PER CURIAM

Factual and Procedural Background

Jeremiah Ezeil Hardaway (Defendant) appeals from a Judgment entered upon a jury verdict finding him guilty of First-Degree Murder based on Felony Murder.

The Record before us, including evidence presented at trial, tends to reflect the following:

Kalen Turner, Tyler Poteat, Jashaun Thompson, and Defendant were high school classmates and were mutual acquaintances with Lamona Boone. Several

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months prior to the underlying incident in this case, Turner and Thompson had a falling out over an accusation Turner made about Thompson to Boone, who was in a relationship with Thompson at the time. Multiple public confrontations ensued with Turner and Poteat on one side and Thompson and Defendant on the other. On 8 September 2019, Defendant and Thompson saw and approached Turner, Poteat, and Cazaria Russell in a Walmart. Turner suggested they take their fight outside, but after leaving the Walmart, Turner Poteat, and Russell went to a friend’s house. The argument continued online through messages on a social media platform. In one message, Turner told Defendant and Thompson “if you all got an issue you all know where I am at. Pull up.” That evening, a group of people in two or three cars, including Defendant and Thompson, drove up to the house where Poteat and Turner were. Thompson and Turner immediately engaged in a physical altercation. Defendant ran to confront Poteat, but the two were separated. Defendant then ran to a car, got a gun, and began waving it around. After someone said they were calling the police, Defendant and several others left. The next morning, 9 September 2019, Defendant messaged Turner that “we can do a round two if you feel like we jumped you.” Turner agreed to another fight. In the evening of 9 September 2019 after an unsuccessful attempt at a fight, Poteat, Russell, Russell’s brother Myson, and several others were walking to Turner’s house when Defendant passed them in his black PT Cruiser along with two other cars

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“full of people[.]” Defendant had repeatedly messaged Turner asking him where he was. Once Poteat and his group arrived at Turner’s house they sat on the porch. Three cars occupied by Defendant, Thompson, and others drove by again. This group drove to a nearby church parking lot and rearranged themselves among the vehicles, with Defendant and Thompson in a car driven by Warren Mongo. According to Thompson, Mongo, and another witness, Defendant sat in the front passenger seat. Although the group decided to “go back home and leave the situation alone,” they still drove past Turner’s house. As the vehicles slowly drove past Turner’s home, multiple witnesses heard gunshots. Poteat testified he heard a shot, saw Defendant “holding a gun,” and saw “sparks” before he “took off.” Russell testified to hearing “at least five or six shots” and ducking down. As the vehicle slowed, Turner testified he saw Defendant’s eyes before “the fire started from the gun started coming out.” Mongo testified he saw a gun in Defendant’s hand immediately after shots had been fired. Thompson testified he saw Defendant “place his hand out of the window” and saw the gun, “[t]he flash then followed after the gunshots.” Myson Russell sustained a gunshot wound to the chest. He subsequently died from that wound. Police found five shell casings in the street near the scene of the incident and a sixth in a grassy area just off the edge of the road. At trial, Detective Adam Snow with the Burlington Police Department testified the spread of the shell casings indicated “they had been shot from something that was moving[.]” Police also discovered a fresh bullet hole in Mr. Turner’s residence on the side that faced the

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street where the shell casings were found. Turner’s niece was present in the home at the time of the shooting. On 23 September 2019, Defendant was indicted for First-Degree Murder and Discharging a Weapon Into an Occupied Dwelling. On 26 September 2023, the State voluntarily dismissed the Discharging a Firearm Into an Occupied Dwelling charge. This case came on for trial on 12 September 2023. During jury selection, the State simultaneously exercised three peremptory challenges: to Eric M, a Black man, Nelson N, a Hispanic man of Mexican heritage, and Brandy F, a white woman. Defendant objected to the challenge of Mr. Moore and Mr. Navarro under Batson v. Kentucky. The trial court found Defendant had made a prima facie showing of discrimination and held a Batson hearing. The State proffered facially race-neutral reasons for the challenge, and the trial court found those reasons credible and held Defendant had not shown purposeful discrimination, overruling the Batson challenge.^[1] At trial, the State sought to present evidence to support the charge of First- Degree Murder based on premeditation and deliberation and based on felony murder. The State submitted three predicate felonies in support of the felony murder theory: Assault With a Deadly Weapon With Intent to Kill, Firing Into an Occupied Dwelling, and Discharging a Firearm Within a Motor Vehicle. At the close of the State’s

