(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of accessory after the fact to murder where the defendant gave eight different written statements to authorities providing a wide array of scenarios surrounding the victim’s death. In his statements the defendant identified four different individuals as being the perpetrator. He also admitted that he had not been truthful to investigators. The court concluded: “The jury could rationally have concluded that his false statements were made in an effort to shield the identity of the actual shooter.” The court noted that competent evidence suggested that the defendant knew the identity of the shooter and was protecting that person, including knowledge of the scene that could only have been obtained by someone who had been there and statements made by the defendant to his former girlfriend. Additionally, the defendant admitted to officers that he named one person “as a block” and acknowledged that his false statement made the police waste time. (2) No double jeopardy violation occurred when the trial court sentenced the defendant for obstruction of justice and accessory after the fact arising out of the same conduct. Comparing the elements of the offenses, the court noted that each contains an element not in the other and thus no double jeopardy violation occurred.

The trial court erred in failing to arrest judgment on the defendant’s conviction for accessory after the fact to second-degree burglary. A defendant cannot be both a principal and an accessory to the same crime.

A defendant may not be convicted of second-degree murder and accessory after the fact to first-degree murder. The offenses are mutually exclusive.

In this Randolph County case, defendant appealed his convictions for attempted first-degree murder, attempted robbery with a dangerous weapon, and possession of a firearm by a felon, arguing error in denying his motions to dismiss for insufficient evidence, and error by the trial court in calculating his prior record level. The Court of Appeals found no error. 

In October of 2018, defendant approached the victim at a convenience store and attempted to pull open the victim’s driver’s side door. The door was locked, so defendant tapped on the glass with a revolver while telling the victim to open the door. The victim opened the door and exited the vehicle, but then attempted to grab the gun from defendant. After a scuffle defendant fell to the ground, causing the gun to fire. As the victim fled, defendant fired two more shots at him, missing both times. 

On appeal, defendant argued that since he made no express appeal for money or property, there was insufficient evidence to support his attempted robbery conviction. The Court of Appeals disagreed, noting that defendant “displayed a gun, threatened its use, and made an obvious implied demand.” Slip Op. at 7. The court rejected defendant’s argument that since the events did not occur in a retail setting his words could not be interpreted as an implied demand. 

The court also rejected defendant’s argument that intent for attempted murder could not be inferred by the multiple gunshots because his first shot was accidental, and his second and third shots were wide misses. Defendant also argued his intent could have been to scare or warn the victim, not kill him. The court explained that where multiple shots were fired and at least one was aimed at the victim, sufficient evidence existed to infer intent under State v. Allen, 233 N.C. App. 507 (2014). Likewise, the court held that defendant’s poor aim did not negate the intent or support his argument of scaring or warning the victim, as the victim saw the gun pointed at him before the shots and other factors such as poor lighting likely influenced the accuracy. 

Finally, the court rejected defendant’s argument that the trial court did not properly find substantial similarity between the out-of-state offenses and in-state offenses. The court explained that defendant admitted no evidence to show improper calculation, and “[g]iven the [trial court’s] indication of review in open court and its full execution of the sentencing worksheet finding substantial similarity, this Court presumes the trial court reached this finding properly.” Id. at 12. 

In this child sexual assault case, trial court did not err by denying the defendant’s motion to dismiss two charges of attempted statutory sex offense of a child by an adult. On appeal, the defendant argued that there was insufficient evidence of his intent to engage in a sexual act with the victim and of an overt act. The court disagreed. The case involved a scenario where the victim’s mother engaged in sexual acts with the victim to entice the defendant into a relationship with her. The first conviction related to the defendant’s attempted statutory sex offense with the victim in a vehicle, which occurred on or prior to 19 July 2013. While the victim sat between the defendant and her mother, the defendant tried to put his hands up the victim’s skirt, between her legs. The victim pushed the defendant away and moved closer to her mother. The defendant asserted that an intention to perform a sexual act cannot be inferred from this action. The court disagreed, noting, among other things, evidence that the defendant’s phone contained a video and photograph depicting the victim nude; both items were created prior to the incident in question. Additionally, the defendant admitted that the photo aroused him. Moreover, conversations of a sexual nature involving the victim occurred between the defendant and the victim’s mother on 9 July 2013. Messages of a sexual nature were also sent on 15 July 2013, including the defendant’s inquiries about sexual acts between the victim’s mother and the victim, and a request for explicit pictures of the victim. Additional communications indicated that the defendant wanted to see the victim in person. In a conversation on 19 July 2013, the defendant indicated that he had feelings for the victim and expressed the desire to “try something” sexual with the victim. In his interview with law enforcement, the defendant stated he would not have engaged in intercourse with the victim but would have played with her vagina by licking and rubbing it. This evidence supports a reasonable inference that the defendant attempted to engage in a sexual act with the victim when he placed his hands between her legs and tried to put his hand up her skirt. The evidence also supports the conclusion that his act was an overt act that exceeded mere preparation.

