NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 April v. Cumberland County No. 05 CRS TONY TRUESDALE, Defendant.

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedur e. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 5 April 2011 STATE OF NORTH CAROLINA v. Cumberland County No. 05 CRS TONY TRUESDALE, Defendant. Appeal by defendant from judgments entered 16 October 2009 by Judge D. Jack Hooks, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 15 September Attorney General Roy Cooper, by Special Deputy Attorney General Norma S. Harrell, for the State. Glenn Gerding for defendant-appellant. GEER, Judge. Defendant Tony Truesdale appeals from his conviction of first degree murder, attempted robbery with a dangerous weapon, and felony conspiracy to commit robbery with a dangerous weapon. Although defendant contends that the trial court erred in denying his motion to dismiss, we hold that the State presented sufficient evidence to support each of the charges. We also reject defendant's argument that the trial court erred in instructing the jury on flight, as the

2 -2- evidence amply showed that defendant not only left the scene, but also took steps to avoid apprehension. We, therefore, find no error. Facts The State's evidence tended to show the following facts. On 31 August 2005, defendant Tony Truesdale asked his fiancée, Melissa Riggsbee, whether she thought her half-brother, Hubert Riggsbee, would be willing to drive defendant from Chapel Hill, North Carolina, to Fayetteville, North Carolina. Defendant indicated he wanted to pick up some clothes he had left at his stepson Pete's house, but he did not have a car. Mr. Riggsbee agreed and that same day drove defendant, Ms. Riggsbee, and one of defendant's friends, Wayne Burnette, to Fayetteville. Once in Fayetteville, defendant saw Martonias Crump, another friend, at a gas station. Defendant and Mr. Crump had known each other for between four and eight months, having met while defendant was living with Pete. Defendant had bought drugs from Mr. Crump in the past, and when defendant saw Mr. Crump at the gas station, defendant told Mr. Crump he wanted to buy some cocaine. Mr. Crump told defendant that he no longer sold cocaine; he only sold marijuana. Afterwards, defendant, Mr. Riggsbee, Ms. Riggsbee, and Mr. Burnette continued to Pete's house, where defendant picked up his clothing. While they were there, defendant asked Mr. Riggsbee if they could stop by Mr. Crump's place on the way back "so [they] could

3 -3- buy some weed." After Mr. Riggsbee agreed, defendant spoke with Mr. Crump over the phone to get directions "to his house so he [could] come over there and get some weed." Mr. Crump gave defendant directions to the Stewart's Creek apartment complex. Mr. Crump, his girlfriend, and their daughter had lived in an apartment there for several months until moving out about a month earlier. Mr. Crump testified that although he used to sell drugs out of the apartment, he had run out of money, stopped selling drugs, and moved in with friends to have a safer living environment for his daughter. For the last few weeks, Mr. Crump had been renting the apartment to his friend Damien Daughtry, who sold "[a]ll kind[s] of different drugs" from the apartment, including marijuana, cocaine, and ecstasy. Mr. Crump further testified that defendant "didn't know nothing about" his having stopped selling drugs or about Mr. Daughtry. Defendant and his friends arrived at the apartment complex sometime around 8:00 p.m. Defendant, Ms. Riggsbee, and Mr. Burnette went to the door of the apartment and spoke with Mr. Crump. Defendant and Mr. Burnette told Mr. Crump they had a 12-gauge shotgun they wanted to sell. Since they had not brought the shotgun to the door, Mr. Crump walked with them to Mr. Riggsbee's car to look at the shotgun. Mr. Crump was interested in the shotgun, but he saw police down the street. He told defendant and the others to come back later,

4 -4- after the police were gone, so that "they could resume their business." Mr. Crump also "advised Mr. Daughtry to keep an eye out because he had a suspicion that a situation might arise while these individual[s] were present." Defendant and his companions returned to Pete's house and waited there for about 45 minutes to an hour. Mr. Riggsbee went inside and watched television in the living room. At some point, either defendant or Ms. Riggsbee asked Mr. Riggsbee to unlock the car, which he did with his remote device from inside the house. After that, Mr. Riggsbee did not see the others leave the house, but he thought that they walked around the side of the house while he was inside watching television. Mr. Riggsbee, Ms. Riggsbee, Mr. Burnette, and defendant drove back to Mr. Crump's apartment at about 10:00 p.m. Defendant got out of the car and told Mr. Burnette to get out of the car too. Mr. Burnette, carrying the shotgun with him in a gym bag, walked with defendant to the apartment. Because Ms. Riggsbee needed to use the bathroom, she also got out and caught up with the two men. Mr. Riggsbee stayed in the car. When Mr. Crump let them in, there were three or four other people, including Mr. Daughtry, in the living room smoking marijuana and drinking alcohol. Ms. Riggsbee went into the bathroom, and Mr. Crump led defendant and Mr. Burnette back to the master bedroom.

