{ "id": 11917343, "name": "STATE OF NORTH CAROLINA v. GARY G. GILREATH", "name_abbreviation": "State v. Gilreath", "decision_date": "1995-03-21", "docket_number": "No. 9321SC1224", "first_page": "200", "last_page": "211", "citations": [ { "type": "official", "cite": "118 N.C. App. 200" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "68 ALR4th 425", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "82 ALR2d 643", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "32 ALR3d 1078", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "15 ALR4th 983", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "43 ALR3d 221", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "60 ALR3d 1323", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "27 ALR2d 1263", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "443 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "336 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535615 ], "year": 1994, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0268-01" ] }, { "cite": "155 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "270 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569694 ], "year": 1967, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0588-01" ] }, { "cite": "308 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 164", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522872 ], "year": 1983, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0164-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "321 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680870, 4682260, 4683450, 4683066, 4685723 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0763-02", "/nc/311/0763-03", "/nc/311/0763-05", "/nc/311/0763-04", "/nc/311/0763-01" ] }, { "cite": "314 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "754" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526889 ], "year": 1984, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0209-01" ] }, { "cite": "259 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "298 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572690 ], "year": 1979, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0441-01" ] }, { "cite": "341 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "citing State v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979)" } ], "opinion_index": 0 }, { "cite": "315 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717832, 4720296, 4720212, 4718169, 4715071 ], "year": 1986, "pin_cites": [ { "parenthetical": "citing State v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0593-03", "/nc/315/0593-02", "/nc/315/0593-04", "/nc/315/0593-05", "/nc/315/0593-01" ] }, { "cite": "335 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523896 ], "year": 1985, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0506-01" ] }, { "cite": "430 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1993, "pin_cites": [ { "page": "334-35" }, { "page": "298-99" }, { "page": "334" }, { "page": "298" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525545 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0319-01" ] }, { "cite": "347 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "788" }, { "page": "794" } ], "opinion_index": 0 }, { "cite": "318 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738200 ], "year": 1986, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0030-01" ] }, { "cite": "225 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1976, "pin_cites": [ { "page": "552" }, { "page": "552-53" } ], "opinion_index": 0 }, { "cite": "290 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560978 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0292-01" ] }, { "cite": "271 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566386 ], "year": 1980, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0374-01" ] }, { "cite": "265 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "925-26", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553034 ], "year": 1980, "pin_cites": [ { "page": "683", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0680-01" ] }, { "cite": "68 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "848", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "234 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625810 ], "year": 1952, "pin_cites": [ { "page": "722", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0716-01" ] }, { "cite": "206 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "240" } ], "opinion_index": 0 }, { "cite": "285 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565454 ], "year": 1974, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0570-01" ] }, { "cite": "220 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548672 ], "year": 1976, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0311-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "277 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "384" } ], "opinion_index": 0 }, { "cite": "303 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571418 ], "year": 1981, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0075-01" ] }, { "cite": "361 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "323", "parenthetical": "citing State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981)" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358426 ], "year": 1987, "pin_cites": [ { "page": "382", "parenthetical": "citing