State v. Shumate, COA23-256, ___ N.C. App. ___ (Dec. 19, 2023)

In this McDowell County case, defendant appealed his conviction for discharging a firearm into an occupied vehicle in operation and possessing a firearm as a felon, arguing error in (1) not instructing the jury on the lesser included offense of discharging a firearm into an occupied vehicle; (2) not defining “in operation” during the jury instructions; and (3) denying defendant’s motion to dismiss. The Court of Appeals disagreed, finding no error.

In June of 2022, defendant’s ex-girlfriend and two accomplices drove a vehicle onto his property to take a puppy from his home. Testimony from the parties differed, but a firearm was discharged into the rear passenger side window of the vehicle as the ex-girlfriend and her accomplices attempted to drive away with the puppy. The engine of the vehicle was running, but it was stopped when the shot was fired through the window. Defendant did not object to the jury instructions during the trial. 

Reviewing  (1) for plain error, the Court of Appeals noted that “in operation” is undefined in G.S. 14-34.1, but looking to the plain meaning of the words and consideration from a previous unpublished case, the court arrived at the following: “A vehicle is ‘in operation’ if it is ‘in the state of being functional,’ i.e., if it can be driven under its own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. For a vehicle to be driven, there must be a person in the driver’s seat, and its engine must be running.” Slip Op. at 6. Because all the evidence indicated someone was in the driver’s seat of the vehicle and the engine was running, the trial court did not err by not instructing on the lesser included offense. Likewise, this dispensed with (2), as the trial court did not need to provide instruction on the meaning of “in operation” due to the phrase carrying its common meaning. Resolving (3), the court noted that testimony in the record would allow a reasonable juror to conclude defendant fired a shot into the vehicle, representing substantial evidence to survive a motion to dismiss.