{ "id": 8243614, "name": "STATE OF NORTH CAROLINA v. DWIGHT EUGENE SLOAN and HOLANDA KAY WOOTEN, Dependants", "name_abbreviation": "State v. Sloan", "decision_date": "2006-12-19", "docket_number": "No. COA05-1513", "first_page": "527", "last_page": "538", "citations": [ { "type": "official", "cite": "180 N.C. App. 527" } ], "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": "624 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634819 ], "year": 2006, "pin_cites": [ { "page": "336", "parenthetical": "quotation and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0329-01" ] }, { "cite": "626 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635203 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "753", "parenthetical": "internal quotations and citations omitted" }, { "page": "753" }, { "page": "753", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0747-01" ] }, { "cite": "624 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634932 ], "year": 2005, "pin_cites": [ { "page": "641", "parenthetical": "quoting Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0639-01" ] }, { "cite": "403 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "328 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540682 ], "year": 1991, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0626-01" ] }, { "cite": "483 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "434-35", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "345 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53881 ], "year": 1997, "pin_cites": [ { "page": "717", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0713-01" ] }, { "cite": "148 L. Ed. 2d 780", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1117", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9715558, 9715496, 9715306, 9715372, 9715436, 9716238, 9716078, 9716015, 9715729, 9715667, 9715607, 9715867, 9715932, 9716157, 9715807 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1117-05", "/us/531/1117-04", "/us/531/1117-01", "/us/531/1117-02", "/us/531/1117-03", "/us/531/1117-15", "/us/531/1117-13", "/us/531/1117-12", "/us/531/1117-08", "/us/531/1117-07", "/us/531/1117-06", "/us/531/1117-10", "/us/531/1117-11", "/us/531/1117-14", "/us/531/1117-09" ] }, { "cite": "531 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "816", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684937 ], "year": 2000, "pin_cites": [ { "page": "309-10", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0287-01" ] }, { "cite": "608 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2005, "pin_cites": [ { "page": "95-96" }, { "page": "95" }, { "page": "95", "parenthetical": "citations and quotations omitted" }, { "page": "95-96", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470669 ], "year": 2005, "pin_cites": [ { "page": "551-52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0548-01" ] }, { "cite": "360 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792897 ], "year": 2006, "pin_cites": [ { "page": "241", "parenthetical": "quotation and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0231-01" ] }, { "cite": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "436-38", "parenthetical": "upholding the constitutionality of the \"short form\" indictment" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "173-75", "parenthetical": "upholding the constitutionality of the \"short form\" indictment" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "176 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301223 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "505", "parenthetical": "internal quotations and citations omitted" }, { "page": "505" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0497-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "553 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "109", "parenthetical": "citing N.C. Gen. Stat. \u00a7 14-17; State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11360197 ], "year": 2001, "pin_cites": [ { "page": "531", "parenthetical": "citing N.C. Gen. Stat. \u00a7 14-17; State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0523-01" ] }, { "cite": "548 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "700", "parenthetical": "citations omitted" }, { "page": "700", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135851 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "621", "parenthetical": "citations omitted" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0599-01" ] }, { "cite": "449 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "11" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525352 ], "year": 1994, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0658-01" ] }, { "cite": "174 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353276 ], "year": 2005, "pin_cites": [ { "page": "781", "parenthetical": "quoting Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0778-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "519" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "607", "parenthetical": "citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)" }, { "page": "607" }, { "page": "607" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "86-87", "parenthetical": "citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)" }, { "page": "86-87" }, { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "459 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "272" } ], "opinion_index": 1 }, { "cite": "341 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793091 ], "year": 1995, "pin_cites": [ { "page": "161" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0156-01" ] }, { "cite": "478 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "175", "parenthetical": "citing State v. Francis, 341 N.C. 156, 161, 459 S.E.2d 269, 272 (1995)" }, { "page": "175" }, { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "345 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54098 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "24", "parenthetical": "citing State v. Francis, 341 N.C. 156, 161, 459 S.E.2d 269, 272 (1995)" }, { "page": "24" } ], "opinion_index": 1, "case_paths": [ "/nc/345/0001-01" ] }, { "cite": "481 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "71" }, { "page": "71" } ], "opinion_index": 1 }, { "cite": "345 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53983 ], "year": 1997, "pin_cites": [ { "page": "233" } ], "opinion_index": 1, "case_paths": [ "/nc/345/0184-01" ] }, { "cite": "546 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "159", "parenthetical": "citations omitted" }, { "page": "159", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "143 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434065 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "207", "parenthetical": "citations omitted" }, { "page": "207" } ], "opinion_index": 1, "case_paths": [ "/nc-app/143/0187-01" ] }, { "cite": "403 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "286" } ], "opinion_index": 1 }, { "cite": "328 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540682 ], "year": 1991, "pin_cites": [ { "page": "637" } ], "opinion_index": 1, "case_paths": [ "/nc/328/0626-01" ] } ], "analysis": { "cardinality": 1008, "char_count": 27958, "ocr_confidence": 0.748, "pagerank": { "raw": 4.3918275166083114e-07, "percentile": 0.9196231131621959 }, "sha256": "3f25d922a4c3afa2a8ac9b0693b7bac9a4dd0d3a83cae43aefb974dd6865f86c", "simhash": "1:b72ed5baa72ed05a", "word_count": 4542 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge ELMORE concurs in part and dissents in part in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. DWIGHT EUGENE SLOAN and HOLANDA KAY WOOTEN, Dependants" ], "opinions": [ { "text": "BRYANT, Judge.\nDwight Eugene Sloan (defendant Sloan) and Kolanda Kay Wooten (defendant Wooten), defendants, appeal from 19 April 2005 judgments consistent with jury verdicts finding both defendants guilty of first degree murder. For the reasons stated below, we find no error.\nDefendant Wooten and a witness, Sherquanda Fields (Fields), both had a relationship with the victim, Jamal Pearsall (Pearsall). On 23 August 2003, Pearsall saw the two together while they were looking for defendant Wooten\u2019s brother in a car driven by defendant Wooten\u2019s aunt. Pearsall became upset and ordered Fields to get out of the car. An argument ensued and defendant Wooten broke the window out of Pearsall\u2019s car with her hand. She then rode off, with Fields still in the car.\nLater that night, defendant Wooten, Pearsall, and others met to discuss payment for the car window. Defendant Wooten\u2019s boyfriend, \u201cDon Don,\u201d arrived, and attacked Pearsall. Following the confrontation, Pearsall departed with Fields, and the two spent the night at Fields\u2019s house. Pearsall set out the next morning for his mother\u2019s house.\nWitness Nora Robinson (Robinson) testified that on 24 August 2003 she saw a man with a gun behind a tree. She went inside, and then heard gunshots. She looked outside, where she saw defendant Sloan walking away from Pearsall\u2019s car, trying to cock a jammed gun and muttering. Specifically, defendant Sloan said, \u201cI\u2019m going to kill this mother f-.\u201d Robinson watched as defendant Sloan got into a white car. She then heard Leanne Sutton (Sutton) yell from the car, \u201cYou should have shot the mother f- in the head.\u201d Defendant Sloan denied that he had hidden behind the tree or fired the gun. He claimed that a housemate of his, Antonio Woods (Woods), shot the gun. He also testified that he never said, \u201cI\u2019m going to kill this mother f-,\u201d and that no one ever said he should have shot Pearsall in the head. After defendant Sloan got into the white car, defendant Wooten, who was driving, followed Pearsall\u2019s car as it drove away.\nThe evidence showed that there was a high-speed chase, during which the car Wooten was driving ran a stop sign, and Pearsall\u2019s car hit a parked car. Further testimony indicated that the white car driven by Wooten pulled even with Pearsall\u2019s car, and an unidentified black arm stuck out of the white car\u2019s window and shot into Pearsall\u2019s car.