State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0380-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "651-52" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "340 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "61", "parenthetical": "citing State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982)" }, { "page": "61" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "759", "parenthetical": "citing State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982)" }, { "page": "759" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "330 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "201", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720397 ], "year": 1985, "pin_cites": [ { "page": "581", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0580-01" ] } ], "analysis": { "cardinality": 1159, "char_count": 25000, "ocr_confidence": 0.742, "pagerank": { "raw": 6.978227204828565e-08, "percentile": 0.42231052852888334 }, "sha256": "26f80efe1ce4cfb3b6e5556ee5bfc312194f6f29e9ce35942a83e75f9e1c4ea2", "simhash": "1:83255f32060fd57e", "word_count": 4168 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and ORR concur.", "Judge ORR concurred prior to 5 January 1995." ], "parties": [ "STATE OF NORTH CAROLINA v. GARY G. GILREATH" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals convictions of first degree burglary, felonious larceny, and voluntary manslaughter. He contends the trial court erred by (1) denying his motion to dismiss the charges of voluntary manslaughter and first degree burglary; and (2) denying his request that the lesser offenses of second degree burglary and involuntary manslaughter be submitted to the jury. Upon careful consideration of defendant\u2019s arguments, we determine his assignments of error cannot be sustained.\nThe State\u2019s evidence at trial tended to show that in the early morning hours of 4 July 1990, Kay Yokley (Yokley), whose husband was away on business, heard her kitchen door being kicked in. She observed two men moving through her house, walking from room to room. However, she was able to pick up her eighteen month old child and escape through the kitchen without being seen by the men. While leaving, she grabbed a cordless telephone and subsequently called her mother, Margaret Wall (Mrs. Wall), telling her someone had broken into the house and to call the police. Because the call was disconnected, Mrs. Wall apparently did not hear the latter portion of the conversation requesting that the police be notified. Yokley then went to a neighboring house and telephoned the authorities as well.\nYokley\u2019s parents, upon hearing someone was breaking into their daughter\u2019s home, immediately drove to her residence. Mr. Wall (Wall) brought a .22 caliber semi-automatic rifle with him. Upon arriving, the Walls noticed a truck in the driveway and parked directly behind it. Mrs. Wall entered the house and screamed for her daughter upon confronting two men, identified by her as defendant and his co-defendant David Bumgarner (Bumgarner), working at disconnecting components of an entertainment center. The two then ran from the dwelling while Mrs. Wall looked for her daughter and granddaughter.\nMrs. Wall then heard her husband yell, \u201cstop, stop. If you don\u2019t, I\u2019m going to shoot,\u201d followed by one gunshot and then a \u201cwhole bunch\u201d of gunshots. When she next saw Wall, he was standing in the carport. He had been shot and the truck was gone. Mrs. Wall ran back into the house to call for help, but could not find the portable phone. She and her husband then returned to their vehicle, went to a neighbor\u2019s house for help, and found their daughter.\nLieutenant C.T. Chadwick, Jr. arrived at the Yokley home in response to a radio dispatch. He testified he found some broken glass, a rifle, and a number of spent .22 caliber shell casings at the scene. Upon searching the area, he observed a truck parked in some neighboring woods with broken glass on the passenger\u2019s side and four distinct bullet holes in the driver\u2019s side door. In the interior of the truck were personal items, as well as a pillow stained with blood. Entering a nearby residence later determined to belong to Bumgarner, Chadwick and other officers located defendant and Bumgarner, who had minor bullet wounds to his face and shoulder. Officers subsequently unearthed a Colt .22 caliber pistol buried in the backyard of the house.\nDr. Wayne Meredith testified as to Wall\u2019s injuries which included three gunshot wounds: one superficial wound to the scalp, a wound to the arm, and a serious wound to the chest which damaged many internal organs including Wall\u2019s lung, stomach, colon, spleen, pancreas, and kidney. Treatment included removal of portions of his colon and large intestine and removal of his entire spleen, as well as approximately one-third of his pancreas. The process involved several operations and Wall remained in the hospital in excess of one year.\nIn August 1992 and against medical advice, Wall determined to undergo colostomy removal surgery. He acknowledged the risk involved to his physicians, but stated he would rather be dead than continue to endure his condition as it was. Wall did not survive the operation and died 1 September 1992.\nDonald Jason, an expert in the field of pathology, testified as follows:\nQ: And in your opinion, sir, what was the cause of death of Bobby Lee Wall?