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Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0386-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "904" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "470 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "343 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798903 ], "year": 1996, "pin_cites": [ { "page": "256-57" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0250-01" ] }, { "cite": "175 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "576", "parenthetical": "sheriff testified that the transcription was an \"exact copy\" of the conversation between himself and defendant" } ], "opinion_index": 0 }, { "cite": "277 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561677 ], "year": 1970, "pin_cites": [ { "page": "25", "parenthetical": "sheriff testified that the transcription was an \"exact copy\" of the conversation between himself and defendant" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0001-01" ] }, { "cite": "413 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "105 N.C. 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RODNEY MICHAEL FISHER" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nRodney Michael Fisher (\u201cdefendant\u201d) appeals his convictions for one count of assault with a deadly weapon with intent to kill inflicting serious injury and three counts of assault with a deadly weapon with intent to kill. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error.\nThe State\u2019s evidence presented at trial tends to show the following: On the night of 2 June 1998, defendant was at the residence of Jay Irvin (\u201cIrvin\u201d) on 24th Street in Winston-Salem, North Carolina. At approximately 10:00 p.m., Irvin and defendant were approached by Ray Von Rousseau (\u201cRay Von\u201d) and Mario Rousseau (\u201cMario\u201d). Shortly thereafter, a confrontation between the four men ensued. At some point during the confrontation, defendant pointed a weapon at Ray Von and Mario. As Ray Von and Mario were telling defendant and Irvin that they did not have weapons, Donald Lewis Rousseau (\u201cDonald\u201d) approached the men. Donald pointed a weapon at defendant, and the two began to argue over whether Ray Von and Irvin should fight. Ray Von and Irvin thereafter began fighting, and, at some point during the fight, Ray Von stabbed Irvin.\nAfter the fight between Ray Von and Irvin ended, Ray Von, Donald, and Mario heard a gunshot. Donald and Mario believed Ray Von had been shot, and they helped Ray Von up from the ground. The three men then began walking down 24th Street, toward Cleveland Avenue and away from Irvin\u2019s residence. As they turned onto Cleveland Avenue, Donald, Ray Von, and Mario heard gunshots fired from behind them. The three men separated, and Ray Von ran toward the corner of Cleveland Avenue and 23rd Street. As he reached the corner of Cleveland Avenue and 23rd Street, Ray Von heard a woman scream and fall to the ground.\nApril Penn Bailey (\u201cBailey\u201d) and Debra Boyd (\u201cBoyd\u201d) were standing on the comer of Cleveland Avenue and 23rd Street when they heard gunshots coming from the direction of 24th Street. Immediately after hearing the first shot, Bailey was struck by a bullet that entered her stomach area. Bailey fell to the ground and began crawling into a nearby manhole. Bailey thereafter heard more gunshots fired from 24th Street.\nAfter learning that Bailey had been shot, Boyd ran to a nearby store for help. As she was running to the store, Boyd heard more gunshots fired from the direction of 24th Street. In total, Boyd heard eight gunshots and Bailey heard eight or nine gunshots.\nWinston-Salem Police Department Officer Priscilla Thomas (\u201cOfficer Thomas\u201d) was dispatched to the area of Cleveland Avenue and 24th Street to investigate an alleged assault with a deadly weapon. Upon arrival at the scene, Officer Thomas learned that Irvin, the alleged victim of the assault, had been transported to the hospital. Officer Thomas went to the hospital and spoke to Irvin, who informed Officer Thomas that he did not want to prosecute the individual who stabbed him. Officer Thomas thereafter ordered the destruction of the evidence gathered by her fellow law enforcement officers, including seven shell casings collected from the comer of Cleveland Avenue and 24th Street.\nAt or around the same time Officer Thomas was dispatched to the area of Cleveland Avenue and 24th Street, Winston-Salem Police Department Officer Douglas McGraw (\u201cOfficer McGraw\u201d) was dispatched to the area to investigate a shooting. As he arrived at the corner of Cleveland Avenue and 23rd Street, Officer McGraw noticed a large crowd standing at the intersection. Officer McGraw and other law enforcement officers began interviewing witnesses in the area. Based upon the information that the officers collected, a warrant was subsequently issued for defendant\u2019s arrest.