{ "id": 8471355, "name": "STATE OF NORTH CAROLINA v. PERCELL WATKINS, JR., Defendant", "name_abbreviation": "State v. Watkins", "decision_date": "2005-04-05", "docket_number": "No. COA04-295", "first_page": "518", "last_page": "528", "citations": [ { "type": "official", "cite": "169 N.C. App. 518" } ], "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": "592 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631144, 12631145, 12631143 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0696-01", "/se2d/592/0696-02", "/se2d/592/0696-03" ] }, { "cite": "358 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631142, 12631143, 12631144, 12631145, 12631146, 12631147, 12631149 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0694-02", "/se2d/592/0696-03", "/se2d/592/0696-01", "/se2d/592/0696-02", "/se2d/592/0697-01", "/se2d/592/0698-02", "/se2d/592/0699-01" ] }, { "cite": "359 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796192, 3800964, 3800939, 12631947, 3804397, 3794958, 3804241, 12632081, 3798774, 3795094, 3795934 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0073-07", "/nc/359/0073-09", "/nc/359/0073-03", "/se2d/603/0801-01", "/nc/359/0073-05", "/nc/359/0073-04", "/nc/359/0073-01", "/se2d/605/0144-02", "/nc/359/0073-06", "/nc/359/0073-08", "/nc/359/0073-02" ] }, { "cite": "601 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631677 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0202-01" ] }, { "cite": "358 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631777, 12631778, 12631779, 12631780, 12631781, 12631770, 12631771 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/602/0362-01", "/se2d/602/0362-02", "/se2d/602/0363-02", "/se2d/602/0363-01", "/se2d/602/0364-02", "/se2d/602/0366-02", "/se2d/602/0366-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 16-170", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "301 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "308 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4709664 ], "year": 1983, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0047-01" ] }, { "cite": "422 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "685", "parenthetical": "quoting State v. Williams, 308 N.C. 47, 69, 301 S.E.2d 335, 349 (1983)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506996 ], "year": 1992, "pin_cites": [ { "page": "622", "parenthetical": "quoting State v. Williams, 308 N.C. 47, 69, 301 S.E.2d 335, 349 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0611-01" ] }, { "cite": "36 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "232", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "225 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617981 ], "year": 1945, "pin_cites": [ { "page": "749", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0746-01" ] }, { "cite": "467 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "234", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795913 ], "year": 1996, "pin_cites": [ { "page": "630", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0628-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "169" }, { "page": "237" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "583 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "669" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955754 ], "year": 2003, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0312-01" ] }, { "cite": "302 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "171", "parenthetical": "\"We have consistently held that the State may not introduce evidence that a defendant exercised his fifth amendment right to remain silent.\"" } ], "opinion_index": 0 }, { "cite": "308 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707923 ], "year": 1983, "pin_cites": [ { "page": "283", "parenthetical": "\"We have consistently held that the State may not introduce evidence that a defendant exercised his fifth amendment right to remain silent.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0272-01" ] }, { "cite": "360 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "793-94", "parenthetical": "discussing corroborative testimony" } ], "opinion_index": 0 }, { "cite": "320 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724272 ], "year": 1987, "pin_cites": [ { "page": "724", "parenthetical": "discussing corroborative testimony" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0718-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "779" }, { "page": "779" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "385" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] }, { "cite": "595 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "135", "parenthetical": "quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2988021 ], "year": 2004, "pin_cites": [ { "page": "346", "parenthetical": "quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0330-01" ] }, { "cite": "459 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "728", "parenthetical": "\"A third party may give permission to search where the third party possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected.\"" } ], "opinion_index": 0 }, { "cite": "340 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790147 ], "year": 1995, "pin_cites": [ { "page": "592", "parenthetical": "\"A third party may give permission to search where the third party possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0573-01" ] }, { "cite": "589 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "377", "parenthetical": "\"One who shares a house or room or auto with another understands that the partner, may invite strangers [, and that his] privacy is not absolute, but contingent in large measure on the decisions of another. Decisions of either person define the extent of the privacy involved . . .\"" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959520 ], "year": 2003, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0615-01" ] }, { "cite": "530 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "288" } ], "opinion_index": 0 }, { "cite": "352 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684981 ], "year": 2000, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0037-01" ] }, { "cite": "300 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "307 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565330 ], "year": 1983, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0608-01" ] }, { "cite": "148 L. Ed. 2d 992", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9783616, 9783489, 9784512, 9784931, 9785068, 9784364, 9784782, 9784238, 9785236, 9783863, 9783992, 9784122, 9784638 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1165-02", "/us/531/1165-01", "/us/531/1165-08", "/us/531/1165-11", "/us/531/1165-12", "/us/531/1165-07", "/us/531/1165-10", "/us/531/1165-06", "/us/531/1165-13", "/us/531/1165-03", "/us/531/1165-04", "/us/531/1165-05", "/us/531/1165-09" ] }, { "cite": "532 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "501", "parenthetical": "internal quotations omitted" }, { "page": "502" } ], "opinion_index": 0 }, { "cite": "352 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685022 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "498", "parenthetical": "internal quotations omitted" }, { "page": "498-99" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0489-01" ] }, { "cite": "544 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685056, 685073, 684970, 685075 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0359-04", "/nc/352/0359-03", "/nc/352/0359-01", "/nc/352/0359-02" ] }, { "cite": "530 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078642 ], "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0089-01" ] }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "232", "parenthetical": "holding that elements of the offense must be charged in the indictment" }, { "page": "319", "parenthetical": "holding that elements of the offense must be charged in the indictment" } ], "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "307 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "350", "parenthetical": "Absent adoption of a short-form indictment by the General Assembly, each essential element must be alleged" } ], "opinion_index": 0 }, { "cite": "309 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761933 ], "year": 1983, "pin_cites": [ { "page": "259", "parenthetical": "Absent adoption of a short-form indictment by the General Assembly, each essential element must be alleged" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0239-01" ] }, { "cite": "527 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "46", "parenthetical": "internal quotations omitted" }, { "page": "48", "parenthetical": "\"[T]he crime of attempted murder is logically possible only where specific intent to kill is a necessary element of the underlying offense.\"" } ], "opinion_index": 0 }, { "cite": "351 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155934 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "449", "parenthetical": "internal quotations omitted" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0448-01" ] }, { "cite": "204 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "669", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "285 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564048 ], "year": 1974, "pin_cites": [ { "page": "308", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0305-01" ] }, { "cite": "77 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "919" } ], "opinion_index": 0 }, { "cite": "238 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607564 ], "year": 1953, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0325-01" ] }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "600", "parenthetical": "\"To be sufficient under our Constitution, an indictment 'must allege lucidly and accurately all the essential elements of the offense endeavored to be charged.' \" (quoting State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)" } ], "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "year": 2003, "pin_cites": [ { "page": "267", "parenthetical": "\"To be sufficient under our Constitution, an indictment 'must allege lucidly and accurately all the essential elements of the offense endeavored to be