5 -5- Mr. Burnette laid the shotgun on the bed for Mr. Crump to look at it. Mr. Crump thought he wanted to buy it, and he began digging in his pocket for some money. Meanwhile, he asked Mr. Burnette whether the shotgun was loaded. Mr. Burnette picked up the shotgun, cocked it back, and said, "[I]t is now." Mr. Burnette then announced, "[G]ive it up" and swung the shotgun toward Mr. Crump's stomach. Mr. Crump "caught" the shotgun in his hands, pulled the trigger with his finger, and shot it toward the wall. Defendant grabbed at a statue of the Virgin Mary sitting on a dresser and began hitting Mr. Crump over the back of the head with it. When Ms. Riggsbee came out of the bathroom and into the bedroom, defendant told her, "[B]aby, go in the bathroom. This only going to be a minimum [sic]." Mr. Crump, still struggling with Mr. Burnette for control of the shotgun, called for Mr. Daughtry, because he knew Mr. Daughtry had a 9 mm pistol. Mr. Daughtry came into the bedroom and tried to fire the pistol. When the gun failed to fire, Mr. Daughtry pistol whipped defendant. Defendant responded by hitting Mr. Daughtry with the statue, and the pistol flew out of Mr. Daughtry's hand. Mr. Crump let go of the shotgun, grabbed the pistol, and began firing at Mr. Burnette, who still had the shotgun. After defendant grabbed Mr. Crump's arm and tackled him to the floor, the two men wrestled into the closet. Mr. Crump heard the shotgun fire once while they were

6 -6- wrestling. Mr. Crump managed to get control of the pistol, jammed it into defendant's ribs, and pulled the trigger, but the gun was then out of ammunition. At that point, Mr. Crump noticed that Mr. Daughtry had been shot and was lying on his back in front of the bed. Defendant told Mr. Crump, "[L]ook there. You killed your own boy[.]" Mr. Crump told Mr. Daughtry "to stay right there and I [sic] be back and I'm going to kill" these people. He ran into the living room looking for a revolver he had seen earlier under a seat cushion. While Mr. Crump was looking for the revolver, either defendant or Mr. Burnette closed the bedroom door. Mr. Daughtry was balled up on the floor in a fetal position and was moaning. Defendant removed the screen from a bedroom window, and defendant, Mr. Burnette, and Ms. Riggsbee jumped out the window and left before Mr. Crump returned. Defendant took with him a "piggy bank" -- a five-gallon plastic water jug full of bills and coins -- that he had found in the bedroom. Outside, Ms. Riggsbee reached Mr. Riggsbee's car first, followed by Mr. Burnette, and then defendant, who was limping and holding the piggy bank. They all got in the car, but before they could drive away, a security guard for the apartment complex approached the car. Defendant and Mr. Burnette stuck their hands out of the windows and told the guard someone inside had been shot

7 -7- and "might be dying." Defendant knew that Mr. Crump had previously paid the guard to keep quiet about Mr. Crump, Mr. Daughtry, and their guests smoking marijuana. The guard turned and ran back to the apartment. Defendant then told Mr. Riggsbee that the guard "was on Crump's payroll and to get out of there." When Mr. Crump went back into the bedroom with the revolver, he saw "indentions" or "abrasions" on Mr. Daughtry's face that he had not seen before he left. It looked to him as if defendant or Mr. Burnette might have "butted" Mr. Daughtry with the gun. Mr. Crump told Mr. Daughtry "to hang on." When the apartment complex security guard came to the door, Mr. Crump told the guard "they shot" Mr. Daughtry, and the guard ran out. One of Mr. Crump's neighbors called 911. Mr. Crump gathered up the drugs he knew were in the apartment, including a "rather heavy trash bag full of narcotics," and threw them off the balcony before the police arrived. Despite emergency responders' attempts to restart his heart, Mr. Daughtry died. As defendant and his friends "were driving off," they passed a police car traveling in the direction of the apartment complex, but they kept going. In the car, defendant soon realized that he had been shot in the left thigh. According to Ms. Riggsbee, defendant was acting like he "was about to die" and "was screaming and crying, hollering." He told Ms. Riggsbee "to tell his daughter

