An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1400
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Gaston County
No. 12 CRS 11164
JEFFREY SCOTT HUGHES
Appeal by defendant from judgments entered 24 July 2013 by
Judge Jesse B. Caldwell, III in Gaston County Superior Court.
Heard in the Court of Appeals 22 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.
Russell J. Hollers III, for defendant-appellant.
HUNTER, Robert C., Judge.
Jeffrey S. Hughes (“defendant”) appeals from judgments
entered after a jury found him guilty of one count each of first
degree murder based on the felony murder rule, possession of a
firearm by a felon, and discharging a weapon into an occupied
dwelling. On appeal, defendant argues that the trial court
erred by: (1) instructing the jury that it could convict on
felony murder for the underlying crimes of buying or selling a
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controlled substance while using a firearm where those crimes
either (a) did not support a felony murder conviction, or (b)
were not supported by the evidence; (2) giving a mistaken
instruction on acting in concert for the crime of discharging a
firearm into an occupied dwelling; and (3) failing to give
defendant accurate credit during sentencing for the days he
spent in prison awaiting trial.
After careful review, we find no prejudicial error as to
the jury instructions and dismiss defendant’s contention
regarding credit for pretrial confinement.
Background
The events of this case took place at 969 Brown Street in
Gastonia, N.C. (“the Brown Street home”). Three generations of
the Wright family lived at the Brown Street home – David Wright
(“David”), his father, Jimmy David Wright (“Jimmy”), and Jimmy’s
parents, Vicky and Jimmy Carl Wright. In the late evening hours
of 22 August 2011, Victor Malagon (“Malagon”) called David and
arranged to purchase prescription pills from him. Malagon
regularly purchased pills from David and Jimmy. On the night in
question, Malagon was driven to the Brown Street home by
defendant. Inside the vehicle was another passenger, Amanda
Mabe (“Amanda”).
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After they arrived, Malagon went inside and purchased over
$400.00 worth of Oxycodon pills from David, which David
estimated at trial to be around twenty pills. While they were
conducting the sale inside, Jimmy had returned home and saw
defendant’s vehicle in the driveway. Jimmy testified that about
a month-and-a-half prior to his encounter on 22 August 2011, he
had purchased thirty Percocet pills from defendant at a total
cost of $600.00. Jimmy thought that the pills defendant sold
him were fake. Because Jimmy only knew defendant through
Malagon, Jimmy tried to get Malagon to arrange another meeting
with defendant so that he could get his $600.00 back, but before
the night in question he had been unsuccessful.
When Jimmy saw defendant in his driveway, he confronted him
about the allegedly fake pills that defendant had sold him.
When Malagon and David exited the Brown Street home, Jimmy told
Malagon to take five of the pills he had just purchased and put
them on the porch rail. Jimmy said that this would constitute a
down payment on the money defendant owed him from their previous
transaction. Malagon put five pills on the porch rail then
handed the rest of the pills to defendant. Defendant and Jimmy
began shouting at each other, and Jimmy pointed his handgun at
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defendant. Defendant shouted “this is not right,” and that
“somebody will have to pay.”
After the shouting altercation, defendant began backing out
of the driveway. At this time Amanda had gotten out of the car
and was standing next to Jimmy near David’s truck. Jimmy had
tucked his handgun into his jeans and was no longer pointing it
at defendant. As he was backing out of the driveway, defendant
started shooting toward the house. Jimmy heard Amanda say “Oh
God” and then saw her immediately fall to the ground. Detective
Robert Bryson (“Detective Bryson”) was on patrol near the Brown
Street home that night and heard gunshots; he was the first
officer at the scene. Detective Bryson approached Amanda and
checked her vital signs, but could not feel a pulse. An autopsy
later established that Amanda died from a single gunshot wound
to the back that completely severed her spinal cord, lacerated
her aorta, and perforated her left lung.
Vicky Wright, David’s grandmother and Jimmy’s mother,
testified that she noticed bullet holes in her home that were
not there prior to the night of the shooting. Detective Michael
Schwartz of the Gastonia Police Department investigated the
Brown Street home and testified that he observed two bullet
holes in the side of the house. One projectile did not enter
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the interior of the home, but the second projectile went through
the exterior wall, a bathroom wall, and a kitchen wall before
finally settling in the opposite kitchen wall above the
refrigerator.
Defendant was arrested on the night of the shooting.
Police recovered numerous 9-millimeter shell casings in and
around the driver’s side door of defendant’s vehicle when they
detained him, and after obtaining a search warrant, they found a
9-millimeter Smith & Wesson handgun under the passenger seat.
