 S.E.2d 180 (2012)

(quoting State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008)). Under

a de novo review, this Court “considers the matter anew and freely substitutes its

own judgment for that of the trial court.” State v. Sanders, 208 N.C. App. 142, 144,


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701 S.E.2d 380, 382 (2010). “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. Barnes,

334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 261

S.E.2d 114 (1980)).

      “Under plain error review, a defendant must demonstrate that the trial court

committed ‘a fundamental error.’” State v. May, 368 N.C. 112, 119, 772 S.E.2d 458,

463 (2015). Plain error arises when the error is “‘so basic, so prejudicial, so lacking

in its elements that justice cannot have been done[.]’” State v. Odom, 307 N.C. 655,

660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995,

1002 (4th Cir. 1982)). “Under the plain error rule, defendant must convince this Court

not only that there was error, but that absent the error, the jury probably would have

reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697

(1993).

                                    III. Analysis

A. First-degree Murder

      Defendant first contends the trial court erred in denying his motion to dismiss




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the first-degree murder charge on the theory of lying in wait.1 Defendant bases this

contention on the ground there was no ambush because Defendant announced his

presence. We disagree.

               Murder perpetrated by lying in wait “refers to a killing
               where the assassin has stationed himself or is lying in
               ambush for a private attack upon his victim.” The assassin
               need not be concealed, nor need the victim be unaware of
               his presence. “If one places himself in a position to make a
               private attack upon his victim and assails him at a time
               when the victim does not know of the assassin’s presence
               or, if he does know, is not aware of his purpose to kill him,
               the killing would constitute a murder perpetrated by lying
               in wait.”

State v. Leroux, 326 N.C. 368, 375, 390 S.E.2d 314, 320 (1990) (internal citations

omitted). “Even a moment’s deliberate pause before killing one unaware of the

impending assault and consequently ‘without opportunity to defend himself’ satisfies

the definition of murder perpetrated by lying in wait.” State v. Brown, 320 N.C. 179,

190, 358 S.E.2d 1, 10, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406

(1987).

       Our State Supreme Court has held, under the theory of lying in wait, a

defendant does not need to be concealed. See Brown, 320 N.C. at 190, 358 S.E.2d at




       1  The State contends Defendant failed to preserve this issue for review because counsel for
defense neither made a general motion to dismiss nor moved to dismiss the charge of first-degree
murder based on the theory of lying in wait. Defense counsel did argue for dismissal on the specific
theories of premeditation and deliberation however. Since the record is unclear whether defense
counsel actually made a general motion to dismiss the first-degree murder charge, this Court shall
give defense counsel the benefit of the doubt.

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10. Also, a victim does not need to be aware of a defendant’s intent to kill under the

theory of lying in wait. Id. at 190, 358 S.E.2d at 10. See also State v. Allison, 298

N.C. 135, 148, 257 S.E.2d 417, 425 (1979) (holding a conviction was proper under the

theory of lying in wait when the defendant waited for the victim behind the tree, then

called her over and killed her).

      Here there was substantial evidence, taken in the light most favorable to the

State, to support the submission of the lying in wait theory of first-degree murder.

The State’s evidence tended to show the victim, Kornegay, was in his residence with

his friends at the time of the murders. Defendant arrived at Kornegay’s residence

after dark, and Kornegay went outside to talk with him.        There is no evidence

Defendant threatened or directed harm at Kornegay at this time. Kornegay returned

to his trailer, unharmed, after speaking with Defendant.       Defendant waited for

Kornegay to go back inside, and then Defendant proceeded to fire his weapon into

Kornegay’s trailer, killing Kornegay.

      The State’s evidence also tended to show Kornegay had no warning Defendant

intended him any harm. When Defendant talked to Kornegay, he told Kornegay to

send Darden outside. At this point, Defendant indicated to Kornegay he only had an

issue with Darden. Therefore, Kornegay was taken by complete surprise, and had no

opportunity to defend himself. We therefore conclude the trial court did not err in

submitting first-degree murder on the theory of lying in wait to the jury.