8 -8- that he love [sic] her." Mr. Riggsbee asked him if he wanted to go to the hospital, but he "said no, take him back to Durham," so they drove back to Durham. Once defendant and his friends reached Durham, they stopped at Mr. Riggsbee's house. There, they cleaned and dressed defendant's wound, threw away his bloody clothes in a garbage can in the parking area, and got the money out of the piggy bank. Mr. Riggsbee sold defendant and Mr. Burnette some crack cocaine. Then, they got a neighbor to take them to a motel where defendant, Ms. Riggsbee, and Mr. Burnette stayed the night. Mr. Riggsbee picked them up the next morning. They stopped at a grocery store and counted the money from the piggy bank; it amounted to between $ and $ Mr. Riggsbee then drove them to defendant's mother's house in Chatham County. Defendant told his mother that he had hurt his leg by falling on a pipe. Subsequently, on 2 September 2005, Mr. Crump identified defendant's picture in a photo lineup. On 22 May 2006, defendant was indicted for the first degree murder of Mr. Daughtry, attempted robbery with a dangerous weapon, and felony conspiracy to commit robbery with a dangerous weapon. At trial, a forensic pathologist testified that Mr. Daughtry's cause of death was a shotgun wound to the right posterior abdomen. She had found bird shot pellets lodged in the muscle in his abdomen,

9 -9- the vein going from the right kidney, the tissue around the right kidney, and the inferior vena cava. She explained that these injuries would have caused Mr. Daughtry to suffer blood loss, shock, lack of oxygenated blood (especially to the brain), bleeding around the right lung, and inability of the right lung to properly fill with oxygen and release carbon dioxide. In addition, she observed a contusion that measured about three-fourths of an inch on the back left side of his scalp. Defendant presented no evidence, and the jury convicted him of all charges. The trial court sentenced defendant to life imprisonment without parole for the first degree murder and attempted armed robbery with a dangerous weapon convictions and to a second, consecutive, presumptive-range term of 48 to 67 months imprisonment for the felony conspiracy to commit robbery with a dangerous weapon conviction. Defendant timely appealed to this Court. I Defendant first contends that the trial court erred in denying his motion to dismiss. At trial, after the State rested its case, defendant moved to dismiss the charges based on the insufficiency of the evidence. The court denied that motion. Afterwards, defense counsel indicated he would not offer any testimony, but he wished to publish to the jury photographs that had already been entered into evidence. The courtroom clerk apparently had informed defense

10 -10- counsel that the admission of those exhibits "may have not been done" earlier. For that reason, defense counsel asked the court to admit the photographs into evidence. The trial court stated: "All right. If I have not ruled they are in, they are in." The photos were then published to the jury. The State argues that under Rule 10 of the Rules of Appellate Procedure, defendant waived his right to raise this issue because, following the "admission" and publication of defense exhibits to the jury, defendant failed to renew his motion to dismiss the charges. Our review of the record reveals, however, that the exhibits at issue had, as defense counsel thought, already been admitted during the State's case in chief. Consequently, the later admission was unnecessary, and no evidence was actually introduced after the State rested its case. The trial court's denial of defendant's motion to dismiss is, therefore, properly before this Court. In addressing a criminal defendant's motion to dismiss for insufficiency of the evidence, the trial court must determine whether there is substantial evidence of (1) each essential element of the offense charged, and (2) defendant's being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion. Id. at 597, 573 S.E.2d at 869. The court must view the evidence in the

11 -11- light most favorable to the State, giving the State the benefit of all reasonable inferences. Id. at 596, 573 S.E.2d at 869. Contradictions and discrepancies do not warrant dismissal, but are for the jury to resolve. Id. The denial of a motion to dismiss for insufficient evidence is a question of law that this Court reviews de novo. State v. Rouse, 198 N.C. App. 378, , 679 S.E.2d 520, 523 (2009). Defendant principally challenges the sufficiency of the evidence to support the charge of conspiracy to commit robbery with a dangerous weapon. A conspiracy "'is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner.'" State v. Reid, 175 N.C. App. 613, 622, 625 S.E.2d 575, 583 (2006) (quoting State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991)). Defendant argues that the State presented no direct evidence of an explicit agreement to rob Mr. Crump, and he claims that "the only evidence" of "whether they had an agreement or plan was circumstantial in nature." To prove a conspiracy, however, "it is unnecessary for the State to prove an express agreement. The State must only present evidence tending to show a mutual, implied understanding." Id. (internal citation omitted). This Court has recognized that direct proof of a conspiracy rarely exists, and, therefore, a conspiracy "'may be, and generally is, established by

