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					NO. COA09-222             JUDICIAL DISTRICT TWENTY-TWO B

              NORTH CAROLINA COURT OF APPEALS
     *************************************************

STATE OF NORTH CAROLINA  )
                         )
     Vs.                 )From Davidson County
                         )    06 CR 58383-84
DONNA MARIE SMALL        )
                         )
     Defendant-Appellant.)

                    QUESTIONS PRESENTED

     I.   DID   THE  TRIAL   COURT   ERR   IN   DENYING THE
APPELLANT’S MOTION TO DISMISS, MOTION IN LIMINE, MOTION TO
STRIKE VICTIM’S TESTIMONY, WHERE THE STATE VIOLATED N.C.
GEN. STAT § 15A-903(a)(1) WHERE THE PROSECUTION FAILED TO
DISCLOSE THE VICTIM’S STATEMENT TO THE DEFENSE?

     II. DID THE TRIAL COURT ERR IN PROVIDING A JURY
INSTRUCTION ON TRANSFERRED INTENT, WHERE THE EVIDENCE
FALIED TO JUSTIFY THAT INSTRUCTION?

     III. DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE
CHARGES AGAINST APPELLANT AT THE CLOSE OF THE STATE’S
EVIDENCE DUE TO THE INSUFFICIENCY OF THE EVIDENCE TO
SUPPORT A CONVICTION ON THE CHARGES?
                                       -2-



                          STATEMENT OF THE CASE

       Defendant-Appellant,          Donna     Marie      Small,   was    charged

with discharging a firearm into occupied property (G.S. 14-

34.1) and assault with a deadly weapon inflicting serious

injury (G.S. 14-32(b). (R pp 15, 17) She was tried before a

jury at the regular criminal session of the Superior Court

division for Davidson County on July 7 to July 9, 2008. The

Honorable     Vance      B.   Long    presided.      The    jury    returned      a

verdict of guilty as charged on July 9, 2008. (R pp 103-

104)   The    Court      entered     Judgment      and    Commitment      (active

punishment) on both charges on July 9, 2008. (R pp 109-112)

       The Record on Appeal was filed in the Court of Appeals

on February 19, 2009 and docketed on February 25, 2009.



             STATEMENT OF THE BASIS OF APPELLATE REVIEW


       Ms. Small appeals by right pursuant to N.C. Gen. Stat.

§ 7A-27(b) a final judgment of conviction entered by the

Davidson County Superior Court following a jury verdict.


                              STATEMENT OF FACTS


       Ms. Small is the ex-girl friend of the alleged victim

in this case, Mr. Arthur Lee Hunt, Jr. (T p 59) After

breaking     up   with    Ms.   Small,       Mr.   Hunt    took    up    with   her
                            -3-

sister, Wanda Small, and Wanda became his new girl friend.

(T p 70; App 1) Mr. Hunt testified that Ms. Donna Small’s

family treated both Wanda and him “very badly” after the

breakup. (T p 70; App 1)

    On September 2, 2006, the night of the incident that

led to Ms. Small’s charges, she and Mr. Hunt had an angry

telephone conversation. (T pp 70-73; App 1-3) That night,

Mr. Hunt and Wanda were staying with Mr. Hunt’s cousin, Mr.

Dennis Russell, his wife and three children. (T pp 92-93;

App 5-6) As Mr. Russell explained it, “the plan” was that

“Wanda and my wife had went out for the evening. Me and

Authur had stayed in to babysit the youngins.” (T p 94; App

7) The ladies came back at approximately 12:30 a.m. (T pp

94-95; App 7-8) All adults then stayed up until about 1:00

a.m. (T p 95; App 8) Mr. Hunt and Wanda went to sleep in

the living room of the house. (T p 95; App 8)

    Mr. Russell was awakened by a call on his cell phone

around 3:00 a.m. (T pp 95-96; App 8-9) He “didn’t recognize

the number on the phone, so [he] just hung it up and laid

it back down on the coffee table;” however, he testified

that “I looked up and I seen a car with the headlights on

in front of my house.” (T p 96; App 9) He went to look

through the front door, and that is when he “saw a shadowy
                                           -4-

figure       jerking    and      pulling      wires      off    of     [his]       cousin

