{ "id": 4181536, "name": "STATE OF NORTH CAROLINA v. THOMAS JOHN STARR, Defendant", "name_abbreviation": "State v. Starr", "decision_date": "2011-01-04", "docket_number": "No. COA10-752", "first_page": "106", "last_page": "116", "citations": [ { "type": "official", "cite": "209 N.C. App. 106" } ], "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": "620 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634255 ], "year": 2005, "pin_cites": [ { "page": "886" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0883-01" ] }, { "cite": "638 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637424 ], "year": 2007, "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0909-01" ] }, { "cite": "616 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633574 ], "year": 2005, "pin_cites": [ { "page": "530", "parenthetical": "quoting Rule 21 of the General Rules of Practice for the Superior and District Courts" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0515-01" ] }, { "cite": "644 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638420 ], "year": 2007, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0615-01" ] }, { "cite": "148 L. Ed. 2d 684", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1083", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9696835, 9696995, 9696964, 9696934, 9696712, 9696907, 9696799, 9696783, 9696879, 9696818, 9696692, 9696758, 9696855, 9696735 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1083-08", "/us/531/1083-14", "/us/531/1083-13", "/us/531/1083-12", "/us/531/1083-02", "/us/531/1083-11", "/us/531/1083-06", "/us/531/1083-05", "/us/531/1083-10", "/us/531/1083-07", "/us/531/1083-01", "/us/531/1083-04", "/us/531/1083-09", "/us/531/1083-03" ] }, { "cite": "530 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "352 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684912 ], "year": 2000, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0001-01" ] }, { "cite": "451 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "265", "parenthetical": "\"In instructing the jury to rely upon their individual recollections to arrive at a verdict, the trial court exercised its discretion and complied with the requirements of N.C.G.S. \u00a7 15A-1233(a).\"" } ], "opinion_index": 0 }, { "cite": "339 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558792 ], "year": 1994, "pin_cites": [ { "page": "338", "parenthetical": "\"In instructing the jury to rely upon their individual recollections to arrive at a verdict, the trial court exercised its discretion and complied with the requirements of N.C.G.S. \u00a7 15A-1233(a).\"" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0313-01" ] }, { "cite": "137 L. Ed. 2d 483", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "520 U.S. 1147", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11675296, 11674881, 11674587, 11675208, 11675112, 11674987, 11674924, 11675149, 11674507, 11675249, 11675063, 11675354, 11674683, 11674780 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/520/1147-13", "/us/520/1147-05", "/us/520/1147-02", "/us/520/1147-11", "/us/520/1147-09", "/us/520/1147-07", "/us/520/1147-06", "/us/520/1147-10", "/us/520/1147-01", "/us/520/1147-12", "/us/520/1147-08", "/us/520/1147-14", "/us/520/1147-03", "/us/520/1147-04" ] }, { "cite": "476 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "669", "parenthetical": "concluding that trial court exercised its discretion under N.C. Gen. Stat. \u00a7 15A-1233 where the court \"instructed] . . . the jurors [to] rely upon their individual and collective memory of the testimony\"" } ], "opinion_index": 0 }, { "cite": "344 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867611 ], "year": 1996, "pin_cites": [ { "page": "563", "parenthetical": "concluding that trial court exercised its discretion under N.C. Gen. Stat. \u00a7 15A-1233 where the court \"instructed] . . . the jurors [to] rely upon their individual and collective memory of the testimony\"" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0542-01" ] }, { "cite": "174 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352005 ], "year": 2005, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0335-01" ] }, { "cite": "517 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "350 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132055 ], "year": 1999, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0640-01" ] }, { "cite": "181 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8372267 ], "year": 2007, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0093-01" ] }, { "cite": "378 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "241" }, { "page": "241" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528058 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "401" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0394-01" ] }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "year": 1985, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "606 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 793", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8414434 ], "year": 2005, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0793-01" ] }, { "cite": "367 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "623", "parenthetical": "\"The defendant in this case did not submit his request for instructions in writing. We hold it was not error for the court not to charge on this feature of the case.