State v. Sorrell
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-572 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 STATE OF NORTH CAROLINA v. Wake County Nos. 10 CRS 207962 11 CRS 011870 SERGIO MONTEZ SORRELL Appeal by Defendant from judgment entered 18 November 2011 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 23 October 2012. Roy Cooper, Attorney General, by Robert M. Curran, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by David W. Andrews, Assistant Appellate Defender, for defendant. THIGPEN, Judge. Sergio Montez Sorrell ( Defendant ) appeals from a judgment entered 18 November 2011 convicting him of attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. On appeal, Defendant challenges the trial court s denial of his motion to dismiss the attempted murder and the assault -2with a deadly weapon with intent to kill inflicting serious injury charges, specifically arguing there was insufficient evidence that Defendant was the perpetrator of the offenses. We find Defendant s argument without merit. The evidence of record tends to show the following: noon on 15 March 2010, several members of the Around Bloods gang gathered outside the apartment on Oakwood Avenue in Raleigh, North Carolina, in which Defendant lived. gang members Melkym Darby Three of the Bloods ( Darby ), Damon Gresham ( Gresham ), and Donnell Cannady ( Cannady ) were in a silver Lexus. Two ( Robinson ) other and Bloods Dramon gang members Watson Bryan ( Watson ) Robinson (together, hereinafter, the Bloods ) were standing outside the apartment near Watson s black Jaguar. Robinson was armed with a gun. The Bloods were talking to a female and a male about Defendant. According particular to Darby, reason; the Bloods were not rather, they were just gathered going to for any drop a friend . . . off, and we s[aw] them there so we hung out and started talking to them. Gresham also stated that the Bloods stopped on Oakwood [j]ust to talk to friends who they [j]ust happened to see[.] -3There had been recent disagreements between Defendant and Gresham and between Defendant and Cannady, including, but not limited to, an incident in December 2009 or January 2010, at which time Defendant had been hit with a bottle while at a club, and a second incident in February 2010, at which time Defendant had stabbed two people, one of whom was Gresham. On 15 March 2010, seven or eight minutes after the Bloods gathered outside Defendant s apartment on Oakwood, Defendant walked out from behind the apartment building towards the Bloods with a gun visibly hanging out of his coat and said, Are you all ready? Then, Defendant started shooting. After Defendant started shooting, all of the Bloods began running west toward Carver Street. However, two to three minutes after Defendant started shooting, Robinson, who also had a gun, started shooting back toward Defendant. Watson was hit on the left side of his face by a single gunshot during the shootout between Robinson and Defendant. Soon thereafter, Cannady took Watson to the emergency room, where Dr. Ndidi Aziwke treated Watson. Dr. Aziwke determined that the bullet should not be removed, as removal would create a risk of spinal cord injury. Watson later had a stroke due to the adequate bullet s prevention of blood flow to Watson s -4brain, and trouble Watson talking. was paralyzed Watson was on his right eventually side released and had from the hospital, underwent therapy, and regained the ability to talk. On 3 May 2010, Defendant was indicted on charges of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury, and on 10 October 2011, Defendant was indicted on a charge of possession of a firearm by a felon. Defendant s case came on for trial during the 14 November 2011 session of Wake County Superior Court, and the jury found Defendant guilty admitted two aggravating factors. consolidated judgment, consistent of all charges. Defendant The trial court entered a with the jury s verdicts, convicting Defendant and sentencing him to 240 to 297 months incarceration. From this judgment, Defendant appeals. I. Motion to Dismiss In Defendant s sole argument on appeal, he contends the trial court erred in denying his motion to dismiss the charges of attempted first degree murder and assault with weapon with intent to kill inflicting serious injury. specifically contends the State did not submit a deadly Defendant substantial evidence that Defendant was the perpetrator of the offenses. disagree. We -5 In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator. State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998) (citation omitted). The trial court must examine the evidence in the light most favorable to the State, granting the State evidence. every reasonable inference to be drawn from the Id. 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. 300 N.C. omitted). 