charged.' \" (quoting State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "547 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135632, 135690, 135877, 135600 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0384-03", "/nc/353/0384-01", "/nc/353/0384-04", "/nc/353/0384-02" ] }, { "cite": "539 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "50-51" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439431 ], "year": 2000, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0032-01" ] }, { "cite": "572 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251181 ], "year": 2004, "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0553-01" ] }, { "cite": "604 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "598 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "165 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8999083 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/165/0540-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "opinion_index": 0 } ], "analysis": { "cardinality": 1082, "char_count": 24784, "ocr_confidence": 0.755, "pagerank": { "raw": 3.854046147402415e-07, "percentile": 0.8997671292805102 }, "sha256": "244bf233f29f4cbb31e43a2787cffaed380d2d3cf07d22753132d9e37f790729", "simhash": "1:0b6f4c25463f0453", "word_count": 3995 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUDSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PERCELL WATKINS, JR., Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nDefendant appeals convictions of attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury. Among the grounds for appeal, defendant argues that the trial court admitted improper evidence and erred by not granting defendant\u2019s motion to dismiss. Defendant also argues that his conviction for attempted murder must be vacated. For the reasons stated herein, we find no error at trial but vacate defendant\u2019s judgment for attempted murder.\nDefendant was indicted on 9 April 2002 for attempted murder and 13 May 2003 for assault with a deadly weapon with intent to kill inflicting serious injury. Following several days of trial, on 29 August 2003 a jury found defendant guilty of both crimes.\nI.\nThe events giving rise to these convictions occurred on 22 November 2001, which was Thanksgiving Day. Defendant was living in a house located on a large family farm in rural Caswell County. Other members of defendant\u2019s family lived in separate houses on the farm, including the victim, Walter Bigelow (Bigelow), who was defendant\u2019s uncle. On Thanksgiving morning, defendant, Bigelow, and two other friends met at Bigelow\u2019s house and began drinking gin, beer, and liquor. After drinking for several hours, the men went to the home of a friend to see his new puppies. Defendant was bitten by the mother dog after he took off his shirt and attacked the dog.\nFollowing defendant and Bigelow\u2019s return to Bigelow\u2019s house, defendant wanted to continue drinking and entered the house against Bigelow\u2019s wishes. While he was inside, defendant stumbled into Bigelow\u2019s television and broke the screen. During a scuffle that followed, defendant pulled out a knife. Bigelow kicked the knife out of defendant\u2019s hand and threatened to call the police. Defendant then walked out into Bigelow\u2019s yard and eventually left in his truck after backing into Bigelow\u2019s fence.\nAt about 2:30 p.m. on the same day, Bigelow and his brother, Huston Bigelow (Huston), were walking near their mother\u2019s house when Bigelow was struck in the shoulder by two gunshots. As he fell to the ground, he heard defendant yell, \u201cI got one of the SOBs.\u201d Huston testified that after additional shots were fired, he heard defendant yell, \u201cI got one now and I got one more to go.\u201d\nOfficer Clayton Myers of the Caswell County Sheriff\u2019s Department arrived shortly after the shooting and interviewed Donita Riley (Riley), defendant\u2019s \u2022 girlfriend. Officer Myers testified that during their conversation, Riley said defendant had left his home earlier with a scoped rifle to go hunting. As part of his investigation, Officer Myers called in a bloodhound to search the area where the shots had likely been fired. The bloodhound led the officers to a piece of camouflage cloth hanging from a barbed wire fence. From there, the bloodhound followed a trail to defendant\u2019s house.\nDuring the investigation, officers asked Riley, who lived in defendant\u2019s house, for permission to enter a shop building located near the house. Riley initially refused, but she gave officers a key to the shed after they told her they would get a warrant and tear down the door. At that time, Riley also signed a form stating that she consented to the search. Inside the building, officers found a vehicle that defendant was working on along with a .22 rifle and bullets on the floorboard. In addition, when officers asked Riley for defendant\u2019s camouflage pants, she provided a pair with a missing swatch of cloth. Officers determined that the swatch of cloth recovered from the barbed wire fence perfectly matched the hole in defendant\u2019s pants.