{ "id": 6813764, "name": "STATE OF NORTH CAROLINA v. MICHAEL WAYNE GALLOWAY", "name_abbreviation": "State v. Galloway", "decision_date": "2013-03-19", "docket_number": "No. COA12-1049", "first_page": "100", "last_page": "108", "citations": [ { "type": "official", "cite": "226 N.C. App. 100" } ], "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": "648 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639089 ], "year": 2007, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0556-01" ] }, { "cite": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "664 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641642 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "658-59" }, { "page": "659", "parenthetical": "emphasis added" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0654-01" ] }, { "cite": "533 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "252", "parenthetical": "vacating first-degree sexual offense convictions where the trial court committed plain error by instructing the jury on statutory sexual offense, instead of first degree sexual offense, as charged in the indictments" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495702 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0018-01" ] }, { "cite": "360 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737531 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "624, 631-32" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0624-01" ] }, { "cite": "56 S.E. 855", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1907, "pin_cites": [ { "page": "856", "parenthetical": "explaining that it is \"the true office and province of the jury to weigh the testimony and decide upon its adequacy to establish any issuable fact\"" } ], "opinion_index": 0 }, { "cite": "144 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659322 ], "year": 1907, "pin_cites": [ { "page": "187", "parenthetical": "explaining that it is \"the true office and province of the jury to weigh the testimony and decide upon its adequacy to establish any issuable fact\"" } ], "opinion_index": 0, "case_paths": [ "/nc/144/0184-01" ] }, { "cite": "600 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "894", "parenthetical": "holding that the trial court correctly denied defendant's motion to dismiss charge of robbery with a dangerous weapon where the \"testimony would permit a reasonable jury to infer the existence of a dangerous weapon\"" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411017 ], "year": 2004, "pin_cites": [ { "page": "205", "parenthetical": "holding that the trial court correctly denied defendant's motion to dismiss charge of robbery with a dangerous weapon where the \"testimony would permit a reasonable jury to infer the existence of a dangerous weapon\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0202-01" ] }, { "cite": "220 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "574", "parenthetical": "\"What the evidence proves [or] fails to prove is a question of fact for the jury.\"" } ], "opinion_index": 0 }, { "cite": "289 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566333 ], "year": 1975, "pin_cites": [ { "page": "4", "parenthetical": "\"What the evidence proves [or] fails to prove is a question of fact for the jury.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0001-01" ] }, { "cite": "707 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "679" } ], "opinion_index": 0 }, { "cite": "209 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181228 ], "year": 2011, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/209/0654-01" ] }, { "cite": "93 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "year": 1956, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "185 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210461 ], "year": 2007, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0472-01" ] }, { "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": "459 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "512" }, { "page": "612" } ], "opinion_index": 0 }, { "cite": "341 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793125 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "175" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0173-01" ] }, { "cite": "702 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "333", "parenthetical": "quoting Slate v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995)" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 406", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4180858 ], "year": 2010, "pin_cites": [ { "page": "409-10", "parenthetical": "quoting Slate v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0406-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "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": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "341 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "316 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693799 ], "year": 1986, "pin_cites": [ { "page": "336-37" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0328-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 34-14.