Defendant was indicted for first degree murder, possession
of a firearm by a felon, and discharging a firearm into an
occupied dwelling. The jury rejected the theory of
premeditation and deliberation but convicted defendant for first
degree murder under the felony murder rule. The underlying
felonies for which the jury found defendant guilty of first
degree murder under the felony murder rule were: (1) discharging
a firearm into an occupied dwelling; and (2) using a deadly
weapon in the sale or attempted sale of a controlled substance.
The jury also convicted defendant for the charges of possession
of a firearm by a felon and discharging a weapon into an
occupied dwelling, the latter of which was arrested because it
was an underlying felony supporting the murder conviction. The
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trial court sentenced defendant to life imprisonment without
parole for first degree murder and a concurrent term of 14 to 17
months imprisonment for possession of a firearm by a felon.
Defendant gave timely notice of appeal.
Discussion
I. Instruction as to the Sale of a Controlled Substance
Defendant first argues that the trial court erred by
instructing the jury that it could convict under the felony
murder rule for buying or selling a controlled substance while
using a firearm. We find no prejudicial error.
“[A]n error in jury instructions is prejudicial and
requires a new trial only if there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial out of which the
appeal arises.” State v. Castaneda, 196 N.C. App. 109, 116, 674
S.E.2d 707, 712 (2009) (citation and quotation marks omitted).
An instruction about a material matter must be based on
sufficient evidence. See Childress v. Johnson Motor Lines,
Inc., 235 N.C. 522, 530, 70 S.E.2d 558, 564 (1952). However,
“[i]t is well established that ‘the trial court’s charge to the
jury must be construed contextually and isolated portions of it
will not be held prejudicial error when the charge as a whole is
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correct.’” State v. Hornsby, 152 N.C. App. 358, 367, 567 S.E.2d
449, 456 (2002) (quoting State v. Boykin, 310 N.C. 118, 125, 310
S.E.2d 315, 319 (1984)).
Here, the State requested that the trial court instruct the
jury that it could convict defendant of felony murder if it
found that he either shot into an occupied dwelling or took “a
deadly weapon . . . to a drug deal.” Over defendant’s
objection, the trial court instructed the jury as follows:
[M]embers of the jury, if you find beyond a
reasonable doubt that on or about the
alleged date the defendant, acting either by
himself or together with someone else, . . .
knowingly sold or attempted to sell, or
purchased or attempted to purchase a
controlled substance in which a firearm was
involved or used in the commission of that
offense, . . . then it would be your duty to
return a verdict of guilty of first degree
murder under the felony murder rule.
After the jury requested to be instructed again on the murder
charge, the trial court reiterated that:
[F]or you to find that the defendant was
committing or attempting to commit the sale
or attempted sale of controlled substance
where a deadly weapon is used in its
commission, the State would have to prove
beyond a reasonable doubt, and you would
have to find beyond a reasonable doubt that
the State had proven that the defendant
knowingly sold or attempted to sell, or
purchased or attempted to purchase a
controlled substance.
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Defendant argues that this instruction was erroneous for
two reasons: (1) evidence did not support an instruction on
selling or attempting to sell a controlled substance, because
defendant was not involved in selling pills during this
transaction, and (2) buying or attempting to buy a controlled
substance is a misdemeanor under N.C. Gen. Stat. §§ 90-
90(1)(a)(14) and -95(d)(2), not a felony, and therefore cannot
support a conviction for first degree murder under the felony
murder rule as a matter of law.
However, the jury returned its verdict sheet convicting
defendant for first degree murder based on two underlying
felonies: (1) “sale or attempted sale of controlled substance
where a deadly weapon is used in its commission”; and (2)
“discharging a firearm into an occupied dwelling.” Thus, this
case is comparable to State v. Barlowe, 337 N.C. 371, 446 S.E.2d
352 (1994). In Barlowe, the defendant was convicted for first
degree murder under the felony murder rule based on two
underlying felonies: burglary and discharging a firearm into
occupied property. Id. at 378, 446 S.E.2d at 357. The Court
held that “[o]nly one underlying felony is necessary to support
a felony-murder conviction, and in this case the record is clear
that the jury found that two separate felonies supported the
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first-degree murder conviction.” Id. at 381, 446 S.E.2d at 358.
Thus, even though there was error in the submission of burglary
to the jury due to lack of evidence of that crime, the judgment
for first degree murder was not disturbed, as it was supported
by a separate underlying felony for which there was ample
supporting evidence. Id.