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evidence, Defendant moved to dismiss all charges based on insufficient evidence. The trial court denied the Motion. Defendant renewed his Motion to Dismiss after declining to present evidence, and the trial court again denied the Motion. During the charge conference on the jury instructions, defense counsel objected to the submission of all three predicate felonies: “We would object to all three particularly in light that the defense prior to trial asked that the State disclose what theories they were pursuing and at that time they only mentioned those that were charged under premeditation, deliberation, and the discharging into an occupied dwelling.” Defense counsel also stated, “I don’t think . . . all the elements are satisfied, particularly with the felony murder rule portion or felony or murder in the perpetration of a felony components.” The trial court determined instruction on all three predicate felonies was proper and instructed the jury accordingly. The trial court also instructed the jury: “You must be unanimous that the defendant committed or attempted to commit one of these felonies and that the defendant had the intent to commit that felony, but you need not be unanimous as to which one the defendant committed or attempted to commit.” On 22 September 2023, the jury returned a verdict finding Defendant guilty of First-Degree Murder based on Felony Murder. The verdict form did not require the jury to specify which predicate felony or felonies supported the conviction. The trial court entered a Judgment sentencing him to life imprisonment without possibility of parole.

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Issues The issues on appeal are whether: (I) Defendant’s challenges to the denial of his Motions to Dismiss were preserved for appellate review; (II) the trial court erred by denying Defendant’s Motions to Dismiss and instructing the jury on each of the predicate felonies charged; or (III) the trial court erred by overruling Defendant’s Batson objection. Analysis I. Preservation As a threshold matter, the State argues Defendant failed to properly preserve his challenge to the sufficiency of the evidence because, in the State’s view, his objection at trial rested exclusively on a lack of pretrial notice. We disagree. Our Rules of Appellate Procedure provide: “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R. App. P. Rule 10(a)(1) (2024). Further, our Supreme Court has held “[b]ecause our case law places an affirmative duty upon the trial court to examine the sufficiency of the evidence against the accused for every element of each crime charged, it follows that, under Rule 10(a)(3), a defendant’s motion to dismiss preserves all issues related to sufficiency of the State’s evidence for appellate review.” State v. Golder, 374 N.C. 238, 246, 839 S.E.2d 782, 788 (2020).

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During the charge conference, the trial court asked defense counsel whether he would like to be heard on the predicate felonies. Counsel for Defendant responded: “We would object to all three. We would object to all three particularly in light that the defense prior to trial asked that the State disclose what theories they were pursuing and at that time they only mentioned those that were charged under premeditation, deliberation, and the discharging into [a]n occupied dwelling.” Further, during the charge conference but prior to the above express objections, counsel for Defendant argued “I don’t think . . . all the elements are satisfied, particularly with the felony murder rule portion or felony or murder in the perpetration of a felony components. . . . The only evidence presented by the State is that the shooter was shooting into the air. And so I think there is certainly argument both ways on a lot of these elements and it’s not sufficient or fully satisfied by the State’s evidence.” Additionally, Defendant moved to dismiss the charges against him at the close of the State’s evidence, and again after the close of all evidence. At the close of the State’s case in chief, Defendant contended the State had not presented sufficient evidence to support the murder charges and the discharging a firearm into an occupied dwelling charge. Counsel for Defendant expressly argued “as far as the occupied dwelling goes, there’s not been any evidence at all, not one scintilla of evidence as they say, that any bullet fired from that vehicle at all struck this building.” Defense counsel likewise challenged the sufficiency of the evidence for