\nA: Cause of death was Adult Respiratory Distress Syndrome\u2014 that\u2019s that injury to the lung that I mentioned \u2014 -which was due to the operation for reconnection of his large intestine. And that was caused by the fact \u2014 by the injuries in his abdomen, particularly the injury to the large intestine, and that was caused by the bullet wound which had gone through the abdomen.\nQ: All of these complications were the result of that bullet wound that went through his chest and into his abdomen?\nA: That\u2019s right. It all began with the bullet wound.\nDefendant offered the following testimony on his own behalf: During the afternoon of 3 July 1990, defendant went to visit Bumgarner at the latter\u2019s residence, but Bumgarner was not home. Defendant decided to wait for Bumgarner, and while doing so, consumed \u201ca couple beers.\u201d When Bumgarner returned, he and defendant decided to take a ride and visit some friends.\nDefendant admitted taking valium during the course of the evening. He remembered leaving a friend\u2019s house with Bumgarner driving the truck, and further claimed the next thing he remembered was being awakened by Bumgarner and being told to get out of the truck. They then walked through the back door of a home defendant assumed b\u00e9longed to Bumgarner. Defendant could not recount exactly what happened in the house before seeing Mrs. Wall, but he realized upon seeing her that they were not at Bumgarner\u2019s residence.\nUpon retreating from the house, defendant saw a man standing at the corner of the garage pointing a rifle. Defendant put his hands in the air, continued towards the track, and told the man he just wanted to leave. As defendant shut the truck door after getting in, the man began shooting at the driver\u2019s side where defendant was seated. Because a vehicle was parked behind the truck, defendant pulled up and back several times in order to turn and drive across the yard to leave. The man continued to shoot and defendant told Bumgarner there was a pistol under the seat. Bumgarner retrieved the pistol and fired it out the driver\u2019s side window into the air. Defendant did not recall taking anything from Yokley\u2019s house.\nBumgarner testified he stopped at Yokley\u2019s home to see if his dog would fight with her dog. He further stated he followed defendant into the house and that both immediately ran to the truck when they encountered Mrs. Wall. Further, he indicated it was defendant who asked for the pistol and fired from the truck.\nIn rebuttal, the State offered Bumgarner\u2019s statement to Deputy J.L. Mecum that he and defendant entered the Yokley residence for the purpose of stealing some VCR and radio equipment as well as a camcorder.\nI.\nDefendant first contends the trial court erred by denying his motion to dismiss the charges of voluntary manslaughter and first degree burglary. We disagree.\nIn ruling upon a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, which is entitled to every reasonable inference to be drawn therefrom. State v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985) (citations omitted). If there is \u201csubstantial evidence\u201d of each element of the charged offense and of defendant being the perpetrator of the offense, the motion should be denied, State v. Riddick, 315 N.C. 749, 759, 340 S.E.2d 55, 61 (1986) (citing State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982)). \u201cSubstantial evidence is that amount of evidence which a reasonable mind might accept as adequate to support a conclusion\u201d. State v. Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987) (citing State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981)). In addition, \u201c \u2018[t]he trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence ....\u2019\u201d Riddick, 315 N.C. at 759, 340 S.E.2d at 61 (quoting State v. Powell, 299 N.C. 95, 101, 261 S.E.2d 114, 118 (1980)).\nA.\nWe first consider the charge of voluntary manslaughter. Defendant argues his actions were not the cause of Wall\u2019s death and that the State failed to prove he did not act in self-defense.\n1.\nProximate cause is an element of manslaughter, State v. Sherrill, 28 N.C. App. 311, 313, 220 S.E.2d 822, 824 (1976), that is, criminal responsibility arises only if a defendant\u2019s act has \u201ccaused or directly contributed\u201d to the victim\u2019s death. State v. Luther, 285 N.C. 570, 573, 206 S.E.2d 238, 240 (1974). Further, \u201cthe act of the accused need not be the immediate cause of death. He is legally accountable if the direct cause is the natural result of [the] criminal act.\u201d State v. Minton, 234 N.C. 716, 722, 68 S.E.2d 844, 848 (1952) (citations omitted).\nDespite testimony from the pathologist that Wall died as a result of complications from the bullet wound to his chest and abdomen, defendant insists the cause of death was Wall\u2019s decision against medical advice to undergo colostomy reversal surgery. However, \u201c[t]he act complained of does not have to be the sole proximate cause of death, nor the last act in sequence of time. ... It is enough if defendant's] unlawful acts join and concur with other causes in producing the result.