NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 17 February Appeal by defendant from judgment entered 12 September 2002 by

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 17 February 2004 STATE OF NORTH CAROLINA v. Johnston County No. 01 CRS No. 02 CRS 6538 JEFFREY ALLEN JACOBS, Defendant. Appeal by defendant from judgment entered 12 September 2002 by Judge Knox V. Jenkins, Jr., in Superior Court, Johnston County. Heard in the Court of Appeals 13 January Attorney General Roy Cooper, by Special Deputy Attorney General James P. Longest, Jr., for the State. Bruce T. Cunningham, Jr., for the defendant-appellant. WYNN, Judge. By this appeal, Defendant Jeffrey Allen Jacobs presents the following issue: Did the trial court erroneously fail to dismiss the charge of first-degree murder because the State presented multiple inconsistent theories of how the shooting occurred? We answer, no; accordingly, we uphold Defendant s conviction. On 10 April 2001, Defendant and Antwian Atkinson stopped their automobile at a convenience store in Selma, North Carolina. Later, Defendant s brother, Jason Jacobs, and Antwian Atkinson s older brother, Cedric Atkinson, arrived at the store on a motorcycle.

2 -2- Shortly thereafter, the four men saw Timothy Johnson drive by the convenience store with three passengers in his car, Andreous Scott, Anthony Lyons, and Antonio Lyons. Minutes later, the four men drove their respective vehicles in the same direction as Mr. Johnson s car. Thereafter, when Mr. Johnson stopped his vehicle for a red light at an intersection with all of his windows rolled down, Defendant drove to the right side of Mr. Johnson s car, rolled down his window, pointed a Tech 9 handgun towards Mr. Johnson s car and said, Y all [expletive] ready now? All y all goin die. Upon seeing Defendant s gun, Mr. Johnson put his car in reverse and quickly backed up his vehicle. However, in the meantime, Jason Jacob s motorcycle approached, Mr. Johnson s car from the rear. Jason Jacob veered to the left and, testimony at trial indicated that several gun shots were fired into Mr. Johnson s car. Later that day, Mr. Johnson died from gun shot wounds. As all of the bullets passed through Mr. Johnson, Detectives were unable to determine which of several guns was the murder weapon and the medical examiner was unable to testify as to the positioning of the victim s body when he was shot. However, the lethal gunshot wound entrance was on Mr. Johnson s right side below his ear and exited on the left side of his face. Defendant was convicted of first-degree murder based upon premeditation and deliberation and the felony murder rule, based on the underlying felony of discharging a weapon into occupied property. From this conviction and resulting sentence of life in

3 -3- prison without parole, Defendant appealed. On appeal, Defendant contends the trial court erroneously denied his motion to dismiss because the State presented multiple inconsistent theories of how the shooting occurred. Specifically, he contends the State prosecuted the case under the theories of acting in concert and transferred intent. Defendant argues that a State s case which presents three different perpetrators and two intended victims cannot survive a motion to dismiss. We disagree. As our Supreme Court stated in State v. Thomas, 325 N.C. 583, 593, 386 S.E.2d 555, 561 (1989), criminal defendants are not convicted or acquitted of theories; they are convicted or acquitted of crimes. In Thomas, the State prosecuted the defendant for first-degree murder based upon the felony-murder rule. On appeal, the defendant contended that the trial court should have instructed the jury on lesser included offenses supported by the evidence. After agreeing with Defendant s contention, the majority then addressed the dissent s argument that the State s election to try a homicide case, and the trial judge s submission of it to the jury, only on a felony murder theory in effect acquits defendant of murder on a theory of premeditation and deliberation and all of its lesser included homicide offenses. In response, the majority in Thomas stated: The dissent s notion that defendant, while convicted of first degree felony murder, has somehow been acquitted of premeditated and deliberated murder and all lesser homicides which might have been included in this latter offense presupposes that defendant has been