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "192 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160391 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0178-01" ] }, { "cite": "432 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "836", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531340 ], "year": 1993, "pin_cites": [ { "page": "175", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0169-01" ] }, { "cite": "451 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "143", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "338 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518881 ], "year": 1994, "pin_cites": [ { "page": "339", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0315-01" ] }, { "cite": "468 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "224", "parenthetical": "\"An indictment charging a statutory offense must allege all of the essential elements of the offense.\"" } ], "opinion_index": 0 }, { "cite": "343 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798912 ], "year": 1996, "pin_cites": [ { "page": "65", "parenthetical": "\"An indictment charging a statutory offense must allege all of the essential elements of the offense.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0061-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "pin_cites": [ { "page": "(b)" }, { "page": "(a)" }, { "parenthetical": "emphasis added" }, { "page": "(b)" }, { "page": "(a)" }, { "page": "(b)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 848, "char_count": 19531, "ocr_confidence": 0.724, "pagerank": { "raw": 4.518461695170957e-08, "percentile": 0.2833306111669059 }, "sha256": "81d9cc2a23ccdf4d1175cc0c506ff6927a736ea90341452556467f8e9992144c", "simhash": "1:a32f740f751a467a", "word_count": 3235 }, "last_updated": "2023-07-14T18:05:47.059681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL WAYNE GALLOWAY" ], "opinions": [ { "text": "DILLON, Judge.\nOn 13 April 2012, Michael Wayne Galloway (Defendant) was convicted by a jury of discharging a firearm into an occupied vehicle in operation, a Class D felony pursuant to N.C. Gen. Stat. \u00a7 14-34.1(b), in addition to three other charges. Defendant appeals only from his conviction for discharging a firearm into an occupied vehicle in operation. Defendant contends (1) that the indictment was insufficient to support his conviction because it failed to allege that the vehicle was \u201cin operation\u201d; and (2) that the trial court erred in denying his motion to dismiss this charge for insufficiency of the evidence. We hold that the indictment was sufficient only to support a conviction as to the lesser offense of discharging a firearm into an occupied vehicle, a Class E felony under N.C. Gen. Stat. \u00a7 14-34.1(a), and we accordingly vacate and remand to the trial court for entry of judgment as to this lesser offense. We find no error in the trial court\u2019s denial of Defendant\u2019s motion to dismiss.\nI. Factual & Procedural Background\nThe evidence at trial tended to show the following: On 18 August 2011, Bradley Heath (Mr. Heath) was driving home from work in Walnut Cove, North Carolina, when he observed a dog in the middle of the intersection of Dodgetown Road and Highway 89. Both his driver side and passenger windows were open. Mr. Heath stopped at the intersection and waited for the dog to move out of the road. Mr. Heath then observed Defendant walking along the side of the road with a grocery bag in one hand. Defendant \u201csaid something to the dog and the dog came off the side of the road towards him.\u201d Defendant then looked at Mr. Heath and said, \u201cYou run over that... dog, I\u2019ll kill you.\u201d Mr. Heath responded that he wasn\u2019t going to hit the dog, but that he was merely \u201cwaiting on the dem thing to get out of the road so [that he could] go home.\u201d Mr. Heath testified that as he proceeded through the intersection, he \u201clook[ed] back\u201d and, \u201cout of the comer of [his] eye[,]\u201d observed Defendant pull \u201ca small object... out of his pocket [which] he [then] shot\u201d in the direction of Mr. Heath\u2019s vehicle, producing a visible \u201cflame.\u201d Mr. Heath further testified that he knows \u201cwhat a gun sounds like\u201d based upon his experience with firearms and that he believed that Defendant had fired \u201ca small caliber type gun because of the flash\u201d and because of the sound emitted from the object. Defendant testified that he had set off a bottle rocket, not a firearm, and that he did not even own a firearm.\nMr. Heath contacted the police upon returning home that day to report the incident. Deputy Samuel Pegram (Deputy Pegram) of the Stokes County Sheriff\u2019s Office responded to Mr. Heath\u2019s 911 call and subsequently located Defendant \u201csitting off the side of the road beside a large flower pot\u201d by a residence near where the alleged shooting had occurred. Deputy Pegram recovered a .22 caliber pistol from the flower pot and noted that one round had been fired. However, no bullet holes were found in Mr. Heath\u2019s vehicle or in the area where Defendant had purportedly fired a weapon.\nAt the close of all the evidence, Defendant moved to dismiss the charge of discharging a firearm into a vehicle in operation, arguing that even if the windows in Mr. Heath\u2019s vehicle had been down at the time of the alleged shooting, it would have been \u201cvirtually impossible\u201d for a bullet to have passed through the cabin of the vehicle \u2014 based upon where Defendant was standing \u2014 without making contact with either Mr. Heath or the vehicle. However, the trial court concluded that there was sufficient evidence to submit the charge to the jury and denied the motion.