\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517321 ], "year": 1988, "pin_cites": [ { "page": "237", "parenthetical": "\"The defendant in this case did not submit his request for instructions in writing. We hold it was not error for the court not to charge on this feature of the case.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0229-01" ] }, { "cite": "165 L. Ed. 2d 988", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "548 U.S. 925", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "359 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802205 ], "year": 2005, "pin_cites": [ { "page": "729", "parenthetical": "quoting Rule 21 of the General Rules of Practice for the Superior and District Courts" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0709-01" ] }, { "cite": "334 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "314 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687552 ], "year": 1985, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0498-01" ] }, { "cite": "446 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "36", "parenthetical": "quoting State v. Ford, 314 N.C. 498, 506, 334 S.E.2d 765, 770 (1985)" } ], "opinion_index": 0 }, { "cite": "337 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549787 ], "year": 1994, "pin_cites": [ { "page": "206", "parenthetical": "quoting State v. Ford, 314 N.C. 498, 506, 334 S.E.2d 765, 770 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0198-01" ] }, { "cite": "139 L. Ed. 2d 647", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1053", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11587748, 11588039, 11588007, 11587881, 11587851, 11587821, 11587725, 11587792, 11587762, 11587956, 11587930, 11587900, 11588061 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1053-02", "/us/522/1053-12", "/us/522/1053-11", "/us/522/1053-07", "/us/522/1053-06", "/us/522/1053-05", "/us/522/1053-01", "/us/522/1053-04", "/us/522/1053-03", "/us/522/1053-10", "/us/522/1053-09", "/us/522/1053-08", "/us/522/1053-13" ] }, { "cite": "485 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "288", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1231(a)" }, { "page": "288" } ], "opinion_index": 0 }, { "cite": "346 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139325 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "240", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1231(a)" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0233-01" ] }, { "cite": "145 S.W.3d 306", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9147535 ], "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/sw3d/145/0306-01" ] }, { "cite": "763 N.E.2d 1092", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "noting that, in establishing assault by immediately threatened battery, \"[a] single shot in the direction of a group of people is intentionally menacing conduct that can cause each person reasonably to fear an imminent battery\"" } ], "opinion_index": 0 }, { "cite": "436 Mass. 291", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 1178113 ], "year": 2002, "pin_cites": [ { "parenthetical": "noting that, in establishing assault by immediately threatened battery, \"[a] single shot in the direction of a group of people is intentionally menacing conduct that can cause each person reasonably to fear an imminent battery\"" } ], "opinion_index": 0, "case_paths": [ "/mass/436/0291-01" ] }, { "cite": "110 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "813", "parenthetical": "quoting 1 Wharton's Criminal Law and Procedure \u00a7 332" } ], "opinion_index": 0 }, { "cite": "251 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623437 ], "year": 1959, "pin_cites": [ { "page": "155", "parenthetical": "quoting 1 Wharton's Criminal Law and Procedure \u00a7 332" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0151-01" ] }, { "cite": "297 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "184" }, { "parenthetical": "emphasis added" }, { "page": "184" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526742 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "481" }, { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0477-01" ] }, { "cite": "155 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "305" } ], "opinion_index": 0 }, { "cite": "270 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569982 ], "year": 1967, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0655-01" ] }, { "cite": "553 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "108", "parenthetical": "citing State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11360197 ], "year": 2001, "pin_cites": [ { "page": "529", "parenthetical": "citing State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0523-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-34.