12 -12- a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.'" Id. (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)). In State v. Blue, 115 N.C. App. 108, 109, 443 S.E.2d 748, 749 (1994), this Court upheld the defendant's conviction for conspiracy to commit robbery with a dangerous weapon based on evidence similar to that in this case. In Blue, the defendant and a man named Brewington entered a pawn shop, purchased a game cartridge from the clerk, exchanged comments, and exited the store. Id. Minutes later, the two men re-entered the store and selected another game, and the defendant carried it to the sales counter. Id. They stood in front of the counter while the store owner began to write a sales ticket. Id. As Brewington placed the game on the counter, the defendant stepped back. Id. Brewington immediately drew a pistol from his pocket and fired four quick shots, striking the owner and clerk. Id. at , 443 S.E.2d at 749. Brewington fled the shop right after the shooting, followed by the defendant. Id. at 110, 443 S.E.2d at 749. The gun had been obtained from a friend of the defendant. Id. at , 443 S.E.2d at This Court concluded that the trial court properly denied the defendant's motion to dismiss the conspiracy charge based on "[t]he evidence relating to the gun used in the killing, and the telling evidence of

13 -13- defendant's conduct in the pawn shop before and after the shooting...." Id. at 112, 443 S.E.2d at See also State v. Lamb, 342 N.C. 151, , 463 S.E.2d 189, 191 (1995) (holding evidence sufficient to support conspiracy to commit armed robbery when evidence established three men drove to home of victim, left their vehicle and entered victim's home, and robbed and shot him). Here, as in Blue, although there was no evidence of an express agreement, defendant's conduct before and during the robbery and shooting would permit a jury to find the existence of a conspiracy between defendant and Mr. Burnette. Defendant, and not Mr. Burnette, was the person who was familiar with Mr. Crump and his drug business. Defendant initiated the trip to Fayetteville and was the one who suggested going to the apartment to buy drugs from Mr. Crump. During the first visit to the apartment, both defendant and Mr. Burnette showed Mr. Crump the shotgun they had for sale. When the men returned to the apartment, defendant directed Mr. Burnette to get out of the car, and the two men then entered the apartment together with Mr. Burnette carrying the shotgun. Mr. Burnette was the one who pointed the shotgun at Mr. Crump in order to rob him. When, however, Mr. Crump attempted to thwart the robbery by grabbing the shotgun and pulling the trigger, defendant jumped in and attacked Mr. Crump, beating him over the head with a statue. Defendant also instructed Ms. Riggsbee to "go in the bathroom. This only going to

14 -14- be a minimum [sic]." A reasonable juror could infer from that statement that defendant knew what was going on and that "[t]his" was a robbery that would not take very long. We conclude that the evidence was sufficient to give rise to a "'fairly logical and legitimate deduction,'" State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (quoting State v. Stephenson, 218 N.C. 258, 263, 10 S.E.2d 819, 823 (1940)), that defendant and Mr. Burnette had a "'mutual, implied understanding,'" State v. Bindyke, 288 N.C. 608, 616, 220 S.E.2d 521, 526 (1975) (quoting State v. Smith, 237 N.C. 1, 16, 74 S.E.2d 291, 301 (1953)). The trial court, therefore, properly denied defendant's motion to dismiss the charge of conspiracy to commit armed robbery. In arguing that the trial court should have granted the motion to dismiss, defendant disregards the standard of review, focusing on drawing inferences from the evidence in the light most favorable to his position. Specifically, he contends that if he had agreed with Mr. Burnette to rob Mr. Crump, his actions that day "make[] no sense." According to defendant, if he had actually planned to commit an armed robbery, he would not have allowed his fiancée to come with him, would not have chosen a location where a group of the victim's friends could easily come to his aid, and "no doubt... would have carried a gun to protect himself." He also offers, as alternatives to the existence of a conspiracy, other "likely explanation[s]" for

