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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges HUNTER (Robert C.) and GEER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROBERT KENNETH STEWART"
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nRobert Kenneth Stewart (\u201cdefendant\u201d) appeals from his convictions for second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, discharging a weapon into occupied property, assault with a deadly weapon with intent to kill, assault with a firearm on a law enforcement officer, and assault by pointing a gun. For the following reasons, we find no error.\nI. Background\nOn the morning of 29 March 2009, approximately two weeks after defendant\u2019s wife left him, defendant went to Pine Lake Health and Rehabilitation in Carthage, North Carolina, armed with a 12-gauge shotgun and several other firearms. Defendant\u2019s estranged wife typically worked as a certified nurse\u2019s assistant on the 200 hallway of the nursing home; however, she was working in the locked Alzheimer\u2019s unit on 29 March 2009.\nShortly before 10:00 A.M., before entering the nursing home, defendant fired the long-barreled weapon at an occupied Ford truck in the parking lot three times, striking the occupant once in the left shoulder. Thereafter, defendant entered the nursing home brandishing the shotgun. Defendant walked through the nursing home firing the shotgun at residents and staff. Seven residents and one nurse were killed.\nOfficer Justin Gamer of the Carthage Police Department was the first officer on the scene. Officer Gamer encountered defendant near the intersection of the 300 and 400 hallways while defendant was reloading the shotgun. Officer Gamer instructed the defendant to drop the weapon three times, but defendant did not comply. Defendant then turned towards Officer Gamer and lowered the shotgun in Officer Gamer\u2019s direction. At approximately the same time, defendant and Officer Gamer each fired one shot at each other. Officer Gamer testified that he felt something strike his left leg and quickly stepped into a nearby room for cover. Officer Gamer then reentered the hallway and saw defendant lying face down on the floor with the shotgun nearby. Officer Gamer approached and secured defendant. Defendant had been shot in his shoulder.\nBesides the shotgun, a loaded .38 caliber revolver and a loaded .22 caliber handgun were recovered from holsters on defendant\u2019s belt. A .22 caliber rifle was later recovered from the top of a Jeep in the nursing home parking lot. Ammunition for the firearms was recovered from defendant\u2019s pockets and a green military style satchel from around defendant\u2019s neck.\nDefendant was indicted by a Moore County Grand Jury on 13 April 2009 of eight counts of first-degree murder, two counts of attempted first-degree murder, two counts of assault \"with a deadly weapon with intent to kill inflicting serious injury, one count of discharging a firearm into occupied property, one count of assault with a firearm on a law enforcement officer, and two counts of assault by pointing a gun. Shortly thereafter, the State filed notice that it would proceed capitally.\nOn 9 November 2010, the trial court ordered, the venue of the proceedings be transferred to Stanly County for the limited purpose of jury selection. Defendant\u2019s case then came on for trial on 11 July 2011 in Stanly County Superior Court, the Honorable James M. Webb, Judge presiding. Following jury selection, the case was moved back to Moore County Superior Court where the jury began to hear evidence on 1 August 2011.\nAfter weeks of evidence, closing arguments were heard on 1 September 2011. The case was then given to the jury on 2 September 2011. On 3 September 2011, the jury returned verdicts finding defendant guilty on eight counts of second-degree murder, one count of assault with a deadly weapon with intent to kill inflicting serious injury, one count of discharging a weapon into occupied property, one count of assault with a deadly weapon with intent to kill, one count of assault with a firearm on a law enforcement officer, and two counts of assault by pointing a gun. The jury found defendant not guilty on the two counts of attempted first-degree murder. Separate judgments were entered for each of defendant\u2019s convictions and defendant was sentenced to fourteen consecutive terms totaling 1,699 months to 2,149 months imprisonment, plus 150 days. Defendant gave notice of appeal in open court.