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "183 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8204534 ], "year": 2007, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0514-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "573 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "356 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511417 ], "year": 2002, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0446-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] } ], "analysis": { "cardinality": 1044, "char_count": 23602, "ocr_confidence": 0.745, "pagerank": { "raw": 6.905403243430405e-08, "percentile": 0.4196655866809223 }, "sha256": "accd65ea55a53e3053d06a7b88b710a7e1dbe8d62ad125f5cdc57ea1caa80406", "simhash": "1:afb9c068442c6ef6", "word_count": 3876 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. THOMAS JOHN STARR, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Thomas John Starr appeals his convictions of four counts of assaulting a firefighter with a firearm, contending primarily that there is insufficient evidence that he assaulted the firefighters and thus the trial court should have granted his motion to dismiss the charges. We conclude, however, that the State presented sufficient evidence to permit the jury to reasonably conclude that defendant assaulted the firefighters. The trial court, therefore, properly submitted the charges to the jury.\nFacts\nThe State presented evidence at trial tending to establish the following facts: In September 2007, Lakeisha Cropper was living with her boyfriend in a second-floor apartment in Seahawk Square Apartments in Wilmington, North Carolina. Defendant lived in the apartment directly above Ms. Cropper\u2019s. Around 4:30 p.m. on 20 September 2007, Ms. Cropper and her boyfriend were sitting on the steps outside their apartment when she went inside to use the bathroom and saw water running from the ceiling, out of the vents, and down the walls. Ms. Cropper and her boyfriend could hear defendant walking around upstairs, so they went upstairs to his apartment and began knocking on his door. After knocking for 10 to 15 minutes without defendant answering the door, they became concerned that \u201csomething might be wrong\u201d and called 911, reporting that \u201cthere [was] a man upstairs and th[at] water [was] leaking in [their] apartment.\u201d\nFire Captain Eric Lacewell, along with Firefighters Christopher Chadwick, Andrew Comer, and Marvin Spruill, with the Wilmington Fire Department, responded to the call. They initially went to Ms. Cropper\u2019s apartment and saw the water running down through the light fixtures and down the walls. The firefighters, concerned that the water running through the fixtures was an electrical hazard and that defendant might need medical assistance since he had not responded to Ms. Cropper\u2019s knocking on his door, went up to his apartment and started \u201cbanging on the door\u201d and announcing that they were with the fire department. Defendant did not answer the door. Sometime while the firefighters where knocking, the water stopped running.\nCorporal John Musacchio, with the Wilmington Police Department, arrived at the apartment complex, went up to defendant\u2019s apartment, knocked on the door, and announced that he was with the police department. When there was no response, the fire battalion chief and Corporal Musacchio gave the firefighters \u201cpermission to make forced entry.\u201d Firefighters Spruill and Chadwick were directly in front of the door to defendant\u2019s apartment, with Spruill on the left and Chadwick on the right. Firefighter Comer was behind Firefighter Spruill; Captain Lacewell was behind Firefighter Comer, on his left, and Corporal Musacchio was behind Comer, on his right. Firefighter Spruill wedged the Halligan tool between the door and the jamb and Firefighter Chadwick began hitting the tool with an axe to break the lock. As the door started splitting, Firefighters Spruill and Chadwick heard a \u201cpop.\u201d They looked at each other, and, unable to determine what the noise was, continued to use the axe and Halligan tool. Captain Lacewell, who had also heard the \u201cpop,\u201d yelled \u201c[t]hat\u2019s a gun,\u201d but Firefighters Spruill and Chadwick were unable to hear him over the noise of the Halligan tool. Firefighters Spruill and Chadwick broke the lock with the next swing, and, as Spruill was forcing open the door, he heard a second \u201cpop.\u201d Firefighter Spruill started to enter the apartment but saw defendant standing in the apartment\u2019s kitchen, about 12 feet away, pointing a pistol at him. As defendant fired at Firefighter Spruill, he \u201cducked and backed out\u201d of the apartment and shouted: \u201c \u2018He\u2019s got a gun[.]