      The second conviction related to the defendant’s attempted statutory sex offense with the victim in a home. The court upheld this conviction, over a dissent. This incident occurred on 27 July 2013 when the defendant instructed the victim’s mother to have the victim wear a dress without underwear because he was coming over to visit. The defendant argued that the evidence was insufficient to show his intent to engage in a sexual act with the victim or an overt act in furtherance of that intention. The court disagreed. The evidence showed that the victim’s mother and the defendant had an ongoing agreement and plan for the victim’s mother to teach the victim to be sexually active so that the defendant could perform sexual acts with her. Evidence showed that the victim’s mother sent the defendant numerous photos and at least one video of the victim, including one that showed the victim’s mother performing cunnilingus on the victim on 26 July 2013. An exchange took place on 27 July 2013 in which the defendant indicated his desire to engage in that activity with the victim, and her mother’s desire to facilitate it. Specifically the defendant asked the victim’s mother whether she could get the victim to put on a dress without underwear because he was coming over to their home. Based on the context in which the defendant instructed the victim’s mother to have the victim wear a dress without underwear, there was substantial evidence of his intent to commit a sex offense against the victim. Furthermore, the defendant took overt actions to achieve his intention. The victim’s mother admitted that she and the defendant planned to train the victim for sexual acts with the defendant, and the defendant’s Facebook messages to the victim’s mother and his interview with law enforcement show that he agreed to, encouraged, and participated in that plan. The defendant’s instruction to dress the victim without underwear was more than “mere words” because it was a step in his scheme to groom the victim for sexual activity, as was other activity noted by the court.

The evidence was sufficient to convict the defendant of both attempted sex offense and attempted rape. The court rejected the defendant’s argument that the evidence was sufficient to permit the jury to infer the intent to commit only one of these offenses. During a home invasion, the defendant and his brother isolated the victim from her husband. One of the perpetrators said, “Maybe we should,” to which the other responded, “Yeah.” The defendant’s accomplice then forced the victim to remove her clothes and perform fellatio on him at gunpoint. The defendant later groped the victim’s breast and buttocks and said, “Nice.” At this point, the victim’s husband, who had been confined elsewhere, fought back to protect his wife and was shot. This evidence is sufficient for a reasonable jury to infer that the defendant intended to engage in a continuous sexual assault involving both fellatio (like his accomplice) and ultimately rape, and that this assault was thwarted only because the victim’s husband sacrificed himself so that his wife could escape.

In a child sex case, the court held that the evidence was sufficient to support a charge of attempted first-degree statutory sexual offense. On the issue of intent to commit the crime, the court stated: “The act of placing one’s penis on a child’s buttocks provides substantive evidence of intent to commit a first degree sexual offense, specifically anal intercourse.” 

Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.

The defendant was the twin brother of another criminal defendant and was attending his brother’s trial for assault on a government official in Watauga County (itself the subject of a published opinion, here). Following the guilty verdict in his brother’s case, the defendant made comments to several jurors as they exited the courthouse. These included statements that the jurors “got it wrong,” that his brother was innocent, that the jurors had “ruined his [brother’s] life,” that he “hoped they slept well,” and similar remarks. Before those comments, the defendant’s brother’s girlfriend exited the courtroom visibly upset, and courthouse video footage showed the defendant briefly comforting her before approaching the jurors. The defendant was charged with six counts of intimating jurors and conspiracy to intimidate jurors with his brother and his brother’s girlfriend under G.S. 14-225.2(a)(2). That subsection provides that a defendant is guilty of juror harassment when he “threatens . . . or intimidates [a] former juror or spouse [of a juror] . . . as a result of the prior official action of [the] juror in a grand jury proceeding or trial.”  