\nOn 17 June 1998, Officer McGraw observed defendant in the passenger seat of a vehicle traveling in Winston-Salem. Officer McGraw initiated a vehicle stop and placed defendant under arrest. During the arrest, Officer McGraw retrieved a loaded handgun from the portion of the dashboard directly in front of the passenger seat. Defendant was served with an arrest warrant and transferred to the Forsyth County Detention Center for an interview. During the interview, Officer McGraw asked defendant questions and recorded defendant\u2019s answers in a report.\nOn 13 August 2001, Defendant was indicted for one count of assault with a deadly weapon with intent to kill inflicting serious injury upon Bailey, one count of assault with a deadly weapon with intent to kill Ray Von, one count of assault with a deadly weapon with intent to kill Donald, and one count of assault with a deadly weapon with intent to kill Mario. At trial, Officer McGraw read the following pertinent narration from his report:\nI transported [defendant] to the jail and interviewed him in the BT room.... I asked [defendant] if he would start from the beginning and tell me the entire story. He began saying \u201cthe whole thing began at J\u2019s lounge .... J\u2019s lounge is located in the 2500 block of north Liberty Street. Ray Von Rousseau thought Jay Irvin hit him from behind but Jay didn\u2019t hit anyone. On June 2nd of 1998, Ray Von, Mario and Donald Rousseau confronted Jay in front of his residence].... Ray Von and Jay were fist fighting and the next thing I knew was that Jay had been stabbed. I ran to help Jay. After I got to him I helped him to his feet and I noticed a lot of blood coming from his chest. When Jay got on his feet he fired one shot at Ray Von who was running toward Cleveland Avenue. Ray Von fell as if he had been shot but he hadn\u2019t. Donald and Mario kept running and I took the gun from Jay and followed. Jay got in the car and left for the hospital. While I followed \u2014 while I was following the [Rousseaus] I fired eight or nine times at them while they were running from 24th street towards 23rd on Cleveland Avenue. ... I went to [the] hospital to check on my cousin Jay. While I was at the hospital I saw the ambulance bring [Bailey] in the emergency [room], I didn\u2019t know that she ha[d] been shot. I was in the room with Jay when I heard that she had been shot.[\u201d] I asked [defendant] if he had shot April. [Defendant] said \u201cI didn\u2019t shoot her I will admit that I was shooting but I don\u2019t think I shot her.\u201d\nOn cross-examination, Officer McGraw read further from his report, which stated that after making the above-detailed statement, defendant informed Officer McGraw that he had an attorney and had \u201ctelephoned [Bailey] and her father and told them that [he] wasn\u2019t the person who shot her.\u201d\nDefendant presented evidence from Irvin, Irvin\u2019s wife, Tanesha Irvin (\u201cTanesha\u201d), and Larry Puryear (\u201cPuryear\u201d). Tanesha testified that she saw Irvin and Ray Von fighting, and that she saw defendant \u201cpull[]'his gun out\u201d while Donald was approaching the fight. Although she testified that she heard gunshots fired on the street after the fight, Tanesha testified that she did not see defendant shoot the weapon that he was holding.\nIrvin testified that on 2 June 1998, defendant was present at a fight between Irvin and Ray Von. Irvin testified that after he and Ray Von fought, he realized he had been stabbed. Irvin further testified that, after being stabbed, he drew his gun and fired one shot at Ray Von in order to prevent Ray Von from approaching him again.\nPuryear testified that he saw the fight between Irvin and Ray Von, and that he also saw defendant point a gun at Donald during the fight. Puryear testified that after Irvin \u201cpulled out a gun and shot one time[,]\u201d he transported Irvin to the hospital.\nOn 24 July 2002, the jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury upon Bailey, assault with a deadly weapon with intent to kill Ray Von, assault with a deadly weapon with intent to kill Donald, and assault with a deadly weapon with intent to kill Mario. The trial court subsequently determined that defendant had a prior felony record level III, and on 2 June 2003, the trial court sentenced defendant to a total of 218 to 269 months imprisonment. Defendant appeals.