Arthur’s motorcycle.” (T p 97; App 10)

        Mr. Russell testified that at that point, “I came back

and    woke    Arthur       up   and   told      him   someone       was     out   there

messing with his bike.” (T p 97; App 10) Mr. Hunt went

outside       while    Mr.       Russell    “was       getting       [his]    gun    and

calling 911.” (T p 97; App 10) With gun and cell phone in

hand, he heard a “shotgun blast,” and Mr. Hunt “came back

in hollering, I’ve been shot, I’ve been shot, she shot me.”

(T p 98; App 11)

        Mr. Russell testified that, subsequently, “[i]t was

pretty chaotic.” (T p 98; App 11) Mr. Hunt was bloody. (T p

98;    App    11)     Mr.    Russell’s      “kids      had     woken    up     and   had

started down the stairs.” (T p 102; App 12) He explained

that the children “got about halfway down the stairs and

seen me standing in the doorway with a gun, and I hollered

for them to go back downstairs, but you know kids these

days; mine don’t listen.” (T p 102; App 12)

        Mr. Russell saw Appellant, Ms. Small, “[h]alfway in

and halfway out of [his] front door.” (T p 102; App 12) She

was     calling     “Snoop,       Snoop,    come       back    out     here.”1        Mr.

Russell told her, “I have kids in this house. If you point

that gun at my house again, I will drop you where you

1
    Snoop is a nickname for Mr. Hunt. (T pp 93-94)
                                     -5-

stand.” (T pp 103-104; App 13-14) Mr. Russell testified

that Ms. Small replied, “I don’t care...” (T p 104; App 14)

Mr. Russell testified that he “held [Ms. Small] at gunpoint

until the police showed up.” (T p 104; App 14)

       Once he canvassed his home, Mr. Russell observed that

two window “panes was shot out,” and that he “had a couple

of pellet holes in the back of [his] couch.” (T p 109; App

15) He attempted to identify those pellet holes for the

jury   in   a   picture   of   the   couch,   but   he   had   difficulty

distinguishing them from the “cat claws.” (T p 111; App 16)

       Steven Truell of the Thomasville Police Department was

the first officer to respond to Mr. Russell’s 911 call. (T

p 137; App 17) He observed one broken window and “pellet

holes” in the siding. (T p 143; App 18) Les Rickard of the

Thomasville Police Department also responded. (T p 153; App

19) By that time, it was around 3:00 a.m. (T p 153; App 19)

Officer Truell took the shotgun from Ms. Small, which came

into evidence at trial. (T p 157-9; App 20-22) It contained

one unfired shell. (T pp 161, 171; App 23-24) He did not

know enough about that type of shell to know what size shot

it could produce. (T p 172; App 25)

       A third responding officer, Jason Annas, handcuffed

and searched Ms. Small. (T p 176) He found two live shotgun
                                    -6-

shells   in    her   pocket.   (T   p     176;   App   26)   He   took   the

following statement from her:

              Tonight Arthur Hunt Jr. called my house
              harassing me. Then Wanda Small (my
              sister) called doing the same thing. I
              took my boyfriend David Fox home and
              then I went to Wanda’s house on
              Woodgreen Dr. There was nobody there so
              I went to my daughter’s boyfriends
              house. My daughter told me where Wanda
              and Arthur were and how to get there. I
              went over there to the road beside
              Hardees. I saw his motorcycle so I
              stopped. I got out and stabbed the seat
              and tires on Arthur’s motorcycle. Then
              Dennis came outside and I told him I
              wanted to see Arthur. When he went back
              to get Arthur I pushed the motorcycle
              over. Arthur came outside and was
              hiding behind the brick wall on the
              porch. Then he seen what I did to his
              motorcycle and started coming off the
              porch. I shot him and he run inside the
              house. That was the end of it until
              y’all got here. (R p 86)



                               ARGUMENT



     I.   THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S
MOTION TO DISMISS, MOTION IN LIMINE AND MOTION TO STRIKE
VICTIM’S TESTIMONY,    WHERE THE STATE VIOLATED N.C. GEN.
STAT § 15A-903(a)(1) WHEN THE PROSECUTION FAILED TO DISCLOSE
ONE OF THE VICTIM’S STATEMENTS TO THE DEFENSE.

