{
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  "name": "STATE OF NORTH CAROLINA v. DONNA MARIE SMALL, Defendant",
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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. DONNA MARIE SMALL, Defendant"
    ],
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      {
        "text": "HUNTER, Robert C., Judge.\nDonna Marie Small (\u201cdefendant\u201d) appeals from felony convictions for discharging a firearm into occupied property and assault with a deadly weapon inflicting serious injury. After careful review, we find no error.\nBackground\nThe evidence at trial tended to show that on 1 September 2006, Arthur Lee Hunt, Jr. (\u201cHunt\u201d) and his girlfriend, Wanda Small (\u201cWanda\u201d), decided to spend the night at the home of Dennis Russell (\u201cRussell\u201d). Hunt is defendant\u2019s ex-boyfriend, and Wanda is defendant\u2019s sister. Also present in the home were Russell\u2019s wife and three children.\nOn 2 September 2006 between 2:30 a.m. and 3:00 a.m., Russell was awakened by a ringing telephone, which he did not answer. At that time, Russell noticed a vehicle in front of the house, and upon investigation, he saw someone disturbing Hunt\u2019s motorcycle. He then saw the same person retrieve a knife and shotgun out of a nearby car. Russell proceeded to awaken Hunt and tell him that someone was \u201cmessing with his bike.\u201d Russell then went to get his gun and call 911 as Hunt exited the front door.\nFrom inside the house, Russell heard a shotgun blast, and Hunt immediately reappeared, yelling that defendant shot him. Russell saw defendant standing at the front door holding the shotgun, yelling: \u201cSend Snoop back out here so I can finish what I came for.\u201d Russell testified that he held defendant at gunpoint until the police arrived and arrested her. At the Thomasville Police Department, defendant signed a written statement before Officer Jason Annas (\u201cOfficer Annas\u201d) in which she admitted to shooting Hunt. -\nIt was later determined in the emergency room that Hunt had been shot in the arm, shattering the bone, an injury which required a hospital stay of over a week. After arresting defendant, officers observed one broken window and pellet holes in the siding of Russell\u2019s house.\nDefendant was indicted on one count of discharging a firearm into occupied property and one count of assault with a deadly weapon inflicting serious injury. Prior to trial, defendant made a motion to dismiss all charges, alleging that the State failed to comply with North Carolina\u2019s discovery procedures by not disclosing statements made by Wanda and Hunt to members of the district attorney\u2019s office. The court denied defendant\u2019s motion, but ordered the State to proffer Hunt\u2019s testimony outside the presence of the jury to enable the court to determine whether a discovery violation had occurred. After considering the State\u2019s proffer and arguments of counsel, the court denied defendant\u2019s renewed motion to dismiss. Defendant then made a motion in limine to exclude Hunt\u2019s testimony, which was also denied.\nOn 9 July 2008, defendant was convicted by a jury of both charges. She was sentenced to two consecutive sentences of 25 to 39 months imprisonment.\nAnalysis\nI.\nDefendant first argues that the trial court erred in denying her motion to dismiss and motion in limine on the grounds that the State failed to comply with N.C. Gen. Stat. \u00a7 15A-903(a)(l) (2007) by not disclosing to defendant Hunt\u2019s pre-trial statement to the prosecution. Specifically, defendant claims that Hunt told the prosecution that he did not remember giving a statement to police on the night of the shooting, but the officer\u2019s report, which was disclosed to defendant, contained a statement made by Hunt to the officer.\nThe purpose of our discovery statutes is \u201cto protect the defendant from unfair surprise.\u201d State v. Tucker, 329 N.C. 709, 716, 407 S.E.2d 805, 809-10 (1991). \u201cWhether a party has complied with discovery and what sanctions, if any, should be imposed are questions addressed to the sound discretion of the trial court.\u201d Id. at 716, 407 S.E.2d at 810. \u201c[The] discretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the state in its noncompliance with the discovery requirements.\u201d State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986). \u201c[O]nce a party, or the State has provided discovery there is a continuing duty to provide discovery and disclosure.