\nThe issues on appeal are: (I) whether the trial court erred by denying defendant\u2019s motion to suppress his custodial statement to Officer McGraw; (II) whether the trial court erred by denying defendant\u2019s motion to dismiss the charges against him; (III) whether the trial court erred by continuing the trial following the dismissal of a juror; (IV) whether the trial court erred by failing to give a curative instruction following a prior misstatement of the charges against defendant; (V) whether the trial court erred by failing to instruct the jury to disregard testimony following a sustained objection; and (VI) whether defendant\u2019s due process rights were denied by the destruction of the shell casings.\nDefendant first argues that the trial court committed plain error by denying his motion to suppress Officer McGraw\u2019s report of defendant\u2019s custodial interview. Defendant asserts that the trial court erred by finding that defendant voluntarily waived his Miranda rights and made the statement in the report. We disagree.\nWe note initially that although he filed a pretrial motion in lim-ine, defendant did not object at trial to the State\u2019s questions regarding Officer McGraw\u2019s report. In order to preserve a question for appellate review, N.C. R. App. R 10(b)(1) (2005) requires \u201cthe complaining party to obtain a ruling upon the party\u2019s request, objection or motion.\u201d When the party\u2019s objection involves the admissibility of evidence, the complaining party must present an objection when the evidence is introduced at trial, even where, as here, the objection was previously considered in a motion in limine. State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam); but see N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2003) (effective October 1, 2003) (\u201cOnce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal\u201d). Nevertheless, a criminal defendant may preserve an evidentiary issue where he or she assigns plain error to the issue on appeal. See N.C. R. App. P. 10(c)(4).\nIn the instant case, defendant asserts that the trial court committed plain error by denying his motion in limine. In support of this assertion, defendant contends that there was evidence introduced at the suppression hearing tending to show that he was intoxicated while being interviewed by Officer McGraw, and therefore he was unable to voluntarily waive his right to an attorney.\n\u201cPlain error exists where, after reviewing the entire record, the claimed error is so fundamental, so basic, so prejudicial, or so lacking in its elements that justice could not have been done.\u201d State v. Fleming, 350 N.C. 109, 132, 512 S.E.2d 720, 736, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). \u201cA prerequisite to our engaging in a \u2018plain error\u2019 analysis is the determination that the [trial court\u2019s action] constitutes \u2018error\u2019 at all.\u201d State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). In the instant case, we conclude that the trial court did not err.\nA trial court\u2019s findings of fact regarding a motion to suppress are conclusive on appeal if supported by competent evidence. State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997). The trial court\u2019s findings of fact must support its conclusions of law, and the trial court\u2019s conclusions must be \u201clegally correct, reflecting a correct application of applicable legal principles to the facts found.\u201d Id. (citing State v. Payne, 327 N.C. 194, 208-09, 394 S.E.2d 158, 166 (1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991)).\nIn the instant case, the trial court found that defendant \u201cwas responsive to questions asked about the shooting . . . and the events surrounding it[,]\u201d that defendant \u201cdid understand what was being told to him and asked by\u201d Officer McGraw, and that defendant \u201cdid understand the Miranda rights given and did not ask for a lawyer or indicate that he was represented by a lawyer until the conclusion of the interview.\u201d The trial court chose not to make \u201cany findings as to whether [] defendant had consumed any alcohol or not,\u201d but it did find that \u201cdefendant was responsive and understood the rights that were indicated regardless of whether he had consumed any alcohol or not in the hours previous to the interview.\u201d\nDefendant contends that the trial court\u2019s findings that he voluntarily waived his constitutional rights are unsupported by competent evidence. In support of this contention, defendant cites his own testimony during the suppression hearing, in which defendant stated that he was arrested at approximately 2:30 a.m., after having consumed \u201caround 15 shots of Seagram\u2019s Gin\u201d at a local bar. Defendant testified that he did not recall Officer McGraw reading him his Miranda rights, and he did not recall making a statement to Officer McGraw. However, defendant did recall \u201crepeatedly\u201d telling Officer McGraw that he had hired an attorney and needed to use the restroom.