Here, like in Barlowe, defendant’s conviction for first
degree murder was premised on two independent felonies: selling
or attempting to sell a controlled substance while using a
deadly weapon and discharging a firearm into an occupied
dwelling. Defendant does not dispute that there was sufficient
evidence to support the charge of discharging a firearm into an
occupied dwelling; indeed, the undisputed record evidence shows
that defendant willfully discharged a firearm toward the Brown
Street home and a bullet fired from that firearm went through
multiple walls of the home before settling in the kitchen wall.
See N.C. Gen. Stat. § 14-34.1 (2013) (“Any person who willfully
or wantonly discharges a weapon . . . into an occupied dwelling
. . . is guilty of a Class D felony.”)
Thus, because there was a separate underlying felony
supporting the conviction for first degree murder under the
felony murder rule, we conclude that defendant has not
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demonstrated a reasonable possibility that a different outcome
would have occurred but for the trial court’s instruction as to
the sale of a controlled substance. See Castaneda, 196 N.C.
App. at 116, 674 S.E.2d at 712. This argument is overruled.
II. Instruction as to Acting in Concert
Defendant next argues that the trial court erred by
initially instructing the jury that it could convict defendant
for discharging a firearm into an occupied dwelling if he acted
with a common purpose with someone else to do so. Defendant
asserts in his brief on appeal that “evidence showed that
[defendant] was either guilty of shooting into the Wrights’ home
by himself or not at all.”
It is clear from the record that the trial court did
initially instruct the jury that it could apply the theory of
acting in concert to the felony of discharging a firearm into an
occupied dwelling. However, upon realizing the error, the trial
court corrected itself and instructed the jury that the theory
of acting in concert was only applicable to the underlying
felony of selling or attempting to sell a controlled substance
while using a deadly weapon, not the felony of discharging a
firearm into an occupied dwelling. “[W]hen a trial judge makes
an improper instruction earlier in the charge and then corrects
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it, the error is completely lacking in prejudicial effect.”
State v. Reid, 335 N.C. 647, 667, 440 S.E.2d 776, 787 (1994)
(citation and internal quotation marks omitted). Thus, given
that the trial court’s initial error is “completely lacking in
prejudicial effect,” id., due to its later correction, defendant
has failed to meet his burden of establishing prejudice by this
error. See Castaneda, 196 N.C. App. at 116, 674 S.E.2d at 712.
Thus, his argument is overruled.
III. Confinement Credit
Defendant’s final argument is that the trial court erred by
failing to accurately credit defendant for the time he spent in
jail awaiting trial. Under N.C. Gen. Stat. § 15-196.1 (2013), a
defendant shall be credited with any amount of time spent in
confinement as a result of the charge that culminated in the
sentence. Here, the transcript shows that the trial court
directed the clerk of court to credit the number of days
defendant spent in pretrial confinement, but no specific amount
of credit was included in the judgment. Thus, it appears that
defendant is entitled to at least some amount of credit.
However, this argument is not properly before us. See State v.
Miller, 205 N.C. App. 291, 295, 695 S.E.2d 149, 152 (2010).
This Court has held that:
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[T]he proper procedure to be followed by a
defendant seeking to obtain credit for time
served in pretrial confinement in addition
to that awarded at the time of sentencing or
the revocation of the defendant’s probation
is for the defendant to initially present
his or her claim for additional credit to
the trial court, with alleged errors in the
trial court’s determination subject to
review in the Appellate Division following
the trial court’s decision by either direct
appeal or certiorari, as the case may be.
Such an approach makes sense given the
reality that, in at least some instances,
factual issues will need to be resolved
before a proper determination of the amount
of credit to which a particular defendant is
entitled can be made, and such issues are
best addressed, as an initial matter, in the
trial courts rather than in the Appellate
Division.
Id. (quoting State v. Cloer, 197 N.C. App. 716, 720-21, 678
S.E.2d 399, 402-03 (2009) (dismissing without prejudice the
defendant’s contention on appeal that he was entitled to
additional credit for time served in pretrial confinement)).
Thus, we are unable to address the merits of defendant’s
contention. However, as was noted in Miller and Cloer,
defendant maintains the right to “file a motion for an award of
additional credit in the superior court of [Gaston] County
pursuant to N.C. Gen. Stat. § 15-196.4.” Miller, 205 N.C. App.
at 295, 695 S.E.2d at 152; Cloer, 197 N.C. App. at 722, 678
S.E.2d at 404.
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Conclusion
Because defendant has failed to establish a reasonable
possibility of a different outcome but for the trial court’s
alleged errors in its jury instructions, we conclude that any
such errors were not prejudicial. Defendant’s argument as to
pretrial confinement is dismissed without prejudice.
NO PREJUDICIAL ERROR IN PART; DISMISSED IN PART.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).