     Assignments of Error no.’s 1, 3, 4, 5, 6, 7; T pp 84,
214-216; R pp 122-123

    A. Standard of Review
                                   -7-

    In    ruling   on   the   issue      central   to     this    section,

whether   the   State   complied    with   N.C.    Gen.   Stat.    §   15A-

903(a), the trial Court made conclusions of law. Review of

conclusions of law is de novo.           Starco, Inc. v. AMG Bonding

and Ins. Servs., 124 N.C. App. 332, 336, 447 S.E.2d. 211,

215 (1996).

    B. Analysis

    The alleged victim, Arthur Hunt, provided a statement

to the trial prosecutor, Wendy Terry, and a “Mr. Brown” of

her office during an interview held “for the purposes of

victim’s rights” policies the Friday before the trial, July

3, 2008. (T p 79) On that occasion, as revealed by the

following testimony during a pre-trial proffer, Mr. Hunt

told Ms. Terry and Mr. Brown that he had no recollection of

speaking to any officer on the occasion of his shooting:

           Q. And you said you have no remembrance
           of talking to any officer?

           A. I was shocked. I don’t remember what
           got there first, the ambulance or a
           police officer.

           Q. Do you remember ever talking to a
           police officer?

           A. No. All I remember is the ambulance.

           Q. Now, when you came to the district
           attorney’s office last Friday, did you
           meet with Mr. Brown and Ms. Terry, the
           gentleman who is sitting at the next
           table?
                            -8-



         A. Yes, sir. (T p 69)

             *********************************

         Q. And did you tell them all of the
         things that you told us here today?

         A. Yes, sir. (T p 70; App 1)

    Mr. Hunt had previously made a statement to Officer

Annas on the date of the shooting, of which Officer Annas

made the following written record:

         Upon arrival there were also three
         people on the front porch. I identified
         them as Mr. Dennis Russell, Ms. Carol
         Russell and Wanda Jean Small. All three
         stated that Ms. Donna Small shot Mr.
         Arthur Lee Hunt. Mr. Hunt was coherent
         and also stated that Ms. Donna Marie
         Small   shot    him.   Mr.   Hunt   was
         transported to Baptist Hospital for
         treatment.    (R p 37) (the victim’s
         statement is in bold)

    Ms. Small made an oral pre-trial motion to dismiss the

case, or in the alternative motion in limine with respect

to Mr. Hunt’s testimony on the basis of the State’s failure

to disclose the oral statement under N.C. Gen. Stat. § 15A-

903(a)(1). (T pp 37-39) That statute provides as follows:

         (a) Upon motion of the defendant, the
         Court must order the State to:
         (1) Make available to the defendant the
         complete files of all law enforcement
         and prosecutorial agencies involved in
         the   investigation   of    the  crimes
         committed or the prosecution of the
         defendant. The term “file” includes the
         defendant’s       statements,       the
                                 -9-

           codefendant’s      statements,       witness
           statements,     investigating      officers’
           notes,     results      of     tests     and
           examinations, or any other matter or
           evidence      obtained      during       the
           investigation of the offenses alleged
           to    have   been     committed     by   the
           defendant.    The     term    prosecutorial
           agency includes any public or private
           entity that obtains information on
           behalf of a law enforcement agency or
           the prosecutor in connection with the
           investigation of the offenses alleged
           to    have   been     committed     by   the
           defendant. Oral statements shall be in
           written or recorded form, except that
           oral statements made by a witness to
           the a prosecuting attorney outside of
           the presence of a law enforcement
           officer or investigatorial assistant
           shall not be required to be in written
           or   recorded    form   unless    there   is
           significantly      new     or      different
           information in the oral statement from
           a prior statement made by the witness.
           The defendant shall have the right to
           inspect and copy or photograph any
           materials contained therein and, under
           appropriate    safeguards,    to    inspect,
           examine, and test any physical evidence
           or sample contained therein. (emphasis
           added).