\u2019 \u201d\nFirefighter Chadwick, who was able to see defendant inside the apartment pointing his gun in the direction of the door, immediately ducked out of the doorway and heard \u201canother pop.\u201d Captain Lacewell also ducked out of the doorway when he heard Firefighter Spruill yell that defendant had a gun. Corporal Musacchio drew his gun, entered the apartment, and ordered defendant to drop the pistol. Defendant complied and Corporal Musacchio arrested defendant and secured a .25 semi-automatic handgun.\nThe police obtained a search warrant for defendant\u2019s apartment and found three spent shells and two unspent shells on the floor near where defendant had been standing. They also found a rifle in one of the bedrooms as well as marijuana, rolling papers, and a rolling machine in the kitchen. The crime scene investigators located two bullet holes in the wall next to the front door, one in the door jamb and the other just to the right of it. They also found that the apartment\u2019s bathroom sink had been plugged with a rag and filled with water.\nDefendant was charged with one count of assaulting a law enforcement officer with a firearm and four counts of assaulting a firefighter with a firearm, one count each with respect to Firefighters Chadwick (07 CRS 61928), Comer (07 CRS 61932), and Spruill (07 CRS 61930), as well as Captain Lacewell (07 CRS 61931). Defendant pled not guilty and the case proceeded to trial. At the close of the State\u2019s evidence and at the close of all the evidence, defendant moved to dismiss all the charges for insufficient evidence. The trial court denied both motions. On 5 August 2008, the jury acquitted defendant of the charge of assaulting a law enforcement officer with a firearm but convicted him on all four counts of assaulting a firefighter with a firearm. After reviewing a pre-sentencing commitment study by the Department of Correction, the trial court entered two judgments on 12 November 2008, each consolidating two of the four convictions, sentencing defendant to two consecutive presumptive-range terms of 19 to 23 months imprisonment. The trial court then suspended the sentences and imposed 36 months of supervised probation. Although defendant filed a notice of appeal on 18 November 2008, defendant\u2019s appeal was never perfected. Defendant filed a petition for writ of certiorari with this Court on 26 August 2010, requesting review of his convictions. We now grant defendant\u2019s petition.\nI\nDefendant argues that the trial court erred in denying his motion to dismiss for insufficient evidence three of the four charges for assault on a firefighter with a firearm. A defendant\u2019s motion to dismiss should be denied if there is substantial evidence: (1) of each essential element of the offense charged and (2) of defendant\u2019s being the perpetrator of the offense. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). \u201cSubstantial evidence\u201d is that amount of relevant evidence that a \u201creasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In determining the sufficiency of the evidence, \u201cthe trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.\u201d State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The sufficiency of the evidence is a question of law, reviewed de novo on appeal. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).\nDefendant was charged with four counts of assaulting a firefighter with a firearm in violation of N.C. Gen. Stat. \u00a7 14-34.6 (2009), which provides in pertinent part:\n(a) A person is guilty of a Class A1 misdemeanor if the person commits an assault or an affray on any of the following persons who are discharging or attempting to discharge their official duties:\n(1) An emergency medical technician.\n(2) A medical responder.\n(3) An emergency department nurse.\n(4) An emergency department physician.\n(5) A firefighter.\n(c) Unless a person\u2019s conduct is covered under some other provision of law providing greater punishment, a person is guilty of a Class F felony if the person violates subsection (a) of this section and uses a firearm.\nN.C. Gen. Stat. \u00a7 14-34.6(a), (c). Based on the statute, the elements of assaulting a firefighter with a firearm are: (1) an assault; (2) with a firearm; (3) on a firefighter; (4) while the firefighter is engaged in the performance of his or her duties. N.C. Gen. Stat. \u00a7 14-34.6(a), (c). Defendant challenges the sufficiency of the evidence with respect to only the first element \u2014 whether an assault occurred. Defendant further limits the scope of this appeal by arguing for the reversal of his convictions with respect to only three of the four firefighters: Andy Comer (07 CRS 61932), Eric Lacewell (07 CRS 61931), and Chris Chadwick (07 CRS 61928). We, therefore, do not address the sufficiency of the evidence to support defendant\u2019s conviction with respect to Marvin Spruill (07 CRS 61930).