\nII. Discussion\nTestimony at Trial\nIn defendant\u2019s first four issues on appeal, defendant contends that the trial court plainly erred in allowing certain testimony into evidence. Specifically, defendant challenges the relevancy of testimony from various officers concerning firearms and ammunition found in defendant\u2019s residence, ammunition found in defendant\u2019s truck, instructions for claymore mines found on defendant\u2019s kitchen table, and unfruitful searches of both defendant\u2019s and defendant\u2019s estranged wife\u2019s residences for claymore mines. Defendant did not object to the testimony at trial, but now asserts the admission of the testimony into evidence was plain error. We address defendant\u2019s arguments together.\n\u201cIn order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make ....\u201d N.C.R. App. P. 10(a)(1) (2013). However,\n[i]n criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.\nN.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008).\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings!)]\nState v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotation marks omitted).\nIn asserting error, defendant argues the testimony from officers concerning their search for weapons and their recovery of firearms, ammunition, and instructions for claymore mines from defendant\u2019s property following the shooting was irrelevant because \u201c[t]he evidence presented at trial was undisputed that all of the victims were killed with the shotgunf]\u201d recovered at the scene. Moreover, defendant argues the only purpose in introducing the testimony was to portray him \u201cas an extremely dangerous person who possessed dangerous weapons.\u201d As a result, defendant contends the testimony should have been excluded pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 402. Defendant cites State v. Patterson, 59 N.C. App. 650, 297 S.E.2d 628 (1982), and State v. Samuel, 203 N.C. App. 610, 693 S.E.2d 662 (2010), in support of his argument.\nIn Patterson the State introduced evidence of a sawed-off shotgun found in the defendant\u2019s car in addition to a pistol identified by the victim as the weapon used in the armed robbery for which the defendant was on trial. 59 N.C. App. at 652, 297 S.E.2d at 630. On appeal of the defendant\u2019s conviction, this Court granted the defendant a new trial holding \u201c[t]he shotgun was not connected to the robbery and it was clearly not relevant to any issues in the case[]\u201d and \u201cthere [was] a reasonable possibility that the erroneous admission of the shotgun evidence contributed to the defendant\u2019s conviction, particularly in light of the conflicting evidence regarding the identity of the defendant as the man who robbed [the victim].\u201d Id. at 653-54, 297 S.E.2d at 630. Similarly, in Samuel the State introduced evidence of two guns found in the defendant\u2019s home in order to link the defendant to the armed robbery for which he was on trial. 203 N.C. App. at 619-20, 693 S.E.2d at 668-69. On appeal, this Court held \u201cthe evidence about the guns was wholly irrelevant and, thus, inadmissible[]\u201d because \u201cthere was not a scintilla of evidence linking either of the guns to the crimes charged.\u201d Id. at 621, 693 S.E.2d at 669. Additionally, \u201c[gjiven the weakness in the State\u2019s evidence that [the d] efendant was the assailant and the substantial evidence tending to show that [the defendant was not the assailant,\u201d this Court concluded \u201cthat the admission of the evidence of the guns, and the prosecutor\u2019s rebanee upon the revolver to link [the d] efendant to the crimes charged, had a probable impact on the jury\u2019s finding that the defendant was guilty[]\u201d and therefore amounted to plain error. Id. at 624, 693 S.E.2d at 671 (citation and quotation marks omitted).\nAlthough we acknowledge the holdings in Patterson and Samuel, we find the present case distinguishable.\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2011). Pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 402, \u201c[a]ll relevant evidence is admissible____Evidence which is not relevant is not admissible.\u201d \u201cAlthough the trial court\u2019s rulings on relevancy technically are not discretionary..., such rulings are given great deference on appeal.\u201d Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citation and quotation marks omitted).\nAs the State points out, in the present case defendant was indicted on eight counts of first-degree murder and two counts of attempted first-degree murder. Although defendant was only convicted of second-degree murder, the State attempted to prove the first-degree offenses and therefore had to prove premeditation and deliberation. See State v. Wilds, 133 N.C. App. 195, 199, 515 S.E.2d 466, 471 (1999) (\u201c \u2018First-degree murder is the unlawful killing of a human being with malice, premeditation and deliberation.