\nAfter the jury returned guilty verdicts on all charges, the trial court sentenced Defendant for each conviction, including a sentence within the presumptive range of 103 months to 133 months for discharging a firearm into an occupied vehicle in operation. Defendant appeals.\nII. Analysis\nA. Jury Instructions/Indictment\nDefendant first contends that the trial \u201ccourt erred by instructing the jury, and accepting its verdict of guilty, for the offense of shooting into an occupied vehicle in operation, a crime for which [Defendant] was not indicted.\u201d (Emphasis added).\nN.C. Gen. Stat. \u00a7 15A-924(a)(5) requires that an indictment set forth the following:\nA plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\nN.C. Gen. Stat. \u00a7 15A-924(a)(5) (2011); see also State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (\u201cAn indictment charging a statutory offense must allege all of the essential elements of the offense.\u201d). \u201cIt is well settled that \u2018a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.\u2019 \u201d State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994) (citation omitted). Lack of jurisdiction in the trial court due to a fatally defective indictment requires \u201c \u2018the appellate court... to arrest judgment or vacate any order entered without authority.\u2019 \u201d State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 836 (1993) (citation omitted).\nHere, Defendant was charged with the offense of discharging a firearm into an occupied vehicle under N.C. Gen. Stat. \u00a7 14-34.1, which consists of three subsections:\n(a) Any person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon .. . 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.\n(b) A person who willfully or wantonly discharges a weapon described in subsection (a) of this section into an occupied dwelling or into any occupied vehicle, aircraft, watercraft, or other conveyance that is in operation is guilty of a Class D felony.\n(c) If a person violates this section and the violation results in serious bodily injury to any person, the person is guilty of a Class C felony.\nN.C. Gen. Stat. \u00a7 14-34.1 (2011) (emphasis added). The trial court instructed the jury on the offense of discharging a firearm into a vehicle \u201cthat is in operation\u201d under subsection (b), supra, and the jury returned a verdict convicting Defendant of that offense. Defendant now argues, in substance, that this conviction cannot stand because the charging indictment failed to specify that the vehicle was \u201cin operation\u201d at the time in question. We agree.\nThe indictment at issue reads as follows:\nTHE JURORS FOR THE STATE upon their oath present that on or about the 18th day of August, 2011 in the county named above, [Defendant] unlawfully, willfully, and feloni-ously did discharge a .22 caliber revolver, a firearm, into a 2000 Ford F-350 pick-up truck, a vehicle, at the intersection of Dodgetown Road and Highway 89 East in Walnut Cove, North Carolina, while it was actually occupied by Bradley Austin Heath.\u201d\nThe indictment is captioned \u201cDISCHARGING INTO OCCUPIED DWELLING/CONVEYENCE (CL.D)\u201d and describes the charged offense as an \u201cOffense in Violation of G.S. 14-34.1.\u201d\nWe conclude that the indictment failed to properly allege the offense described under N.C. Gen. Stat. \u00a7 14-34.1(b), as it failed to specify that the vehicle was \u201cin operation\u201d at the time in question. The critical distinction between the Class E felony offense described under N.C. Gen. Stat. \u00a7 14-34.1(a) and the Class D felony offense described under N.C. Gen. Stat. \u00a7 14-34.1(b) is that the latter, elevated offense requires an additional element, namely that the vehicle be \u201cin operation\u201d at the time of the shooting. Here, the indictment\u2019s failure to draw this distinction by including the requisite \u201cin operation\u201d element rendered it insufficient to charge the elevated offense. Neither the language of the indictment - for instance, its placement of the vehicle \u201cat the intersection of Dodgetown Road and Highway 89 East\u201d - nor the caption\u2019s reference to a Class D felony with the notation \u201cCL.D\u201d cures this defect. Thus, the trial court\u2019s instruction on the charge of discharging a firearm into a vehicle in operation was error.\nThis Court\u2019s prior ruling in State v. Rodriguez, 192 N.C. App. 178, 664 S.E.2d 654 (2008), dictates our disposition of this issue. In Rodriguez, the defendant appealed from his two first degree kidnapping convictions, contending that the indictments were insufficient to support those convictions because they lacked the language required to elevate a kidnapping charge from second degree to first degree. Id. at 184-85, 664 S.E.2d at 658-59. This Court agreed and held as follows:\nBecause the indictments did not clearly allege the essential elements of first degree kidnapping - that the victims were seriously injured or not released in a safe place - they are insufficient to charge kidnapping in the first degree. However, the indictments are valid for second degree kidnapping. Because the jury found all of the elements of second-degree kidnapping beyond a reasonable doubt by virtue of its guilty verdict of first degree kidnapping, defendant stands convicted of second degree kidnapping under this indictment.