\nII.\nIn his first assignment of error, defendant contends that the indictment for \u201cattempted murder\u201d is defective since it lacks allegations that defendant acted with the specific intent to kill, premeditation, or deliberation. Defendant\u2019s indictment stated:\nThe jurors for the State upon their oath present that on or about [November 22, 2001] and in . . . [Caswell County] the defendant named above unlawfully, willfully and feloniously did of malice and aforethought attempt to kill and murder Walter Bigelow.\nThis indictment for attempted murder follows the language authorized by N.C. Gen. Stat. \u00a7 15-144 for short-form indictments for murder or manslaughter.\nThis Court has issued inconsistent opinions on whether the language authorized in section 15-144 states all the essential elements for attempted murder. Most recently in State v. Jones, 165 N.C. App. 540, 598 S.E.2d 694, temp. stay allowed, 358 N.C. 736, 601 S.E.2d 202, disc. review granted, 359 N.C. 73, 604 S.E.2d 924 (2004), a panel of this Court determined that an indictment following the short-form language in section 15-144 did not allege all the essential elements of the crime of attempted murder and must be vacated. Yet, in State v. Andrews, 154 N.C. App. 553, 559-60, 572 S.E.2d 798, 803, cert. denied, 358 N.C. 156, 592 S.E.2d 696 (2004), as well as State v. Choppy, 141 N.C. App. 32, 41, 539 S.E.2d 44, 50-51 (2000), disc. review denied, 353 N.C. 384, 547 S.E.2d 817 (2001), this Court determined that attempted murder indictments following section 15-144 were constitutional.\nNone of these cases dealt with the statutory argument that defendant raises here. Defendant argues that the plain language of section 15-144 limits its application to cases of \u201cmurder or manslaughter,\u201d not attempted murder. Notably, defendant argues that the short-form language found in section 15-144.1, dealing with rape, and section 15-144.2, dealing with sex offense, include \u201cattempt\u201d within the statute whereas section 15-144 does not. While our appellate opinions are replete with occasions in which our Supreme Court has upheld the constitutionality of using section 15-144 to allege murder, there is no authority on point that specifically applies the language in N.C. Gen. Stat. \u00a7 15-144 to attempted murder. Both Andrews and Choppy applied North Carolina Supreme Court opinions holding that section 15-144 is constitutional for murder indictments as their precedent for holding that N.C. Gen. Stat. \u00a7 15-144 states all the essential elements for the crime of attempted murder.\nWe agree with defendant that the application of N.C. Gen. Stat. \u00a7 15-144 to indictments for attempted murder goes beyond the plain language of the statute. Absent statutory authority for a short-form indictment,, the State must allege all essential elements of the crime charged. See State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (\u201cTo be sufficient under our Constitution, an indictment \u2018must allege lucidly and accurately all the essential elements of the offense endeavored to be charged.\u2019 \u201d (quoting State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)). \u201cNothing in G.S. 15-153 or in G.S. 15-155 [statutes dealing with certain informalities and defects that do not vitiate a warrant or indictment] dispenses with the requirement that the essential elements of the offense must be charged.\u201d State v. King, 285 N.C. 305, 308, 204 S.E.2d 667, 669 (1974) (internal quotations omitted).\n\u201cThe elements of an attempt to commit a crime are: \u2018(1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense.\u2019 \u201d State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (internal quotations omitted). As a necessary element of attempted murder, the specific intent to kill must be alleged in the indictment. See id., 351 N.C. at 451, 527 S.E.2d at 48 (\u201c[T]he crime of attempted murder is logically possible only where specific intent to kill is a necessary element of the underlying offense.\u201d); State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983) (Absent adoption of a short-form indictment by the General Assembly, each essential element must be alleged).\nAccordingly, we hold that an indictment for attempted murder must allege the necessary element of specific intent to kill. See Jones v. United States, 526 U.S. 227, 232, 143 L. Ed. 2d 311, 319 (1999) (holding that elements of the offense must be charged in the indictment). An indictment for attempted murder is not constitutional when it only complies with the language of N.C. Gen. Stat. \u00a7 15-144, a section that remains untarnished when applied as plainly intended: to indictments for murder and manslaughter. See State v. Holder, 138 N.C. App. 89, 93, 530 S.E.2d 562, 565 (holding that Jones did not invalidate North Carolina\u2019s short-form indictment for murder), disc. review denied, 352 N.C. 359, 544 S.E.2d 551 (2000). Defendant\u2019s indictment for attempted murder failed to allege that defendant acted with the specific intent to kill, and this omission was fatally defective.\nIII.