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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-1515 NORTH CAROLINA COURT OF APPEALS Filed: 4 June 2013 STATE OF NORTH CAROLINA v. VENISHA CHAKHAN BAJJA Gaston County No. 11 CRS 52790

Appeal by Defendant from Judgment signed 15 March 2012 by Judge F. Lane Williamson in Gaston County Superior Court. Heard in the Court of Appeals 23 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for Defendant. STEPHENS, Judge. Factual and Procedural Background During the 12 March 2012 criminal session of Gaston County Superior Court, Venisha Chakhan Bajja ("Defendant") was tried on the charge of first-degree murder. The evidence presented at trial tended to show the following: On 21 February 2011, Ms. Crystalyn Sanders ("Sanders") was in her bedroom getting ready for bed when she heard "a lot of

-2arguing outside." She looked out her window and noticed two

women standing across the street wearing long, white t-shirts. The two women were later identified as Ms. Cambria Cannon

("Decedent") and Ms. Cecilia1 Moses ("Moses"). As Decedent and Moses argued with Defendant, who was standing across the street from them on the steps leading into her home, Moses was

attempting to calm Decedent down. The argument continued and Defendant came down her front steps toward the street. At the same time, Moses and Decedent headed toward Defendant. Sanders testified that, at that point, Decedent appeared as if she was going to start fighting with Defendant. Once Moses and Decedent reached Defendant, however, they began to run in the other

direction. As they ran, Defendant "raise[d] her hand and [shot] the gun," which emitted a "blue flame." A shot "rang out," and Decedent fell down in the street. At that moment, Defendant ran back into her house and, after a minute, ran back out to where Decedent was lying. Defendant and Moses hovered over Decedent for a few minutes before a white car

1

Mosess first name is spelled three different ways in the materials presented to this Court. Defendant refers to her as "Cecilia," the State refers to her as "Cecelia," and the transcript refers to her as both "Cecila" and "Cecilia." Because the first and last listed variation on Mosess first name appears more frequently than the others, we employ it here.

-3drove up. The driver asked if they needed help and, after

hearing their response, drove off. No one called out for help, but Defendant stayed beside Decedent until the paramedics came. Defendant had known Decedent for about eight years and had been in a relationship with her for more than six of those years. They dated exclusively from 14 June 2004 through January of 2010 before breaking up due to excessive fighting. They got back together in September of 2010 and continued to see each other up to the night of the shooting, no longer dating

exclusively. That night, with Decedents consent, Defendant was dating Moses. In the hours leading up to the shooting, all three women were hanging out and drinking at Defendants cousins

home. As the evening came to a close, the three women returned to Defendants house and tensions rose over the sleeping

arrangements. Decedent and Moses wanted the three of them to share a bed together, but Defendant refused. An argument broke out, and

Defendant went outside to get away. Moses and Decedent followed her, and Defendant returned inside -- leaving them out. Telling her that they wanted back in, Decedent and Moses kicked on the door until they hair, were and admitted. Defendant One of them began her to pull

Defendants

retreated

into

bedroom.

-4Decedent hair at followed the same her and began Moses cursing, was pulling Defendants to pull

time.

eventually

able

Decedent off of Defendant, whose shirt had been ripped, and the two of them went back outside. Shortly thereafter, Defendant followed them outside and asked them to leave. A drink was

thrown at Defendant, who then slammed her front door closed, again leaving the two women outside. The entire argument lasted between thirty and forty-five minutes.2 Angry about her hair, Defendant changed clothes and

retrieved her gun from under the bed. She had purchased the gun for protection earlier that month because someone had broken into her home. Gun in hand, she went outside and cursed at Decedent. Defendant testified that she took the gun with her to frighten Moses and Decedent into leaving. Defendant said that she started bouncing the gun in her hand as Decedent was walking toward her. All of a sudden, she heard a "popping sound" and saw Decedent running. She heard Decedent say "[y]ou hit me" and

watched her fall onto the curb and into the street. Defendant testified that the shooting was accidental and that she did not
2

Though Defendant testified that she "had scratches and stuff and bruises" as a result of the fight, the investigating detective testified to the contrary, noting that there was no swelling on her face, no cuts or contusions, no blood, and no scratches.