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First-Degree Murder and argued, “even given the benefit of all reasonable inferences that the jury could not come back with a guilty beyond a reasonable doubt in both of these charges.” And, indeed, the State’s response to these arguments was that there was sufficient evidence to support each charge, including sufficient evidence to support the three predicate felonies it alleged. Thus, the sufficiency of the evidence to support the First-Degree Murder charge, including the three predicate felonies alleged, was submitted to the trial court for consideration. Therefore, Defendant’s challenge to the sufficiency of the evidence to support the First-Degree Murder charge was preserved for appellate review. II. Sufficiency of the Evidence Defendant contends the trial court erred by instructing the jury because there was insufficient evidence to support the three alleged predicate felonies: Assault with a Deadly Weapon with Intent to Kill (AWADWWIK), Firing Into an Occupied Dwelling, and Discharging a Firearm Within a Motor Vehicle. “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted). “[U]npreserved issues related to jury instructions are reviewed under a plain error standard, while preserved issues are reviewed under a harmless error standard.” State v. Collington, 375 N.C. 401, 410, 847 S.E.2d 691, 698 (2020) (citations omitted). As we determined supra, Defendant’s challenges to the jury

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instructions were preserved for appeal. Thus, we apply harmless error review. “[H]armless-error review requires a defendant show that ‘there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises,’ unless the error relates to a constitutional right.” State v. Leaks, 379 N.C. 57, 62, 864 S.E.2d 217, 220 (2021) (quoting N.C. Gen. Stat. § 15A-1443(a)). Defendant has not alleged violation of a constitutional right; therefore, he bears the burden of showing prejudice. State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331 (2012) (citing N.C. Gen. Stat. § 15A-1443(a)). Here, Defendant sought to dismiss the First-Degree Murder charge at the close of the State’s evidence and after his case-in-chief based on insufficient evidence. “This Court reviews the trial court’s denial of a motion to dismiss de novo.” State v. Wilson, 269 N.C. App. 648, 651, 839 S.E.2d 438, 441 (2020) (citation omitted). “Upon defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s 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 (2000) (citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “If the evidence is sufficient only to raise a suspicion or conjecture as to either

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the commission of the offense or the identity of the defendant as the perpetrator of it, the motion [to dismiss] should be allowed.” Fritsch, 351 N.C. at 378, 526 S.E.2d at 455 (citation omitted). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citing State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986)). “Only defendant’s evidence which does not contradict and is not inconsistent with the state’s evidence may be considered favorably to [the] defendant if it explains or clarifies the state’s evidence or rebuts inferences favorable to the state.” Sumpter, 318 N.C. at 107-08, 347 S.E.2d at 399. However, “[w]hether the State has offered such substantial evidence is a question of law for the trial court.” State v. McKinney, 288 N.C. 113, 119, 215 S.E.2d 578, 583 (1975) (citations omitted). Here, Defendant was charged with Felony Murder. “Felony murder elevates a homicide to first-degree murder if the killing is committed in the perpetration or attempted perpetration of certain felonies or any ‘other felony committed or attempted with the use of a deadly weapon[.]’ ” State v. Frazier, 248 N.C. App. 252, 262, 790 S.E.2d 312, 320 (2016) (quoting N.C. Gen. Stat. § 14-17(a)). The State put forward three different predicate felonies upon which the jury could base a conviction for Felony Murder: AWADWWIK, Firing Into an Occupied Dwelling, and Discharging a Firearm Within a Motor Vehicle. We address each in turn.