\nDefendant next argues that the search of the shop outside of his house was unconstitutional and the evidence obtained therein should have been suppressed. Specifically, defendant argues that Riley did not have the apparent authority to authorize the search and did not provide valid consent for the search. When reviewing a trial court\u2019s ruling on a motion to suppress, the trial court\u2019s findings of fact \u201care conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u201d State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (internal quotations omitted), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001); see also State v. Barnett, 307 N.C. 608, 613, 300 S.E.2d 340, 343 (1983).\nResolving any conflict within the evidence, the trial court found that Riley was defendant\u2019s girlfriend for thirteen years and had resided in defendant\u2019s home for the entire time. Further, the trial court found that Riley\u2019s status as a resident of the home was known to those officers seeking permission for approximately three to four years and that officers had no reason to suspect she did not have control over the premises, including the shop that was determined to be located within the curtilage of the home. Notably, the trial court found that Riley\u2019s consent was voluntary and without hesitation. Despite some evidence to the contrary, we see no reason to determine that these findings were not supported by the evidence.\n\u201cOnce this Court concludes that the trial court\u2019s findings of fact are supported by the evidence, then this Court\u2019s next task \u2018is to determine whether the trial court\u2019s conclusion[s] of law [are] supported by the findings.\u2019 \u201d Brewington, 352 N.C. at 498-99, 532 S.E.2d at 502 (quoting State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000)). This Court has previously determined that officers may rely on the consent of third-parties who have apparent control over the area requested to be searched. See State v. Jones, 161 N.C. App. 615, 620, 589 S.E.2d 374, 377 (2003) (\u201cOne who shares a house or room or auto with another understands that the partner, may invite strangers [, and that his] privacy is not absolute, but contingent in large measure on the decisions of another. Decisions of either person define the extent of the privacy involved . . .\u201d) (internal quotations omitted); see also State v. Garner, 340 N.C. 573, 592, 459 S.E.2d 718, 728 (1995) (\u201cA third party may give permission to search where the third party possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected.\u201d) (internal quotations omitted). Based on its findings, the trial court did not err in determining that the search and subsequent seizure of property did not offend the Constitution.\nIV.\nDefendant\u2019s next three assignments of error all deal with the alleged erroneous admission of evidence. Since defendant did not object to any of these admissions, we review them for plain error. Under this standard of review, \u201cdefendant has the burden of showing: \u2018(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u2019 \u201d State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)).\nDefendant first contends that the trial court erred by admitting statements of Riley through the testimony of Officer Myers and Officer Eugene Riddick, another officer with the Caswell County Sheriff\u2019s Office investigating the shooting. The officers testified that Riley told them on 22 November 2001 defendant came home to get a long gun with a scope, telling her that he was going hunting. Reporting from their notes, they further testified she told them defendant was drunk, irate, bleeding from the face, and fell out the door. The officers also noted that Riley had told them defendant and Bigelow did not get along and defendant was becoming more uncontrollable.\nThe State argues that Riley\u2019s statements corroborated her earlier testimony where she described for the jury a substantially similar course of events. While we may be inclined to find that Riley\u2019s statements corroborated her earlier testimony, and thus were admissible, we are convinced that the absence of these statements would not have changed the jury\u2019s verdict. See State v. Howard, 320 N.C. 718, 724, 360 S.E.2d 790, 793-94 (1987) (discussing corroborative testimony). The jury heard evidence of an earlier fight between defendant and Bigelow; positive voice identification of defendant as the shooter by two people who had known him his whole life; the fact that police had tracked defendant from the scene of the shooting and were able to connect the pants he was wearing to cloth found at the scene; and that defendant had a long rifle in his truck. Thus, this assignment of error is overruled.\nNext, defendant contends that the trial court erred in admitting testimony that at various times he declined to make a statement to investigators. We disagree.