\nAn \u201cassault\u201d is \u201can overt act or attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or violence must be sufficient to put a person of reasonable firmness in fear of immediate physical injury.\u201d State v. Haynesworth, 146 N.C. App. 523, 529, 553 S.E.2d 103, 108 (2001) (citing State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967)). Defendant contends that there is insufficient evidence as to \u201cwhether the firemen making forced entry on [defendant]\u2019s house in fact knew of and otherwise drew fear and apprehension from [defendant]\u2019s blind shots into the door.\u201d\nContrary to defendant\u2019s argument, this Court has held that it is \u201cnot necessary that the victim be placed in fear in order to sustain a conviction for assault.\u201d State v. Musselwhite, 59 N.C. App. 477, 481, 297 S.E.2d 181, 184 (1982). Rather, \u201c[a]ll that is necessary to sustain a conviction for assault is evidence of an overt act showing an intentional offer by force and violence to do injury to another sufficient to put a person of reasonable firmness in apprehension of immediate bodily harm.\u201d Id. (emphasis added). Our Supreme Court has held that \u201c \u2018[i]t is an assault, without regard to the aggressor\u2019s intention, to fire a gun at another or in the direction in which he is standing.\u2019 \u201d State v. Newton, 251 N.C. 151, 155, 110 S.E.2d 810, 813 (1959) (quoting 1 Wharton\u2019s Criminal Law and Procedure \u00a7 332).\nHere, the State\u2019s evidence tends to show that defendant shot twice at the door while the firefighters were attempting to force open the door and that defendant fired a third shot in the direction of the firefighters after they forced entry. In fact, defendant testified at trial that he was aware that people were outside \u201cpounding\u201d on the door, that he could hear them shouting, although he could not tell what they were saying, and that he shot at the door \u201cto send a warning to whatever was on the other side ....\u201d This evidence, considered in the light most favorable to the State, supports a reasonable inference that defendant\u2019s intentionally shooting at the door while the firefighters were behind it and shooting at the firefighters while they were in the doorway was \u201csufficient to put a person of reasonable firmness in apprehension of immediate bodily harm.\u201d Musselwhite, 59 N.C. App. at 481, 297 S.E.2d at 184; see also Commonwealth v. Melton, 436 Mass. 291, 295 n.4, 763 N.E.2d 1092, 1096 n.4 (2002) (noting that, in establishing assault by immediately threatened battery, \u201c[a] single shot in the direction of a group of people is intentionally menacing conduct that can cause each person reasonably to fear an imminent battery\u201d); Robbins v. State, 145 S.W.3d 306, 314 (Tex. Crim. App. 2004, pet. ref\u2019d) (holding evidence was sufficient to support conviction for \u201caggravated assault by threatening [police] officers with bodily injury while using or exhibiting a firearm\u201d where evidence showed that officers were \u201cstationed\u201d near armored vehicle during standoff with defendant and were \u201cin the line of fire when [defendant] pointed and shot his gun in the direction of the [armored vehicle]\u201d). The trial court, therefore, properly denied defendant\u2019s motion to dismiss the three charges of assaulting a firefighter with a firearm with respect to Andy Comer (07 CRS 61932), Eric Lacewell (07 CRS 61931), and Chris Chadwick (07 CRS 61928).\nII\nDefendant also contends that \u201c[t]he trial court erred in denying defendant\u2019s request that the jury be instructed on the underlying elements of assault.\u201d Defendant maintains that the trial court\u2019s failure to properly instruct the jury constitutes prejudicial error, entitling him to a new trial.\nDuring the charge conference, after the trial court read the pattern jury instructions with respect to the charge of assaulting a firefighter with a firearm, defense counsel made an oral request to include \u201ca definition for the word \u2018assault.\u2019 \u201d The trial court denied the orally requested instruction and instructed the jury on the elements of the offense according to the pattern jury instruction: N.C.P.I.-Crim. 208.95A.\nN.C. Gen. Stat. \u00a7 15A-1231(a) (2009) \u201cprovides for conferences on jury instructions and states that \u2018any party may tender written instructions.\u2019 \u201d State v. McNeill, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997) (quoting N.C. Gen. Stat. \u00a7 15A-1231(a)), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998). \u201c[Wjhere \u2018a specifically requested jury instruction is proper and supported by the evidence, the trial court must give the instruction, at least in substance.\u2019 \u201d State v. Jones, 337 N.C. 198, 206, 446 S.E.2d 32, 36 (1994) (quoting State v. Ford, 314 N.C. 498, 506, 334 S.E.2d 765, 770 (1985)). Requested special-instructions, however, \u201c \u2018should be submitted in writing to the trial judge at or before the jury instruction conference.