\nId. at 185, 664 S.E.2d at 659 (emphasis added).\nHere, the jury found all of the elements for the Class E felony offense of discharging a firearm into an occupied vehicle by virtue of its guilty verdict on the Class D felony charge of discharging a firearm into an occupied vehicle in operation. Thus, we conclude that the indictment at issue was sufficient to convict Defendant of the offense of discharging a firearm into a vehicle under N.C. Gen. Stat. \u00a7 34-14.1(a). We accordingly hold that the judgment for discharging a firearm into an occupied vehicle in operation under N.C. Gen. Stat. \u00a7 34-14.1(b) must be arrested, and we remand to the trial court for resentencing on the lesser offense of discharging a firearm into an occupied vehicle under N.C. Gen. Stat. \u00a7 14-34.1(a). See State v. Moore, 316 N.C. 328, 336-37, 341 S.E.2d 733, 739 (1986); Rodriguez, 192 N.C. App. at 185, 664 S.E.2d at 659.\nB. Sufficiency of the Evidence\nDefendant next contends that the trial court erred in denying his motion to dismiss for insufficiency of the evidence because \u201cit was physically impossible for [Defendant] to have fired the shot as [Mr. Heath] speculated.\u201d We disagree.\n\u201cWhen ruling on a defendant\u2019s motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). \u201cSubstantial evidence is such relevant evidence as a reasonable 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). The trial court should grant the defendant\u2019s motion to dismiss \u201c[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it.\u201d State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982).\n\u201cThe elements of discharging a firearm into occupied property are \u2018(1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied.\u2019 \u201d State v. Dubose, 208 N.C. App. 406, 409-10, 702 S.E.2d 330, 333 (2010) (quoting Slate v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995)); see also N.C. Gen. Stat. \u00a7 14-34.1. In determining whether substantial evidence of each element exists, we must view the evidence \u201cin the light most favorable to the State [,] . . . [and] the State is entitled to . . . every reasonable inference to be drawn therefrom[.]\u201d State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Conflicting testimony, contradictions, and discrepancies are factual determinations to be resolved by the jury and do not require dismissal. State v. Prush, 185 N.C. App. 472, 478, 648 S.E.2d 556, 560 (2007). However, whether substantial evidence exists as to each element of the charged offense is a question of law. State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433 (1956). Accordingly, we review the trial court\u2019s denial of Defendant\u2019s motion to dismiss de novo. See State v. McNeil, 209 N.C. App. 654, 659, 707 S.E.2d 674, 679 (2011).\nHere, viewing the evidence in the light most favorable to the State, we conclude that there existed substantial evidence of each of the elements of the charged offense. Defendant contends that it would have been physically impossible for him to shoot into Mr. Heath\u2019s vehicle based upon where he was standing at the time of the shooting; however, based on the evidence in the record, Defendant\u2019s position relative to the vehicle at the time of the shooting was a factual determination reserved for the jury. See State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975) (\u201cWhat the evidence proves [or] fails to prove is a question of fact for the jury.\u201d). While it is true, as Defendant points out, that \u201cno bullet holes were found anywhere in the vehicle\u201d and that no \u201c[b]ullet casings [or] bullets were [] found in nearby trees or on the road[,]\u201d Defendant\u2019s argument ignores evidence from which a reasonable jury could conclude that Defendant fired into Mr. Heath\u2019s vehicle. See State v. Hines, 166 N.C. App. 202, 205, 600 S.E.2d 891, 894 (2004) (holding that the trial court correctly denied defendant\u2019s motion to dismiss charge of robbery with a dangerous weapon where the \u201ctestimony would permit a reasonable jury to infer the existence of a dangerous weapon\u201d). For instance, citing his experience with firearms, Mr. Heath testified unequivocally that, on the date in question, Defendant removed a \u201csmall caliber gun\u201d from his pocket and fired it in the direction of his vehicle:\n[Prosecutor:] So with your experience in guns, you know what it was.\n[Mr. Heath:] Yes, sir.\n[Prosecutor:] And what was it?\n[Mr. Heath:] It was [a] pistol; a small, small caliber gun.\n[Prosecutor:] And it was shot at you.\n[Mr. Heath:] Correct. The flame, I seen the flame out of the barrel into my direction.