\nAt trial, Officer Myers testified about his interaction with defendant during defendant\u2019s arrest. He said that defendant had been drinking, was found hiding in a shower, and charged at an officer once he was discovered. The State then asked Officer Myers questions regarding defendant\u2019s demeanor following his arrest. It was in answering these questions'that Officer Myers described instances in which defendant refused to make a statement.\nA defendant has the right to remain silent, and the State cannot use his exercise of that right as evidence that he is guilty. State v. Ladd, 308 N.C. 272, 283, 302 S.E.2d 164, 171 (1983) (\u201cWe have consistently held that the State may not introduce evidence that a defendant exercised his fifth amendment right to remain silent.\u201d). Nonetheless, when reviewed for plain error, a witness\u2019s incidental testimony that a defendant exercised his right to silence may be a de minimis violation and not prejudicial. See, e.g., Bishop, 346 N.C. at 385, 488 S.E.2d at 779. Under these circumstances, Officer Myers\u2019s testimony regarding defendant\u2019s exercise of his right to silence was incidental to Myers\u2019s testimony in its entirety.\nMoreover, it is doubtful that the jury assigned heavy weight to defendant\u2019s exercise of his right to silence in light of the evidence against him. Accordingly, we find that no error occurred here.\nConcluding our plain error review, defendant states that the trial court erred by admitting Bigelow\u2019s testimony that it was defendant who shot him. We disagree.\nRule 602 of the North Carolina Rules of Evidence does provide that \u201ca witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 602 (2003). Yet, the Rule\u2019s official commentary states that \u201cpersonal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 602 (Commentary) (2003); see also State v. Poag, 159 N.C. App. 312, 323, 583 S.E.2d 661, 669 (2003). Although Bigelow did not see defendant shoot him, his testimony was based on what he perceived as the shooting occurred. In particular, Bigelow testified that he heard defendant shout, \u201cI got one of the SOBs\u201d while he was falling. Bigelow, as defendant\u2019s uncle, was certain it was defendant\u2019s voice because he heard defendant\u2019s voice \u201call the time.\u201d As confirmation of Bigelow\u2019s testimony, Huston, Bigelow\u2019s brother, testified that he also heard defendant\u2019s voice shortly after the shooting and that he had known defendant \u201csince the day he was bom.\u201d As a result, we conclude that Walter Bigelow had sufficient personal knowledge to identify defendant and that his opinion was rationally based on his perception of the shooting. See N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2003) (opinion testimony is \u201climited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d).\nV.\nIn defendant\u2019s final two assignments of error, he asserts that the State presented insufficient evidence to 1) identify him as the shooter, and 2) establish premeditation and deliberation.\nWhen a defendant moves for dismissal, \u201cthe trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u201d State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Substantial evidence is that evidence which \u201c \u2018a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Id. (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). In determining whether the State\u2019s evidence is substantial, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. Id. at 237, 400 S.E.2d at 61 (citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).\nIn the light most favorable to the State, we conclude that there was ample evidence for the jury to determine that defendant was the one that shot Walter Bigelow. In particular, the evidence showed that defendant and Bigelow fought with each other before the shooting and that defendant pulled a knife on Bigelow. The State also showed that after the fight, defendant sat in his truck and pointed a gun toward Bigelow\u2019s house. Both Bigelow and Huston identified defendant\u2019s voice as the voice they heard when the shooting occurred. In addition, Riley testified that she saw defendant leave shortly after 2:00 p.m. in his truck. Finally, when officers searched defendant\u2019s shop building, they found a .22 rifle and bullets. Based on this evidence, we conclude that the trial court did not err in denying defendant\u2019s motion to dismiss.\nDefendant also argues that the evidence was insufficient to establish premeditation or deliberation. Our Supreme Court has stated that premeditation \u201cmeans that the act is thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation.\u201d State v. Jones, 342 N.C. 628, 630, 467 S.E.2d 233, 234 (1996) (internal quotations omitted). The Court has also defined deliberation as \u201can intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose ...\u201d State v. Wise, 225 N.C. 746, 749, 36 S.E.2d 230, 232 (1945) (internal quotations omitted).\nTo determine whether evidence shows premeditation and deliberation, a court should consider the following factors: \u201c(1) lack of provocation by the deceased; (2) conduct and statements of the defendant before and after the killing; and (3) \u2018ill-will or previous difficulty between the parties.