STATE v. HICKS

VAUGHN, Chief Judge.

Defendant's first argument is that the trial court erred in denying his motion to dismiss at the close of the State's evidence. Defendant's motion to dismiss requires the trial court to consider all the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference drawn from the evidence. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977). The question is whether there is substantial evidence, direct, circumstantial, or both, to support a finding that the offense charged has been committed and the accused committed it. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

The offense of discharging a firearm into occupied property, G.S. 14-34.1, is defined as follows:

This statute was explained in State v. Williams, 284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973):

Defendant contends that there was insufficient evidence for the jury to find that he knew or had reasonable grounds to believe that Ward's house was occupied at the time of shooting. The evidence, however, viewed in the light most favorable to the State tends to show that defendant and Ward lived in a small community; they had known each other since 1973; Hall visited Ward, at his house, three days before the shooting; and the shooting occurred at 5:00 a.m., a time when people are usually at home. Furthermore, Ward's house had a garage, which explains why no cars were parked in front of his house. Defendant contends that the State offered evidence that the house was "under construction" and thus appeared unoccupied. While it is true that if the State's evidence tends only to exonerate a defendant from a particular charge his motion for nonsuit should be allowed, State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970), death penalty vacated, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 754 (1972), this evidence does not indicate that the house appeared unoccupied. Viewed in the light most favorable to the State, the "rock work" was probably covering the cement block foundation. That it was unfinished did not make the house uninhabitable. Since there was no evidence that the house was otherwise incomplete, the unfinished "rock work" would not indicate the house was unoccupied. Clearly there was substantial evidence to support a finding that the offense was committed, and defendant committed it. Defendant's motion to dismiss was properly denied.

Defendant's second argument is that the trial judge erred by failing to instruct the jury on testimony of a witness with immunity or quasi-immunity as follows:

Defendant contends that since Lackey had an agreement with the district attorney that if she testified the charges against her would be dropped, the above instruction was required by G.S. 15A-1052(c). We do not agree for two reasons: the applicable statute does not require the instruction, and at trial defendant requested an accomplice instruction, not the above instruction. G.S. 15A-1052 provides, in pertinent part:

As the official commentary to G.S. 15A-1051 explains, a formal grant of immunity is not conferred unless the witness is asked an incriminating question, he claims his privilege against self-incrimination, the judge orders him to answer the question, and the witness then answers the question. Clearly, Lackey was not granted formal immunity. Her agreement was pursuant to G.S. 15A-1054, which does not require particular jury instructions. The statute provides:

The official commentary to G.S. 15A-1054 explains that the statute was enacted, with a notice requirement as a safeguard, because "[T]he Commission thought that formal grants of immunity ... would probably be few and far between. Several persons described a more informal assurance of lenience or nonprosecution ... as being more effective and much more prevalent...."

In State v. Bagby, 48 N.C. App. 222, 268 S.E.2d 233 (1980), review denied, 301 N.C. 723, 276 S.E.2d 284 (1981), this Court held that when a witness enters into an arrangement with the prosecutor under G.S. 15A-1054, absent a request from defendant, the trial court need not charge the jury that the witness testified as an accomplice or that the jury closely scrutinize the testimony because the witness testified under an agreement with the district attorney. Thus the statute, G.S. 15A-1054, and Bagby, set forth the rule that, absent request, the trial judge need not give an interested witness instruction to the jury. Since defendant requested an accomplice instruction only, the trial judge did not err in only giving that instruction, which was as follows:

Furthermore, the jury was fully aware of the agreement between Lackey and the district attorney because it was elicited on cross-examination.

We have carefully reviewed defendant's assignments of error and find no error.

No error.

WELLS and WHICHARD, JJ., concur.