4 -4- charged with, and could have been convicted of, two different crimes -- first degree felony murder and first degree premeditated and deliberated murder. Defendant was charged with only one crime, first degree murder; she was convicted of that crime. She has not been acquitted of anything. Premeditation and deliberation is a theory by which one may be convicted of first degree murder; felony murder is another such theory. Criminal defendants are not convicted or acquitted of theories; they are convicted or acquitted of crimes. Id.; 386 S.E.2d at Indeed, [w]here the factual basis for the prosecution is sufficiently pleaded, defendant must be prepared to defend against any and all theories which these facts support. State v. Wingard, 317 N.C. 590, 594, 346 S.E.2d 638, 641 (1986). Thus, we hold that the trial court did not erroneously deny Defendant s motion to dismiss based upon the State s utilization of several different theories to establish Defendant s guilt. Defendant also contends the trial court erroneously denied his motion to dismiss because there was insufficient evidence that Defendant was the perpetrator. We disagree. The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In determining the sufficiency of the evidence the trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Harris, 145 N.C. App. 570, 578, 551

5 -5- S.E.2d 499, 504 (2001). In this case, Defendant was charged with first-degree murder based upon premeditation and deliberation or felony murder. In instructing the jury on the charge of first-degree murder based upon premeditation and deliberation, the trial court did not give an acting in concert instruction. Rather, the trial court limited the acting in concert instruction to the felony murder instruction stating: Now, ladies and gentlemen, for a person to be guilty of a crime, it is not necessary that he himself do all the acts necessary to constitute the crime. If two or more persons join in a purpose to commit the felony of firing into an occupied vehicle, each of them if actually are constructively present is not only guilty of that crime if the other commits the crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose to commit firing into an occupied vehicle or a natural -- or as a natural or probable consequence thereof. As stated by our Supreme Court in State v. Fletcher, 354 N.C. 455, 473, 555 S.E.2d 534, 545 (2001): When instructed on acting in concert, a jury may convict a defendant of premeditated and deliberate first degree murder even though it does not believe the defendant personally committed the acts constituting the offense. See also State v. Holmes, 355 N.C. 719, 734 n.1, 565 S.E.2d 154, 165 n.1 (2002)(stating, after citing Fletcher, that a finding of premeditated murder without being instructed on acting in concert requires the jury to find that defendant himself committed all the acts of murder, including firing the rifle ). Viewing the evidence in the light most favorable to the State,

6 -6- there was sufficient evidence from which the jury could determine Defendant fired the fatal shots. Notwithstanding the eyewitness testimony indicating the shots were fired from the motorcycle and that there were no bullet holes on the right side of the car, which was where Defendant s car was positioned, the Chief Medical Examiner for the State of North Carolina, John Butts, testified that the bullet which caused Mr. Johnson s death had to come from his right. Furthermore, the testimony indicated that Defendant pulled alongside the right side of the victim s car, rolled down his window, pointed a gun at the victim s car whose windows were rolled down, and asked whether the occupants were ready to die. Immediately after making this statement, Anthony Lyons, a passenger in the victim s car, testified that he heard a boom sound. After hearing the boom sound, the victim started backing his car up. Accordingly, we conclude there was substantial evidence upon which the jury could make a reasonable inference that Defendant fired the fatal shot. Moreover, Defendant has not challenged his conviction for discharging a weapon into occupied property, a Class E felony, on appeal. As to this charge, the trial court instructed the jury on acting in concert, and there was sufficient evidence upon which the jury could infer the four individuals were acting in concert. Indeed, the four individuals, including Defendant, were talking in a parking lot when they saw the victim s car pass by the convenience store. Shortly thereafter, Defendant left the convenience store traveling in the same direction as the victim.

7 -7- Upon pulling up beside the victim s car, Defendant rolled down his window, pointed a gun at the victim s car, and asked the occupants if they were ready to die. Defendant s actions caused the victim to back his car up quickly, and as he did this, the motorcycle swerved to the left and the motorcycle passenger fired the fatal shots into the victim s car. This evidence was sufficient to allow the jury to convict Defendant based upon the felony murder rule. Accordingly, we find no error in his conviction. No Error. Judges TIMMONS-GOODSON and McCULLOUGH concur. Report per Rule 30(e).