\u201d State v. Blankenship, 178 N.C. App. 351, 354, 631 S.E.2d 208, 210 (2006).\nN.C. Gen. Stat. \u00a7 15A-903(a)(l) provides that, upon defendant\u2019s motion, the court must order the State to make available to the defense, inter alia, all witness statements and investigating officers\u2019 notes. In addition, any oral statements made by a witness to a prosecuting attorney outside the presence of a law enforcement officer must be provided in writing or in recorded form if there is \u201csignificantly new or different information in the oral statement from a prior statement made by the witness.\u201d Id.\nDuring the trial court\u2019s inquiry into the alleged discovery violation, the State presented Officer Annas\u2019s report, which provided in part that \u201cMr. Hunt was coherent and also stated that Ms. Donna Marie Small shot him.\u201d The State provided this report to defendant during discovery. Upon voir dire examination, Hunt testified as follows:\nQ. And could you see in what position your bike was in?\nA. It was upright, and she was standing beside of it.\nQ. And by \u201cshe,\u201d who do you mean, sir?\nA. Donna Small.\nQ. And what happened after you saw Ms. Small?\nA. She said, \u201cCome here, I want to talk to you.\u201d\nQ. Okay. And what did you do after that?\nA. I went in and put my shoes on, and as I was coming back out the door, I shut the door \u2019cause I didn\u2019t want nobody to hear us arguing, and when I shut the door \u2014 when I turned around, I seen a barrel pointing at me, and I didn\u2019t say anything.\nQ. After Ms. Small pointed the gun at you, what happened next?\nA. Well, as I was closing the door, I seen a barrel pointing at me. So I didn\u2019t say anything or do nothing, I just took a jump, and pow.\nQ. Took a what? Took a jump?\nA. Took a leap. And when I did, my arm goes out like this, and pow, blew it right behind me.\nQ. Where did you leap to, sir?\nA. I jumped \u2014 tried to jump between the brick column. I didn\u2019t make it, so I stood back up and I ran in the house and told my cousin to call the ambulance, that Donna Small shot me.\nHunt then testified regarding a pre-trial interview between himself and prosecutor Wendy Terry (\u201cTerry\u201d), which defendant claimed was never provided to her during discovery:\nQ. And you said you have no remembrance of talking to any officer?\nA. I was shocked. I don\u2019t remember what got there first, the ambulance or a police officer.\nQ. Do you remember ever talking to a police officer?\nA. No. All I remember is the ambulance.\nBased on the foregoing, the trial court made the following findings of fact and conclusions of law:\n[T]he Court finds that the alleged victim in this matter issued a statement to the initial investigating officer, which is contained in an incident investigation report with an addendum or attachment entitled, \u201cReporting Officer Narrative,\u201d which reads in part as follows: \u201cMr. Hunt was coherent and also stated Ms. Donna Marie Small shot him.\u201d\nThe Court further finds that this statement made to the officer constitutes a prior statement under N.C.G.S. \u00a7 15A-903(a)(l), and that while the alleged victim\u2019s proffer of testimony does offer contextual details not included in the prior statement, that the testimony does not constitute a significantly new or different statement from the prior statement given to the officers.\nThe Court finds and concludes that this statement was disclosed to the defendant in discovery. The Court finds that, further, the defendant has provided a Mirandized statement, according to the discovery to the officers, wherein she admits to shooting the alleged victim.\n(Emphasis Added.)\nUltimately the trial court concluded that the pre-trial statement made to Terry did not offer any significantly new or different information from what had already been provided in prior discovery disclosures and therefore no discovery violation had occurred.\nHunt testified during voir dire that defendant shot him, which is precisely the same information conveyed to Officer Annas and included in the officer\u2019s report, which was disclosed to defendant. Further, the assertion that defendant shot Hunt was contained in other witness statements and that of defendant herself. Nothing in the record indicates that Hunt at any point made a statement to prosecutors contradicting or in any way altering his statement that he was , shot by defendant. The only divergence in Hunt\u2019s oral pre-trial statement to the State was that he did not remember speaking with officers on the night of the shooting. However, Hunt\u2019s account of the actual incident remained consistent.