\nFollowing the incident, defendant Sloan came forward voluntarily, accompanied by his mother and father, to discuss the matter with the authorities. SBI Agent Barbara Lewis (Agent Lewis) interviewed him, and testified from her notes. She stated that defendant Sloan said he had argued with Pearsall over some speakers that he believed Pearsall to have stolen. He told Agent Lewis that he had shot at Pearsall as he drove past Pearsall in a car driven by defendant Wooten. Agent Lewis further testified that defendant Sloan informed her that he did not intend to kill Pearsall, and that no one else in the car was aware that he had a gun prior to the shooting.\nDefendant Wooten also talked to Agent Lewis. Agent Lewis stated that defendant Wooten told her that when defendant Sloan pulled out the gun and fired twice, she screamed at him, \u201cWhy did you do that, why did you do that?\u201d Defendant Wooten told Agent Lewis that defendant Sloan responded, \u201c[J]ust drive, don\u2019t worry about it, just drive.\u201d\nAt trial, both defendants were convicted of first degree Murder. Each now raises several assignments of error. For the purposes of this opinion, we will deal with the defendants separately. Defendant Sloan claims (1) the trial court erred in denying his motion to dismiss because there was insufficient evidence to uphold his conviction, (2) the trial court erred in admitting the hearsay statement of Leanne Sutton, (3) the trial court lacked jurisdiction as a result of a faulty indictment, and (4) the trial court erred in admitting photographs of Pearsall. We address these arguments in turn.\nDefendant Sloan\u2019s Appeal\nDefendant Sloan first argues that the trial court should have granted his motion to dismiss the charges on the grounds that the evidence was insufficient to persuade a rational trier of fact of each essential element beyond a reasonable doubt. Specifically, defendant Sloan contends that the evidence showed only that he recklessly discharged the weapon, not that he intentionally shot into Pearsall\u2019s vehicle. This argument is without merit.\nDefendant Sloan attempts in his brief to cast his argument in a constitutional light. No such argument was presented at trial, however, and defendant Sloan makes no mention of a constitutional claim in his assignment of error. \u201cConstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\u201d State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)). \u201c[The] \u2018scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant\u2019s brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.\u2019 \u201d Walker v. Walker, 174 N.C. App. 778, 781, 624 S.E.2d 639, 641 (2005) (quoting Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)). Because the constitutional issue was neither raised at the trial level nor assigned as error, we will not consider it on appeal.\n\u201cIn ruling on a defendant\u2019s motion to dismiss, the trial court should consider if the state has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator.\u201d State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001) (citations omitted). \u201cThe elements required for conviction of first degree murder are (1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation.\u201d State v. Haynesworth, 146 N.C. App. 523, 531, 553 S.E.2d 103, 109 (2001) (citing N.C. Gen. Stat. \u00a7 14-17; State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991)). \u201cThe evidence should be viewed in the light most favorable to the [S]tate, with all conflicts resolved in the [S]tate\u2019s favor. ... If substantial evidence exists supporting defendant\u2019s guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt.\u201d Fowler, 353 N.C. at 621, 548 S.E.2d at 700 (citations omitted).\nIn this case, defendant Sloan killed Pearsall unlawfully, thus satisfying the first element. In his argument against the satisfaction of the other two elements, defendant Sloan relies primarily on his own evidence as to his acts and intentions. In ruling on a defendant\u2019s motion to dismiss, however, \u201c[t]he defendant\u2019s evidence should be considered only if it is favorable to the [S]tate.\u201d Id. Though defendant Sloan contests the veracity of the testimony against him, Agent Lewis\u2019s recount of her interview with him, combined with the introduction of evidence showing that he said \u201cI\u2019m going to kill this mother f-,\u201d and that he had the gun when he pursued Pearsall\u2019s car, provided sufficient evidence to support a guilty verdict. Accordingly, defendant Sloan\u2019s first contention must fail.\nDefendant Sloan next argues that the trial court erred in its admission of Robinson\u2019s hearsay testimony as to Sutton\u2019s statement, \u201cYou should have shot the mother f-in the head.\u201d Because the testimony was properly admitted under the \u201cexcited utterance\u201d exception to the hearsay rule, this argument is without merit.