\u2019 \u201d (quoting State v. Misenheimer, 304 N.C. 108, 113, 282 S.E.2d 791, 795 (1981))). Additionally, instead of denying he was the shooter, defendant asserted insanity and automatism defenses. Accordingly, the State attempted to rebut those defenses with evidence of defendant\u2019s mental state.\nThe State now argues the challenged testimony was relevant to show defendant\u2019s advanced planning and state of mind. We agree. The facts that defendant had multiple firearms and various types of ammunition at his disposal were relevant to show that defendant made choices about which firearms to arm himself with and selected the correct ammunition for those firearms prior to the shootings. Additionally, the facts that officers searched for claymore mines and found instructions for claymore mines on defendant\u2019s kitchen table were relevant to show that defendant had likely removed the instructions from the green satchel found around defendant\u2019s neck in order to fill it with ammunition to be used in the shootings. Based on the tendency of the evidence to show defendant\u2019s advanced planning and mental state prior to going to the nursing home, we hold the challenged testimony was relevant.\nMoreover, assuming arguendo the admission of the testimony was error, defendant has not shown that the admission of the testimony amounted to plain error; namely, that \u201cthe error had a probable impact on the jury\u2019s finding that [he] was guilty.\u201d Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Although defendant argues the testimony portrayed him \u201cas an extremely dangerous person who possessed dangerous weapons[,]\u201d, defendant has not argued how the alleged prejudicial testimony impacted the jury\u2019s finding of guilt in light of the overwhelming evidence presented by the State.\nPhotographs\nIn defendant\u2019s next issue on appeal, defendant contends the trial court erred by allowing crime scene and autopsy photographs of the victim\u2019s bodies into evidence over his objection. Specifically, defendant argues the photographs should have been excluded pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rules 401, 402, and 403.\nThe photographs challenged on appeal were introduced at trial as follows: The State first sought to introduce forty-three crime scene photographs as the State\u2019s exhibits 123 through 165 to illustrate testimony of a crime scen\u00e9 investigator who processed the scene. Defendant objected to twelve of the photographs depicting the victims\u2019 bodies at the scene on the basis that the photographs were unduly inflammatory or prejudicial under N.C. Gen. Stat. \u00a7 8C-1, Rule 403. After reviewing the photographs, the trial court allowed all but one of the crime scene photographs into evidence; the trial court found the one excluded photograph duplica-tive. The State later sought to introduce the State\u2019s exhibits 320 and 322-327. Each of these exhibits consisted of an SBI prepared diagram illustrating the location where each victim was found within the nursing home with an enlarged copy of a previously admitted crime scene photograph. Defendant objected to each exhibit on the basis that the seven attached photographs were duplicative and unnecessary. After reviewing each exhibit and comparing the size of the enlarged photographs to the originals, the trial court allowed the exhibits into evidence for illustrative purposes. Lastly, the State introduced photographs from the victims\u2019 autopsies to illustrate testimony from medical examiners concerning the victims\u2019 injuries. Defendant specifically objected to the State\u2019s exhibit 383, a photograph of a victim\u2019s heart, pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 403. The trial court, however, allowed the autopsy photographs into evidence.\nNow on appeal, defendant first contends the photographs of the victims\u2019 bodies had no probative value because there was no issue as to the identity of the victims, the cause of the victims\u2019 deaths, the manner of the shootings, or defendant\u2019s role as the shooter. Consequently, defendant asserts the photographs served only to inflame the passions of the jury.\nAddressing the issue of relevance under N.C. Gen. Stat. \u00a7 8C-1, Rules 401 and 402, we note that \u201c[b]ecause defendant objected to the admission of [the] photograph[s] solely on the basis of [N.C. Gen. Stat. \u00a7 8C-1, Rule 403], he has waived appellate review on the issue of the relevance of the photograph[s].