    After the voir dire of Mr. Hunt, and the arguments of

counsel,   the   Court   made   the    following   oral   findings   of

fact:

           The Court finds that the alleged victim
           in this matter issued a statement to
           the   initial   investigating   officer,
           which is contained in an incident
           investigation report with an addendum
           or   attachment    entitled   “Reporting
           Officer Narrative,” which reads in part
           as follows: “Mr. Hunt was coherent and
                            - 10 -

         also stated Ms. Donna Marie Small shot
         him.   Mr.  Hunt   was  transported to
         Baptist Hospital for treatment.”

         The Court finds that this statement
         made to the officer constitutes a prior
         statement   under    N.C.G.S.  §   15A-
         903(a)(1), and that, while the alleged
         victim’s proffer of testimony does
         offer contextual details not included
         in the prior statement, that testimony
         does    not   constitute    a  new   or
         significantly different statement from
         the   prior  statement   given  to  the
         officers. (T pp 83-84)

    The defendant has a right to discover the information

described in N.C. Gen. Stat. § 15A-903(a)(1). See, e.g.,

State v. Moncree, 188 N.C.App. 221, 655 S.E.2d 464 (2008).

This duty is continuing.   Id.,      188 N.C.App. at 226, 655

S.E.2d at 464, citing, State v. Blankenship, 178 N.C.App.

351, 354, 631 S.E.2d 208, 210 (2006).

    This Court provided guidance as to what constitutes a

new or materially different statement in State v. Dorton,

172 N.C.App. 759, 769, 617 S.E.2d 97, 104, rev. denied, 390

N.C. 69, 623 S.E.2d 775 (2005):

         A trial court must, upon motion of a
         defendant, order the prosecutor to
         “divulge...the substance of any oral
         statement   relevant   to    the  subject
         matter   of   the  case    made  by   the
         defendant...N.C.   Gen.   Stat.  §   15A-
         903(a)(2)   (2003)   “As   used  in   the
         statute, ‘substance’ means: “Essence;
         the material or essential part of a
         thing, as distinguished from “form.”
         That which is essential.’” State v.
                                   - 11 -

            Bruce, 315 N.C. 273, 280, 337 S.E.2d
            510, 515 (1985) (quoting Black’s Law
            Dictionary 1280 (rev. 5th ed. 1979).
            Moreover, our Supreme Court has held
            that “a synopsis of a defendant’s oral
            statements in response to discovery
            requests complies with the ‘substance’
            requirement of N.C. Gen. Stat. § 15A-
            903(a)(2).”   State   v.  Johnson, 136
            N.C.App. 683, 692, 525 S.E.2d 830, 836
            (2000)(citing State v. Weeks, 322 N.C.
            152, 367 S.E.2d 895 (1988).

    In     Dorton,    defendant,     who    was    charged      with    sexual

assault    of   his   daughter,    assigned       as    error   the    State’s

failure to exclude the victim’s testimony that “she needed

to take this to the grave with her,” where the State had

summarized the statement prior to trial as the defendant

telling the victim “not to tell anyone.” Id., 172 N.C.App.

at 769, 770, 617 S.E.2d at 104.             The Court found that the

victim’s    statement     at      trial     was        not   materially    or

significantly different from the summary provided before

trial. It reasoned as follows:

            In the instant case, the State’s report
            to defendant contained the following
            statement: “Father...[t]old her not to
            tell   anyone.”   Both   the  testimony
            received at trial and the statement
            contained in the report given to the
            defendant convey that the defendant was
            telling his daughter not to tell anyone
            of the sexual assault.   While the form
            was not identical, they expressed the
            same substance and, as such, the trial
            court correctly determined there was no
            violation of N.C. Gen. Stat. § 15A-
                                       - 12 -

             903(a)(2). Id., 172 N.C.App.                    at   769,
             770, 617 S.E.2d at 104.