\n\u201cIn determining the voluntariness of the confession and the waiver of Miranda rights, we look to the totality of the circumstances.\u201d State v. McKoy, 323 N.C. 1, 21, 372 S.E.2d 12, 23 (1988), sentence vacated on other grounds, 494 U.S. 433, 108 L. Ed. 2d 369 (1990). \u201cWhile intoxication is a circumstance critical to the issue of voluntariness, intoxication at the time of a confession does not necessarily render it involuntary. It is simply a factor to be considered in determining voluntariness.\u201d Id. at 22, 372 S.E.2d at 23 (citations omitted). \u201cThe confession \u2018is admissible unless the defendant is so intoxicated that he is unconscious of the meaning of his words.\u2019 \u201d Id. (quoting State v. Oxendine, 303 N.C. 235, 243, 278 S.E.2d 200, 205 (1981)).\nUnless a defendant\u2019s intoxication amounts to mania \u2014 that is, unless he is so drunk as to be unconscious of the meaning of his words \u2014 his intoxication does not render inadmissible his confession of facts tending to incriminate him. The extent of his intoxication when the confession was made, however, is a relevant circumstance bearing upon its credibility, a question exclusively for the jury\u2019s determination.\nState v. Logner, 266 N.C. 238, 243, 145 S.E.2d 867, 871, cert. denied, 384 U.S. 1013, 16 L. Ed. 2d 1032 (1966).\nIn the instant case, Officer McGraw testified at the suppression hearing that he read defendant \u201cthe Miranda warnings as printed on the Miranda warnings card[,]\u201d and that defendant \u201cacknowledged that he understood the warnings\u201d and \u201cwaived his right and agreed to answer any of [Officer McGraw\u2019s] questions.\u201d Officer McGraw further testified that he did not smell alcohol on defendant, that defendant was not stumbling or slurring his speech, that defendant did not seem impaired \u201cin the slightest^]\u201d and that defendant \u201cmade no indication that he had any difficulty at all\u201d in understanding Officer McGraw\u2019s questions. Although we note that defendant presented testimony to the contrary, we further note that \u201c \u2018[i]f there is a conflict between the [S]tate\u2019s evidence and defendant\u2019s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal.\u2019 \u201d Fernandez, 346 N.C. at 11, 484 S.E.2d at 357 (quoting State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982)). Therefore, in light of the foregoing, we conclude that ample evidence supports the trial court\u2019s determination regarding defendant\u2019s intoxication and voluntary waiver of his Miranda rights.\nDefendant maintains that the trial court erred by concluding that his statement to Officer McGraw was admissible, in that he did not sign it or otherwise acquiesce to its contents. We disagree.\nGenerally, a \u201cstatement of an accused reduced to writing by another person, where it was freely and voluntarily made, and where it was read to or by the accused and signed or otherwise admitted by him as correct shall be admissible against him.\u201d State v. Boykin, 298 N.C. 687, 693, 259 S.E.2d 883, 887 (1979), cert. denied, 446 U.S. 911, 64 L. Ed. 2d 264 (1980); see State v. Cole, 293 N.C. 328, 334, 237 S.E.2d 814, 818 (1977). In State v. Walker, 269 N.C. 135, 139-41, 152 S.E.2d 133, 137-39 (1967), our Supreme Court held that a defendant must indicate his acquiescence in the correctness of a written statement in order for it to be tendered by the State as his confession. However, our courts have since recognized that \u201cthe written instrument is admissible, without regard to the defendant\u2019s acquiescence, if it is a \u2018verbatim record of the questions [asked] . . . and the answers\u2019 given by him.\u201d State v. Bartlett, 121 N.C. App. 521, 522, 466 S.E.2d 302, 303 (1996) (quoting State v. Byers, 105 N.C. App. 377, 383, 413 S.E.2d 586, 589 (1992)); see Cole, 293 N.C. at 334-35, 237 S.E.2d at 818 (officer wrote down statements in longhand in \u201cdefendant\u2019s own words\u201d and swore they were defendant\u2019s actual words); State v. Fox, 277 N.C. 1, 25, 175 S.E.2d 561, 576 (1970) (sheriff testified that the transcription was an \u201cexact copy\u201d of the conversation between himself and defendant). Therefore, the Court\u2019s decision in Walker \u201cdoes not preclude admission of an unsigned statement taken in longhand\u201d if it contains a record \u201cof a defendant\u2019s actual responses to the recorded questions.\u201d State v. Wagner, 343 N.C. 250, 256-57, 470 S.E.2d 33, 36 (1996).\nIn the instant case, Officer McGraw\u2019s report of his interview with defendant contains a record of his questions as well as the answers provided by defendant. Officer McGraw testified at the suppression hearing that defendant made the statement contained in the report, and at trial Officer McGraw testified that he \u201casked the questions to [defendant], [defendant] answered and I wrote [defendant\u2019s] answer down in my report.