State v. Lynch

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1193 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2014 STATE OF NORTH CAROLINA v. Wilson County No. 12 CRS 51365 TREMAYNE ANTIONE LYNCH Appeal by defendant from judgment entered 5 June 2013 by Judge Milton F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 6 March 2014. Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State. McCotter Ashton, P.A., defendant-appellant. by Rudolph A. Ashton, III, for CALABRIA, Judge. Tremayne Antione Lynch (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of felony assault with a deadly weapon with the intent to kill (“AWDWIK”) and felony discharge of a weapon into an occupied vehicle. find no error in defendant’s trial. correction of a clerical error. We However, we remand for -2I. Background On 29 March 2012, the driver of a white van (“the van”) on Barnes Street in Sharpsburg, North Carolina, positioned his vehicle close to a Toyota Camry (“the Camry”) driven by Terrance Carr (“Carr”). (“Leake”), Defendant, along with another man, Matthew Leake exited the van. Both men carried handguns. Defendant, wearing a blue bandana covering his face, chased Carr around the Camry. Carr attempted to escape by jumping into the Camry’s front seat. Defendant fired a shot through the front windshield, opened the driver’s side door, and tried to remove Carr from the vehicle by pulling his legs. In the process, Carr’s shorts and underwear were also removed. another shot at Carr, but missed. Defendant aimed After Leake’s firearm jammed as he attempted to shoot into the back window of the Camry, he reached through the open door and struck Carr in the face with his firearm. As Carr attempted to leave the parking space, his Camry struck a parked vehicle. Carr reversed the Camry with the driver’s side door still open, dragging defendant and Leake. The Camry hit the van, and Carr escaped from his assailants. Officer Willie Hopkins, III (“Officer Hopkins”), Ron Thompson (“Capt. Thompson”), and other Sharpsburg Captain Police -3Department officers discovered bullet responded holes in to investigate. the Camry’s The officers windshield, bullets lodged in the driver’s seat and back seat, and numerous shell casings of various sizes and calibers. The officers also found $1,840 in cash, 21 grams of a hard off-white substance, and a plastic bag containing a green leafy substance inside Carr’s discarded shorts. Capt. Thompson interviewed Andrew Leake (“Andrew”). him as Leake and defendant, Carr, Leake, and Carr identified the men who assaulted “Pocco,” defendant’s identified defendant in a photo lineup. nickname. Carr also Leake indicated that he, his brother Andrew, Tavoris Battle, and defendant were the men in the white van on the day of the incident. Defendant was arrested and charged with AWDWIK and discharging a firearm into an occupied vehicle. At trial, the State Carr, Officer presented Hopkins, several and witnesses, Capt. Thompson. including At the close Leake, of the State’s evidence, defendant unsuccessfully moved to dismiss the offenses. Defendant did not present any evidence and renewed the motion to dismiss. The trial court again denied the motion. On 5 June 2013, the jury returned verdicts finding defendant guilty of both offenses. Defendant was sentenced to two -4consecutive sentences of a minimum of 33 months to a maximum of 52 months in the custody of the North Carolina Division of Adult Correction. Defendant appeals. II. Rule 602 Defendant argues that the trial court erred by overruling his objection to Capt. Thompson’s testimony and allowing him to testify that Carr was “confident” as to the identity of the man who fired the weapon at him. Specifically, defendant contends that Capt. Thompson credibility. offered an opinion regarding Carr’s We disagree. “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” (2013). N.C. Gen. Stat. § 8C-1, Rule 602 “The purpose of Rule 602 is to prevent a witness from testifying to a fact of which he has no direct personal knowledge, and [p]ersonal knowledge is not an absolute but may consist of perception.” what the witness thinks he knows from personal State v. Sharpless, ___ N.C. App. ___, ___, 725 S.E.2d 894, 899 (2012) (citations and internal quotation marks omitted). In the instant case, defendant challenges the following portion of Capt. Thompson’s testimony: -5Q: Okay. When you spoke with Terrance Carr, do you remember what day it was? A: I believe incident. it was the day after the Q: Okay. And was he confident in who it was that fired the weapon at him in the car? [Defense Counsel]: [The Court]: Overruled. [Capt. Thompson]: [District that was? Objection. Attorney]: Yes, sir. And who did he say A: It was Pocco, Tremayne Lynch. Defendant cites State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989) to support his contention that his objection to Capt. Thompson’s testimony should have been sustained because it was impermissible on direct examination. Defendant contends that the State was basically trying to vouch for the character and truthfulness of Carr, the prosecuting witness. In Hewett, a child victim was asked during re-direct examination whether she had testified truthfully. appeal, the response to defendant the Id. at 15, 376 S.E.2d at 476. argued State’s that the questions victim’s regarding constituted improper character evidence. 