State v. Shumate

              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA23-256

                               Filed 19 December 2023

McDowell County, Nos. 20 CRS 244–245, 50789

STATE OF NORTH CAROLINA

             v.

ROBBIE EUGENE SHUMATE, Defendant.


      Appeal by Defendant from judgment entered 13 July 2022 by Judge Bradley

B. Letts in McDowell County Superior Court. Heard in the Court of Appeals 28

November 2023.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General
      Christopher R. McLennan, for the State.

      Gilda C. Rodriguez, for Defendant-Appellant.


      CARPENTER, Judge.


      Robbie Eugene Shumate (“Defendant”) appeals from judgment after a jury

convicted him of discharging a firearm into an occupied vehicle in operation and of

possessing of a firearm as a felon. On appeal, Defendant argues the trial court erred

by: (1) not instructing the jury on the lesser included offense of discharging a firearm

into an occupied vehicle; (2) not defining “in operation” during its jury instructions;

and (3) denying Defendant’s motion to dismiss. After careful review, we disagree

with Defendant and find no error.

                    I.     Factual & Procedural Background
                                   STATE V. SHUMATE

                                   Opinion of the Court



      On 3 August 2020, a McDowell County grand jury indicted Defendant for

discharging a firearm into an occupied vehicle in operation, possessing a firearm as

a felon, and being a habitual felon. On 11 July 2022, the State tried Defendant in

McDowell County Superior Court.

      Evidence at trial tended to show the following. On 8 June 2022, Defendant’s

former girlfriend and two accomplices (collectively, the “Intruders”) agreed to enter

Defendant’s property to take a puppy from Defendant’s home. After driving a vehicle

onto Defendant’s property, the Intruders called for Defendant’s puppy, the puppy

entered the Intruders’ vehicle, and the Intruders attempted to drive away.

      But when the Intruders attempted to drive away, their vehicle “almost fell off

a ledge on the driveway,” so they had to stop. From there, testimony differed. One

Intruder testified that Defendant approached the vehicle with a rifle. And while the

vehicle was running, Defendant fired the rifle through the rear passenger-side

window. On the other hand, Defendant testified that he did not have a rifle when he

approached the vehicle.     Rather, he attempted to grab a rifle from one of the

Intruders, and the rifle accidentally fired.      Defendant did not dispute that the

vehicle’s engine was running or that an Intruder was in the driver’s seat.

      The trial court instructed the jury on discharging a firearm into an occupied

vehicle in operation, but the trial court did not instruct the jury on the lesser included

offense of discharging a firearm into an occupied vehicle. The trial court also did not



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instruct the jury on the meaning of “in operation.” Defendant did not object to the

trial court’s instructions.

       The jury found Defendant guilty of discharging a firearm into an occupied

vehicle in operation and of possessing a firearm as a felon. Defendant admitted to

attaining habitual-felon status.       On 13 July 2022, the trial court entered a

consolidated judgment, sentencing Defendant to between 96 and 128 months of

imprisonment. That same day, Defendant gave oral notice of appeal in open court.

                                 II.         Jurisdiction

       This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2021).

                                       III.     Issues

       The issues on appeal are whether the trial court erred by: (1) not instructing

the jury on the lesser included offense of discharging a firearm into an occupied

vehicle; (2) not defining “in operation” during its jury instructions; and (3) denying

Defendant’s motion to dismiss.

                                       IV.    Analysis

       A. Lesser Included Offense

       Defendant first argues that the trial court erred by failing to instruct the jury

on the lesser included offense of discharging a firearm into an occupied vehicle. We

disagree.

       Defendant failed to object to the trial court’s jury instructions; therefore, we

review the instructions for plain error. State v. Wright, 

, 798

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                                   Opinion of the Court



S.E.2d 785, 788 (2017) (“Because Defendant failed to object to the trial court’s jury

instructions, our review of this issue is limited to plain error.”); State v. Lawrence,

, 

 (2012) (“[T]he plain error standard of review

applies on appeal to unpreserved instructional or evidentiary error.”).