\nIn sum, Hunt\u2019s statement that he could not remember giving a statement to the police does not constitute any unfair surprise to defendant; rather, Hunt\u2019s proffered testimony comports with his earlier statement that defendant shot him. Therefore, although Hunt did make a subsequent statement to prosecutors, since it did not contain significantly new or different information from his prior statement, the State was under no duty to disclose the second statement. Accordingly, we find no abuse of discretion in the trial court\u2019s denial of defendant\u2019s motion to dismiss the charges or denial of her motion in limine.\nII.\nDefendant next contends that the trial court erred by providing a jury instruction on transferred intent. The State opposes consideration of this issue on the ground that defendant failed to object to the instruction at trial. \u201cWhere a defendant fails to make a proper objection at trial, he waives the issue on appeal, absent a finding of plain error.\u201d State v. Ferebee, 177 N.C. App. 785, 789, 630 S.E.2d 460, 463 (2006) (citations omitted).\nA. Preservation of Issue\nThe discussion of transferred intent first arose during defendant\u2019s motion to dismiss the charge of discharging a firearm into occupied property. In arguing that the State had presented sufficient evidence of intent as to that charge, the prosecutor cited State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418, disc. review denied, 346 N.C. 285, 487 S.E.2d 560, cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299 (1997), and explained that\n[i]n that case, the court upheld the trial court\u2019s use of the doctrine of transferred intent to satisfy the intent element of the crime of discharging a firearm into an occupied residence where the evidence tended to show the defendant intended to shoot a person, but instead shot into an occupied residence.\nThe trial court then ruled that \u201cdefendant\u2019s motion to dismiss the charge of firing into an occupied dwelling at the close of all of the evidence is denied on the basis of 125 N.C. App. 505.\u201d At that point, the judge indicated his intent to include a transferred intent charge by stating: \u201cI\u2019m not sure how transferred intent is crafted by that trial judge, but they clearly upheld it.\u201d When asked if he had anything further, defense counsel stated: \u201cPlease Your Honor to each of the court\u2019s findings of fact, conclusions of law and rulings, the defendant respectfully excepts, respectfully objects and excepts.\u201d\nAfter recalling the jury for defendant to rest, the court proposed delivery of a jury charge that included incorporation of the transferred intent charge within the substantive charge of discharging a firearm into occupied property. After additional discussion regarding the submission of lesser-included offenses and proposed instructions by defense counsel, the court began addressing defendant\u2019s objections to the State\u2019s second proposed instruction, an expansion of the substantive charge of discharging a firearm into occupied property to include a definition of willful and wanton. Subsequently, the court stated:\nI will then, over the defendant\u2019s objections, include the special instruction requested by the [State] as to transferred intent to read as follows: If you find that the defendant, Donna Marie Small, intended to shoot Arthur Lee Hunt, Junior, and in doing so discharged a weapon into 9 Park Street, Thomasville, North Carolina, then you may infer that Donna Marie Small willfully, wantonly and intentionally shot into 9 Park Street, Thomasville, North Carolina.\nThe State contends that the trial court mis-spoke in stating that defense counsel had objected to the transferred intent instruction, when in actuality, he had objected to the definition of willful and wanton. However, it is significant that immediately after ruling on the transferred intent instruction, the trial court stated, \u201cI don\u2019t think, guys, I don\u2019t know that we need \u2014 could you guys expand a little bit more why you think we need to define wanton for the jury?\u201d Shortly thereafter, the court \u201csustain[ed] the defendant\u2019s objection to including an expanded definition in the jury instructions themselves.\u201d Thus, it is clear from the record that the trial court considered these two issues separately and was cognizant from all previous discussions that defendant objected to the transferred intent instruction and the instruction that defined willful and wanton.