\nMr. Heath also testified that the windows in his vehicle were down at the time of the incident. Moreover, one round had been fired from the firearm \u2014 a .22 caliber pistol \u2014 recovered near Defendant at the time of his arrest. Based on this evidence, a jury could reasonably infer that Defendant discharged a firearm into Mr. Heath\u2019s vehicle; and, having reached this determination, we again stress that whether the bullet fired actually passed through the cabin of Mr. Heath\u2019s vehicle was a question for the jury. See Withers v. Lane, 144 N.C. 184, 187, 56 S.E. 855, 856 (1907) (explaining that it is \u201cthe true office and province of the jury to weigh the testimony and decide upon its adequacy to establish any issuable fact\u201d).\nDefendant does not contend that the State failed to meet its burden in establishing the remaining elements of the charged offense. See N.C. R. App. P. 28(b)(6) (2013) (providing that \u201c[i]ssues not presented in a party\u2019s brief, or in support of which no reason or argument is stated, will be taken as abandoned\u201d). Accordingly, we hold that the trial court did not err in denying Defendant\u2019s motion to dismiss.\nIII. Conclusion\nFor the foregoing reasons, we vacate the judgment convicting Defendant of discharging a firearm into an occupied vehicle in operation and remand to the trial court for entry of judgment as to the lesser offense of discharging a firearm into an occupied vehicle, as described in N.C. Gen. Stat. \u00a7 14-34.1(a). Furthermore, we find no error in the trial court\u2019s denial of Defendant\u2019s motion to dismiss.\nVACATED and REMANDED in part; NO ERROR in part.\nJudges STEPHENS and STROUD concur.\n. We note Defendant\u2019s contention that the trial court committed plain error by instructing the jury that it could find Defendant guilty of discharging a firearm into a vehicle in operation and that, as a result, this Court is required to vacate his conviction. Defendant relies primarily upon State v. Williams, 318 N.C. 624, 360 S.E.2d 353 (1986), and State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248 (2000), in support of this contention. However, both Williams and Bowen involved instances where the offenses for which the defendant had been indicted consisted of elements distinct from the elements of the offenses for which the trial court instructed the jury. Williams, 318 N.C. at 624, 631-32, 350 S.E.2d at 354, 357-58 (finding plain error and vacating forcible rape conviction where the jury was erroneously instructed on statutory rape, an offense which was unsupported by the indictment); Bowen, 139 N.C. App. at 23-24, 533 S.E.2d at 252 (vacating first-degree sexual offense convictions where the trial court committed plain error by instructing the jury on statutory sexual offense, instead of first degree sexual offense, as charged in the indictments). The guilty verdicts returned by the juries in those cases were thus unsupported by the indictments. Here, in contrast, the jury found all of the elements of the Class E felony offense of discharging a firearm into an occupied vehicle, and the indictment upon which Defendant was charged supported the jury\u2019s guilty verdict. As such, the proper remedy is to vacate the existing judgment and remand to the trial court for entry of judgment convicting Defendant of this lesser offense.\n. Defendant\u2019s contention on this issue focuses upon the \u201cphysical impossibility\u201d of Defendant shooting into Mr. Heath\u2019s vehicle. Defendant does not challenge the State\u2019s evidence with respect to the remaining elements of the offense, i.e., whether the shooting was \u201cwillful and wanton,\u201d whether Defendant in fact discharged a \u201cfirearm,\u201d or whether the vehicle was occupied at the time of the shooting. See State v. Rambert, 341 N.C. at 176, 459 S.E.2d at 612; N.C. Gen. Stat. \u00a7 14-34.1. With respect to whether Defendant discharged a firearm, we note Defendant\u2019s statement in his brief that \u201c[t]aken in the light most favorable to the State,... [Defendant] shot a handgun rather than setting off a bottle roeket[.]\u201d", "type": "majority", "author": "DILLON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State.", "Bushnaq Law Office, PLLC, by Faith S. Bushnaq, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL WAYNE GALLOWAY\nNo. COA12-1049\nFiled 19 March 2013\n1. Indictment and Information \u2014 insufficient\u2014discharging a firearm into an occupied vehicle in operation \u2014 sufficient to support lesser offense\nAn indictment charging defendant with discharging a firearm into an occupied vehicle in operation was insufficient to support his conviction. The indictment failed to allege that the vehicle was \u201cin operation\u201d and was sufficient only to support a conviction as to the lesser offense of discharging a firearm into an occupied vehicle.\n2. Crimes, Other \u2014 discharging a firearm into an occupied vehicle in operation \u2014 sufficient evidence\nThe trial court did not err in a discharging a firearm into an occupied vehicle in operation case by denying defendant\u2019s motion to dismiss. The State presented sufficient evidence of each element of the offense and that defendant was the perpetrator.\nAppeal by Defendant from judgment entered 13 April 2012 by Judge William Z. Wood, Jr., in Stokes County Superior Court. Heard in the Court of Appeals 14 February 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State.\nBushnaq Law Office, PLLC, by Faith S. Bushnaq, for Defendant." }, "file_name": "0100-01", "first_page_order": 110, "last_page_order": 118 }