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A. AWADWWIK and Firing Into an Occupied Dwelling “[T]he elements of assault with a deadly weapon with intent to kill are: ‘(1) an assault; (2) with a deadly weapon; (3) with the intent to kill.’ ” State v. Garris, 191 N.C. App. 276, 287, 663 S.E.2d 340, 349 (2008) (quoting State v. Coria, 131 N.C. App. 449, 456, 508 S.E.2d 1, 5 (1998)). An assault is “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). “A specific intent to kill is an essential element of assault with a deadly weapon with intent to kill[.]” State v. Daniel, 333 N.C. 756, 763, 429 S.E.2d 724, 729 (1993) (citations omitted). However, “an intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.” State v. Barlowe, 337 N.C. 371, 379, 446 S.E.2d 352, 357 (1994). “Where the defendant points a gun at the victim and pulls the trigger, this constitutes evidence from which intent to kill may be inferred.” State v. Cromartie, 177 N.C. App. 73, 77, 627 S.E.2d 677, 680 (2006); see also State v. Patton, 115 N.C. 753, 756, 20 S.E. 538, 539 (1894) (“[W]hen the statute makes the ‘intent to kill’ an essential element of the offense, the intent to shoot will be held synonymous with the intent to kill.”). Our statutes describe the offense of Firing Into an Occupied Dwelling, in

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pertinent part, as follows: (a) Any person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon capable of discharging shot, bullets, pellets, or other missiles . . . into any building, structure, . . . or enclosure while it is occupied is guilty of a Class E felony. (b) A person who willfully or wantonly discharges a weapon described in subsection (a) of this section into an occupied dwelling . . . is guilty of a Class D felony. N.C. Gen. Stat. § 14-34.1(a)-(b) (2023). Thus, the elements of this offense are: “(1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied.” State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995) (citation omitted). Defendant’s contention as to each of these offenses is the same: he argues the Record does not reflect evidence he fired “at” anyone or at Turner’s house. We disagree. The Record reflects Poteat testified that he saw Defendant holding a gun and saw the gun discharge. Turner testified to seeing Defendant firing a gun. Another witness, Warren Mongo, stated he saw a gun in Defendant’s hand immediately after hearing multiple shots fired. Further, the evidence reflected Russell was shot and died from a gunshot wound. Likewise, the evidence tended to show a bullet entered Turner’s residence. Defendant concedes there was reason to believe, given the time of day the shooting occurred, that Turner’s residence might be occupied. Thus, there is sufficient evidence from which the jury could infer Defendant was the shooter and

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that bullets from the gun he fired hit Russell, as well as Turner’s house. The remaining question as Defendant poses it—whether Defendant fired “at” anyone or anything—is a question of fact for the jury. See U.S. v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S. Ct. 1349, 1355, 51 L. Ed. 2d 642 (1977) (“[I]n a jury trial the primary finders of fact are the jurors.”). Thus, the evidence, taken in the light most favorable to the State, was sufficient to submit the charges of AWADWWIK and Firing Into an Occupied Dwelling to the Jury. Therefore, the trial court did not err in denying Defendant’s Motions to Dismiss and submitting these charges to the jury. B. Discharging a Firearm Within a Motor Vehicle Our statutes provide: “Unless covered under some other provision of law providing greater punishment, any person who willfully or wantonly discharges or attempts to discharge a firearm within any occupied building, structure, motor vehicle, or other conveyance, erection, or enclosure with the intent to incite fear in another shall be punished as a Class F felon.” N.C. Gen. Stat. § 14-34.10 (2023). The elements of this offense are thus (1) willfully or wantonly discharging; (2) a firearm; (3) within a motor vehicle; (4) with the intent to incite fear in another person. Defendant contends there was insufficient evidence as to the third element— that he discharged the firearm within the car. He argues the use of the word “within” as used in the statute requires a showing that the requisite conduct occurred inside a single structure—that it “encompasses an event occurring inside the covered