\u201d State v. Cummings, 46 N.C. App. 680, 683, 265 S.E.2d 923, 925-26, aff\u2019d, 301 N.C. 374, 271 S.E.2d 277 (1980) (citations omitted). The pathologist\u2019s testimony presented sufficient evidence from which the jury could find Wall\u2019s gunshot wound caused or directly contributed to his death, whatever complications may have arisen as a result of the later surgery.\nIn State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976), the State\u2019s evidence tended to show the victim suffered from a chronic lung disease which left his lungs black, scarred, and fibrous. Id. at 298, 225 S.E.2d at 552. He was shot during a robbery, and shotgun pellets which entered his lungs caused the lungs to collapse and severe infection ensued. Id. Physicians administered antibiotics to combat the infection, including a drug called gantrisin. Id. Unfortunately, the victim was hypersensitive to the drug and developed myocarditis, inflammation of the heart, which was the immediate cause of his death. Id. Our Supreme Court held the evidence was sufficient to carry the question of proximate cause to the jury, stating \u201c[w]here .. . gunshot wounds inflicted by the accused are a contributing cause of death, defendant is criminally responsible therefor.\u201d Id. at 299, 225 S.E.2d at 552-53.\nIn State v. Penley, 318 N.C. 30, 38, 347 S.E.2d 783, 788 (1986), the victim died of pneumonia. Testimony by the pathologist revealed the gunshot wound suffered by the victim had \u201ccompressed and damaged his spinal cord\u201d to the point that he was paralyzed from the waist down and rendered him immobile. Id. This immobility in turn resulted in the formation of infectious blood clots in his lungs which, in turn, caused pneumonia. Id. As such, there was a direct relationship between the gunshot wound and the victim\u2019s death since his immobility and the blood clot formation were secondary to the original gunshot injury to the spinal cord. Id. at 48-49, 347 S.E.2d at 794. The Court held the evidence sufficient to withstand a motion to dismiss on the issue of proximate cause. Id.\nFinally, in State v. Garda-Lorenzo, 110 N.C. App. 319, 430 S.E.2d 290 (1993), a voluntary decision by family members and attending physicians to remove the victim from life support systems did not absolve the defendant from criminal responsibility. Id. at 334-35, 430 S.E.2d at 298-99. Testimony of the medical examiner indicated the victim was not brain dead and that he could have remained alive indefinitely on a respirator. Id. at 334, 430 S.E.2d at 298. Defendant therefore argued his acts were not the proximate cause of the victim\u2019s death given the voluntary choice to remove the artificial support systems. Id. We rejected this contention, stating \u201cbut for defendant\u2019s act of hitting [the victim], he would not have been in this vegetative state, unable to breathe on his own or to regain consciousness, and subsequently he would not have died.\u201d Id. \u25a0\nBased on the foregoing authorities and viewing the evidence in the light most favorable to the State, we conclude there was substantial evidence tending to show Wall\u2019s gunshot wound directly contributed to his death. The issue of proximate cause was thus properly submitted by the trial court to the jury.\nDefendant parenthetically interjects the alternative argument that, at a minimum, the jury should have been instructed it \u201cmust find from the evidence and beyond a reasonable doubt that Mr. Wall\u2019s death resulted proximately from the gunshot wounds inflicted by the Defendant.\u201d This contention is completely without merit.\nIn charging the jury, the court stated as follows:\nNow, I charge for you to find the defendant guilty of voluntary manslaughter, the State must prove three things beyond a reasonable doubt:\nSecond, that the defendant\u2019s act was a proximate cause of the victim\u2019s death. A proximate cause is a real cause, a case without which the victim\u2019s death would not have occurred. The defendant\u2019s act need not have been the last cause or the nearest cause. It is sufficient if it concurred with some other cause acting at the same time which in combination with it proximately caused the death to the victim.\nAnd third, that the defendant did not act in self-defense or, though acting in self-defense, was the aggressor or, though acting in self-defense, used excessive force.\nThus, the court instructed the jury precisely as defendant suggests was necessary, i.e., that it was required to find beyond a reasonable doubt that defendant\u2019s act of inflicting a gunshot wound upon Wall proximately caused Wall\u2019s death.\n2.\nDefendant further argues his motion to dismiss the charge of voluntary manslaughter was erroneously denied because \u201c[t]he State failed to prove beyond a reasonable doubt that the [defendant did not act in self[-]defense.\u201d We do not agree.\nIt is established that the State in a homicide prosecution bears the burden of proving the defendant did not act in self-defense when that issue is raised by the evidence. State v. Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986) (citing State v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979)). However, as noted above, the test on a motion to dismiss is whether the State has presented substantial evidence which, taken in light most favorable to the State, is sufficient to convince a rational trier of fact the defendant did not act in self-defense. Id.