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B. Second-degree Murder

      Defendant next contends the trial court erred in denying defense counsel’s

motion to dismiss the charge of second-degree murder of Garner.           We conclude

Defendant failed to preserve this issue for appellate review.

      Rule 10(a) of the North Carolina Rules of Appellate Procedure states, “[i]n

order to preserve an issue for appellate review, a party must have presented to the

trial court a timely request, objection, or motion, stating the specific grounds for the

ruling the party desired the court to make if the specific grounds were not apparent

from the context.” N.C. R. App. P. 10(a)(1) (2017).        Additionally, Rule 10(a)(3)

provides “[i]n a criminal case, a defendant may not make insufficiency of the evidence

to prove the crime charged the basis of an issue presented on appeal unless a motion

to dismiss the action, or for judgment as in case of nonsuit, is made at trial.” N.C. R.

App. P. 10(a)(3) (2017).

      At the close of the State’s evidence, Defendant made a motion to dismiss each

count of first-degree murder as to the victims Kornegay and Garner. Defense counsel

explained:

                    First off there’s been not one scintilla of evidence
             that the defendant, with malice aforethought, which is
             intent to kill or premeditation or deliberation has been
             presented in this case concerning either Jamal Anthony
             Kornegay or Neekea Felicia Garner. The only evidence
             that the State has produced is that Mr. Darden, Leonard
             Darden, goes by Al, Driver stated in his sworn testimony
             here in the courtroom that [Defendant] was across the path


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            from a trailer shooting at him when he was leaving the
            scene.

             ....

                  And that definitely doesn’t show that the defendant
            in regards to Jamal Anthony Kornegay or Neekea Felicia
            Garner at any time unlawfully, willfully, feloniously and
            malice aforethought did kill and murder either one of these
            two people.

                   There is no direct evidence to that and we would be
            asking the Court to strongly consider a motion to dismiss
            both counts of first degree murder. I understand the
            State’s proceeding under the felony murder rule I guess.
            That would be my idea of it, but still you have to show or
            have to have malice aforethought, intent to kill,
            premeditation or deliberation as to Jamal Anthony
            Kornegay and as to Neekea Felicia Garner. There is no
            evidence of that been presented in this courtroom in this
            case.

             ....

                  That would be my arguments as to the two murder
            counts.

The trial court denied Defendant’s motions to dismiss.

      At the close of all the evidence, defense counsel argued:

                  The only testimony that you have is Mr. Darden said
            he shot at his vehicle when he went that way and that the
            Defendant was across the path with a chopper. And, again,
            that doesn’t really add up either, because if he was facing
            him the shots wouldn’t have been in the rear of the vehicle;
            but that’s the testimony, that’s the evidence that’s been
            presented in this case; and it does not add up to first degree
            murder of . . . Nakiea Felicia Garner or Jamal Anthony
            Kornegay.


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                    And, again, the motion would be the same motion as
             to the charge of first degree murder against the decedent
             Nakiea Felicia Garner, . . . for the exact same reasons;
             there is no evidence that this man, the Defendant, ever
             fired a weapon at that trailer by anybody.

                    Again, Mr. Darden stated he shot at his vehicle from
             across the path. That’s the evidence. And, again, I would
             ask the Court to consider motions to dismiss both of those
             counts of murder based upon the testimony under oath and
             the diagrams of the evidence that’s been presented in this
             courtroom as to the Defendant firing any weapon into that
             trailer.

      Defendant clearly made a motion to dismiss the charge of first-degree murder

of Garner. However the trial transcript shows Defendant neither moved to dismiss

the charge of second-degree murder nor argued there was insufficient evidence of the

elements of second-degree murder. Thus, Defendant failed to preserve for appellate

review the issue of the sufficiency of the evidence of the charge of second-degree

murder. See N.C. R. App. P. 10(a)(1), N.C. R. App. P. 10(a)(3); see also State v. Neville,

202 N.C. App. 121, 124, 688 S.E.2d 76, 79 (holding “Defendant neither moved to

dismiss the charge of second-degree murder, nor argued to the trial court that there

was insufficient evidence of any of the elements of second-degree murder. Thus,

Defendant failed to preserve for appellate review the sufficiency of the evidence

charge.”) (citation omitted) disc. review denied, 364 N.C. 130, 696 S.E.2d 696 (2010).