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conveyance rather than emanating from it.” He argues the language of the statute is clear and unambiguous, and that the Legislature’s intent is additionally evidenced by its use of different language in related statutes. The evidence, taken in the light most favorable to the State, tended to show Defendant had fired from a vehicle into Kalen Turner’s house. Defendant argues the act of firing from a vehicle into another structure is more appropriately described by language contained in other provisions, including Section 14-34.1 of our General Statutes which criminalizes discharging a firearm into a building or structure, or Section 14-34.9, which criminalizes discharging a firearm “from within any building, structure, motor vehicle, or other conveyance, erection, or enclosure toward a person not within that enclosure[,]”and the existence of these statutes indicates the Legislature did not intend Section 14- 34.10 to govern the conduct at issue in this case. This Court recently addressed this question in State v. Jenkins, __ N.C. App. __, __ S.E.2d __ (COA 24-889, 2025 WL 2232043). In that case, the defendant discharged a firearm from a vehicle into another vehicle, injuring the driver. Id. at *2. Like Defendant, he was convicted under Section 14-34.10. Id. at *4. We upheld that conviction, holding that because the defendant was within an enclosure when he discharged the firearm his conduct was contemplated by the statute, regardless of whether the victim was within that same enclosure. Id. at *5. “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by

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a higher court. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Defendant’s argument is foreclosed by our precedent. The evidence at trial therefore supported a jury instruction regarding Discharging a Firearm Within a Motor Vehicle and the trial court did not err by denying the Motion to Dismiss and so instructing the jury. III. Defendant’s Batson Objection Defendant also argues the trial court erred by denying his Batson challenge. The State exercised a peremptory challenge as to Eric M, a Black man, and Defendant objected to this challenge under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution “guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors.” Batson v. Kentucky, 476 U.S. at 79. “The Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Foster v. Chatman, 578 U.S. 488, 499, 197 L.Ed.2d 1 (2016). Article I, Section 26 of the North Carolina Constitution likewise prohibits the State from using peremptory challenges for racially discriminatory reasons. State v. Augustine, 359 N.C. 709, 715, 616 S.E.2d 515, 521 (2005). “When a defendant claims that the State has exercised its peremptory

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challenges in a racially discriminatory manner, a trial court conducts a three-step analysis pursuant to the decision of the Supreme Court of the United States in Batson v. Kentucky.” State v. Hobbs, 374 N.C. 345, 349-50, 841 S.E.2d 492, 497 (2020). First, the defendant must make a prima facie showing that the state exercised a race-based peremptory challenge. If the defendant makes the requisite showing, the burden shifts to the state to offer a facially valid, race-neutral explanation for the peremptory challenge. Finally, the trial court must decide whether the defendant has proved purposeful discrimination. State v. Taylor, 362 N.C. 514, 527, 669 S.E.2d 239, 254 (2008) (citations omitted). Here, Defendant noted the State had challenged the only Black prospective juror on the panel and the trial court accordingly concluded he had made a prima facie showing of discrimination. The State then offered facially race-neutral explanations for exercising the challenge: that Eric M appeared “uninterested” and “not attentive,” that he “seemed to have been annoyed to be here and that he appeared . . . to not be listening.” We now address Batson’s third step and determine if the trial court erred in determining Defendant has not shown purposeful discrimination. “When reviewing a trial court’s Batson analysis, ‘a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.’ ” State v. Cuthbertson, 288 N.C. App. 388, 396, 886 S.E.2d 882, 888-89 (2023) (quoting Snyder v. Louisiana, 552 U.S. 472, 477, 170 L.Ed.2d 175 (2008)). Clear error exists when “on the entire evidence, the Court is left with the definite and firm conviction that a mistake has been committed.” Id. This deferential standard reflects an