      In the present case, unlike the statement in Dorton,

the   new   oral     statement    bears         no   relation     to     the   prior

statement.        Officer Annas wrote that Mr. Hunt said that Ms.

Small shot him.          Mr. Hunt later told the prosecutor that he

did not remember talking to the police at all; he could not

even verify he had made any statement.                       (T pp 69-70) The

“new’     and     “different”     aspect        of     Mr.   Hunt’s      statement

derives from his failure to recall any statement to the

police;     for    all    he   knows    he      made   no    statement     to   the

police. Mr. Hunt’s statement of July 3, 2008 goes beyond

offering “different contextual clues,” as the Court found.

(T p 84) Instead, it reveals an entirely different context:

he cannot recall anything. A total lack of recall is not

the same, or any plausible equivalent to, the statement

that Appellant shot him.           To find that the second statement

does not constitute a “new” or “different” statement defies

the plain meaning of these common English words.

      The Court erred in concluding that Mr. Hunt’s second,

oral statement was not new and different, so as to trigger

the continuing duty of disclosure under N.C. Gen. Stat. §

15A-903(a)(1). This erroneous conclusion of law, which is

reviewed de novo, resulted in a failure to comply with N.C.
                                  - 13 -


Gen. Stat. § 15A-903(a)(1). Starco, Inc. v. AMG Bonding and

Ins. Servs., 124 N.C. App. 332, 336, 447 S.E.2d. 211, 215

(1996) (review of conclusions of law is de novo.) For that

reason, remand is necessary so that the Court can evaluate

the appropriate remedy for the State’s non-compliance with

N.C. Gen. Stat. § 15A-903(a)(1). See, e.g., State v. Tuck,

        N.C.App.             ,    664      S.E.2d    27     (2008)   (Court

remanded where it appeared that State failed to comply with

N.C. Gen. Stat. § 15A-903).

     II. THE TRIAL COURT ERRED IN PROVIDING A JURY
INSTRUCTION ON TRANSFERRED INTENT, WHERE THE EVIDENCE
FALIED TO JUSTIFY THAT INSTRUCTION.

     Assignment of Error Number 8; T pp 236-237; R pp 101-
102, 124

       A. Standard of Review

       In evaluating a challenge to a jury instruction, the

Court must determine if the trial Court instructed properly

on each element of the crime charged. See, State v. Lanier,

165 N.C.App. 337, 354, 598 S.E.2d 596, 607, rev. denied,

359 N.C. 195, 608 S.E.2d 59 (2004).            Failure to instruct on

each   element     constitutes   prejudicial        error   per   se;   and,

thus, entitles the appellant to a new trial. Id.

       B. Analysis

       Over Ms. Small’s objection, the State sought and

received a jury instruction on “transferred intent:”
                                 - 14 -

           If you find that the defendant, Donna
           Marie Small, intended to shoot Arthur
           Lee Hunt, Junior, and in so doing
           discharged   a   weapon into   9, Park
           Street, Thomasville, North Carolina,
           then you may infer that Donna Marie
           Small     willfully,    wantonly   and
           intentionally shot into 9 Park Street,
           Thomasville, North Carolina. (T p 236;
           R p 101)

    Transferred intent is a common law doctrine that has

appeared in cases where a defendant has intended to shoot

at one person, but actually shoots another:

           It is an accepted principle of law that
           where one is engaged in an affray with
           another and unintentionally kills a
           bystander or a third person, his act
           shall be interpreted with reference to
           his intent and conduct towards his
           adversary. Criminal liability, if any,
           and the degree of homicide must thereby
           be determined. Such a person is guilty
           or innocent exactly as [if] the fatal
           act had caused the death of his
           adversary. It has been aptly stated
           that, “The malice or intent follows the
           bullet.” State v. Wynne, 278 N.C. 513,
           519,   180   S.E.2d  135,   139  (1971)
           (citations omitted).

