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Home / Opinion Digests / Criminal Practice / Criminal Practice – Murder & Attempted Murder – Indictment Allegations – Transferred Intent – Prior Bad Acts

Criminal Practice – Murder & Attempted Murder – Indictment Allegations – Transferred Intent – Prior Bad Acts

Even though the allegations in the indictments for attempted first-degree murder failed to include the words “with malice aforethought,” the indictments include the specific facts from which malice is shown by alleging that defendant “unlawfully, willfully, and feloniously . . . set[] the residence occupied by the victim(s) on fire.” The indictments sufficiently allege the ultimate facts constituting each element of the criminal offense.

We find no error in defendant’s convictions for two first-degree murders and three attempted first-degree murders.

While defendant did not know Deseree Pickett would be inside the house, the doctrine of transferred intent applies where one engages in an action against another and unintentionally attempts to or kills a third person. It is immaterial whether the defendant intended injury to the person actually harmed; if he in fact acted with the required or elemental intent toward someone, that intent suffices as the intent element of the crime charged as a matter of law.

The state’s evidence tended to establish that defendant was involved in a domestic dispute with victim Nicole Thrower. Defendant set two fires at both points of natural entry, ingress, and egress in a house, which he believed contained Thrower, his intended victim. Defendant acted with the requisite intent to injure or kill towards a specific person, which intent transferred to another. The true identify of that individual is immaterial. The evidence tends to show and is sufficient for the jury to find defendant in fact acted, and with the necessary transferred intent to attempt to kill, Deseree.

The trial court admitted evidence that defendant had been violent toward both of his girlfriends (one of whom – Thrower – was taking refuge in the house he burned), that he set fire to the vehicle of one girlfriend’s mother and that he attempted to burn the vehicle of Thrower’s father. This evidence was probative as to issues of defendant’s identity, defendant’s common scheme or plan, defendant’s intent, defendant’s motive, defendant’s knowledge, and defendant’s modus operandi. The testimony at issue is relevant and admissible under N.C. R. Evid. 401 and 402.

These incidents were not temporally remote, and defendant has failed to show these incidents are so cumulative or likely to mislead the jury for their admission to constitute an abuse of discretion. Defendant has failed to show the trial court abused its discretion in allowing the admission of testimony regarding defendant’s prior bad actions under N.C. R. Evid. 404(b) and 403.

No error.

State v. Davis (Lawyers Weekly No. 011-007-23, 17 pp.) (John Tyson, J.) Appealed from New Hanover County Superior Court (Phyllis Gorham, J.) Teresa Postell for the state; Gordon Widenhouse for defendant. 2023-NCCOA-4

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