475. This Court held that the victim’s testimony On in truthfulness Id., 376 S.E.2d at testimony was not -6improper since the question was analogous to a question in which a witness makes an in-court identification of someone and the State asks “Are you sure that person was the one you saw?” Id., 376 S.E.2d at 476. In the instant case, the State asked Capt. Thompson whether the person he interviewed was confident about the identity of his assailant. The State did not ask Capt. Thompson any questions regarding whether he believed Carr was being truthful or whether Carr had testified truthfully. Capt. Thompson asked Carr the same type of question that this Court held was proper in Hewett. In essence, Capt. Thompson asked Carr, “Are you sure that person was the one who fired the weapon?” Since Capt. Thompson during had an opportunity to observe Carr the interview, and testified regarding Carr’s demeanor during the interview according to his own personal observations that Carr appeared confident in his identification of defendant as one of the individuals involved in the assault, Capt. Thompson did not offer an opinion that he believed Carr was being truthful. Therefore, this argument is overruled. III. Intent to Kill Defendant argues that the trial court erred in denying his motion to dismiss the AWDWIK offense. Defendant contends there -7was insufficient evidence to support the element of the intent to kill. We disagree. “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). “When ruling on a defendant’s motion to dismiss, the substantial trial court evidence (1) must of determine each whether essential there element of is the offense charged, and (2) that the defendant is the perpetrator of the offense.” Id. N.C. Gen. Stat. § 14-32(c) (2013) provides that “[a]ny person who assaults another person with a deadly weapon with intent to kill shall be punished as a Class E felon.” In making a determination regarding a motion to dismiss, “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.” v. Rose, 339 N.C. Moreover, “if the inference of the 172, 192, 451 trial court determines defendant’s guilt S.E.2d may 211, that be 223 a drawn State (1994). reasonable from the evidence, it must deny the defendant’s motion and send the case to the jury even though the evidence may also support reasonable -8inferences of the defendant’s innocence.” State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (citation omitted). In the instant case, since defendant concedes that shooting into an occupied vehicle with a handgun is an assault with a deadly weapon, perpetrator. there is However, no dispute defendant that claims defendant that an is the essential element of the offense is missing because he only intended to scare Carr, and did not intend to kill Carr. Defendant cites three cases, State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964), State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972), and State v. White, 307 N.C. 42, 296 S.E.2d 267 (1982), to support his contention that an assault with a deadly weapon, even one inflicting serious injury, does not establish the intent to kill. In Ferguson, the Court stated that “[a]n intent to mental kill is a circumstantial evidence. (citation omitted). attitude” which must be proved by 261 N.C. at 561, 135 S.E.2d at 629 The Court granted the defendant a new trial because the trial court’s jury instructions indicated that the jury could find the defendant guilty of AWDWIK even if the jury found that the defendant only intended to “inflict great bodily harm” upon the victim. Id., 135 S.E.2d at 628. -9In Thacker, the Court reiterated the premise in Ferguson, stating that “[p]roof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill. Such intent must be found by the jury as a fact from the evidence.” 281 N.C. at 455, 189 S.E.2d at 150. In White, the defendant stabbed the victim over twenty times in the neck and chest with an ice pick before announcing that he intended to kill the victim with a switchblade knife. 