\nA complete review of the record indicates that defendant excepted to both proposed instructions. This showing, in combination with the trial court\u2019s clear perception that defendant specifically objected to the transferred intent portion of the charge, is sufficient for this Court to review defendant\u2019s assignment of error.\nB. Jury Instruction \u2014 Transferred Intent\nWhen evaluating a challenge to a jury instruction, this Court must determine whether the trial court \u201cinstruct[ed] the jury on the law arising on the evidence.\u201d State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). \u201cFailure to instruct upon all substantive or material features of the crime charged is error.\u201d Id.-, accord State v. Lanier, 165 N.C. App. 337, 354, 598 S.E.2d 596, 607 (2004) (stating that \u201c[f]ailure to instruct on each element of [the] crime is prejudicial error requiring a new trial\u201d). Therefore, we must determine whether incorporation of the transferred intent instruction properly conveyed to the jury the elements of discharging a weapon into occupied property.\nAccording to our Supreme Court, discharging a firearm into occupied property is defined as \u201cintentionally, without legal justification or excuse, discharging] a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.\u201d State v. Williams, 284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973) (emphasis omitted); N.C. Gen. Stat. \u00a7 14-34.1 (2007). Defendant contends that inclusion of the transferred intent instruction inaccurately informed the jury of these elements.\nDefendant cites State v. James, 342 N.C. 589, 466 S.E.2d 710 (1996), for the proposition that the statute requires proof that defendant knew the structure into which she shot was occupied. When instructing on the elements of this offense, the trial court instructed that the third element the State must prove was \u201cthat Donna Marie Small knew that 9 Park Street, Thomasville, North Carolina was occupied by one or more persons.\u201d In the final mandate of that instruction the trial court stated:\nIf you find from the evidence beyond a reasonable doubt that on or about September 2, 2006, Donna Marie Small willfully or wantonly and intentionally discharged a firearm into 9 Park Street, Thomasville, North Carolina, while it was occupied, and that the defendant knew that it might be occupied, it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.\nIt is clear from the record that the jury was properly instructed that the State was required to prove knowledge that the home was occupied before finding defendant guilty of this charge.\nDefendant further argues that the doctrine of transferred intent may not be applied when a defendant is charged with a different crime than he or she apparently intended to commit, or if the crime charged is not a specific intent crime. Defendant cites State v. Jordan, 140 N.C. App. 594, 537 S.E.2d 843 (2000), for this proposition; however, defendant\u2019s reliance on Jordan is misplaced.\nIn Jordan, this Court reversed the defendant\u2019s conviction due to erroneous jury instructions because the trial court submitted \u201ca logical impossibility for the jury\u2019s consideration,\u201d and also instructed in \u201can inherently inconsistent manner.\u201d Id. at 596, 537 S.E.2d at 845. When instructing on second-degree murder, the trial judge described deliberation as a required element when, in fact, deliberation was not required. Id. Thus, this Court\u2019s decision in Jordan was not a prohibition against utilizing the doctrine of transferred intent to satisfy the intent element of a different crime or a restriction of its use to only specific intent crimes; rather, Jordan narrowly held that the instructions in that case were misleading.\nIn contrast, this Court has expressly authorized the use of the transferred intent doctrine \u201cto satisfy the intent element of discharging a firearm into occupied property, where the evidence tends to show that defendant intended to shoot a person, but instead shot into an occupied residence.