\u2019 \u201d State v. Hood, 332 N.C. 611, 622, 422 S.E.2d 679, 685 (1992) (quoting State v. Williams, 308 N.C. 47, 69, 301 S.E.2d 335, 349 (1983)).\nTaken in the light most favorable to the State, evidence at trial tended to show that defendant entered Bigelow\u2019s house without his permission, a fight resulted when defendant broke Bigelow\u2019s television, and defendant pulled a knife on Bigelow. Riley testified that ill-will had developed between defendant and Bigelow. Defendant left his house with a gun in his truck and after shooting Bigelow in the shoulder yelled out, \u201cI got one now and I got one more to go.\u201d There is more than ample evidence such that a jury could determine deliberation and premeditation beyond a reasonable doubt. Thus, defendant\u2019s final assignment of error is overruled.\nVI.\nFor the foregoing reasons, we conclude that defendant\u2019s conviction based on the indictment for attempted murder must be vacated. However, there was no error regarding defendant\u2019s trial on the remaining charge of assault with a deadly weapon with intent to kill inflicting serious bodily injury.\nVacated in part, no error in part.\nJudges WYNN and HUDSON concur.\n. We note that our appellate holdings have properly allowed attempted murder to be presented to the jury as a lesser included offense of murder, see N.C. Gen. Stat. \u00a7 16-170; but here, attempted murder is the charged offense, not a lesser included offense.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PERCELL WATKINS, JR., Defendant\nNo. COA04-295\n(Filed 5 April 2005)\n1. Homicide\u2014 short form indictment \u2014 attempted murder\nDefendant\u2019s short form indictment for attempted murder was fatally defective in that it failed to allege that defendant acted with the specific intent to kill. The application of N.C.G.S. \u00a7 15-144 (authorizing short form indictments for murder or manslaughter) to attempted murder goes beyond the plain language of the statute.\n2. Search and Seizure\u2014 permission by live-in girlfriend\u2014 constitutional\nA search of a shop outside a home was constitutional where defendant\u2019s live-in girlfriend (Riley) gave permission for the search. The court found that Riley had been defendant\u2019s girlfriend for thirteen years and had lived in defendant\u2019s home the entire time; her status as a resident of the home had been known by the officers seeking permission for the search for three or four years before the search; the officers had no reason to suspect that she did not have control over the premises, including the shop; and Riley\u2019s consent was voluntary and without hesitation.\n3. Evidence\u2014 statements by defendant\u2019s girlfriend \u2014 admitted through officer\u2019s testimony \u2014 not prejudicial\nThere was no plain error in the admission of statements by defendant\u2019s girlfriend through the testimony of investigating officers. While the statements may have been admissible as corroboration of earlier testimony, the absence of the statements would not have changed the verdict in light of the other admitted evidence.\n4. Constitutional Law\u2014 silence by defendant \u2014 incidental\u2014 not prejudicial\nThere was no plain error by admitting testimony that defendant had declined to make a statement to an officer. The testimony about defendant\u2019s silence was incidental to the entire testimony of the officer and it is doubtful that the jury assigned heavy weight to defendant\u2019s silence in light of the evidence against defendant.\n5. Evidence\u2014 victim\u2019s identification of defendant \u2014 personal knowledge\nThere was no plain error in the admission of testimony from the victim of an attempted murder and assault that it was defendant who had shot him where the victim did not see defendant and based his testimony on what he perceived as the shooting occurred, particularly what he heard. The victim was defendant\u2019s uncle, had heard defendant\u2019s voice frequently, and had sufficient personal knowledge to identify defendant. N.C.G.S. \u00a7 8C-1, Rule 602.\n6. Homicide\u2014 attempted murder \u2014 defendant as shooter \u2014 sufficiency of evidence\nThe evidence in an assault and attempted murder prosecution was sufficient for the jury to determine that defendant was the one who shot the victim.\n7. Homicide\u2014 attempted murder \u2014 evidence of premeditation and deliberation \u2014 sufficient\nThere was sufficient evidence of premeditation and deliberation in an attempted murder prosecution where defendant entered the victim\u2019s house without permission, a fight resulted when defendant broke the victim\u2019s television, defendant pulled a knife, he was seen later leaving his house with a gun in his truck, and he later yelled that he had \u201cgotten one\u201d after shooting the victim in the shoulder.\nAppeal by defendant from judgment entered 29 Aug\u00fast 2003 by Judge W. Osmond Smith, III in Caswell County Superior Court. Heard in the Court of Appeals 16 November 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0518-01", "first_page_order": 548, "last_page_order": 558 }