71, 78-79, 265 S.E.2d 164, 169 State v. Smith, (1980) (citation In making its determination [of whether there is -6substantial evidence], the trial court must consider all evidence admitted . . . 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). [C]ontradictions and inconsistencies do not warrant dismissal; the trial court is not to be concerned with the weight of the evidence. (1998). motion State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 Moreover, [c]ircumstantial evidence may withstand a to dismiss evidence does Fritsch, 351 not N.C. and support rule out at 379, a conviction even every hypothesis of 526 S.E.2d at 455 when the innocence. (citation and quotation marks omitted). 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), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005) (citing N.C. Gen. Stat. § 14-17). -7 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. Id. (citing N.C. Gen. Stat. § 14-32(a)). Under the doctrine of transferred intent, [i]t 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 intent and conduct towards his adversary. reference to his State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971) (citations omitted). Criminal liability, if any, and the degree of homicide must be thereby determined. Id. exactly fatal as [if] adversary[:] intent It follows the has the Such a person is guilty or innocent been act had aptly bullet. caused stated Id. the that (quoting death the 40 doctrine it is immaterial whether [the his malice or Jur., Am. Homicide, § 11, p. 302 (1968) (citations omitted)). of 2d Under this defendant] intended injury to the person actually harmed; if [the defendant] in fact acted with the required or elemental intent toward someone, that intent suffices as the intent element of the crime charged as a matter of substantive law. State v. Locklear, 331 N.C. 239, -8245, 415 S.E.2d 726, 730 (1992) (citations omitted). The doctrine of transferred intent applies in cases in which the defendant is charged with the attempted commission of a crime requiring intent. See State v. Goode, 197 N.C. App. 543, 551, 677 S.E.2d 507, 513 (2009). In this case, Defendant challenges the sufficiency of the evidence that he was the perpetrator of the offenses charged. Defendant s bullet theory that of injured the case Watson. was following evidence or lack thereof: by Defendant and Robinson, Robinson argument This that is fired based on the the (1) the types of guns used although identified, were never linked to either the Defendant or Robinson in other words, the evidence shows that two guns were fired, but not who fired which gun; (2) consequently, the two types of spent bullet cartridges were never Defendant s directly gun; and linked (3) to either Robinson and Robinson s Defendant gun were or both shooting Defendant contends, in close proximity to Watson when he was injured. Defendant ultimately argues the evidence that he was the perpetrator that Defendant, not Robinson, shot and injured Watson was not substantial. argument without merit. We find Defendant s -9We believe there was substantial testimonial evidence of record to identify Defendant as the perpetrator, Defendant s motion to dismiss was properly denied. such that Both Darby and Gresham gave testimony tending to show that Defendant fired the bullet that injured Watson. No one testified Robinson fired the bullet that injured Watson. During Darby s testimony, Darby shot [Watson] in the face. Darby stated that [Defendant] also gave the testimony: Q. All right. So you re standing out there talking, . . . seven or eight minutes go by. What happens next? A. [Defendant] come up and walk around the car. Q. Did you see where [Defendant] came from? A. I didn t see exactly where he came from, but I think it was from behind the apartment. . . . Q. Where were you all standing in relation to those two buildings? A. We were standing in the street in front of the car. The car was parked in front of the first apartment building. . . . Q. . . . Where did [Defendant] go when he came from around the apartment? following -10A. Around the car. . . . Q. When you first looked up and saw him, did he have anything in his hands? A. Not when I first saw him. Q. Did you see a gun at all when you first saw him? A. No. Q. What happened next? A. He came around started shooting. in front of the car, Q. How close to the group of you that were standing there talking was he when he started shooting? A. For some of us, probably about three or four feet; others, probably about ten. Q. Because the group was is that because the group was spread out? A. Spread out. Q. Where did the gun come from? A. I don t know. Q. Do you recall what kind of gun it was? A. No. Q. What happened between the time that you saw [Defendant] just walking around the car and the shooting started? -11A. [Defendant] just came around and started shooting. I took off running. Q. How many times did [Defendant] shoot? A. About eight or nine. Q. Did [Defendant] say anything to any of you? A. Just said, You ready? Q. [Defendant] said, You ready? Could you tell who he was talking to when he said that? A. Huh-uh. [Indicating, no.] . . . Q. . . . What direction did you run? A. Right, to my right. Q. Would you have been running so on that section of Oakwood, what are the two nearest cross-streets on either side? A. Fisher Street and Carver Street. Q. Did you Carver? run towards Fisher or towards A. Towards Carver. Q. Did anyone else run in that direction? A. If I m not mistaken, everybody did. Q. What about [Defendant]? A. I didn t stay or stand around and see where he ran. -12Q. Did he run the same direction as you? A. I don t know. Q. When you got down to Carver Street, did you see him at all? A. No. Q. Okay. What happened once you hit Carver Street? A. We got halfway down the street, [Robinson] comes back and told me homeboy s shot. and his Q. What did you do when you heard that? A. I was going to keep going, but [Cannady] told me to turn around and go back, go get him. Q. So did you and [Cannady] turn around and go back? A. Yeah. Q. When you got back to Oakwood Avenue, what was going on? A. He was just in the street. Q. Who was in the street? A. [Watson]. Q. What was he or what was his condition? What did he look like at that time? A. He was bleeding, couldn t walk. Q. So when you say [Watson] was street, was he standing? Sitting? in the -13A. [Robinson] was holding him up. Q. Could you tell where he had been hit? A. Huh-uh. There was too much blood. Q. What did you do next? A. Helped him get in the car. Q. What car did you help him into? A. Lexus. Q. What happened once you guys got [Watson] into the back of the car? A. [Cannady] took him to the hospital. With regard to Robinson s role in the shootout, Darby gave the following testimony: Q. So suddenly [Defendant] you re saying [Defendant] appeared and he started shooting. What did [Robinson] do? A. I don t know. I didn t stick around to see. But at the time, I didn t know. I do know now that [Robinson] shot back. . . . Q. When was the first time that you realized that [Robinson] had a gun? A. When we came back and he got [Watson] and put him in the car. Q. And so when you were standing there, you didn t know, but you came to know later? A. Yeah. -14Gresham gave testimony tending to show that Defendant was the first shooter. Gresham said that Robinson was at the front of their [Jaguar] by the hood, and Watson was also in front of the Jaguar. Gresham, however, was standing on the sidewalk near the trunk of the [Jaguar][.] Gresham saw Defendant come outside with a gun hanging out of his coat. Defendant walked straight up to the Jaguar, neither towards the front or the back of the car[,] but [a] couple feet away from Gresham. Gresham said Defendant then asked, Are you all ready? after which he [p]ulled out the gun and started shooting. took off running. Gresham testified started shooting, [Watson] ran[.] that when Gresham Defendant When asked, what happened to [Watson]? Gresham replied, I never seen him because I was running down the hill. Gresham further stated that he [saw Defendant] shooting towards [Watson][,] and Gresham identified Defendant in court as the person who shot Watson. was firing his gun towards Gresham testified that Robinson Defendant [Defendant][,] not at Watson. and shooting back at Moreover, Robinson did not start firing back at Defendant until [t]wo to three minutes after Defendant started shooting. When asked to confirm, [Robinson] waited two or three minutes before he pulled a gun out? Gresham -15responded, Yes. This testimony combined with evidence tending to show that the Bloods ran from Defendant immediately after Defendant would not started have shooting been Robinson s bullet. in creates the the vicinity inference to have that been Watson hit by When asked again [whether] the only person who [was] firing in the direction that [Watson was] facing [was Robinson]? Gresham specifically reaffirmed, No[,] [Robinson] was firing at . . . [Defendant]. Based recognize on the foregoing does not include testimonial any statements evidence, which pertaining to we the types of guns fired by Defendant or Robinson or concerning the types of ammunition collected from rounds fired, we nonetheless conclude that the foregoing testimonial evidence is sufficient substantial evidence such that the question of whether Defendant was the perpetrator the shooter of the gun that injured Watson was properly a question for the jury in this case. Therefore, the trial court did not err in denying Defendant s motion to dismiss the charges of attempted first degree murder and assault with a deadly weapon with the intent to kill inflicting serious injury. NO ERROR. Judges McGEE and BRYANT concur. -16Report per Rule 30(e).
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