15 -15- the chain of events -- such as Mr. Burnette and defendant acting in self defense after seeing Mr. Crump reach into his pocket and believing he was about to rob them, or Mr. Burnette acting completely independently of defendant. It was, however, the responsibility of the jury -- and not the trial court or this Court -- to weigh these alternative explanations and assess the credibility of the evidence. See State v. Cox, 190 N.C. App. 714, 720, 661 S.E.2d 294, 299 ("The role of the trial judge is merely to establish that substantial evidence exists of each element of the offense. The jury resolves any conflicts in the evidence." (internal citation omitted)), disc. review denied, 362 N.C. 476, 666 S.E.2d 762 (2008). Next, we turn to the sufficiency of the evidence to support the attempted armed robbery charge. The State's theory was that defendant acted in concert with Mr. Burnette to rob Mr. Crump. For a defendant to be convicted of the underlying crime under an acting in concert theory, the defendant must: (1) be "'present at the scene of the crime,'" and (2) "'act[] together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.'" State v. Lundy, 135 N.C. App. 13, 18, 519 S.E.2d 73, 78 (1999) (quoting State v. Moore, 87 N.C. App. 156, 159, 360 S.E.2d 293, (1987), disc. review denied, 321 N.C. 477, 364 S.E.2d 664 (1988)), appeal dismissed and disc. review denied, 351 N.C. 365, 542 S.E.2d 651 (2000). "[I]f two or more

16 -16- persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan. This is true even where the other person does all the acts necessary to commit the crime." State v. Abraham, 338 N.C. 315, , 451 S.E.2d 131, 137 (1994) (internal citations and quotation marks omitted). Since defendant does not dispute that he was present at the scene of the crime, the sole question is whether the State presented sufficient evidence that defendant acted together with Mr. Burnette pursuant to a common plan or purpose to rob Mr. Crump. Although, as defendant suggests, his actions inside the apartment could arguably show that he was acting in self defense in a room where two people had begun fighting over a loaded gun, this evidence was also more than sufficient to allow a jury to conclude that defendant was acting pursuant to a plan with Mr. Burnette to rob Mr. Crump. The record reveals that Mr. Burnette made the first aggressive act -- swinging the gun toward Mr. Crump -- but it also indicates that defendant immediately responded by attacking Mr. Crump (when Mr. Crump resisted the threat), then beating Mr. Daughtry, and ultimately grabbing the piggy bank and helping his friends escape. This evidence supports an inference that defendant intended to rob Mr.

17 -17- Crump with Mr. Burnette and that he fought Mr. Crump and Mr. Daughtry in furtherance of the plan. In State v. Davis, 301 N.C. 394, 271 S.E.2d 263 (1980), the Supreme Court held that even less evidence was sufficient to support an instruction on acting in concert to commit robbery. The evidence in Davis showed that the defendant accompanied his friend Cheers to a store, sat in the driver's seat of the car while Cheers went inside the store and committed robbery, and provided a means by which Cheers got away from the scene afterwards. Id. at 399, 271 S.E.2d at 265. Here, defendant actually initiated the trip to the apartment where the robbery occurred. Defendant did not merely wait in the car, but rather instructed Mr. Burnette to get out of the car, had Mr. Burnette accompany him into the apartment, and fought the victims alongside Mr. Burnette. In light of Davis and in view of the additional evidence of defendant's and Mr. Burnette's conduct on the day in question, we conclude that the trial court did not err in denying defendant's motion to dismiss the attempted armed robbery charge. See also Cox, 190 N.C. App. at 721, 661 S.E.2d at 299 (concluding evidence supported armed robbery charge even though defendant's friend Brown was only one who carried gun to victim's residence, when before visiting victim's residence, defendant accompanied Brown to another drug

18 -18- house, where defendant and Brown spent 30 to 60 minutes in back room with Brown's drug dealer, and defendant watched as Brown loaded gun). Finally, with respect to the first degree murder charge, the State proceeded based on felony murder. "First-degree murder by reason of felony murder is committed when a victim is killed during the perpetration or attempted perpetration of certain enumerated felonies or a felony committed or attempted with the use of a deadly weapon." State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881, 114 S. Ct (1994). "[T]o support convictions for a felony offense and related felony murder, all that is required is that the elements of the underlying offense and the murder occur in a time frame that can be perceived as a single transaction." State v. Thomas, 329 N.C. 423, , 407 S.E.2d 141, 149 (1991). The State's theory was that defendant was guilty of felony murder based on the underlying felony of attempted armed robbery. See N.C. Gen. Stat. ' (2009) (providing that any murder committed in perpetration or attempted perpetration of robbery is first degree murder). Since there is no dispute that Mr. Daughtry was killed during the "single transaction" that occurred at the apartment, Thomas, 329 N.C. at 435, 407 S.E.2d at 149, and since the evidence supports a determination that defendant acted in concert with Mr. Burnette in attempting to commit armed robbery, the