\u201d Fletcher, 125 N.C. App. at 513, 481 S.E.2d at 423. In Fletcher, the evidence showed that the defendant fired shots at the victim\u2019s back as she attempted to flee. Id. at 508, 481 S.E.2d at 420. The victim sought refuge at a nearby residence. Id. When police arrived, the occupant of the residence identified several areas where bullets had penetrated the house. Id. This Court found no error in the trial court\u2019s utilization of the transferred intent instruction to transfer the intent to shoot a particular person to the offense of discharging a firearm into the occupied property of another. Id. at 513, S.E.2d at 423. Rationale for this treatment is based on the fact that N.C. Gen. Stat. \u00a7 14-34.1, which prohibits discharging a weapon into occupied property, was \u201cenacted for the protection of occupants of the premises\u201d and is therefore \u201can offense against the person, and not against property.\u201d Id.\nIn the case sub judice, the State presented evidence that defendant intentionally fired a weapon toward Hunt and that some projectiles penetrated the exterior of Russell\u2019s home. Further, evidence was introduced showing that defendant knew persons other than Hunt were present inside the home. Nothing in the trial court\u2019s instructions to the jury negated the requirement that the jury find: (1) an intentional discharge of the firearm; (2) into an occupied building; and (3) defendant had knowledge, or reasonable grounds for believing that the building was occupied at the time of the discharge.\nThus, the trial court\u2019s substantive instructions on discharging a weapon into occupied property accurately conveyed the elements of the offense to the jury and comported with the evidence presented. The trial court, therefore, did not err in incorporating the transferred intent doctrine into the instruction for this offense.\nIII.\nFinally, defendant argues that the trial court erred in failing to dismiss the charge of discharging a firearm into occupied property due to insufficiency of the evidence. Specifically, defendant argues that the State failed to present evidence that the firearm discharged by defendant met the requisite velocity specifications set forth in N.C. Gen. Stat. \u00a7 14-34.1(a). This argument is without merit.\nA motion to dismiss due to insufficiency of the evidence is properly denied if the State has presented substantial evidence of each essential element of the offense charged and that the defendant is the perpetrator. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed. 150 (2000). Substantial evidence is that which a reasonable fact finder might find sufficient to support a conclusion. State v. McLaurin, 320 N.C. 143,146, 357 S.E.2d 636, 638 (1987). The court \u201cmust view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455.\nThe applicable statute provides that:\nAny person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class E felony.\nN.C. Gen. Stat. \u00a7 14-34.1(a) (emphasis added). A firearm is defined as \u201c[a] handgun, shotgun, or rifle which expels a projectile by action of an explosion.\u201d N.C. Gen. Stat. \u00a7 14-409.39(2) (2007).\nOf particular relevance is the legislature\u2019s use of the word \u201cor\u201d in N.C. Gen. Stat. \u00a7 14-34.1(a). This Court has held that \u201c \u2018[w]here a statute contains two clauses which prescribe its applicability, and the clauses are connected by a disjunctive (e.g. \u2018or\u2019), the application of the statute is not limited to cases falling within both classes, but will apply to cases falling within either of them.\u2019 \u201d State v. Conway, \u2014 N.C. App.-, \u2014, 669 S.E.2d 40, 43 (2008) (quoting Grassy Creek Neighborhood Alliance, Inc. v. City of Winston-Salem, 142 N.C. App. 290, 296, 542 S.E.2d 296, 300 (2001)). There are two categories of weapons covered by this statute; firearms and other barreled weapons. The question then becomes whether the descriptive phrase \u201ccapable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second\u201d refers only to \u201cbarreled weapons\u201d or also applies to \u201cany firearm.\u201d Although this is a novel issue, the plain language of the statute, legislative intent, and previous treatment by North Carolina Courts indicate that the minimum muzzle velocity requirement applies only to \u201cbarreled weapons\u201d and not to firearms in general.\n\u201cThe primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. To determine this intent, the courts should consider the language of the statute, the spirit of the act, and what the act seeks to accomplish.\u201d Tellado v. Ti-Caro Corp., 119 N.C. App. 529, 533, 459 S.E.2d 27, 30 (1995) (citation omitted).\nThe title of the statute at issue is \u201cDischarging certain barreled weapons or a firearm into occupied property.