      To find plain error, this Court must first determine that an error occurred at

trial. See State v. Towe, 

, 

 (2012). Second, the

defendant must demonstrate the error was “fundamental,” which means the error

probably caused a guilty verdict and “‘seriously affect[ed] the fairness, integrity, or

public reputation of judicial proceedings.’” State v. Grice, 

, 

, 320–21 (2015) (quoting Lawrence, 365 N.C. at 518–19, 723 S.E.2d at 334–

35). Notably, the “‘plain error rule . . . is always to be applied cautiously and only in

the exceptional case . . . .’” State v. Odom, 

, 

(1983) (quoting United States v. McCaskill, 

 (4th Cir. 1982)).

      “An instruction on a lesser-included offense must be given only if the evidence

would permit the jury rationally to find defendant guilty of the lesser offense and to

acquit him of the greater.” State v. Millsaps, 

, 

(2002). “The test is whether there ‘is the presence, or absence, of any evidence in the

record which might convince a rational trier of fact to convict the defendant of a less

grievous offense.’” 

, 

 (quoting State v. Wright, 

, 

 (1981)).



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                                   Opinion of the Court



      “The elements of discharging a firearm into an occupied vehicle while in

operation are (1) willfully and wantonly discharging (2) a firearm (3) into an occupied

vehicle (4) that is in operation.” State v. Juarez, 

, 357 n.2, 

, 299 n.2 (2016) (citing 

(b)). The crime is codified in

section 14-34.1, but “in operation” is undefined in the body of the statute. See 

 (2021). And until now, our Court has only defined “in operation”

through an unpublished case, see State v. Garner, 

 at *20–

21 (Oct. 15, 2013), and in other statutory contexts, see, e.g., State v. Fields, 

, 406–07, 

 (1985) (discussing “operating” and “operator”

concerning section 20-138.1).

      Although unpublished, we think the Garner Court took the correct approach

in defining “in operation.” See Garner, 

 at *20–21 (using

a dictionary to define “operation”). This is because when examining statutes, words

undefined by the General Assembly “must be given their common and ordinary

meaning.” In re Clayton-Marcus Co., 

, 

, 202–03

(1974). And absent precedent, we look to dictionaries to discern a word’s common

meaning. Midrex Techs., Inc. v. N.C. Dept. of Rev., 

, 

 (2016).

      Merriam-Webster’s defines “operation” as “the quality or state of being

functional or operative.” Operation, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

(11th ed. 2003).    Although this definition is a bit circular, we understand its

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                                    Opinion of the Court



application to a vehicle to mean this: A vehicle is “in operation” if it is “in the state of

being functional,” i.e., if it can be driven under its own power. See 

 For a vehicle

to be driven, there must be a person in the driver’s seat, and its engine must be

running.

       Defendant, however, suggests that “in operation” means the vehicle must be

moving. But this would create absurd results. For example, if someone shot into a

vehicle temporarily stopped at a redlight, it would be unreasonable to say the vehicle

was not “in operation.” Accordingly, until the General Assembly adopts a different

definition, we hold that “in operation” carries its common meaning: For a vehicle to

be in operation, a person must be in the driver’s seat with the vehicle’s engine

running.

       Here, the State charged Defendant with discharging a firearm into an occupied

vehicle in operation, and the trial court declined to instruct the jury on the lesser

included offense of discharging a firearm into an occupied vehicle. Because the only

difference between the charges is whether the vehicle was “in operation,” the question

here is whether “the evidence would permit” a rational jury to find the Intruders’

vehicle was not in operation. See Millsaps, 

, 

; 

(a)–(b).

       Defendant presented no evidence indicating the Intruders’ vehicle engine was

off or that no one was in the driver’s seat. Indeed, the only evidence concerning these

two questions was testimony in the affirmative. In other words, there is no “evidence

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                                   Opinion of the Court



in the record which might convince a rational trier of fact” that the Intruders’ vehicle

was not “in operation.” See Millsaps, 

, 

; 

(a)–(b). Therefore, the trial court did not err by failing to instruct the

jury on the lesser included offense of discharging a firearm into an occupied vehicle.

See Millsaps, 

, 

.