\u201d There is no indication in the record that Officer McGraw\u2019s report contains \u201cmerely [his own] impressions of the import of defendant\u2019s statements.\u201d Gole, 293 N.C. at 334-35, 237 S.E.2d at 818. Instead, the sworn testimony indicates that the report contains the actual answers provided by defendant in response to Officer\u2019s McGraw\u2019s actual questions. Therefore, in light of the foregoing, we conclude that the trial court did not err by admitting into evidence defendant\u2019s statement to Officer McGraw following his arrest. Accordingly, defendant\u2019s first argument is overruled.\nDefendant next argues that the trial court erred by denying his motion to dismiss the charges against him. Defendant asserts that the State produced insufficient evidence to demonstrate that he was the perpetrator of the crimes. We disagree.\nWhen considering a motion to dismiss, the trial court must determine whether \u201csubstantial evidence exists to support each element of the crime charged and that [the] defendant was the perpetratorf.]\u201d State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004). \u201c[T]he trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d Id. \u201c[Contradictions and discrepancies do not warrant dismissal of the case \u2014 they are for the jury to resolve.\u201d State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).\nIn the instant case, the evidence tends to show that after the fight between Ray Von and Irvin, someone fired a shot at Ray Von. Donald, Mario, and Ray Von thereafter ran down 24th Street and turned onto Cleveland Avenue toward 23rd Street. While they were running, Donald, Mario, and Ray Von heard several more shots fired from behind them. A bullet from one of these gunshots injured Bailey, who was standing on the corner of 23rd Street and Cleveland Avenue. Although both Irvin and Puryear testified that Irvin fired the initial shot at Ray Von, both Irvin and Puryear further testified that Puryear transported Irvin to the hospital after the initial shot was fired. In his statement to Officer McGraw, defendant admitted that he took the gun from Irvin after Irvin fired the initial shot, and that he thereafter followed Donald, Mario, and Ray Von down the street. Defendant stated that \u201cwhile [he] was following [Donald, Mario, and Ray Von], [he] fired eight or nine times at them while they were running from 24th street towards 23rd on Cleveland Avenue.\u201d Boyd testified that she heard eight total gunshots and Bailey testified that she heard eight or nine total gunshots. Considering the foregoing evidence in the light most favorable to the State, we conclude that the State offered sufficient evidence to demonstrate that defendant was the perpetrator of the crimes for which he was charged. Accordingly, we overrule defendant\u2019s second argument.\nDefendant next argues that the trial court erred by continuing the trial following the dismissal of a juror. Our review of the record indicates that during the trial, the trial court dismissed one juror due to his \u201csleeping problem.\u201d However, there is no indication in the record that defendant thereafter moved for a mistrial or offered any objection to the trial court\u2019s continuation of the trial with an alternate juror. Although we note that defendant has assigned plain error to this issue on appeal, we also note that our Supreme Court \u201chas only elected to review unpreserved issues for plain error that involve instructional errors or the admissibility of evidence.\u201d State v. Carpenter, 147 N.C. App. 386, 397, 556 S.E.2d 316, 323 (2001) (citing State v. Steen, 352 N.C. 227, 536 S.E.2d 1 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001) and State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996)), disc. review denied, 355 N.C. 217, 560 S.E.2d 143, cert. denied, 536 U.S. 967, 153 L. Ed. 2d 851 (2002). Thus, in light of the foregoing, we conclude that defendant has failed to properly preserve this issue for appeal. Accordingly, we overrule defendant\u2019s third argument.\nDefendant next argues that the trial court erred by failing to give a curative instruction following a prior misstatement of the charges against him. The record reflects that, at the opening of the trial, the trial court informed the jury that defendant was being tried in part for the crime of assault with a' deadly weapon inflicting serious injury upon Bailey. Later in the trial, the State advised the trial court that \u201cthe calendar did not correctly reflect what was indicted\u201d in 98 CRS 27852, in that it appeared on the calendar that defendant was indicted for assault with a deadly weapon inflicting serious injury upon Bailey rather than assault with a deadly weapon with intent to kill inflicting serious injury upon Bailey. The trial court inquired as to whether either party wanted to \u201ctell the jury about that[,]\u201d noting that it \u201cwas not sure they paid that much attention to detail in the beginning[,]\u201d and that \u201c[t]hey know it is a serious assault charge.