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understanding that trial courts are “in the best position to assess the prosecutor’s credibility.” Id In the third step of the Batson analysis, trial courts determine whether the prosecutor’s proffered reasons are pretextual: “[t]he ultimate inquiry is whether the State was motivated in substantial part by discriminatory intent.” Hobbs at 353, 841 S.E.2d at 499 (citations omitted). Trial courts use an open-ended list of factors to determine whether the defendant has met the burden of proving purposeful discrimination, including: Statistical evidence about the prosecutor’s use of peremptory strikes against Black prospective jurors as compared to white prospective jurors in the case; Evidence of a prosecutor’s disparate questioning and investigation of Black and white prospective jurors who were not struck in the case Side-by-side comparisons of Black prospective jurors who were struck and white prospective jurors who were not struck in the case A prosecutor’s misrepresentation of the record when defending the strikes during the Batson hearing The susceptibility of the case to racial discrimination Relevant history of the State’s peremptory strikes in past cases; or Other relevant circumstances that bear upon the issue of racial discrimination. Cuthbertson, 288 N.C. App. at 403, 886 S.E.2d at 893. The trial court must “consider all of the evidence before it when determining

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whether to sustain or overrule a Batson challenge.” Hobbs at 358, 841 S.E.2d at 502. It must “explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges[,]” including engaging in a “comparative juror analysis of the prospective juror’s voir dire responses.” Id. at 360, 841 S.E.2d at 503. In this case, the State removed the only Black juror who had yet participated in voir dire. This statistical evidence may favor a finding of purposeful discrimination, but we note that “bare statistics” do not carry as much weight as other factors, particularly as a small sample size can skew strike and acceptance rate data. Cuthbertson at 404-05, 886 S.E.2d at 893 (citing Miller-El v. Dretke, 545 U.S. 231, 241, 162 L.Ed.2d 196 (2005)). Several of the enumerated factors do not support a finding of purposeful discrimination in this case. The trial court found the prosecutor had not misrepresented the record in defending the peremptory strike. There was no evidence the case was particularly susceptible to racial discrimination: in making this determination, we focus on the “race of the defendant, the victims, and the key witnesses” and “whether the case crosses racial lines among those key figures.” State v. Bennett, 282 N.C. App. 585, 621, 871 S.E.23d 831, 856 (2022) (citation omitted). The Defendant in this case is Black, but at the time of the Batson hearing there was no indication of the race of the victim or key witnesses. There was no indication of disparate questioning of jurors. Defendant does not argue, at trial or on appeal, that

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these factors support a finding of purposeful discrimination. The sole factor Defendant raises in support of a finding of purposeful discrimination is a comparison between Eric M and Nathan J, a white juror who was not struck. During the Batson hearing, the State explained its strike by describing Eric M’s demeanor: Ms. Burnick was tasked with observing the reactions of the jurors as I asked questions as I was taking notes on their answers and such. And what she observed about it was that [Eric M] was uninterested. That she observed matters of his body language that showed he was not attentive. That he seemed to have been annoyed to be here and that he appeared to her to be not listening. In response, Defendant identified behavior exhibited by Nathan J: I submit to Your Honor that Juror No. 5, [Nathan J], gave nothing but one word answers the entire time with every question that he was asked. . . . And subjectively someone could say, oh, well, he looks like he doesn’t want to be here. He’s giving these one word answers and not very communicative, if you will, with his body language. We note that explanations based on demeanor “are particularly susceptible to the kind of abuse prohibited by Batson.” United States v. Diaz, 26 F.3d 1533, 1543 (1994). However, “[t]he trial judge [is] in the best position to resolve this issue” because the trial court can observe the prospective juror’s “facial expressions, tone of voice, reactions, and other nuances that are not subject to translation when reviewing a cold record on appeal.” State v. McClain, 169 N.C. App. 657, 669, 610 S.E.2d 783, 791 (2005). In this case, the trial court found the prosecutor’s explanation credible.