\u201d State v. Lloyd, 354 N.C. 76, 97, 552 S.E.2d 596, 613 (2001) (citing N.C. R. App. P 10(b)(1)). Nevertheless, had defendant properly preserved the issue of relevance for appeal, both the crime scene and autopsy photographs of the victims\u2019 bodies were relevant and properly admitted for illustrative purposes. As stated by our Supreme Court, \u201c[p]hotographs are usually competent to be used by a witness to explain or illustrate anything that it is competent for him to describe in words. The fact that the photograph may be gory, gruesome, revolting or horrible, does not prevent its use by a witness to illustrate his testimony.\u201d State v. Cutshall, 278 N.C. 334, 347, 180 S.E.2d 745, 753 (1971).\nThus, photographs of the victim\u2019s body may be used to illustrate testimony as to the cause of death[.] Photographs may also be introduced in a murder trial to illustrate testimony regarding the manner of killing so as to prove circumstantially the elements of murder in the first degree, and for this reason such evidence is not precluded by a defendant\u2019s stipulation as to the cause of death.\nState v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988) (citations omitted).\nFirst, the photographs were relevant as they depicted the crime scene and the victims\u2019 injuries. Moreover, as discussed above, the State attempted to prove first-degree murder and attempted first-degree murder. Consequently, the photographs of the victims\u2019 bodies were not precluded by the fact that defendant acknowledged that he shot and killed the victims; the photographs remained relevant \u201cto illustrate testimony regarding the manner of [the shootings] so as to prove circumstantially the elements of murder [and attempted murder] in the first degree[.]\u201d Id.\nHaving decided the photographs were relevant, the issue remains whether the photographs should have been excluded pursuant N.C. Gen. Stat. \u00a7 8C-1, Rule 403. N.C. Gen. Stat. \u00a7 8C-1, Rule 403 provides, \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d \u201c \u2018Unfair prejudice\u2019 means an undue tendency to suggest a decision on an improper basis, usually an emotional one.\u201d Hennis, 323 N.C. at 283, 372 S.E.2d at 526.\nWhether the use of photographic evidence is more probative than prejudicial and what constitutes an excessive number of photographs in the light of the illustrative value of each . . . lies within the discretion of the trial court. Abuse of discretion results where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\nId. at 285, 372 S.E.2d at 527 (citations omitted).\nDefendant contends the trial court abused its discretion because the photographs of the victims\u2019 bodies had little probative value, were unnecessarily repetitive and cumulative, and served only to inflame the passions of the jury. Moreover, defendant asserts he was prejudiced by the manner in which the photographs were presented. Defendant cites our Supreme Court\u2019s decision in State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988), in support of his arguments.\nIn Hennis, the defendant was convicted on three counts of first-degree murder and sentenced to death. On appeal, our Supreme Court addressed whether the trial court erred in admitting thirty-five photographs, nine photographs depicting the victims\u2019 bodies at the crime scene and twenty-six autopsy photographs, into evidence over the defendant\u2019s objection. Id. at 282-83,372 S.E.2d at 525-26. The challenged photographs were first published to the jury by projecting them onto a large screen just above the defendant\u2019s head during witness testimony. Id. at 282, 372 S.E.2d at 525. Thereafter, just before the State rested its case, the photographs were republished to the jury one at a time over the course of an hour, unaccompanied by additional testimony. Id. at 283, 572 S.E.2d at 526.\nWhile reviewing whether the trial court abused its discretion by allowing the photographs into evidence, the Court explained \u201cthat when the use of photographs that have inflammatory potential is excessive or repetitious, the probative value of such evidence is eclipsed by its tendency to prejudice the jury.\u201d Id. at 284, 372 S.E.2d at 526. Yet,\n[t]he test for excess is not formulaic: there is no bright line indicating at what point the number of crime scene or autopsy photographs becomes too great. The trial court\u2019s task is rather to examine both the content and the manner in which photographic evidence is used and to scrutinize the totality of circumstances composing that presentation. What a photograph depicts, its level of detail and scale, whether it is color or black and white, a slide or a print, where and how it is projected or presented, the scope and clarity of the testimony it accompanies-these are all factors the trial court must examine in determining the illustrative value of photographic evidence and in weighing its use by the state against its tendency to prejudice the jury.