The trial court denied pretrial motions challenging the jury intimidation statute as unconstitutional under the First Amendment, denied the motion to dismiss for insufficient evidence, and declined to instruct the jury on the definition of “intimidate.” The defendant was convicted of conspiracy to intimidate jurors at trial and acquitted on the other counts. A majority of the Court of Appeals rejected the defendant’s First Amendment arguments, finding the statute constitutional. The majority also found that the conviction was supported by sufficient evidence, and that the trial court did not err in failing to give the requested jury instructions (here). Chief Judge McGee dissented on each point. The Supreme Court agreed that the evidence was insufficient to support a conspiracy and reversed.

A criminal conspiracy is an agreement between two or more people to commit a crime with intent to carry out the agreement. While such agreement may be proven by circumstantial evidence, the evidence must show either an express agreement between the conspirators, or facts warranting an inference of the agreement. On the other hand, “[c]onspiracies cannot be established by mere suspicion, nor [by] evidence of mere relationship between the parties . . .” Slip op. at 8. The State’s evidence here raised no more than a conjecture of guilt, and the motion to dismiss for insufficient evidence should have been granted. “The record is almost entirely devoid of any interactions between defendant and [his brother] or defendant and [the girlfriend] from which the formation of any agreement can be inferred.” Id. at 13. The court acknowledged that “synchronized, parallel conduct” among defendants can support an inference of criminal agreement but rejected the State’s argument that such circumstances existed here. According to the court:

. . . [S]uch an inference would be far stronger where the conduct at issue is more synchronized, more parallel, and more clearly in furtherance of a crime. . .Moreover, while defendant was acquitted of the charges of harassment of a juror by threats or intimidation and we express no opinion on the sufficiency of the evidence with respect to those charges, the evidence was far from overwhelming. Put simply, this is not a situation like a drug transaction or bank robbery where it is evident that an unlawful act has occurred, and where the degree of coordination associated with those unlawful acts renders an inference of ‘mutual, implied understanding’ between participants far more reasonable. Id. 13-14 (citations omitted).

The matter was therefore reversed and remanded for the conviction to be vacated. In light of its holding, the court declined to consider the First Amendment challenges to the statute.

Justice Ervin dissented, joined by Justices Davis and Newby. According to the dissent, the majority failed to view the evidence in the light most favorable to the State, and the trial court should have been affirmed as to the sufficiency of evidence. Without expressing an opinion on the merits of the issue, the dissenters would have therefore proceeded to examine the defendant’s First Amendment challenges.

On appeal in this drug case from an unpublished opinion by the court of appeals, the supreme court held that there was sufficient evidence to support a conviction for conspiracy to traffic in opium. Specifically, the court pointed to evidence, detailed in the opinion, that the defendant agreed with another individual to traffic in opium by transportation. The court rejected the defendant’s argument that the evidence showed only a “the mere existence of a relationship between two individuals” and not an unlawful conspiracy.

In this Randolph County case,  the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.

In 2018, defendant, a high school student, confessed to his girlfriend that he had homicidal thoughts towards several of his fellow students, and attempted to recruit his girlfriend to help him act on them. His girlfriend showed the messages they exchanged to her mother and the school resource officer, leading to further investigation that found defendant had a cache of guns and knives, as well as a detailed list of persons he wished to kill and methods he would use. When the matter came to trial, the state offered testimony from 11 of the 13 persons on the kill list, and during closing arguments made reference to the “current events” that were presumably mass shootings at high schools. Defendant was subsequently convicted in 2020.

Reviewing the appeal, the court first considered (a) defendant’s motion to dismiss for insufficient evidence, reviewing whether defendant solicited his girlfriend for the crime. The court found sufficient evidence of solicitation, explaining that solicitation is an “attempt to conspire,” and the offense does not require fully communicating the details of the plan. Instead, once defendant proposed the killings he had planned to his girlfriend, and attempted to recruit her to assist, the offense was complete, despite the fact that he did not fully share his detailed plans. Slip Op. at 12-13.

The court next considered (b), dismissing defendant’s argument that the indictment fatally varied from the jury instruction; the court found that this was actually an attempt to present an instructional error “within the Trojan horse of a fatal variance.” Id. at 15. Considering (c), the court disagreed with defendant’s allegation that Rules of Evidence 401 and 402 barred admission of defendant’s drawings and notes of the Joker and weapons, and testimony from 11 of the potential victims. The drawings were relevant to show defendant’s state of mind and evaluate the nature of the potential crime, and the testimony was relevant to show the potential victims were real people and that defendant had the specific intent to commit the crime. Id. at 17-18. The court also considered (d) whether Rule of Evidence 403 barred admission of this evidence as prejudicial, finding no abuse of discretion as “the evidence served a probative function arguably above and beyond inflaming [the jury’s passions].” Id. at 20.