\nDefendant herein, relying solely upon his version of the incident, argues the fatal shot occurred in self-defense only after he and Bumgarner fled the premises and were fired upon by Wall. He further insists all the evidence shows Wall acted unreasonably in using deadly force to prevent the escape of defendant and his cohort.\nIn response, the State points to testimony by Mrs. Wall and to physical evidence which contradicts defendant\u2019s version of the shooting encounter. Specifically, the State notes the statement by Mrs. Wall that she heard a single shot fired followed by a \u201cwhole bunch\u201d of gunshots, and that she heard her husband yell for the two men to stop or he would shoot. The State contends this evidence tends to show Wall fired a warning shot \u201cin an effort to detain [defendant and his companion] and to prevent any aggressive actions on their part,\u201d and that his shots into the truck were in response to being fired upon by the occupants.\nFurther, the State observes Wall was only eight to ten feet from the truck on the driver\u2019s side, and that defendant was required to move the vehicle back and forth in order to exit the driveway around the Wall automobile. The State argues this evidence \u201ctends to indicate [Wall] reasonably feared for his safety from being hit by the escaping vehicle as it pulled up and back.\u201d\nSuffice it to state the evidence of self-defense at best was in conflict. Accordingly, the circumstances permitted conflicting inferences which were for the jury to reconcile. State v. Ataei-Kachuei, 68 N.C. App. 209, 214, 314 S.E.2d 751, 754, disc. review denied, 311 N.C. 763, 321 S.E.2d 146 (1984). We thus conclude the State presented substantial evidence that defendant failed to act in self-defense and that the issue was properly submitted to the jury for its resolution.\nDefendant also argues Wall was prohibited from detaining defendant legally in that there was no evidence a felony had been committed in Wall\u2019s presence or that defendant and Bumgarner posed a significant threat of death or physical injury to others.\nConcerning defendant\u2019s argument as to Wall\u2019s actions, we note N.C. Gen. Stat. \u00a7 15A-404 (1988) provides that a private citizen may use reasonable means to detain another person who the citizen has probable cause to believe has committed in his presence either a felony, a breach of the peace, a crime involving physical injury to another person, or a crime involving theft or destruction of property.\nIn the foregoing regard, the evidence at trial indicated that the Walls, at the time of their arrival at the Yokley residence, knew only that their daughter had telephoned at approximately 2:15 a.m. to report someone was breaking into her home and that the call was then cut off. They observed a strange vehicle in the driveway and two individuals were interrupted in the process of removing certain components of an entertainment center in the home. The two ran from the dwelling. The jury could thus reasonably conclude Wall had cause to believe the felony of burglary was being committed in his presence.\nWall also commanded the men to stop. The evidence further suggests Wall fired a warning shot followed by many successive gunshots. In addition to the foregoing, based upon the proximity of Wall to the maneuvering of defendant\u2019s truck as the men attempted to escape, the jury could reasonably determine Wall was in the direct path of the vehicle which posed a substantial threat of injury to him.\nIn sum, having determined the State presented substantial evidence as to the element of proximate cause and from which the jury could infer defendant did not act in self-defense, we hold the trial court did not err in denying defendant\u2019s motion to dismiss on the charge of voluntary manslaughter.\nB.\nConcerning the charge of first degree burglary, defendant asserts the State failed to meet its burden of proving the Yokley residence was occupied at the time defendant entered and that his motion to dismiss the charge should have been allowed. This argument lacks merit.\nFirst degree burglary is the breaking and entering of the presently occupied dwelling house of another, in the nighttime, with the intent to commit a felony therein. N.C. Gen. Stat. \u00a7 14-51 (1993). The question of whether or not the dwelling is actually occupied at the time of entry is for the jury. State v. Simons, 65 N.C. App. 164, 167, 308 S.E.2d 502, 503 (1983).\nThe uncontradicted evidence in the case sub judice reveals Yokley was asleep in her home at about 1:30 in the early morning of 4 July 1990. She was awakened by sounds of the kitchen door being kicked in. Going to the door of her bedroom, she saw a man enter her daughter\u2019s bedroom while another came into the house through the kitchen. Defendant himself acknowledged he and Bumgarner arrived at the residence together and entered the house through the back door. Once Yokley had an opportunity to escape from the house, she picked up a portable phone from the kitchen and contacted her mother to report the intruders.\nIn view of the uncontroverted evidence that the Yokley dwelling was indeed occupied at the time defendant entered, it was not error for the trial court to deny his motion to dismiss the charge of first degree burglary.\nII.\nA.