\nId. at 285, 372 S.E.2d at 527.\nApplying the above law, the Court in Hennis noted that many of the autopsy photographs were repetitive, \u201cadded nothing to the [S]tate\u2019s case as already delineated in the crime scene [photographs] and their accompanying testimony[,]\u201d and \u201chad potential only for inflaming the jurors.\u201d Id. at 286, 372 S.E.2d at 527-28. The Court further noted that \u201cthe prejudicial effect of the photographs . . . was compounded by the manner in which the photographs were presented.\u201d Id. at 286, 372 S.E.2d at 528. As a result, the Court held the trial court erred in admitting the photographs. Moreover, the Court found the error prejudicial and granted the defendant a new trial due to the fact \u201cdefendant was linked to the crime through circumstantial evidence and through direct evidence upon which the witnesses\u2019 own remarks cast considerable doubt.\u201d Id. at 287, 372 S.E.2d at 528. The Court specifically remarked, \u201c[overwhelming evidence of [the defendant\u2019s] guilt was not presented.\u201d Id.\nDefendant argues for the same result in the present case. As we have previously stated, \u201c \u2018[t]his Court has rarely held the use of photographic evidence to be unfairly prejudicial, and the case presently before us is distinguishable from the few cases in which we have so held.\u2019 \u201d State v. Bare, 194 N.C. App. 359, 364, 669 S.E.2d 882, 886 (2008) (quoting State v. Robinson, 327 N.C. 346, 357, 395 S.E.2d 402, 409 (1990)).\nApplying the law as provided in Hennis, we hold the trial court did not abuse its discretion in admitting the photographs in the present case where all the photographs were introduced to illustrate witness testimony concerning either the crime scene as it existed immediately following the shootings, each victim\u2019s location in the nursing home, or the specific injuries sustained by the victims. Moreover, we do not find the number of photographs or manner of presentation extraordinary given the number of victims and the size of the enlarged photographs. Lastly, we find it pertinent that the jury was properly instructed to consider the photographs solely for illustrative purposes. As a result, we cannot say that the trial court\u2019s decision to admit the photographs was so arbitrary that it could not have been the result of a reasoned decision.\nNevertheless, assuming arguendo the trial court abused its discretion in admitting the photographs, the error was harmless considering the overwhelming evidence of defendant\u2019s guilt.\nMotion to Dismiss\nIn defendant\u2019s final issue on appeal, defendant contends the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon with intent to kill Officer Gamer. As a result of the purported error, defendant contends the case must be remanded for a new trial.\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). \u201c \u2018Upon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \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). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nCircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.\nFritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and quotation marks omitted).\n\u201c[T]he elements of assault with a deadly weapon with intent to kill are: \u2018(1) an assault; (2) with a deadly weapon; (3) with the intent to kill[.]\u2019 \u201d State v. Garris, 191 N.C. App. 276, 287, 663 S.E.2d 340, 349 (2008) (quoting State v. Coria, 131 N.C. App. 449, 456, 508 S.E.2d 1, 5 (1998)); see also N.C. Gen. Stat. \u00a7 14-32(c) (2011).\nOn appeal, defendant only challenges the sufficiency of the evidence with respect to the third element of the offense, intent to kill. Specifically, defendant contends the evidence shows he never intended to kill Officer Gamer, but instead intended for Officer Gamer to kill him. In support of his contention, defendant points to evidence tending to show he was depressed and felt his end was near, the deceased were all shot in their abdominal areas whereas Officer Gamer was shot in the leg by three shotgun pellets on a ricochet, he made no attempt to use either of the two handguns on his person after he was shot by Officer Gamer, and he told numerous officers to \u201cshoot him\u201d or \u201ckill him.\u201d Moreover, defendant emphasizes he never expressed intent to kill Officer Gamer.\nDespite consideration of the evidence pointed to by defendant, we hold that, upon consideration of all the evidence in the light most favorable to the State, there is sufficient evidence of \u201cintent to kill\u201d to support the charge of assault with a deadly weapon with intent to kill Officer Gamer. As our Supreme Court stated long ago,\n[a]n intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred. An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.