    Courts which have applied this rule have done so in

the context of a misfired shot that harms some                person,

other   than   the   intended   human     victim.   See,   generally,

State v. Locklear, 331 N.C. 239, 415 S.E.2d 726 (1992). For

example in State v. Locklear, the evidence showed that the

defendant, in the process of fatally shooting the victim’s

mother, also shot the victim, apparently by accident. The
                                      - 15 -

trial court gave the following instruction on transferred

intent in connection with the defendant’s charge of assault

on the surviving victim with a deadly weapon with intent to

kill, inflicting serious bodily injury:

             “Considering the defendant’s intent,
             the jury is instructed that if the
             defendant intended to harm one person
             but actually harmed a different person,
             the legal effect would be the same as
             if he had harmed the intended victim.
             This   is   called   the  doctrine   of
             transferred intent.” Id., 331 N.C. at
             244, 415 S.E.2d at 726.

    The North Carolina Supreme Court held there was no

error   in   that        instruction,    as     the   trial   court   properly

articulated        the     doctrine     of     transferred     intent,   which

applied under those facts. Id.

    However, this doctrine may not be applied any time a

defendant     is     charged     with    a     different      crime   than   he

apparently intended to commit. E.g., State v. Jordan, 140

N.C.App. 594, 537 S.E.2d 843 (2000). In State v. Jordan,

the Court reversed the trial court’s jury instruction on

transferred intent where the court instructed in connection

with a second degree murder charge that “[a]n intent to

kill may be inferred from the nature of the assault, the

manner in which it was made, any threats that preceded or

accompanied the assault, the conduct of the parties and

other relevant circumstances.” Id., 140 N.C.App. at 596,
                                   - 16 -

537 S.E.2d at 845 (emphasis in the original). This Court

reasoned that the crime charged, second degree murder, did

not even include the element of specific intent; thus, the

instruction      resulted     in     the      court    communicating     the

elements of the crime incorrectly. Id.

      Here,    the   trial    Court    used     the   transferred   intent

instruction in connection with its charge on the offense of

Discharging Certain Barreled Weapons or Firearms into an

Occupied Building under N.C. Gen. Stat. § 14-34.1(a). That

section provides as follows:

              (a)   Any   person   who  willfully   or
              wantonly discharges or attempts to
              discharge   any   firearm   or  barreled
              weapon capable of discharging shot,
              bullets, pellets, or other missiles at
              a muzzle velocity of at least 600 feet
              per second into any building structure,
              vehicle, aircraft, watercraft, or other
              conveyance, device, equipment, erection
              or enclosure while it is occupied is
              guilty of a Class E felony.

      The elements of this crime are: (1) the willful or

wanton discharging; (2) of a firearm, as specified in the

statute; (3) into a building; (4) while it is occupied.

State v. Jones, 104 N.C.App. 251, 409 S.E.2d 322 (1991).

The   North     Carolina     Supreme       Court   has   interpreted     the

statute   as    requiring    proof     that    the    defendant   knew   the

structure into which he shot was occupied.                State v. James,

342 N.C. 589, 466 S.E.2d 710 (1996).
                                  - 17 -

    Importantly for the purposes of this analysis, this

crime   is   not   a   specific   intent   crime;   it   is   a   general

intent crime. See, State v. Jones, 339 N.C. 114, 451 S.E.2d

826 (1994), cert. denied, 515 U.S. 1169, 115 S.Ct. 2634,

132 L.Ed.2d 873, reh’g denied, 515 U.S. 1183, 116 S.Ct. 32,

132 L.Ed.2d 913 (1995); and see, State v. Canady,

N.C.App.           , 664 S.E.2d 380 (2008), rev. denied,

    N.C.           , 673 S.E.2d 662 (2009)(no requirement of

specific intent).        As the crime is not a specific intent

crime, the trial court committed reversible error for the

precise reasons discussed in State v. Jordan: by giving the

transferred intent instruction, the court did not instruct

the jury accurately on the elements of N.C. Gen. Stat. § 14-

34.1(a). Id., 140 N.C.App. 594, 537 S.E.2d 843 (2000). For

this reason, vacation of the judgment, remand and a new

trial are necessary, as this is prejudicial error, per se.