19 -19- essential elements of felony murder are met. We, therefore, conclude that the trial court properly denied the motion to dismiss the murder charge. II Defendant next contends that the trial court should not have instructed the jury that it could consider evidence of flight in determining his guilt. "A trial court may properly instruct on flight where there is some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged. However, mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension." State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, (2001) (internal citations and quotation marks omitted). Defendant insists that while there was evidence that he left the scene, the State presented no evidence that he took steps to avoid apprehension, and, therefore, an instruction on flight was improper. We disagree. The State's evidence indicated that when defendant and his friends were confronted by the security guard at the car, defendant tried to get the guard to go back to the apartment by telling him that someone inside needed medical attention. Defendant then told Mr. Riggsbee to leave. As they drove away, defendant "was the one

20 -20- that was telling [Mr. Riggsbee] directions and where to go." They passed a police car, but they kept driving. After defendant realized he had been shot, he acted like he "was about to die," but still refused to be taken to the hospital. Instead, he and the group drove from Fayetteville to Durham. When they reached Mr. Riggsbee's house, defendant cleaned his wound, threw away his bloody clothes in a garbage can in the parking area, got the money out of the piggy bank, and bought crack cocaine from Mr. Riggsbee. Rather than go home, he spent the night with Mr. Burnette and Ms. Riggsbee at a motel. The next day, he counted the money he had taken in the piggy bank at a grocery store, and then he went to his mother's house, where he lied about the cause of his wound, blaming it on having fallen on a pipe. This evidence -- defendant's misdirecting the security guard, driving to Durham, passing the police car and never calling for medical help for Mr. Daughtry, refusing to seek professional medical attention for his own gunshot wound, disposing of his bloody clothes, not sleeping at home, and lying about his injury -- is sufficient to establish that defendant took steps to avoid apprehension. The trial court, therefore, properly gave the instruction on flight. See State v. Anthony, 354 N.C. 372, 425, 555 S.E.2d 557, 591 (2001) (holding evidence sufficient to support instruction on flight where, after shooting victims, defendant immediately entered his car and

21 -21- quickly drove away from crime scene without rendering any assistance to victims or seeking to obtain medical aid for them, and defendant passed police officer who was en route to scene of shooting but did not flag officer down), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791, 122 S. Ct (2002); State v. Beck, 346 N.C. 750, 758, 487 S.E.2d 751, 757 (1997) (holding evidence sufficient to support instruction on flight where defendant shot victim, left residence without rendering any assistance or seeking to obtain medical assistance for victim, and told cab driver to leave area where he resided after seeing police vehicles there); State v. Brewton, 342 N.C. 875, , 467 S.E.2d 395, (1996) (holding evidence sufficient to support instruction on flight where defendant ran from scene of murders, went briefly to his mother's home in nearby apartment complex, and then checked into hotel where he remained overnight). Although defendant claims that he "acted out of self-preservation to not get killed by Mr. Crump rather than to avoid arrest," our appellate courts have previously rejected such arguments. In Lloyd, 354 N.C. at 119, 552 S.E.2d at 626, as in this case, the State presented evidence that the defendant "hurriedly left the scene of the murder without providing medical assistance to the victim." The defendant argued that he left and drove around before turning himself in "'because he was shaken and needed to get himself

22 -22- together.'" Id. at 120, 552 S.E.2d at 626. The Supreme Court held, however, that "'[t]he fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper.'... The evidence of defendant's behavior in the aftermath of the shooting establishes that he did more than merely leave the scene of the crime and is sufficient to support a finding of consciousness of guilt...." Id. (quoting State v. Norwood, 344 N.C. 511, 534, 476 S.E.2d 349, 359 (1996), cert. denied, 520 U.S. 1158, 137 L. Ed. 2d 500, 117 S. Ct (1997)). Since the same is true in this case, no error occurred when the trial court gave the instruction on flight. No error. Judges McGEE and CALABRIA concur. Report per Rule 30(e).