\u2019 \u201d State v. Augustine, 359 N.C. 709, 729, 616 S.E.2d 515, 530 (2005) (quoting Rule 21 of the General Rules of Practice for the Superior and District Courts), cert. denied, 548 U.S. 925, 165 L. Ed. 2d 988 (2006). Thus, where, as here, \u201cthe defendant fails to submit his request for instructions in writing,\u201d the \u201ctrial court\u2019s ruling denying [the] requested instructions is not error . . . .\u201d McNeill, 346 N.C. at 240, 485 S.E.2d at 288; see also State v. Martin, 322 N.C. 229, 237, 367 S.E.2d 618, 623 (1988) (\u201cThe defendant in this case did not submit his request for instructions in writing. We hold it was not error for the court not to charge on this feature of the case.\u201d); State v. Craig, 167 N.C. App. 793, 794, 606 S.E.2d 387, 387 (2005) (\u201cDefendant contends the trial court erred by denying his request to give a special instruction on the defense of justification of possession of a firearm by a felon. Where, as here, Defendant failed to submit the special instruction in writing, the trial court did not error by declining to give it.\u201d). Defendant\u2019s argument is overruled.\nIll\nIn his final contention on appeal, defendant argues that the trial court failed to follow the procedures set out in N.C. Gen. Stat. \u00a7 15A-1233 (2009) in responding to the jury\u2019s request to review the testimony of Firefighter Spruill during deliberations. The statute provides in pertinent part:\nIf the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence.\nN.C. Gen. Stat. \u00a7 15A-1233(a). Our Supreme Court has explained that N.C. Gen. Stat. \u00a7 15A-1233(a) \u201cimposes two duties upon the trial court when it receives a request from the jury to review evidence\u201d: (1) \u201cthe court must conduct all jurors to the courtroom\u201d; and (2) \u201cthe trial court must exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue.\u201d State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656 (1985).\nHere, after the jury retired to deliberate, the following occurred:\nTHE COURT: They\u2019ve got a question. Let the record reflect that they\u2019ve sent another note saying, \u201cWe are requesting the testimony of Marvin Spruill.\nOf course we don\u2019t have that. We don\u2019t have that capability and I thought that if it was okay with you, since we\u2019re in the middle of jury selection in this one, that we would open the door without y\u2019all being seen and let [the court reporter] take everything down and me just inform them to rely on their recollections. We don\u2019t have the modern day equipment to provide realtime transcript or something.\n(NO VERBAL RESPONSE.)\n(THE FOLLOWING TOOK PLACE AT THE JURY ROOM DOOR.)\nTHE COURT: Hey, freeze what you\u2019re doing right now. I have received this note, \u201cWe are requesting the testimony of Marvin Spruill.\u201d In North Carolina we don\u2019t have the capability of realtime transcripts so we cannot provide you with that. You are to rely on your recollection of the evidence that you have heard in your deliberations. That\u2019s my instruction to you. Okay. Thank you.\nAlthough defendant did not object at trial to the trial court\u2019s failure to bring the jury back into the courtroom, \u201c[a] lack of objection at trial does not bar a defendant\u2019s right to assign error to a judge\u2019s failure to comply with the mandates of Section 15A-1233(a).\u201d State v. Helms, 93 N.C. App. 394, 401, 378 S.E.2d 237, 241 (1989). The transcript indicates, however, that the trial judge specifically asked the prosecutor and defense counsel, \u201cif it was okay with you,\u201d he would instruct the jury from the jury room\u2019s doorway. Defense counsel did not request that the jury be brought back into the courtroom and he acceded to the procedure used by the trial court. Where, as here, \u201ca defendant\u2019s lawyer consents to the trial court\u2019s communication with the jury in a manner other than bringing the jury back into the courtroom, the defendant waives his right to assert a ground for appeal based on failure to bring the jury back into the courtroom.\u201d State v. Pointer, 181 N.C. App. 93, 99, 638 S.E.2d 909, 913 (2007); accord Helms, 93 N.C. App. at 401, 378 S.E.2d at 241 (\u201cIn the transcript, Judge Saunders notes that he specifically asked defendant\u2019s lawyer if the latter required the jury to be returned to the courtroom. The lawyer did not ask that the jury be brought in, and he acceded to the procedure Judge Saunders used. . . . In this case, however, defendant\u2019s lawyer, beyond simply failing to enter an objection, consented to the communication procedure. We hold, therefore, that defendant has waived his right to assert, on appeal, the judge\u2019s failure to bring the jury to the courtroom.\u201d).\nDefendant also contends that the trial judge erred in denying the jury\u2019s request to review Firefighter Spruill\u2019s testimony. Defendant maintains that the judge\u2019s statement to the jury regarding the lack of the capability to provide \u201crealtime transcripts\u201d demonstrates that the judge \u201cfailed to properly exercise [his] discretion\u201d under N.C. Gen. Stat. \u00a7 15A-1233(a).