      B. Defining “In Operation”

      Defendant next argues that the trial court erred because it failed to define “in

operation” during its jury instruction. We disagree.

      Defendant’s “in operation” argument also concerns the trial court’s jury

instructions, which we must review for plain error because Defendant failed to object

at trial. See Wright, 

, 

.

      “It is the duty of the trial court to instruct the jury on the law applicable to the

substantive features of the case arising on the evidence . . . .” State v. Robbins, 

, 776–77, 

 (1983). But “‘[i]t is not error for the court to

fail to define and explain words of common usage and meaning to the general public.’”

State v. Mylett, 

, 

 (2018) (quoting S. Ry.

Co. v. Jeffco Fibres, Inc., 

, 

 (1979)).

      As detailed above, “in operation” under section 14-34.1 carries its common

meaning. Therefore, the trial court did not err by failing to explain “in operation”

during its jury instructions. See id. at 676, 

.

      C. Motion to Dismiss

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                                  Opinion of the Court



      In his final argument, Defendant asserts the trial court erred when it failed to

grant his motion to dismiss the charge of discharging a firearm into an occupied

vehicle in operation. Again, we disagree.

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 

, 

 (2007). Under a de novo

review, “‘the court considers the matter anew and freely substitutes its own judgment’

for that of the lower tribunal.” State v. Williams, 

, 632–33, 

 (2008) (quoting In re Greens of Pine Glen, Ltd. P’ship, 

, 

 (2003)).

      “‘Upon defendant’s 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’s being the perpetrator of

such offense. If so, the motion is properly denied.’” State v. Fritsch, 

, 

 (2000) (quoting State v. Barnes, 

, 

 (1993)). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” State v. Smith, 

, 

 (1980).

      In evaluating the sufficiency of the evidence concerning a motion to dismiss,

the evidence must be considered “‘in the light most favorable to the State; the State

is entitled to every reasonable intendment and every reasonable inference to be

drawn therefrom . . . .’” State v. Winkler, 

, 574–75, 

, 826

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                                   Opinion of the Court



(2015) (quoting State v. Powell, 

, 

 (1980)). In other

words, if the record developed at trial contains “substantial evidence, whether direct

or circumstantial, or a combination, ‘to support a finding that the offense charged has

been committed and that the defendant committed it, the case is for the jury and the

motion to dismiss should be denied.’” Id. at 575, 

 (quoting State v.

Locklear, 

, 

 (1988)).

      “‘Contradictions and discrepancies do not warrant dismissal of the case; rather,

they are for the jury to resolve. Defendant’s evidence, unless favorable to the State,

is not to be taken into consideration.’” State v. Agustin, 

, 

 (2013) (quoting State v. Franklin, 

, 

 (1990)).

      Again, “[t]he elements of discharging a firearm into an occupied vehicle while

in operation are (1) willfully and wantonly discharging (2) a firearm (3) into an

occupied vehicle (4) that is in operation.” Juarez, 

 n.2, 794 S.E.2d at

299 n.2 (citing 

(b)).

      Here, the State offered testimony concerning each element of discharging a

firearm into an occupied vehicle in operation. An Intruder testified that Defendant

deliberately fired a gun into a vehicle while the vehicle’s engine was running and

while an Intruder was in the driver’s seat. See Juarez, 

 n.2, 794 S.E.2d

at 299 n.2. This evidence is substantial because it is relevant, and a “reasonable mind



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                                  Opinion of the Court



might accept [it] as adequate to” conclude that Defendant discharged a firearm into

an occupied vehicle in operation. See Smith, 

, 

.

      Therefore, the trial court did not err by denying Defendant’s motion to dismiss

because the State presented substantial evidence “of each essential element of the

offense charged” and of Defendant “being the perpetrator of such offense.”        See

Fritsch, 

, 

.

                                 V.     Conclusion

      We conclude that the trial court did not err by failing to instruct the jury on

the lesser included offense of discharging a firearm into an occupied vehicle, by not

defining “in operation” during its jury instructions, or by denying Defendant’s motion

to dismiss.

      NO ERROR.

      Judges COLLINS and WOOD concur.




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