C. AWDWIKISI




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      Defendant next argues the trial court erred in denying Defendant’s motion to

dismiss the charge of AWDWIKISI as to Stokes. Specifically, Defendant argues the

State had to establish Defendant specifically intended to kill Stokes when Defendant

fired into Kornegay’s trailer. This contention is without merit.

      “In order to withstand a motion to dismiss the charge at issue, the State must

present substantial evidence of the following elements: (1) an assault, (2) with a

deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting

in death.”    State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994).

Substantial evidence is the amount of evidence “a reasonable mind might accept as

adequate to support a conclusion.” Id. at 187, 446 S.E.2d at 86. “[I]t is well settled

that the evidence is to be considered in the light most favorable to the State and that

the State is entitled to every reasonable inference to be drawn therefrom.” Id. at 187,

446 S.E.2d at 86.

      Our State Supreme Court held:

             An intent to kill is a mental attitude, and ordinarily it must
             be proved, if proven at all, by circumstantial evidence, that
             is, by proving facts from which the fact sought to be proven
             may be reasonably inferred. [T]he nature of the assault,
             the manner in which it was made, the weapon, if any, used,
             and the surrounding circumstances are all matters from
             which an intent to kill may be inferred.

State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (internal citations and

quotation marks omitted).     Furthermore, “an assailant must be held to intend the



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                                   Opinion of the Court



natural consequences of his deliberate act.” Id. at 457, 526 S.E.2d at 462 (quoting

State v. Jones, 18 N.C. App. 531, 534, 197 S.E.2d 268, 270, cert. denied, 283 N.C. 756,

198 S.E.2d 726 (1973)).

      It is not determinative to this issue whether or not Defendant knew Stokes was

in the trailer. In Alexander, the North Carolina Supreme Court upheld the trial

court’s submission of an AWDWIKISI charge to the jury when a defendant and his

accomplice fired into a vehicle, and there was no evidence defendant knew a specific

victim was inside that vehicle. Id. at 185-88, 446 S.E.2d at 85-86. There, the Court

stated¸ “when a person fires a twelve-gauge shotgun into a moving vehicle, it may

fairly be inferred that the person intended to kill whoever was inside the vehicle.” Id.

at 188, 446 S.E.2d at 87 (emphasis added).

      Applying these principles to the present case, there was sufficient evidence for

the jury to infer Defendant intended to kill whoever was inside the trailer. Here, “the

nature of the assault, the manner in which it was made, [and] the weapon . . . used”

provide “substantial evidence” of intent to kill. Id. at 188, 446 S.E.2d at 87. The

State’s evidence showed Defendant was armed during the time of the shooting, and

he fired numerous times into Kornegay’s trailer. Defendant also knew the trailer into

which he opened fire was occupied. Additionally, Thompson told Defendant not to do

anything he would regret, and Defendant replied he would “bond out” for whatever

he did. Considering the nature of the assault, the fact Defendant used a gun, and the



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                                   Opinion of the Court



other surrounding circumstances, we conclude there was sufficient evidence for the

trial court to present the jury with the AWDWIKISI charge.

      In connection with this issue, Defendant argues this Court should reverse his

conviction of AWDWIKISI as to Stokes because the trial court did not instruct the

jury on the doctrine of transferred intent. Our State Supreme Court discussed the

doctrine of transferred intent:

             It is an accepted principle of law that where one is engaged
             in an affray with another and unintentionally kills a
             bystander or a third person, his act shall be interpreted
             with reference to his intent and conduct towards his
             adversary. Criminal liability, if any, and the degree of
             homicide must thereby be determined. Such a person is
             guilty or innocent exactly as the fatal act had caused the
             death of his adversary.