\u201d Although defendant did not request a curative instruction at that time, he now contends that the trial court committed plain error by not issuing a curative instruction sua sponte. We disagree.\nAs discussed above, \u201c[a] prerequisite to our engaging in a \u2018plain error\u2019 analysis is the determination that the [trial court\u2019s action] constitutes \u2018error\u2019 at all.\u201d Torain, 316 N.C. at 116, 340 S.E.2d at 468. Once we have determined that the trial court erred, \u201c \u2018[b]efore deciding that an error by the trial court amounts to \u201cplain error,\u201d the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.\u2019 \u201d Id. (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). In the instant case, we conclude that defendant has failed to meet this burden. Although the trial court did not give any additional instructions to the jury at the time the issue was first raised, in its charge to the jury following presentation of all the evidence, the trial court correctly instructed the jury that defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury upon Bailey. The trial court also correctly instructed the jury regarding the elements of the offense. Defendant has failed to demonstrate how the alleged error impacted the jury\u2019s verdict. Accordingly, we overrule defendant\u2019s fourth argument.\nDefendant next argues that the trial court erred by failing to instruct the jury to disregard testimony following a sustained objection. The record reflects that at trial, the State introduced testimony from Winston-Salem Police Department Detective Brian Frady (\u201cDetective Frady\u201d). Detective- Frady testified that he was employed by the Winston-Salem Police Department as a crime scene technician, and that on 2 June 1998, he responded to the area of 24th Street and Cleveland Avenue in response to an assault with a deadly weapon call. Detective Frady stated that his investigation of the area produced seven fired shell casings, each .45 automatic caliber. During direct examination, the State asked Detective Frady to \u201c[t]ell the jury the difference between an automatic weapon and a revolver, what happens to a shell casing[.]\u201d Defendant objected to this question \u201cunless he is an expert[,]\u201d and the trial court sustained the objection. Following both parties\u2019 examination of Detective Frady regarding his experience and training, the trial court again sustained defendant\u2019s objection. The State thereafter examined Detective Frady as follows:\nQ: Have you ever shot an automatic weapon?\nA: Yes.\nQ: Can you tell the jury what happens when you shoot an auto- \u2022 matic weapon with the shell casing[?]\nA: Well the shell casing ejects out of the weapon and lands on the ground somewhere and\u2014\nQ: And have you ever shot a revolver?\nA: Yes.\nQ: Can you tell the members of the jury what happens when you shoot a revolver?\nA: Well it depends on how many shots it is after you get through firing the last shot, you have to actually open the gun up and dump the shells out, they don\u2019t eject after each round is fired.\nQ: So the difference then as you have seen it is that when a revolver is shot the shell casings stay[] within the revolver?\nA: That is correct they stay in the revolver.\nQ: And [with an] automatic weapon they are ejected from the gun, [is] that right?\nA: That is correct.\nDefendant did not object to this testimony at trial. On appeal, defendant contends that the trial court committed plain error by failing to instruct the jury to disregard the testimony. We disagree.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2003) provides that where a witness is not testifying as an expert witness, \u201chis testimony in the form of opinions or inferences is limited 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 In State v. Shaw, 322 N.C. 797, 370 S.E.2d 546 (1988), our Supreme Court affirmed the trial court\u2019s decision to allow a police officer to testify that two pairs of shoes showed similar wearing on their respective heels. The Court noted that \u201c[n]o specialized expertise or training is required for one to determine that two shoes share wear pattems[,]\u201d and that \u201c[s]uch a determination may be made by merely observing each pair.