Considering the final issue (e), whether the trial court should have intervened ex mero moto during the state’s closing argument, the court found error but not prejudicial error. The court found error in the state’s closing argument when the prosecutor “appealed to the jury’s sympathies by describing the nature of the Joker and insinuating that [d]efendant was planning a mass shooting.” Id. at 25. The court presumed that these statements were intended to suggest that defendant’s conviction would assist in preventing another mass shooting, but noted that they did not rise to the level of prejudicial error due to the other factual details in the argument, and the “multiple items of physical evidence and segments of testimony evidencing [d]efendant’s intent.” Id. at 28.

The defendant was convicted of armed robbery, conspiracy to commit armed robbery, felony breaking or entering, and conspiracy to commit breaking or entering in Watauga County. The offenses related to the attempted robbery of a drug dealer in an apartment in Boone. The jury convicted on all counts, and each conspiracy count was consolidated with the related substantive count for judgment.

(1) The defendant argued that the trial court erred in failing to dismiss one of the conspiracy counts. The Court of Appeals agreed. To convict on separate conspiracies, the State has the burden to show separate agreements. A single agreement to commit multiple offenses constitutes only one conspiracy. Factors relevant in determining the existence of multiple conspiracies include “the “nature of the agreement or agreements, the objectives of the conspiracies, the time interval between them, the number of participants, and the number of meetings . . .” Beck Slip op. at 11 (citation omitted). Here, the evidence showed only one agreement to rob drug dealers and thus only supported one conspiracy.

Where multiple conspiracy convictions are vacated, the court must identify the first substantive crime in determining which conviction to vacate. Here, the felony breaking or entering was the first substantive offense committed by the conspirators. The conviction for conspiracy to commit armed robbery was therefore vacated. According to the court:

As the felony breaking and entering was the first substantive crime committed by defendant (i.e., the ‘operative’ crime), because the conspiracy to commit felony breaking and entering was the ‘earlier of the conspiracy convictions’ insofar as defendant is concerned, and because the State failed to prove that defendant conspired with [the co-conspirators] in the weeks leading up to the crimes, we vacate defendant’s conviction for conspiracy to commit armed robbery . . . Id. at 14.

No resentencing was required, however, since the conspiracy to commit armed robbery was consolidated with the substantive robbery offense and the defendant was sentenced within the presumptive range for that crime. 

(2) The trial court did not abuse its discretion in failing to provide the jury with a transcript of a witness’s testimony. No party objected to the trial court’s refusal in response to the jury’s request. Under G.S. 15A-1233(a), it is within the trial court’s discretion to allow reexamination of the evidence. Prejudice from the denial of a jury request to reexamine evidence will only be considered where the trial court fails to acknowledge its discretion in responding to the request. The trial court here recognized the matter as within its discretion. Consequently, the denial of the request for a transcript was neither an abuse of discretion nor prejudicial error.

Judge Inman concurred without separate opinion. Judge Tyson concurred in part and dissented in part. He would have found no error with the conviction for conspiracy to commit armed robbery.

The defendant was indicted for attempted first-degree murder, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and other offenses. The State alleged that the defendant shot a man and his wife, Bruce and Joanne Parker, as they were getting into their car in a darkened Charlotte parking lot. After shooting Mr. Parker, the defendant, who was accompanied by a male and female companion, took Mr. Parker’s wallet and cell phone.

Off-duty officers arrived on the scene shortly after the couple was shot and saw the defendant and his two companions leaving the scene in the defendant’s car. Mr. Parker identified the defendant as the person who shot him. The officers gave chase, and the defendant’s male companion, who was driving, crashed the car. The defendant and his companions ran from the car. The driver was apprehended. The defendant and his female companion ran into a parking garage, where they were captured on surveillance footage, but were not apprehended by officers. On the driver’s seat floorboard of the crashed car, officers found the gun used to shoot the couple, the husband’s cell phone and wallet, and a purse and driver’s license belonging to the defendant’s female companion. Forty-five minutes later, the defendant called law enforcement officers to report that he had been carjacked earlier in the evening.