State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971). However, the State did

not argue transferred intent as a basis to show Defendant’s intent to kill Stokes.

Rather, as discussed supra, the State’s evidence tended to show Defendant knew the

trailer was occupied by at least two people when Defendant fired numerous times

into the trailer. Based on the nature of the assault, the State’s evidence was sufficient

for the jury to find Defendant intended to kill “whoever” was in the trailer. See

Alexander at 188, 446 S.E.2d at 86. The State did not argue transferred intent at

trial, and neither party requested the transferred intent instruction. This argument

is without merit.

D. Jury Deliberations and Subsequent Instructions


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                                   Opinion of the Court



      Defendant lastly contends the trial court erred in giving the jury a coercive

instruction after the jury informed the trial court it was deadlocked. Because we

conclude the trial court’s instructions to the jury to continue its deliberations were in

accordance with N.C. Gen. Stat. § 15A-1235(b), we disagree.

      “In criminal cases, an issue that was not preserved by objection noted at trial

. . . may be made the basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to plain error.” N.C. R.

App. P. 10(a)(4) (2016). Here, Defendant did not object to the trial court’s instructions

and remark to the jury upon the judge’s learning the jury was deadlocked. Thus, the

plain error standard applies.

      “[I]n deciding whether a court’s instructions force a verdict or merely serve as

a catalyst for further deliberations, an appellate court must consider the

circumstances under which the instructions were made and the probable impact of

the instructions on the jury.” State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253

(1985). Under a totality of the circumstances review, this Court generally considers

“whether the trial court conveyed an impression to the jurors that it was irritated

with them for not reaching a verdict and whether the trial court intimated to the

jurors that it would hold them until they reached a verdict.” State v. Porter, 340 N.C.

320, 335, 457 S.E.2d 716, 723 (1995) (citation omitted). This Court additionally

considers the amount of time the jury deliberated, the complexity of the case, and the



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                                  Opinion of the Court



content and tone of the court’s instructions to the jury. See State v. Patterson, 332

N.C. 409, 416, 420 S.E.2d 98, 101 (1992).

      Here, the jury informed the trial court three times it was unable to reach a

unanimous verdict. Each time the trial court gave the jury an instruction consistent

with N.C. Gen. Stat. § 15A-1235(b). After the jury had deliberated less than five

hours in a single day, and after its third note to the trial court stating it was

deadlocked, the trial court informed the jury it was sending them back to further

deliberate with the same instructions it had previously given. However, this time,

the trial court added, “after five days of testimony and less than 5 hours of

deliberations, these folks deserve better.” Defendant contends this comment was

impermissibly coercive, and left the jurors with the impression the judge was irritated

with them for not reaching a verdict. This argument is not persuasive.

      The record does not suggest the trial court expressed irritation with the jury

for not yet reaching a verdict. The record suggests the judge was polite, patient, and

accommodating. The trial court properly gave the jury an Allen charge pursuant to

N.C. Gen. Stat. § 15A-1235(b) each time it stated it was deadlocked. Prior to its final

comment, the jury received a lunch break, a recess and a meal. After the third

impasse, the trial court gave the jury a choice to continue to deliberate that day, or

to go home and continue deliberations the next day. In view of the totality of the

circumstances, the trial court’s comment was not coercive.     We therefore conclude



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                                  Opinion of the Court



the trial court’s comment did not prejudice Defendant and did not amount to plain

error in this case.

E. Ineffective Assistance of Counsel

       Defendant contends if his trial counsel did not preserve the sufficiency of

evidence issues with his motions to dismiss, then his counsel provided ineffective

assistance of counsel. Generally, ineffective assistance of counsel claims “should be

considered through motions for appropriate relief and not on direct appeal.” State v.

Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). We dismiss Defendant’s

claims of ineffective assistance of counsel without prejudice and conclude Defendant

is free to assert his claims during a later MAR proceeding with a more complete

factual record.

                                  IV. Conclusion

       We find no error in Defendant’s convictions.

       NO ERROR.

       Judges DILLON and ARROWOOD concur.




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