\nIt should be noted that although defendant Sloan continues to couch his arguments in constitutional language, he once again failed to object on constitutional grounds at trial. \u201cConstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\u201d Lloyd, 354 N.C. at 86-87, 552 S.E.2d at 607.\n\u201cOn appeal, the standard of review of a trial court\u2019s decision to exclude or admit evidence is that of an abuse of discretion. An abuse of discretion will be found only when the trial court\u2019s decision was so arbitrary that it could not have been the result of a reasoned decision.\u201d Brown v. City of Winston-Salem, 176 N.C. App. 497, 505, 626 S.E.2d 747, 753 (2006) (internal quotations and citations omitted).\n\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801 (2005). \u201cHearsay is not admissible except as provided by statute or by [the] rules [of evidence].\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (2005). The \u201cexcited utterance\u201d exception to the hearsay rule applies to \u201c[a] statement relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803 (2005).\nDefendant Sloan contends that the State failed to produce any evidence that Sutton was \u201cexcited\u201d when she made the statement, \u201cYou should have shot the mother f-in the head.\u201d Specifically, Defendant Sloan notes that the trial judge made no findings to that effect. The trial judge did, however, state, \u201cIt\u2019s an excited utterance.\u201d Moreover, as the State points out in its brief, the testimony itself provides evidence of excitement. There had been at least one gun shot. Robinson stated that Sutton \u201cyelled it out,\u201d and that the statement was \u201c[r]eal loud, everybody heard her.\u201d Finally, the statement was made immediately preceding a high-speed chase. The judge\u2019s decision regarding the excited utterance, based as it was on the highly charged situation described in Robinson\u2019s testimony, was not \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d Brown, 176 N.C. App. at 505, 626 S.E.2d at 753. Accordingly, there was no abuse of discretion, and defendant Sloan\u2019s contention is without merit.\nDefendant Sloan acknowledges in his brief that his third contention, that the trial court was without jurisdiction to try him for first degree murder based on the indictment, is foreclosed by case law. See State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000) (upholding the constitutionality of the \u201cshort form\u201d indictment), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). As he raises this issue purely for preservation purposes, no further discussion is required.\nFinally, defendant Sloan argues that the trial court erred in admitting photographs of Pearsall. Specifically, defendant Sloan contends that the photographs were cumulative and that their prejudice to him outweighed their probative value. Because defendant Sloan again failed to object on constitutional grounds at trial, we will not address the constitutional language raised in his brief. \u201cConstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.\u201d Lloyd, 354 N.C. at 86-87, 552 S.E.2d at 607.\n\u201cOn appeal, the standard of review of a trial court\u2019s decision to exclude or admit evidence is that of an abuse of discretion. An abuse of discretion will be found only when the trial court\u2019s decision was so arbitrary that it could not have been the result of a reasoned decision.\u201d Brown, 176 N.C. App. at 505, 626 S.E.2d at 753 (internal quotations and citations omitted).\nWe note as a preliminary matter that State\u2019s exhibits 14 and 15 are the only photographs to which defendant Sloan presents specific arguments and that they were the only photographs forwarded to this Court. \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d State v. McNeill, 360 N.C. 231, 241, 624 S.E.2d 329, 336 (2006) (quotation and citation omitted). Accordingly, we will not address arguments as to any of the other photographs to which defendant Sloan objected at trial.\nThis Court recently addressed this issue in State v. Gladden, 168 N.C. App. 548, 551-52, 608 S.E.2d 93, 95-96 (2005). In Gladden, the defendant argued that the lower court erred in admitting autopsy photographs \u201cbecause they were irrelevant and offered solely for the purpose of inflaming the jury.\u201d Id. at 551, 608 S.E.2d at 95. This Court noted that \u201cthe admission of an excessive number of photographs, depicting substantially the same scene, may be prejudicial error where the additional photographs add nothing of probative value but tend solely to inflame the jury.\u201d Id. at 551-52, 608 S.E.2d at 95 (citations and quotations omitted). Nevertheless, this Court reaffirmed that the proper standard for determining whether to \u201cadmit photographs pursuant to Rule 403 and what constitutes an excessive number [of photographs]\u201d is abuse of discretion. Id. at 552, 608 S.E.2d at 95-96 (citation omitted). Because the Gladden court found that the photographs were offered into evidence \u201cto illustrate the testimony of the State\u2019s pathologist,\u201d it concluded that there was no abuse of discretion. Id.