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Nathan J’s behavior as identified by Defendant is not directly analogous to that of Eric M. Defendant identifies only Nathan J’s “one word answers” and body language as indicating “he doesn’t want to be here.” The State’s concern regarding Eric M was not only that he was “annoyed to be here” but that he was “uninterested,” “not attentive,” and “appeared . . . to be not listening.” A prospective juror’s “general lack of attention” is a valid reason for the State to exercise a peremptory challenge. State v. Caporasso, 128 N.C. App. 236, 244, 495 S.E.2d 157, 162 (1998). Defendant has not shown this reason to be pretextual, and the trial court did not clearly err in finding the proffered explanation credible. After reviewing all of the relevant facts and circumstances, we determine that the trial court did not commit clear error in concluding the peremptory strike of Eric M was not motivated in substantial part by discriminatory intent. Clegg, 380 N.C. at 144, 867 S.E.2d at 900. We are not “left with the definite and firm conviction that a mistake has been committed.” Bennett, 282 N.C. App. at 600, 871 S.E.2d at 844. Therefore, the trial court did not err in denying Defendant’s Batson objection. Conclusion Accordingly, for the foregoing reasons, we conclude there was no error in Defendant’s trial and affirm the Judgment. NO ERROR. Chief Judge DILLON concurs by separate opinion.

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Judge HAMPSON concurs in result only by separate opinion. Judge GRIFFIN concurs.

No. COA24-538 – State v. Hardaway

HAMPSON, Judge, concurring dubitante.

Although we are bound by the previous decision of this Court in State v. Jenkins, __ N.C. App. __, __ S.E.2d __ (COA 24-889, 2025)2, I believe that opinion

incorrectly interpreted the statute at issue and was wrongly decided. The panel in Jenkins eschewed a plain text analysis of N.C. Gen. Stat. § 14-34.10 (2023) and discarded the clear legislative intent. Instead, that panel rewrote the statute to reach the conclusion the term “within” actually meant “without.”

Let’s start at the beginning—with the actual text of the statute. The text of Section 14-34.10, entitled “Discharge Firearm Within Enclosure to Incite Fear,” reads:

Unless covered under some other provision of law providing greater punishment, any person who willfully or wantonly discharges or attempts to discharge a firearm within any occupied building, structure, motor vehicle, or other conveyance, erection, or enclosure with the intent to incite fear in another shall be punished as a Class F felon.

N.C. Gen. Stat. § 14-34.10 (2023). Thus, the elements of this offense are: (1) willfully or wantonly discharging; (2) a firearm; (3) within a motor vehicle; (4) with the intent to incite fear in another person. See id.

As Defendant notes, the critical word in this statutory provision is “within”.

Although we are without caselaw defining “within” for the purposes of statutory construction, other relevant sources define it as “inside the limits of,” BLACK’S LAW

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Hampson, J., concurring

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Hampson, J., concurring No. COA24-538 – State v. Hardaway

DILLON, Chief Judge, concurring.

I concur. Defendant argues the language of G.S. 14-34.10 does not cover his actions, firing a weapon “from within” a vehicle at targets outside the vehicle, as shown by the evidence, where the language of the statute merely proscribes firing a weapon “within” a vehicle. See State v. Hinton, 361 N.C. 207, 211–12 (2007) (under the “rule of lenity” ambiguous statutes are to be strictly construed against the State).

We are bound, though, by our Court’s recent holding in State v. Jenkins that G.S. 14-

34.10 is not ambiguous, that our General Assembly also intended to proscribe the firing of a weapon from within a vehicle at a target outside the vehicle.

Defendant further argues the lack of evidence that he committed any of the predicate felonies submitted to the jury. I agree, though, with the majority opinion that the evidence was sufficient to submit the predicate felonies to the jury.

I write separately to express my view that G.S. 14-34.10 should not have been submitted to the jury, but for a reason not argued by Defendant either at trial or on appeal. While based on Jenkins I am compelled to disagree with Defendant’s argument that there was insufficient evidence he violated G.S. 14-34.10, I conclude the circumstances surrounding his violation of that felony were not sufficient to bring those actions within the purview of our felony murder statute, as Defendant’s presence in a car when he fired the fatal shot did not add any risk of harm, as explained below.

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring

STATE V. HARDAWAY

DILLON, C.J., concurring