Opinion
No. 07-885.
Filed April 15, 2008.
Henderson County Nos. 06CRS52665, 06CRS52666.
Appeal by Defendant from judgments entered 19 January 2007 by Judge James U. Downs in Superior Court, Henderson County. Heard in the Court of Appeals 24 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State. Charlotte Gail Blake for Defendant-Appellant.
Larry Dean Ledbetter (Defendant) was convicted of assault with a deadly weapon inflicting serious injury, case number 06 CRS 52665, and discharging a weapon into an occupied moving vehicle, case number 06 CRS 52666. From judgments entered, Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred in entering judgment and in sentencing Defendant on the Class D felony of discharging a weapon into an occupied moving vehicle "when the jury was never instructed on or required to find beyond a reasonable doubt that the vehicle was moving[.]" We agree and vacate the judgment in case number 06 CRS 52666 and remand to the trial court. However, because Defendant raises no objection to his conviction for assault with a deadly weapon inflicting serious injury, we find no error in that conviction.
Defendant was indicted on 24 July 2006 on the charges of assault with a deadly weapon with intent to kill inflicting serious injury and of discharging a weapon into an occupied moving vehicle, a Class D felony. The indictment on the latter offense stated that Defendant "unlawfully, willfully and feloniously did discharge a rifle into a motor vehicle occupied by Renee Helm Vanhoy, while said vehicle was moving and being operated."
At trial, the following evidence was presented. Defendant and his wife were at their home during the evening of 6 May 2006 when Defendant's wife heard a noise and saw a truck driving in the yard. She yelled for her husband, who was sleeping in bed. Defendant grabbed a rifle and went outside, where he saw a truck driving through his yard. He fired shots from the rifle at the truck. The passenger of the truck sustained gunshot wounds to her knee and back. Defendant testified he was trying to aim at the tires of the truck and that he was concerned because he did not know where his wife was. Defendant was also worried the truck would hit the propane tank located in his yard.
After the presentation of evidence, and out of the presence of the jury, the trial court and the attorneys discussed possible verdicts to submit to the jury. On the charge of discharging a weapon into an occupied vehicle, the trial court stated: "06-52666, is . . . Defendant guilty of discharging a weapon into an occupied vehicle or is he not guilty. What says the State?" The State had no objection to those possible verdicts on that offense. The parties then discussed jury instructions, with both sides requesting special instructions not related to the essential elements of the offenses. The trial court instructed the jury on the elements of discharging a weapon into an occupied vehicle and did not include the essential element for the greater offense, that the vehicle was in operation or moving. Neither side requested any additions or made any objections to the instructions insofar as the elements of each offense were concerned.
During jury deliberations, the jury requested further instruction from the trial court. The trial court gave the same instruction on discharging a weapon into an occupied vehicle, again omitting the element that the vehicle was in operation or moving. Again, neither party requested any changes to the elements. The jury returned guilty verdicts on the lesser-included offense of assault with a deadly weapon inflicting serious injury and on the offense of discharging a weapon into an occupied vehicle.
The trial court entered judgment on the charge of assault with a deadly weapon inflicting serious injury and sentenced Defendant to a term of fifteen to twenty-seven months in prison. The trial court also entered judgment on the offense of discharging a weapon into an occupied moving vehicle, a Class D felony, and sentenced Defendant to a term of thirty-eight months to fifty-five months in prison.
Defendant argues his sentence for the Class D felony should be vacated because the jury was never instructed on one of the essential elements of that felony. Defendant correctly notes that prior to 1 December 2005 only one crime of discharging a weapon into occupied property was recognized in this State, and it was classified as a Class E felony. See N.C. Gen. Stat. § 14-34.1 (2003); N.C. Gen. Stat. § 14-34.1 (2005). After that date, several other crimes regarding discharging a weapon were recognized, including discharging a weapon into an occupied vehicle while the vehicle is in operation, a new Class D felony. N.C. Gen. Stat. § 14-34.1(b) (2005). Discharging a weapon into an occupied vehicle remains a Class E felony. N.C. Gen. Stat. § 14-34.1(a) (2005). Since the jury was not instructed that it must find the vehicle was in operation, Defendant argues he was actually convicted of the lesser-included Class E offense and should have been sentenced accordingly, instead of receiving a sentence for the Class D offense.
Although the State counters that Defendant should have raised an objection in the trial court or be subjected to plain error review in this Court, we note that N.C. Gen. Stat. § 15A-1446(d)(18) (2007) allows this Court to review an invalid or illegally imposed sentence whether or not there was an objection. Moreover, under the State's argument, Defendant would have had to object to the instruction on a lesser-included offense which was given to his benefit. The State bears the burden of proving each essential element of a crime, and the trial court must "instruct the jury on every substantive feature of the case regardless of the absence of a request for such an instruction." State v. Mitchell, 48 N.C. App. 680, 682, 270 S.E.2d 117, 118 (1980); see also State v. Cobb, 150 N.C. App. 31, 44, 563 S.E.2d 600, 610, disc. review denied, 356 N.C. 169, 568 S.E.2d 618 (2002) (recognizing that the trial court "must charge every essential element of the offense"). The trial court here properly instructed the jury on the lesser-included offense and the State did not request a change to the instruction. See N.C. Gen. Stat. § 15A-1231(a) (2007) (stating that any party may tender jury instructions for consideration by the court).
In State v. Valladares, 165 N.C. App. 598, 599 S.E.2d 79, disc. review denied, 359 N.C. 196, 608 S.E.2d 66 (2004), the defendant argued that the trial court erred by failing to instruct the jury on every element of the charge of trafficking in cocaine by possession. Id. at 607, 599 S.E.2d at 86. Although the weight of the drugs was an element of the crime, the trial court did not charge the jury that "the weight of the drugs was one of the elements which had to be proven beyond a reasonable doubt." Id. at 607-08, 599 S.E.2d at 86-87. As such, our Court held that the trial court erred. Id. at 608, 599 S.E.2d at 87. However, our Court recognized that the trial court had submitted the lesser-included offense of simple possession of cocaine, and the jury found the defendant guilty of that offense. Id. Therefore, our Court vacated the judgment on the charge of trafficking in cocaine by possession and remanded the case to the trial court for resentencing on the verdict of guilty of simple possession of cocaine. Id. at 608-09, 599 S.E.2d at 87.
In the present case, the jury was not instructed on the element of the Class D felony that the vehicle was in operation when Defendant discharged his weapon into it. The jury was not asked to consider that element, and therefore the only offense before the jury was the lesser-included offense of discharging a weapon into an occupied vehicle. The jury convicted Defendant of the lesser-included offense, a Class E felony, and the trial court therefore erred in entering judgment and commitment on the Class D felony and by sentencing Defendant on that charge. See id. at 608, 599 S.E.2d at 87. We hold that Defendant's judgment and sentence for the offense of discharging a weapon into an occupied moving vehicle in case 06 CRS 52666 must be vacated, and we remand this matter to the trial court to enter judgment on the offense of discharging a weapon into an occupied vehicle and to determine the appropriate new sentence. See id. at 608-09, 599 S.E.2d at 87.
No error in part; vacated and remanded in part.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).