\nIn the case at bar, the State argues that the photographic evidence introduced was offered to illustrate its witnesses\u2019 testimony. Specifically, State\u2019s exhibits 14 and 15 were used to illustrate Donald Hall\u2019s testimony that there was less blood when he saw Pearsall than there was in the pictures. The State maintains that this illustrated that Pearsall\u2019s blood loss continued in the time period between Hall\u2019s arrival and when the photographs were taken. It appears from defendant Sloan\u2019s brief that he objects to the use of both photographs because he believes that the one, less gory, photograph would have sufficed. Yet as defendant Sloan himself acknowledges in his brief, \u201cPhotographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury.\u201d State v. Blakeney, 352 N.C. 287, 309-10, 531 S.E.2d 799, 816 (2000) (quotations and citations omitted), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001). The State has shown that inflaming the jury was not the sole purpose of the evidence. As such, it cannot be said that the trial court abused its discretion, and defendant Sloan\u2019s contentions are without merit. Having conducted a thorough review of the case, we find no error in defendant Sloan\u2019s conviction for first degree murder.\nDefendant Wooten\u2019s Appeal\nWe turn now to defendant Wooten. She contends that the trial court erred by denying her motion to dismiss based on insufficient evidence. We disagree.\nIn ruling on the motion to dismiss, the trial court must view all of the evidence, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor. The trial court need not concern itself with the weight of the evidence. In reviewing the sufficiency of the evidence, the question for the trial court is whether there is \u201cany evidence tending to prove guilt or which reasonably leads to this conclusion as a fairly logical and legitimate deduction.\u201d Once the court decides a reasonable inference of defendant\u2019s guilt may be drawn from the evidence, \u201cit is for the jurors to decide whether the facts satisfy them beyond a reasonable doubt that the defendant is actually guilty.\u201d\nState v. Cross, 345 N.C. 713, 717, 483 S.E.2d 432, 434-35 (1997) (citations omitted).\nThe evidence in this case was sufficient to survive a motion to dismiss. The evidence clearly showed that defendant Wooten, acting in concert with defendant Sloan, joined together to forcibly confront the victim with a weapon. See State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991)) (\u201c[Bjefore the jury could apply the law of acting in concert to convict the defendant of the crime . . ., it had to find that the defendant and [codefendant] had a common purpose to commit a crime; it is not strictly necessary, however, that the defendant share the intent or purpose to commit the particular crime actually committed.\u201d) (emphasis in original). Although the evidence presented by the State against defendant Wooten was circumstantial, it was nonetheless substantial.\nShortly before the shooting of Jamal Pearsall, defendant Wooten had been involved in two violent confrontations with Pearsall. One resulted in defendant Wooten breaking one of Pearsall\u2019s car windows, while another resulted in a physical altercation between Pearsall and defendant Wooten\u2019s boyfriend, Don Don.\nSpecifically, defendant Wooten\u2019s behavior immediately prior to Pearsall\u2019s killing established evidence of her acting in concert to join defendant Sloan in forcibly confronting Pearsall. Defendant Wooten encouraged defendant Sloan to approach Pearsall by notifying him that Pearsall may have taken defendant Sloan\u2019s car stereo. Defendant Wooten then provided defendant Sloan with transportation, and was driving the white car when the decision was made to pursue Pearsall rather than to report him to police. After the initial incident on Maple Street, defendant Wooten was aware that defendant Sloan had a gun. Defendant Wooten drove defendant Sloan and others around in the car after defendant Sloan had shot at Pearsall. Also, given defendant Wooten\u2019s proximity to where statements were made regarding the gun, it is likely she heard defendant Sloan (\u201cI\u2019m going to kill this mother f-\u201d) and Leanne Sutton (\u201cYou should have shot the mother f-in the head\u201d) indicating an intent to kill Pearsall. Moreover, rather than leaving the area to remove herself from further criminal activity, defendant Wooten engaged in a high-speed chase with the car driven by Pearsall, then pulled alongside Pearsall\u2019s car after it crashed into another car, and gave defendant Sloan a perfect opportunity to fire the fatal shot. Immediately after Pearsall was shot, defendant Wooten drove away without calling for medical help or calling the police.