307 N.C. at 49, 296 S.E.2d at 271. The Court held that “mere proof of an assault with a deadly weapon inflicting serious injury does not by itself establish an intent to kill[,]” and that “the 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.” The Court Id. at 49, 296 S.E.2d at 271 (citations omitted). held that the facts in White provided sufficient evidence to support the offense of AWDWIK inflicting serious injury. Id. Defendant is correct that Ferguson, Thacker, and White stand for the premise that “mere proof of an assault with a deadly weapon inflicting serious injury does not by itself -10establish an intent to kill.” at 271. White, 307 N.C. at 49, 296 S.E.2d However, multiple cases from our Court and the Supreme Court of North Carolina support the proposition that shooting a firearm at a person is sufficient to allow a jury to infer an intent to kill. See Alexander, 337 N.C. at 188, 446 S.E.2d at 87 (“when a person fires a twelve-gauge shotgun into a moving vehicle four times while . . . his accomplice is firing a pistol at the vehicle, it may fairly be inferred that the intended to kill whoever was inside the vehicle”); person State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988) (intent to kill could be inferred from viciousness of the assault and the deadly Maddox, character 159 N.C. of the App. .22 127, caliber 132, 583 rifle used); S.E.2d 601, State 604 v. (2003) (substantial evidence of intent to kill when defendant shot at victim five times with attempted to escape). a nine-millimeter handgun as victim This Court has specifically held that “[w]here the defendant points a gun at the victim and pulls the trigger, this constitutes evidence from which intent to kill may be inferred.” State v. Cromartie, 177 N.C. App. 73, 77, 627 S.E.2d 677, 680, disc. rev. denied, 360 N.C. 539, 634 S.E.2d 538 (2006). -11In the instant case, Carr testified at trial that defendant shot at him, and both Andrew and Leake testified that defendant pointed a gun at Carr, pulled the trigger, and shot at Carr several times. The State presented further evidence that there were bullet holes in Carr’s windshield, the driver’s seat, and in the driver’s side door frame. Witnesses also testified that Carr front jumped defendant. into Since the Camry’s defendant shot at seat Carr to escape multiple from times, a reasonable inference existed from the evidence that defendant intended to kill Carr. Therefore, since shooting a handgun at a person allows multiple times element of intent to kill, a reasonable inference of the the trial court correctly denied defendant’s motion to dismiss and submitted the matter to the jury. IV. Lesser Included Offense Defendant further argues that the trial court erred by failing to submit the lesser included offense of misdemeanor assault with a deadly weapon (“misdemeanor AWDW”) as a possible verdict for the jury’s consideration, since misdemeanor AWDW includes most of the essential elements of the felony AWDWIK. Specifically, defendant contends that there was evidence that he merely intended to scare Carr. substantial In addition, -12defendant argues that the State failed to prove that defendant had the intent to kill Carr since Carr sustained no gunshot wounds despite the ample opportunity to shoot Carr at close range. We disagree. “Where the State’s evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required.” State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citing State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985)). must prove for the “The only difference in what the State offense of assault with a deadly weapon inflicting serious injury and assault with a deadly weapon with intent to kill intent to kill.” 680. inflicting serious injury is the element of Cromartie, 177 N.C. App. at 76, 627 S.E.2d at “Where all the evidence tends to show a shooting with a deadly weapon with the intent to kill, the trial court does not err in refusing to submit the lesser included offense of assault with a deadly weapon.” Id. (citation omitted). Defendant cites several cases to support his contention that the trial court should have instructed the jury on misdemeanor AWDW as a lesser included offense, including State v. Lowe, 150 N.C. App. 682, 564 S.E.2d 313 (2002), State v. -13Tillery, 186 N.C. App. 447, 651 S.E.2d 291 (2007), and State v. Harrington, 95 N.C. App. 187, 381 S.E.2d 808 (1989). Defendant’s cases are distinguishable. The defendants in Tillery and Lowe prevailed on appeal because they were denied instructions on lesser included offenses when the State’s evidence on the deadly weapon element was not positive. Tillery, 186 N.C. App. at 451, 651 S.E.2d at 294; Lowe, 150 N.C. App. at 687, 564 S.E.2d at 316. In Harrington, the defendant testified that his first shot was a “warning shot” in the air, and that his second shot was an attempt to scare the victim. 808. 