A few days after the shooting, an officer came to Mr. Parker’s hospital room and showed him a photographic lineup. The defendant’s picture was in the lineup, but Mr. Parker identified another person as the shooter. During trial, Mr. Parker testified that he was able to make out the shooter’s face during the attack. He then, without objection, identified the defendant in the courtroom, stating that the defendant was “pretty much the same man as he was that night,” only that he “appeared a little bit thinner.”

(1) On appeal, the defendant argued that the trial court erred by denying his motion to dismiss because there was insufficient evidence both that he was the perpetrator of the offenses and that there was a conspiracy to commit robbery with a dangerous weapon. The Court of Appeals rejected this argument, noting that Mr. Parker identified the car and the defendant as the shooter at the scene; that the officers saw the defendant leaving the scene and the car he was in; that Mr. Parker gave a description of the defendant that same night; that the description matched a person seen on surveillance after the car crashed; that the defendant was the owner of the car; and that Mr. Parker identified the defendant as the shooter in court. The Court also rejected the defendant’s insufficiency of the evidence argument regarding the conspiracy. The Court relied on State v. Lamb, 342 N.C. 151 (1995), and State v. Miles, 267 N.C. App. 78 (2019), in concluding that there was sufficient evidence from which a reasonable juror could conclude that the defendant acted in coordination with the other occupants of the vehicle to rob the Parkers with a dangerous weapon.

(2) The defendant next argued that the trial court erred by sustaining the State’s objection to the defendant’s question concerning a civil lawsuit filed by the Parkers against the owner of the parking lot alleging inadequate security. The defendant contended that the civil lawsuit was relevant because it showed that the Parkers had an interest in the outcome of the criminal prosecution. The Court has previously held that “where a witness for the prosecution has filed a civil suit for damages against the criminal defendant himself, the pendency of the suit is admissible to impeach the witness by showing the witness’s interest in the outcome of the criminal prosecution.” State v. Dixon, 77 N.C. App. 27, 31– 32 (1985); State v. Grant, 57 N.C. App. 589, 591 (1982). The Court concluded that because the civil suit was not filed against the defendant and because it was not necessary for the Parkers to prove in the civil suit that the defendant was the assailant, the pendency of the civil suit did not show Mr. Parker’s interest in the outcome of the criminal prosecution and was therefore not admissible to impeach the witness.

(3) The defendant’s final argument was that the trial court plainly erred by failing to exclude Mr. Parker’s in-court identification, which the defendant did not object to at trial. The defendant contended that the in-court identification was tainted by Mr. Parker’s exposure to media coverage of the case, his filing of a civil lawsuit that named the defendant as the assailant, the lapse of time, and his identification of someone other than the defendant in the photo lineup. The Court of Appeals concluded that these factors alone did not trigger due process concerns and that the alleged defects of the in-court identification were issues of credibility for the jury to resolve. The Court explained that absent any indication that the in-court identification was tainted by an impermissibly suggestive pre-trial identification procedure, there was no error, let alone plain error, in admitting Mr. Parker’s in-court identification.

The defendant was convicted of attempted first-degree murder and conspiracy to commit attempted first-degree murder. (1) The defendant argued that the latter charge is invalid because it alleges a non-existent crime. The defendant argued that an attempt requires that the act fail; therefore, it is an illogical impossibility and a legal absurdity to criminalize an agreement to commit a failed act, which in this case would be an agreement not to commit murder. The Court of Appeals rejected the argument, holding that under North Carolina law “failure” is not an element of attempted first-degree murder and that conspiracy to commit that offense is a cognizable charge. (2) The defendant argued that the evidence was insufficient to support attempted first-degree murder or conspiracy because the evidence showed only that he fired a pellet gun to try scare away the officer who was in pursuit. The Court found that the evidence was sufficient for the jury to find that the defendant fired a gun at the officer, not merely a pellet gun, with the intent to kill.

The evidence was sufficient to support a charge of conspiracy to commit armed robbery. On appeal, the defendant argued that there was insufficient evidence of an agreement to commit the robbery. Here, the victim identified the defendant and others as the individuals who robbed him. Additionally, the defendant confirmed to a detective that his accomplice’s statement that the robbery was in retaliation for the victim’s robbery of another person was accurate. This was sufficient evidence of a conspiracy.