\nWhen taken in the light most favorable to the State, the evidence against defendant Wooten, acting in concert to assault Pearsall, which actions led to Pearsall\u2019s death was substantial. This evidence was sufficient to logically and legitimately conclude defendant Wooten\u2019s guilt could be determined by the jury. As such, \u201cit is for the jurors to decide whether the facts satisfy them beyond a reasonable doubt that the defendant is actually guilty\u201d of the ultimate crime of first degree murder. Therefore, the trial court did not err in denying defendant Wooten\u2019s motion to dismiss.\nNo error.\nJudge McGEE concurs.\nJudge ELMORE concurs in part and dissents in part in a separate opinion.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "ELMORE, Judge,\nconcurring in part and dissenting in part.\nI concur in the majority opinion that there was no error in defendant Sloan\u2019s conviction for first-degree murder. However, I respectfully dissent from that part of the majority opinion holding that the State produced sufficient evidence to survive defendant Wooten\u2019s motion to dismiss. Because I believe that the evidence was, in fact, insufficient to convince a rational trier of fact that defendant Wooten was guilty of first-degree murder, I would order a new trial for defendant Wooten.\nThis Court has recently outlined several guiding principles for reviewing the sufficiency of the evidence needed to survive defendant\u2019s motion to dismiss:\nThe evidence is to be viewed in the light most favorable to the State. All contradictions in the evidence are to be resolved in the State\u2019s favor. All reasonable inferences based upon the evidence are to be indulged in. While the State may base its case on circumstantial evidence requiring the jury to infer elements of the crime, that evidence must be real and substantial and not merely speculative. Substantial evidence is evidence from which a rational trier of fact could find the fact to be proved beyond a reasonable doubt\nState v. Berry, 143 N.C. App. 187, 207, 546 S.E.2d 145, 159 (2001) (citations omitted).\nThe State recites in its brief the doctrine of acting in concert, quoting from State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997):\nIf \u201ctwo persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common puipose ... or as a natural or probable consequence thereof.\u201d\nId. (quoting State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991)). The State then proceeds to argue its case under a theory of aiding and abetting. Under this theory,\nthe jury must find three things in order to convict the defendant of first-degree murder . . . : (1) that the crime was committed by another; (2) that the defendant knowingly advised, instigated, encouraged, procured, or aided the other person; and (3) that the defendant\u2019s actions or statements caused or contributed to the commission of the crime by the other person.\nState v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996) (citing State v. Francis, 341 N.C. 156, 161, 459 S.E.2d 269, 272 (1995)).\nI would find that the State failed to carry its burden under either doctrine.\nTo prevail under its acting in concert theory, the State must show that defendant Wooten was present, that she had joined in purpose with defendant Sloan to commit a crime, and that the crime for which she was being tried, first-degree murder, was either \u201cin pursuance of [that] common purpose ... or [was] a natural or probable consequence thereof.\u201d Barnes, 345 N.C. at 233, 481 S.E.2d at 71. Though the State attempts to show that defendant Wooten had a motive to murder Pearsall, the mere presence of motive does not necessitate sending the case to the jury. Likewise, while the State hopes to prove that defendant Wooten told defendant Sloan that Pearsall had stolen his stereo in order to provoke a confrontation between the two, it offers no evidence that this was, in fact, her plan. Finally, the State points out that after being near enough to see and hear the gun being shot and Sutton shouting that defendant Sloan \u201cshould have shot the mother f-in the head,\u201d defendant Wooten nevertheless drove after Pearsall with defendant Sloan in the car. Yet despite the majority\u2019s position that this evidence is sufficient, there remains no evidence of a common purpose. As stated above, the use of circumstantial evidence is permissible. Nevertheless, \u201cthat evidence must be real and substantial and not merely speculative. Substantial evidence is evidence from which a rational trier of fact could find the fact to be proved beyond a reasonable doubt.\" Berry, 143 N.C. App. at 207, 546 S.E.2d at 159 (emphasis added). In this case, the \u201ccommon purpose\u201d of defendant Wooten and defendant Sloan could easily have been to recover stolen property. Such a purpose would not have been illegal and would not have led, as a \u201cnatural or probable consequence,\u201d to murder. There is simply no substantial evidence that the two had joined together for the purpose of committing a crime.