95 N.C. App. at 188, 381 S.E.2d at Considering the defendant’s direct testimony regarding his intentions, this Court held that the defendant was entitled to an instruction on a lesser included offense that did not require the intent to kill. Id. at 190-91, 381 S.E.2d at 810. In the instant case, the State’s evidence was positive as to each element contradictory record. of the evidence of offense, defendant’s and intent to there kill is in no the The evidence that defendant considers as evidence of his intent to scare Carr Leake’s charged conduct. testimony, that was the State’s evidence regarding Defendant Leake struck specifically believes Carr face shooting him, supports his argument. in the Leake’s instead of However, Leake’s testimony -14does not support defendant’s argument because Leake’s conduct is not evidence of defendant’s conduct or intent. At trial, Carr testified that defendant shot at him, and both Andrew and Leake testified that defendant pointed a gun at Carr, pulled the trigger, and shot at Carr several times. In addition, witnesses testified that Carr jumped into the front seat of the Camry in an effort to escape from defendant. Furthermore, there were bullet holes in the Camry’s windshield, the driver’s seat, and the driver’s side door frame, and there is no evidence that defendant fired a “warning shot.” From this evidence, the jury determined that defendant intended to kill Carr. See Cromartie, 177 N.C. App. at 77, 627 S.E.2d at 680. Since the evidence supported a showing of AWDWIK, court was not required to give an instruction the trial on a lesser included offense, and did not err in refusing to instruct the jury on misdemeanor AWDW. Id. at 76, 627 S.E.2d at 680. V. Jury Instruction Defendant further argues that the trial court plainly erred in its jury instruction on the offense of discharging a firearm into an occupied vehicle by including as an element that the vehicle was in operation. Specifically, defendant contends that -15the instruction elevated the offense submitted to the jury from a Class E felony to a Class D felony. Defendant instruction concedes that trial. Therefore, at he We disagree. failed we to apply object the to plain the error standard. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). “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). “The error in the instructions must be so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.” State v. Goforth, 170 N.C. App. 584, 587, 614 (2005) S.E.2d 313, 315 (citation and internal quotation marks omitted). Defendant concedes that since he was convicted and sentenced as a Class E felon in accordance with the offense presented in the indictment, it would be difficult to meet the above-referenced burden of prejudice on this issue. Therefore, we hold that the error in the jury instruction was harmless, and defendant is not entitled to a new trial on this error. Finally, we note that while defendant presents no arguments regarding the court’s judgment, according to the transcript of -16the sentencing hearing, defendant was sentenced to a minimum of 33 to a maximum of 52 months in the custody of the Division of Adult Correction for the AWDWIK offense. However, the judgment for defendant’s AWDWIK offense lists his maximum sentence as 55 months. As such, the length of the sentence is a clerical error. We remand to the trial court for correction of the clerical error in the judgment. See State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (“When, on appeal, a clerical error is discovered in the trial court’s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record ‘speak the truth.’”). VI. Conclusion Capt. Thompson’s testimony regarding Carr’s demeanor did not constitute any commentary on Carr’s credibility because of Capt. Thompson’s personal knowledge. Due to the nature of the assault State and the weapon used, the sufficient to support the AWDWIK charge. presented evidence This evidence was proper to submit to the jury since the intent to kill may be inferred. Cromartie, 177 N.C. App. at 77, 627 S.E.2d at 680. The trial court did not err in denying defendant’s motion to dismiss. Since the evidence supported AWDWIK and there was no -17contradictory evidence, the trial court was not required to instruct the jury on the lesser included offense of misdemeanor AWDW. Id. at 76, 627 S.E.2d at 680. Finally, defendant fails to show how the alleged error in the jury instructions rises to the level of plain error. However, we do find that the clerical error in the judgment must be corrected. Therefore, while we find no error in defendant’s trial, we remand for correction of the judgment. No error. Remanded for correction of judgment. Judges STROUD and DAVIS concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.