\u201d Id. at 809, 370 S.E.2d at 552-53. Similarly, in the instant case, Detective Frady\u2019s testimony regarding the location of shell casings when a bullet is fired from two different weapons was based-not upon any \u201cspecialized expertise or training,\u201d but merely upon his own personal experience and observations in firing different kinds of weapons. Having failed to qualify Detective Frady as an expert in shell casing ballistics, the State was not prevented from eliciting lay opinion testimony from him. Accordingly, we .overrule defendant\u2019s fifth argument.\nDefendant\u2019s final argument is that his due process rights were violated by the destruction of the shell casings prior to his trial. Defendant asserts that the destruction of the shell casings violated his discovery rights under N.C. Gen. Stat. \u00a7 15A-903 and prevented him from proving that the weapon in his possession when he was arrested was not involved in the shooting. We disagree.\nN.C. Gen. Stat. \u00a7 15A-903(e) (2003) provides as follows:\nReports of Examinations and Tests. \u2014 Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecutor. In addition, upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence, or a sample of it, available to the prosecutor if the State intends to offer the evidence, or tests or experiments made in connection with the evidence, as an exhibit or evidence in the case.\n\u201cThe State has no statutory duty to provide discovery absent a request from [the] defendant.\u201d State v. Cummings, 346 N.C. 291, 322, 488 S.E.2d 550, 568 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998). This Court has previously stated that \u201c[w]hether the destruction [of evidence] infringes upon the rights of an accused depends upon the circumstances in each case.\u201d State v. Anderson, 57 N.C. App. 602, 610, 292 S.E.2d 163, 168, disc. review denied, 306 N.C. 559, 294 S.E.2d 372 (1982). \u201c \u2018[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.\u2019 \u201d State v. Mlo, 335 N.C. 353, 373, 440 S.E.2d 98, 108 (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289 (1988)), cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994).\nIn the instant case, there is no indication in the record that defendant filed a discovery request for the shell casings, and defendant has neither alleged nor demonstrated any bad faith on the part of the prosecutor or police department in the destruction of the shell casings. Officer Thomas testified that she had \u201cno idea [the shell casings] were related to the stabbing\u201d of Irvin, and that after learning that Irvin did not wish to prosecute Ray Von, she ordered the destruction of the evidence gathered during the investigation of the stabbing, including the shell casings. On cross-examination, Officer Thomas testified that she \u201ccould never ascertain\u201d if the shell casings were involved in the shootings, and therefore she \u201chad the casings destroyed because [they] were not related to [her] stabbing case.\u201d Officer Thomas further testified that \u201chad [she] know[n] that these two cases were related [she] would have kept the shell casings.\u201d In light of the foregoing, we conclude that defendant\u2019s due process rights were not violated by the destruction of the shell casings. Accordingly, we overrule defendant\u2019s final argument.\nIn light of the foregoing conclusions, we hold that defendant received a trial free of prejudicial error.\nNo error.\nJudges MCCULLOUGH and STEELMAN concur.\n. While it does not affect our analysis in the instant case, N.C. Gen. Stat. \u00a7 15A-903 was recently amended by Session Laws 2004-154, s.4. The amended statute is applicable to cases where the trial date was set pursuant to N.C. Gen. Stat. \u00a7 7A-49.4 on or after 1 October 2004.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.", "Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RODNEY MICHAEL FISHER\nNo. COA04-1155\n(Filed 5 July 2005)\n1. Confessions and Incriminating Statements\u2014 custodial statements \u2014 voluntariness\u2014intoxication\nThe trial court did not commit plain error in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by denying defendant\u2019s motion to suppress his custodial statement to an officer even though defendant contends he was intoxicated and does not remember waiving his Miranda rights, because: (1) a confession is admissible unless defendant is so intoxicated that he is unconscious of the meaning of his words; (2) in the instant case the officer testified that he read defendant the Miranda warnings, defendant acknowledged that he understood the warnings, and thereafter defendant waived his rights and agreed to answer any of the officer\u2019s questions; (3) the officer testified that he did not smell alcohol on defendant, that defendant did not seem impaired in the slightest, and that defendant made no indication that he had any difficulty at all in understanding the officer\u2019s questions; (4) if there is a conflict between the State\u2019s evidence and defendant\u2019s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal; and (5) an unsigned statement taken in longhand is not precluded from admission if it contains a record of defendant\u2019s actual responses to the recorded questions.