\u201d N.C. Gen. Stat. \u00a7 14-34.1. The most reasonable interpretation is that all firearms are implicated in the statute, but only certain barreled weapons are included \u2014 those with a muzzle velocity of at least 600 feet per second. Also, the intent of this statute is to protect occupants of the building. Williams, 284 N.C. at 72, 199 S.E.2d at 412. Thus, the most logical interpretation is that the General Assembly was primarily concerned with the use of traditional firearms to shoot into occupied property but further recognized the potential for individuals to use non-traditional barreled weapons for this same purpose. Therefore, the legislature included the traditional firearm in the statute, but further included other barreled weapons that have a propensity to penetrate a structure and injure occupants.\nAdditionally, a person is guilty of this felony if \u201che intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.\u201d Williams, 284 N.C. at 73, 199 S.E.2d at 412 (emphasis omitted). The jury was properly instructed as to these elements. Defendant fails to cite any cases, and we have found none, requiring presentation of evidence of muzzle velocity as part of the State\u2019s prima facie case for this charge.\nIn sum, because there was substantial evidence to satisfy each element of the crime charged, and that defendant was the perpetrator, we conclude that the trial court did not err in denying defendant\u2019s motion to dismiss.\nConclusion\nFor the foregoing reasons, we hold that the trial court did not abuse its discretion when it determined that the State did not violate the discovery statutes; the trial court did not err in incorporating transferred intent into the jury instructions; and the trial court did not err in denying defendant\u2019s motion to dismiss the charge of discharging a firearm into occupied property.\nNo error.\nChief Judge MARTIN and Judge BRYANT concur.\n. Snoop is a nickname for Arthur Hunt.",
        "type": "majority",
        "author": "HUNTER, Robert C., Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General Karen A. Blum, for the State.",
      "Mercedes O. Chut for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DONNA MARIE SMALL, Defendant\nNo. COA09-222\n(Filed 8 December 2009)\n1. Discovery\u2014 victim\u2019s undisclosed statement to prosecutors \u2014 no new information\nThe trial court did not abuse its discretion by denying defendant\u2019s motion to dismiss or exclude a victim\u2019s statement to prosecutors where that statement was not disclosed to defendant. There was nothing significantly new or different in the undisclosed statement; the only difference from the other, disclosed information was that the victim could not remember speaking to officers on the night of the shooting.\n2. Appeal and Error\u2014 preservation of issues \u2014 instructions\u2014 objection at trial\nThe issue of a transferred intent instruction was preserved for appellate review where the State contended that defense counsel had objected to a different instruction, but it was clear from the record that the trial court was aware that defendant had objected to the transferred intent instruction and considered the two issues separately.\n3. Firearms and Other Weapons\u2014 discharge into occupied building\nAlthough defendant contended that inclusion of a transferred intent instruction was error in a prosecution for assault and discharging a firearm into occupied property, the instructions accurately conveyed the elements of the offense and comported with the evidence. Defendant intentionally fired a shotgun at the victim, hitting both the victim and a house defendant knew to be occupied.\n4. Firearms and Other Weapons\u2014 discharge into occupied property \u2014 muzzle velocity\nThe trial court did not err by failing to dismiss the charge of discharging a firearm into occupied property for insufficient evidence that the shotgun met the velocity requirements of N.C.G.S. \u00a7 14-34.1(a). There are two categories of weapons covered by the statute: firearms and other barreled weapons. The plain language of the statute, legislative intent, and precedent indicate that the minimum muzzle velocity requirement applies to \u201cother barreled weapons\u201d and not to firearms in general.\nAppeal by defendant from judgments entered 9 July 2008 by Judge Vance B. Long in Davidson County Superior Court. Heard in the Court of Appeals 14 September 2009.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Karen A. Blum, for the State.\nMercedes O. Chut for defendant-appellant."
  },
  "file_name": "0331-01",
  "first_page_order": 359,
  "last_page_order": 371
}