\nThough the majority does not focus on it, the State\u2019s aiding and abetting theory also must fail. It is certain that \u201cthe crime was committed by another\u201d, namely defendant Sloan. Bond, 345 N.C. at 24, 478 S.E.2d at 175. Defendant Wooten\u2019s actions in driving surely \u201ccontributed to the commission of the crime.\u201d Id. But there is no substantial evidence that defendant Wooten \u201cknowingly advised, instigated, encouraged, procured, or aided the other person.\u201d Id. (emphasis added). On the contrary, by all accounts, defendant Wooten was shocked by the murder.\nBecause I would find that it was error for the trial court to deny defendant Wooten\u2019s motion to dismiss absent substantial evidence of defendant Wooten\u2019s knowing intent to aid defendant Sloan in the commission of a crime, I respectfully dissent from that part of the majority opinion that would uphold defendant Wooten\u2019s conviction for first-degree murder.", "type": "concurring-in-part-and-dissenting-in-part", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistants Attorney General C. Norman Young, Jr. & Thomas G. Meacham, Jr., for the State.", "Nora Henry Hargrove for defendant-appellant Sloan.", "Richard B. Glazier for defendant-appellant Wooten." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DWIGHT EUGENE SLOAN and HOLANDA KAY WOOTEN, Dependants\nNo. COA05-1513\n(Filed 19 December 2006)\n1. Homicide\u2014 first-degree murder \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 intentionally shooting into victim\u2019s vehicle\nThe trial court did not err by denying defendant Sloan\u2019s motion to dismiss the charge of first-degree murder based on alleged insufficient evidence that he intentionally shot into the victim\u2019s vehicle, because: (1) although defendant now tries to present a constitutional argument, constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal; (2) although defendant relies on his own evidence as to his acts and intentions, in ruling on a motion to dismiss defendant\u2019s evidence should be considered only if it is favorable to the State; and (3) although defendant contested the veracity of the testimony against him, an agent\u2019s recount of her interview with \u25a0 defendant, combined with the introduction of evidence showing that he said he was going to kill the victim and that he had the gun when he pursued the victim\u2019s car, provided sufficient evidence to support a guilty verdict.\n2. Evidence\u2014 hearsay \u2014 excited utterance exception\nA witness\u2019s hearsay testimony as to another witness\u2019s statement that defendant Sloan should have shot the victim in the head was properly admitted under the excited utterance exception to the hearsay rule pursuant to N.C.G.S. \u00a7 8C-1, Rule 803 when the testimony itself provided evidence of excitement, there had been at least one gun shot, the witness yelled the statement really loud for everybody to hear, and the statement was made immediately preceding a high-speed chase.\n3. Evidence\u2014 photographs \u2014 homicide victim \u2014 illustrative purposes\nThe trial court did not abuse its discretion in a first-degree murder case by admitting two photographs of the victim, because: (1) the photographic evidence introduced was offered to illustrate the testimony of the State\u2019s witnesses; (2) as defendant himself acknowledges, photographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury; and (3) the State showed that inflaming the jury was not the sole purpose of the evidence.\n4. Homicide\u2014 first-degree murder \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 acting in concert\nThe trial court did not err by denying defendant Wooten\u2019s motion to dismiss the charge of first-degree murder, because: (1) although the State\u2019s evidence against defendant was circumstantial, it was nonetheless substantial; (2) shortly before the shooting of the victim, defendant had been involved in two violent confrontations with the victim, and defendant\u2019s behavior immediately prior to the victim\u2019s killing established evidence of her acting in concert to join defendant in forcibly confronting the victim; and (3) rather than leaving the area to remove herself from further criminal activity, defendant engaged in a high-speed chase with the car driven by the victim, pulled alongside the victim\u2019s car after it crashed into another car, gave her codefendant a perfect opportunity to fire the fatal shot, and drove away immediately after the victim was shot without calling for medical help or calling the police.\nJudge Elmore concurring in part and dissenting in part.\nAppeal by defendants from judgments entered 19 April 2005 by Judge John W. Smith in Wayne County Superior Court. Heard in the Court of Appeals 23 August 2006.\nAttorney General Roy Cooper, by Assistants Attorney General C. Norman Young, Jr. & Thomas G. Meacham, Jr., for the State.\nNora Henry Hargrove for defendant-appellant Sloan.\nRichard B. Glazier for defendant-appellant Wooten." }, "file_name": "0527-01", "first_page_order": 557, "last_page_order": 568 }