\n\u201cIt is within the court\u2019s discretion to determine whether, under the facts of a particular case, the transcript should be available for reexamination and rehearing by the jury.\u201d State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999). The trial court\u2019s \u201ccomplete failure\u201d to exercise its discretion under N.C. Gen. Stat. \u00a7 15A-1233(a) constitutes reversible error. State v. McVay, 174 N.C. App. 335, 340, 620 S.E.2d 883, 886 (2005). Our Supreme Court has held, however, that the trial court properly exercises its discretion in denying the jury\u2019s request to review testimony when the court instructs the jurors to rely on their recollection of the evidence in reaching a verdict. See State v. Harden, 344 N.C. 542, 563, 476 S.E.2d 658, 669 (1996) (concluding that trial court exercised its discretion under N.C. Gen. Stat. \u00a7 15A-1233 where the court \u201cinstructed] . . . the jurors [to] rely upon their individual and collective memory of the testimony\u201d), cert. denied, 520 U.S. 1147, 137 L. Ed. 2d 483 (1997); State v. Corbett, 339 N.C. 313, 338, 451 S.E.2d 252, 265 (1994) (\u201cIn instructing the jury to rely upon their individual recollections to arrive at a verdict, the trial court exercised its discretion and complied with the requirements of N.C.G.S. \u00a7 15A-1233(a).\u201d).\nWhile the trial judge did not explicitly state that he was denying, in his discretion, the jury\u2019s request, the judge did instruct the jurors to \u201crely on [their] recollection of the evidence that you have heard in your deliberations.\u201d The trial court, therefore, properly exercised its discretion in denying the jury\u2019s request to review Firefighter Spruill\u2019s trial testimony. See State v. Lawrence, 352 N.C. 1, 27, 530 S.E.2d 807, 824 (2000) (holding trial court properly exercised its discretion and \u201cdid not impermissibly deny the [jury\u2019s] request [to review witness testimony] based solely on the unavailability of the transcript\u201d where court instructed the jurors, \u201cmembers of the jury, it is your duty to recall the evidence as the evidence was presented\u201d), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001).\nNo error.\nJudges CALABRIA and ELMORE concur.\n. We note that the State does not oppose granting defendant\u2019s petition for writ of certiorari.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Karen A. Blum, for the State.", "Greene & Wilson, RA., by Thomas Reston Wilson, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THOMAS JOHN STARR, Defendant\nNo. COA10-752\n(Filed 4 January 2011)\n1. Assault\u2014 on firefighter with firearm \u2014 evidence sufficient\nThe trial court properly denied defendant\u2019s motion to dismiss three charges of assaulting a firefighter with a firearm where defendant argued that there was insufficient evidence that the firefighters knew of or otherwise were in fear of defendant\u2019s blind shots into a door which they were forcing. Sustaining a conviction for assault did not require that a victim be placed in fear, only that an overt act was performed that was sufficient to put a person of reasonable firmness in fear of immediate bodily harm. Here, the evidence tended to show that defendant shot twice at a door which firefighters were attempting to force open and once in the direction of the firefighters after they entered.\n2. Assault\u2014 on firefighter with firearm \u2014 instructions\u2014oral request for special instruction \u2014 denied\nThe trial court did not err by giving only the pattern jury instruction on assault where defendant did not submit his request for a special instruction on the definition of assault in writing.\n3. Appeal and Error\u2014 preservation of issues \u2014 response to jury question \u2014 no request that jury be returned to courtroom\nDefendant waived his right to appeal the issue of whether the trial judge erred by answering a jury question from the jury room doorway where defense counsel did not request that the jury be brought into the courtroom when the court asked counsel about its proposed procedure.\n4. Jury\u2014 question \u2014 discretion exercised in response\nThe trial court properly exercised its discretion in denying the jury\u2019s request to review particular testimony by stating that the court lacked the capability to provide \u201crealtime\u201d transcripts and that they would have to rely on their recollections.\nAppeal by defendant from judgments entered 12 November 2008 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 1 December 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Karen A. Blum, for the State.\nGreene & Wilson, RA., by Thomas Reston Wilson, for defendant-appellant." }, "file_name": "0106-01", "first_page_order": 116, "last_page_order": 126 }