-5know the gun was loaded. When asked why she pulled the trigger, Defendant stated that the gun "ended up going off while it was in my hand. I didnt even realize it." Defendant also testified that there was no blue flame and no recoil from the shot. After Decedent fell, Defendant rushed back to her house and hid the gun inside a vacuum cleaner box located in her closet. She testified that she did this because she was worried that the police would not let her go with Decedent to the hospital if they knew about the gun. She then went out to Decedent and told Moses to call 911. When the police arrived, Defendant told them that Decedent was injured in a drive-by shooting and confirmed that assertion shortly thereafter in a written statement. When the detective informed Defendant that "accidents happen[],"

however, she told him she would take him inside her home and show him where her gun was. When they got inside, Defendant changed her mind and informed the detective that she did not have a gun. Having just submitted to a gunshot residue test, she stated that she had fired a gun earlier that day, but did not own or have one in the house. Then, when the officers found the gun in the vacuum cleaner box, Defendant blurted out: "I didnt mean to shoot with her." the When asked at trial the why she was not

forthright

officers

from

beginning,

Defendant

-6reiterated that she had wanted to go to the hospital with

Decedent and believed that telling the truth would make that difficult or impossible. Once police arrived at the scene of the shooting, an

officer began to look for shell casings near Defendants house. Directly in front of the house, near the curb, the officer found one such casing.3 Another officer confirmed that the casing was found, specifically, about thirty feet from the front door of the house and seventy-six feet from where Decedent had fallen. The States forensic firearms and toolmark identification expert testified that the casing found near the house was a match to the three unfired cartridges in Defendants gun and the bullet found in Decedents body. She further testified that Defendants gun, when fully loaded, could hold six cartridges. The States expert also clarified that Defendants gun was a semi-automatic, single-action weapon with a manual safety

switch. A semi-automatic weapon does not require the user to reload a new cartridge for each separate shot; a single-action weapon is one that must be cocked before it can be used. Such a weapon is cocked by "pulling the slide back and then . . .

releasing it forward." When the expert tested the gun, she noted
3

No other shell casings were discovered.

-7that there was some difficulty getting the slide to retract "due to excessive . . . lubricant buildup." She could not recall, however, "whether it was just really slow or whether it didnt move at all." The expert also noted that the guns trigger

required four pounds of pressure in order to fire consistently.4 Decedent died from her injuries at 4:49 a.m. on 22 February 2011. After performing the autopsy, the States medical examiner confirmed that Decedent "died from bleeding to death from the gunshot wound." She testified that the bullet entered Decedents left flank5 and ended up over her right hip toward the front of her body. Thus, the bullet crossed both from the left side of the body to the right and from the back of the body to the front, at a downward angle. The medical examiner also noted that Decedent had a bruise around her left eye, which had become swollen, and had bruises on her left upper and lower lips. She also had at least three superficial lacerations on the left side of her neck.

4

The gun consistently failed to fire when only three pounds of pressure was placed on the trigger.
5

The "flank" is "[t]he part of the body of a person . . . between the last rib and the hip; the side." American Heritage College Dictionary 517 (3d ed. 1997).

-8The State offered evidence that at least three calls were placed to 911 after the shooting, all before midnight, on 21 February 2011.6 At 11:53:05 p.m., the first caller reported that "someones out here shooting." She informed the operator that there were three females outside arguing, one of whom was

shooting, and that she heard two gunshots. The second call was made less than a minute later, at 11:53:48 p.m. The caller

reported that someone had been shot and was lying on the side of the road. She also stated that she heard "like three or four gunshots," which caused her to jump up out of bed. About a minute after that, at 11:55:02 p.m., Moses called 911 to request an ambulance. When asked if the person who shot Decedent was still there, Moses said, "No, they just rolled by." At the same time, another voice called out, "No, they just rolled past."7 At that point, the other party took over the phone and became

defensive and angry with the operator, eventually hanging up. Defendant moved to dismiss the charge of first-degree

murder at the close of the States evidence, alleging that the State had failed to prove premeditation and deliberation. That
6

Audio recordings of the calls, marked States Exhibit 3, were admitted into evidence and published to the jury.
7

The recording suggests -- and the State argues -- that this party was Defendant.

-9motion was denied. Defendant renewed her motion at the close of all the evidence, and it was again denied. On 15 March 2012, a jury found Defendant to life in guilty prison of first-degree the murder. of She was

sentenced

without

option

parole.

Defendant gave notice of appeal in open court at the end of the trial. Standard of Review The evidence sole was issue argued to on send this the appeal charge is of whether the

sufficient

first-degree

murder to the jury. "This Court reviews the trial courts denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). On appellate review, "the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, . . . and (2) of defendants being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78

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