\nState v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956) (citation and quotation marks omitted).\nIn this case, the evidence tended to show that defendant had already fatally shot eight people with the shotgun at the time Officer Gamer confronted defendant in the hallway. Defendant then ignored Officer Gamer\u2019s repeated instructions to drop the shotgun and continued to reload it. Defendant then turned toward Officer Gamer, lowered the shotgun, and fired one shot at Officer Gamer at approximately the same time that Officer Gamer fired at defendant and ducked into a doorway. Although Officer Gamer was only struck in the leg by shotgun pellets on a ricochet, considering the relevant circumstances and viewing all the evidence in the light most favorable to the State, we find sufficient circumstantial evidence to support a reasonable inference of intent to kill. Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss the assault with a deadly weapon with intent to kill charge.\nIII. Conclusion\nBased on the forgoing reasons, we find neither plain nor prejudicial error in the trial court\u2019s admission of evidence below and hold defendant received a fair trial. Moreover, we find sufficient evidence to support the charge of assault with a deadly weapon with intent to kill and hold the trial court did not err in denying defendant\u2019s motion to dismiss.\nNo error.\nJudges HUNTER (Robert C.) and GEER concur.\n. Defendant also briefly alludes to N.C. Gen. Stat. \u00a7 8C-1, Rule 403 in his argument. This Court, however, has opted not to review discretionary rulings under Rule 403 for plain error. See State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008) (\u201cThe North Carolina Supreme Court has specifically refused to apply the plain error standard of review \u2018to issues which fall within the realm of the trial court\u2019s discretion^]\u2019\u201d (quoting State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000))).\n. We additionally note that the officer\u2019s testimony regarding the search of defendant\u2019s and defendant\u2019s estranged wife\u2019s residences for claymore mines was not prejudicial because the officer indicated that no such devices were found.\n. The largest photograph attached to an SBI diagram was a fourteen and a half by nineteen inch photograph.\n. Defendant was originally indicted for assault of Officer Gamer with a deadly weapon with intent to kill inflicting serious injury. However, considering the nature of Officer Gamer\u2019s injury, the trial court only allowed the jury to consider the lesser offense of assault with a deadly weapon with intent to kill.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.",
      "Haral E. Carlin, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROBERT KENNETH STEWART\nNo. COA13-283\nFiled 3 December 2013\n1. Evidence \u2014 homicide\u2014testimony\u2014relevant\u2014state of mind\nThe trial court did not commit plain error in a multiple homicide case by allowing certain testimony into evidence where the challenged testimony was relevant to show defendant\u2019s advanced planning and state of mind. Furthermore, assuming arguendo the admission of the testimony was erroneous, defendant failed to show that the admission of the testimony had a probable impact on the jury\u2019s finding him guilty.\n2. Evidence \u2014 homicide\u2014photographs\u2014relevant\u2014illustrative\nThe trial court did err in a multiple homicide case by allowing crime scene and autopsy photographs of the victim\u2019s bodies into evidence over his objection. The photographs were relevant as they depicted the crime scene and the victims\u2019 injuries and all the photographs were introduced to illustrate witness testimony concerning either the crime scene as it existed immediately following the shootings, each victim\u2019s location in the nursing home, or the specific injuries sustained by the victims.\n3. Assault \u2014 with deadly weapon with intent to kill police officer \u2014 sufficient evidence\nThe trial court did not err by denying defendant\u2019s motion dismiss the charge of assault with a deadly weapon with intent to kill a police officer. There was sufficient evidence of each element of the offense, including defendant\u2019s intent to kill the officer.\nAppeal by defendant from judgments entered 3 September 2011 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 28 August 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.\nHaral E. Carlin, for defendant appellant."
  },
  "file_name": "0134-01",
  "first_page_order": 144,
  "last_page_order": 156
}