See, State v. Lanier, 165 N.C.App. 337, 354, 598 S.E.2d

596, 607 (2004).

     III. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE
CHARGES AGAINST MS. SMALL AT THE CLOSE OF THE STATE’S
EVIDENCE DUE TO THE INSUFFICIENCY OF THE EVIDENCE TO
SUPPORT A CONVICTION ON THE CHARGES.

    Assignment of Error no. 2; T pp 214-216; R p 122

    A.       Standard of Review
                                     - 18 -

      In deciding whether to dismiss a charge due to the

insufficiency of the evidence to support a conviction, the

trial     court    determines       if        the   State     has     presented

“substantial evidence of each element of the crime and that

the defendant is the perpetrator.” State v. Call, 349 N.C.

382, 417, 508 S.E.2d 496, 518 (1996), appeal after remand

353 N.C. 400, 545 S.E.2d 190, cert. denied, 534 U.S. 1046,

122     S.Ct.    628,    151   L.Ed.2d        548   (2001).         Substantial

evidence “is such relevant evidence as a reasonable mind

might except as adequate to support a conclusion.” State v.

McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987),

citing, State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,

587     (1984).          Whether      the       evidence      presented       is

“substantial” is a question of law for the court. State v.

Sexton,    444    S.E.2d   879,     902,      336   N.C.    321,    361,   cert.

denied,    513    U.S.   1006,     115   S.Ct.      525,    130    L.Ed.2d   429

(1994), citing State v. Everhardt, 307 N.C. 62, 65, 296

S.E.2d 649, 651 (1982).            The trial court must consider all

evidence in the light most favorable to the State. State v.

Hinton, 155 N.C.App. 561, 573 S.E.2d 609 (2002).

      B. Analysis

      The Record contains no testimony on the element of

whether the firearm allegedly discharged by Ms. Small met

the statutory criterion of a muzzle velocity of at least
                                - 19 -


600 feet per second. N.C. Gen. Stat. § 14-34.1(a) (2008).

Thus, the State has failed to present substantial evidence

of each element of the crime charged, and the trial court

erred in denying Appellant’s motion to dismiss that charge

made at the close of the State’s evidence. State v. Call,

349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996).

                          CONCLUSION

    For   the   reasons   and      authority   discussed   herein,

Appellant respectfully requests that this Court reverse the

judgments against her.

    This the         day of April, 2009.


                                  Mercedes O. Chut
                                  N. C. Bar no. 17916
                                  201 West Market Street
                                  Suite 409
                                  Greensboro, NC 27401
                                  (336) 274-0352
                            - 20 -

                     CERTIFICATE OF SERVICE

     I hereby certify that I have this day mailed the
Brief, Appendix and Appeal Information Statement of the
Defendant-Appellant upon counsel for the State of North
Carolina, and have filed the same with the North Carolina
Court of Appeals, by placing a copy thereof in an envelope,
first class postage pre-paid, and placing said envelopes in
the United States Mail addressed as follows:

Ms. Karen A. Blum
Assistant Attorney General
North Carolina Department of Justice
Services to State’s Agencies Section
P.O. Box 629
Raleigh, NC 27602-0629

Filed:
Mr. John H. Connell,
Clerk, North Carolina Court of Appeals
P.O. Box 2779
Raleigh, NC 27602-2779

    This the 29th day of April, 2009.



                    Mercedes O. Chut
                    N.C. Bar. No. 17916
                    201 West Market Street, Ste. 409
                    Greensboro, NC 27401
                    (336) 274-0352
- 21 -

				
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