The evidence was sufficient to support a charge of conspiracy to possess stolen goods, a pistol. After the defendant took the pistol and other items from the victims’ purses, the pistol was found in the field near a residence. The defendant’s alleged accomplice was present at the residence and admitted to officers that he was working with the defendant. This occurred after the defendant called the alleged accomplice from jail. From this evidence a jury could reasonably infer that the accomplice conspired with the defendant to possess the pistol.

The State presented insufficient evidence to show that the defendant entered into an agreement to commit common law robbery. The mere fact that the crime the defendant allegedly conspired with others to commit took place does not, without more, prove the existence of a conspiracy. Lacking here was evidence that the defendant conspired to take the property by violence or fear. In fact, his accomplice’s use of violence or fear was unknown to the defendant until after the robbery was completed.

The trial court properly determined that a charge of conspiracy to manufacture methamphetamine was a Class C felony. The court rejected the defendant’s argument that G.S. 14-2.4(a) required punishment as a Class D felony (“Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit[.]”). Here, G.S. 90-98 requires that conviction for conspiracy to manufacture methamphetamine is punished at the same level as manufacture of methamphetamine.

The evidence was sufficient to show a drug trafficking conspiracy where there was evidence of an implied agreement between the defendant and his accomplice. The defendant was present at the scene and aware that his accomplice was involved producing methamphetamine and there was sufficient evidence that the defendant himself was involved in the manufacturing process. The court concluded: “Where two subjects are involved together in the manufacture of methamphetamine and the methamphetamine recovered is enough to sustain trafficking charges, we hold the evidence sufficient to infer an implied agreement between the subjects to traffic in methamphetamine by manufacture and withstand a motion to dismiss.”

In a case in which the defendant was charged with conspiracy to commit felony larceny, the trial court did not err by denying the defendant’s motion to submit a jury instruction on conspiracy to commit misdemeanor larceny. The court determined that evidence of the cumulative value of the goods taken is evidence of a conspiracy to steal goods of that value, even if the conspirators’ agreement is silent as to exact quantity. Here, the evidence showed that the value of the items taken was well in excess of $1,000.

The evidence was sufficient to show a conspiracy to commit a robbery with a dangerous weapon. The defendant argued that there was no express agreement to use a dangerous weapon. The court held, in part, that there was an implied understanding to use such a weapon.

(1) The evidence was insufficient to support two charges of conspiracy to commit armed robbery. Having failed to achieve the objective of the conspiracy on their first attempt, the defendant and his co-conspirators returned the next day to try again. When the State charges separate conspiracies, it must prove not only the existence of at least two agreements, but also that they were separate. There is no bright-line test for whether multiple conspiracies exist. The essential question is the nature of the agreement(s), but factors such as time intervals, participants, objectives, and number of meetings must be considered. Applying this analysis, the court concluded that only one agreement existed. In both attempts, the intended victim and participants were the same; the time interval between the two attempts was approximately 36 hours; on the second attempt the group did not agree to a new plan; and while the co-conspirators considered robbing a different victim, that only was a back-up plan. The court rejected the State’s argument that because the co-conspirators met after the first attempt, acquired additional materials, made slight modifications on how to execute their plan, and briefly considered robbing a different victim, they abandoned their first conspiracy and formed a second one. (2) The trial judge committed plain error by failing to instruct the jury on all elements of conspiracy to commit armed robbery. The judge instructed the jury that armed robbery involved a taking from the person or presence of another while using or in the possession of a firearm. The judge failed to instruct on the element of use of the weapon to threaten or endanger the life of the victim.

The trial court did not err by denying the defendant’s motion to dismiss a charge of conspiracy to discharge a firearm into occupied property. The defendant, Ray, Johnson, and Phelps left a high school basketball game because of the presence of rival gang members. As they left, the defendant suggested that he was going to kill someone. A gun was retrieved from underneath the driver’s side seat of Johnson’s vehicle and Johnson let Ray drive and the defendant to sit in the front because the two “were about to do something.” Ray and the defendant argued over who was going to shoot the victim but in the end Ray drove by the gym and the defendant fired twice at the victim, who was standing in front of the gym. The court rejected the defendant’s argument that the evidence failed to show an agreement to discharge the firearm into occupied property, noting that the group understood and impliedly agreed that the defendant would shoot the victim as they drove by, the victim was standing by the gym doors, and there was a substantial likelihood that the bullets would enter or hit the gym.