\n2. Assault\u2014 deadly weapon with intent to kill inflicting serious injury \u2014 motion to dismiss \u2014 sufficiency of evidence\u2014 perpetrator of crime\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill, becaus\u00e9 viewing the evidence in the light most favorable to the State demonstrates that there was sufficient evidence to demonstrate that defendant was the perpetrator of the crimes for which he was charged including that: (1) defendant admitted that he took the gun from the man who fired the initial shot and thereafter followed three men down the street with it while firing eight or nine times at them while they were running; (2) the victim was standing on the comer of the street where defendant was firing the shots and was hit by a bullet from one of these gunshots; and (3) a witness testified that she heard eight total gunshots and the victim testified that she heard eight or nine total gunshots.\n3. Appeal and Error\u2014 preservation of issues \u2014 continuation of trial after dismissal of juror \u2014 failure to object\nAlthough defendant contends the trial court erred in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by continuing the trial following the dismissal of a juror due to his sleeping problem, this assignment of error is dismissed because: (1) there is no indication in the record that defendant moved for a mistrial or offered any objection to the trial court\u2019s continuation of the trial with an alternate juror; and (2) although defendant assigned plain error to this issue on appeal, plain error review is reserved for instructional errors or the admissibility of evidence.\n4. Assault\u2014 failure to give curative instruction \u2014 misstatement of charges\nThe trial court did not commit plain error by failing to give a curative instruction sua sponte following a prior misstatement of the charges against defendant when the trial court informed the jury at the opening of trial that defendant was being tried in part for the crime of assault with a deadly weapon inflicting serious injury on one of the victims and later at trial the State advised the court that the calendar incorrectly reflected that defendant was indicted for assault with a deadly weapon inflicting serious injury rather than assault with a deadly weapon with intent to kill inflicting serious injury for the pertinent victim, because: (1) the trial court correctly instructed the jury that defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury; (2) the trial court correctly instructed the jury regarding the elements of the offense; and (3) defendant failed to demonstrate how the alleged error impacted the jury\u2019s verdict.\n5. Evidence\u2014 lay opinion \u2014 difference in shell casings fired from an automatic weapon versus a revolver\nThe trial court did not commit plain error in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by failing to instruct the jury to disregard a detective\u2019s testimony following a sustained objection about the difference in shell casings fired from an automatic weapon versus a revolver, because: (1) the detective\u2019s testimony regarding the location of shell casings when a bullet is fired from two different weapons was not based upon any specialized expertise or training, but merely upon his own personal experience and observations in firing different kinds of weapons; and (2) having failed to qualify the detective as an expert in shell casing ballistics, the State was not prevented from eliciting lay opinion testimony from him.\n6. Discovery\u2014 destruction of shell casing prior to trial \u2014 failure to request evidence \u2014 failure to show bad faith\nA defendant\u2019s due process rights were not violated in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by the destruction of shell casings prior-to his trial, because: (1) there is no indication in the record that defendant filed a discovery request for the shell casings; and (2) defendant has neither alleged nor demonstrated any bad faith on the part of the prosecutor or police department in the destruction of the shell casings.\nAppeal by defendant from judgment entered 2 June 2003 by Judge Andy Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 12 May 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.\nHall & Hall Attorneys at Law, P.C., by Susan P. Hall, for defendant-appellant." }, "file_name": "0201-01", "first_page_order": 231, "last_page_order": 246 }