State v. Surcey

SMITH, Judge.

Defendant appeals a judgment entered on conviction by a jury of first-degree burglary and discharging a firearm into an occupied dwelling. Defendant contends this Court must vacate or reverse one of the convictions because they are mutually exclusive offenses. We agree.

The State’s evidence at trial tended to show the following: On 13 September 1998 at approximately 10:00 p.m., Lloyd Pete McLamb (McLamb), while sitting in his living room, heard a loud sound, “like thunder[,] come into [his] window.” McLamb testified a gun barrel had “punched out” his window and was sticking “about…