\nDefendant next insists no evidence corroborated.Yokley\u2019s testimony that she was in her residence at the time defendant entered it. Therefore, he contin\u00faes, the court erred by denying his request to submit the lesser offense of second degree burglary to the jury. This assertion is without merit.\nWhere all of the evidence presented shows the dwelling was occupied at the time of the breaking and entering, the court is not authorized to instruct the jury it may return a verdict of burglary in the second degree. State v. Tippett, 270 N.C. 588, 595, 155 S.E.2d 269, 274 (1967), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994) (emphasis added). Contrary to defendant\u2019s claim that \u201cevidence was not conclusive on the question of occupancy,\u201d Yokley\u2019s testimony as noted above was that she heard \u201cthe sound of [the] kitchen door crashing up against the wall\u201d and saw defendant and Bumgarner entering her home through the kitchen. There was no error in the trial court\u2019s refusal to instruct on second degree burglary.\nB.\nFinally, defendant argues the court erred by denying his request that the lesser offense of involuntary manslaughter be submitted to the jury. However, defendant fails to cite any authority in support of this proposition. Accordingly, pursuant to N.C.R. App. P. 28(b)(5) (1994), we deem this assignment of error abandoned. Further, even assuming defendant\u2019s argument on this point had been raised properly, our examination of the evidence reveals no error by the trial court in refusing to submit the charge of involuntary manslaughter to the jury.\nNo error.\nJudges EAGLES and ORR concur.\nJudge ORR concurred prior to 5 January 1995.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General John J. Aldridge, III, for the State.", "David F. Tamer for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY G. GILREATH\nNo. 9321SC1224\n(Filed 21 March 1995)\n1. Homicide \u00a7 220 (NCI4th)\u2014 voluntary manslaughter \u2014 gunshot as proximate cause of death \u2014 sufficiency of evidence\nIn a prosecution of defendant for voluntary manslaughter, the pathologist\u2019s testimony that the cause of death \u201call began with the bullet wound\u201d was sufficient evidence from which the jury could find that the victim\u2019s gunshot wound caused or directly contributed to his death two years later, whatever complications may have arisen as a result of later surgery which the victim had against medical advice and did not survive.\nAm Jur 2d, Homicide \u00a7\u00a7 13-15, 19-21.\nNecessity of expert testimony to show causal connection between medical treatment necessitated by injury for which defendant is liable and allegedly harmful effects of such treatment. 27 ALR2d 1263, supp.\nHomicide as affected by lapse of time between injury and death. 60 ALR3d 1323, supp sec. 1.\n2. Homicide \u00a7 379 (NCI4th)\u2014 self-defense \u2014 issue properly submitted to jury\nThe State presented substantial evidence that defendant failed to act in self-defense, and the issue was therefore properly submitted to the jury for its resolution.\nAm Jur 2d, Homicide \u00a7\u00a7 139, 140, 457.\nHomicide: modern status of rules as to burden and quantum of proof to show self-defense. 43 ALR3d 221.\nAccused\u2019s right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense. 15 ALR4th 983, sec. 1.\n3. Arrest and Bail \u00a7 82 (NCI4th)\u2014 victim\u2019s right to detain defendant \u2014 sufficiency of evidence\nThe jury could find that a homicide victim had statutory authority to detain defendant, for purposes of determining whether defendant acted in self-defense in shooting the victim, where the State\u2019s evidence tended to show that the victim received a telephone call from his daughter that someone was breaking into her house; the victim saw a strange vehicle in the daughter\u2019s driveway; the victim interrupted defendant and another man as they attempted to remove components of an entertainment center in the home; the two men ran from the home; the victim commanded the men to stop and fired a warning shot before he was shot by one of the two men; and the victim was in the direct path of defendant\u2019s vehicle. The jury could infer from this evidence that the victim had cause to believe that the felony of burglary was being committed in his presence and that the burglars\u2019 vehicle posed a substantial threat of injury to him. N.C.G.S. \u00a7 15A-404.\nAm Jur 2d, Arrest \u00a7\u00a7 34, 35.\nPrivate person\u2019s authority, in making arrest for felony, to shoot or kill alleged felon. 32 ALR3d 1078.\n4. Burglary and Unlawful Breaking \u00a7 57 (NCI4th)\u2014 first-degree burglary \u2014 sufficiency of evidence\nEvidence of first-degree burglary was sufficient to be submitted to the jury where it tended to show that defendant entered a home occupied by the victim and her daughter at 1:30 a.m.\nAm Jur 2d, Burglary \u00a7\u00a7 44, 45.\nSufficiency of showing that burglary was committed at night. 82 ALR2d 643.\nWhat is \u201cbuilding\u201d or \u201chouse\u201d within burglary or breaking and entering statute. 68 ALR4th 425, sec. 1.\nAppeal by defendant from judgments entered 25 February 1993 by Judge Preston Cornelius in Forsyth County Superior Court. Heard in the Court of Appeals 27 September 1994.\nAttorney General Michael F. Easley, by Assistant Attorney General John J. Aldridge, III, for the State.\nDavid F. Tamer for defendant-appellant." }, "file_name": "0200-01", "first_page_order": 232, "last_page_order": 243 }