dissenting.

I cannot agree with the majority’s decision that there was sufficient evidence to go to the jury. In State v. Chapman, 293 N.C. 585, 238 S.E. 2d 784 (1977), the Supreme Court reversed de*83fendant Chapman’s conviction for secret assault on the grounds of insufficient evidence to submit to the jury.

The evidence in Chapman differed significantly from the case sub judice in two important aspects. In Chapman the defendant was identified as being within close proximity of the scene of the assault shortly before and after the incident. Furthermore, a twelve gauge shotgun was taken from the defendant by the police after the shooting. The gun’s breech had a strong odor of gun powder and contained a shell of the same make as a spent shell later found at the scene. The spent shell was later found to have been fired from defendant’s gun.

In the case sub judice, defendant Blake was not identified as being at the scene at the time of the shooting. The only evidence linking him to the scene was one witness who identified a black El Camino that in his opinion was “Lewis Blake’s car.” Three witnesses saw a person in the vicinity of the shooting, but did not identify the defendant as that person. Secondly, there was no weapon ever found.

In Chapman the Court stated:

The most the State has shown is that the victim could have been shot by a shell fired from defendant’s gun. There is nothing, other than an inference which could arise from mere ownership of the gun, that would tend to prove that defendant actually fired the shot. ‘Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do.’ State v. Minor, 290 N.C. 68, 75, 224 S.E. 2d 180, 185 (1976). Even when the State’s evidence is enough to raise a strong suspicion, if it is insufficient to remove the case from the realm of conjecture, nonsuit must be allowed. State v. Chavis, 270 N.C. 306, 154 S.E. 2d 340 (1967).

Chapman, 293 N.C. at 587-88, 238 S.E. 2d at 786.

I cannot see how the evidence in Chapman was insufficient to go to the jury yet the evidence in the case sub judice is sufficient as determined by the majority. Here there is no identification of the defendant at the scene of the crime and no weapon involved in the shooting linked to defendant. Based upon the Supreme Court’s decision in Chapman, I think the evidence was insufficient to go to the jury and the conviction should be reversed.

Defendant first contends that the trial court erred by admitting hearsay testimony by a friend of decedent and by a police officer, that decedent, on the night of his death, told them that he was afraid of defendant. Assuming that the trial court erred in admitting this evidence, defendant has failed to show that the error was prejudicial. Even without this testimony the record discloses overwhelming amounts of evidence of the ill will that existed between the decedent and defendant, and that defendant had told the decedent earlier in the day that “If the bullet hit the car that is your ass.”

Secondly, defendant contends that his Sixth and Fourteenth Amendment rights to confront and cross-examine witnesses against him under the United States and the North Carolina Constitutions were denied by the trial court’s admission of a tape recording of telephone calls made to the 911 emergency number. Defendant argues that the findings of fact made by the trial court after a voir dire hearing were not supported by competent evidence and a proper foundation was not laid for the admission of the evidence. Again, assuming that the trial court erred by admitting the tape recording, defendant has not shown that the admission was prejudicial. The recording only tended to show decedent’s house was being broken into, shots were fired, and someone was dead at Washington Street and Monmouth Avenue. *81No one was accused or implicated in the recording as being the perpetrator and defendant was in no way mentioned as being involved.

Defendant next argues that the trial court erred in failing to grant his motions to dismiss and to set aside the verdict based on the insufficiency of the evidence and that the evidence is insufficient to support a conviction of second degree murder. Where a motion to dismiss is made the court must “consider all the evidence in the light most favorable to the State and . . . give the State the benefit of every reasonable inference to be drawn from it. However, if there is substantial evidence to support a finding that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be denied whether the evidence be direct, circumstantial or both.” State v. Scott, 296 N.C. 519, 522, 251 S.E. 2d 414, 416 (1979). Summarizing the facts in the present case, the State’s evidence tends to show that on 20 October 1984 defendant argued with decedent and threatened him. At about 10:00 that night, Ricky New saw “Lewis Blake’s car” pull up and park near decedent’s home and his wife, Melissa, saw the driver, who had long blond hair and was wearing a dark tee-shirt, get out of the El Camino and walk towards decedent’s home just minutes before decedent was killed. Mazelle Peninger heard shots fired and saw a man on decedent’s back steps. Joseph Chambers also heard the shots and saw a long-haired man running beside decedent’s home. Decedent ran from his house to the street where he collapsed, dying from a bullet wound. After decedent collapsed the El Camino did a three-point road turn and left hastily. Later that night, a deputy sheriff picked up defendant who was standing beside his black El Camino. At the time defendant had shoulder-length dark blond or light brown hair, and was wearing a dark tee-shirt. When this evidence taken all together is considered in the light most favorable to the State it is sufficient to raise an inference that defendant, angry with McLamb because the latter had shot and hit his El Camino, went to the magistrate’s office and learned that McLamb had been released and had no weapon. The evidence is also sufficient to raise an inference that defendant accompanied by a friend drove to McLamb’s home in the El Camino where it was observed by witnesses and that defendant broke into McLamb’s house, fired several shots, that McLamb ran from his home, defendant fired another shot and hit *82McLamb, and that McLamb died as a result of shots fired by defendant. We hold that this evidence is sufficient to support a verdict of guilty of second degree murder.

Next, defendant contends that the trial court erred in refusing to charge the jury in accordance with his requested special instructions designated in the record as 1) “reasonable doubt,” 2) “inference may not be based upon inference,” 3) “no presumption that owner of a vehicle was the driver,” 4) “suspicion or conjecture insufficient to convict” and 5) “facts proved must be inconsistent with defendant’s innocence.” G.S. 15A-1232 provides as follows: “In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.” We find nothing in the law or evidence given in this case to require the judge to instruct the jury as requested by defendant. We find that the instructions given are full, fair and complete, and are free from prejudicial error. These assignments of error have no merit.

Finally, defendant contends that the trial court erred by failing to find factors in mitigation and imposing the presumptive sentence. This argument is without merit. Since defendant was given the presumptive sentence, the trial court was not required to make findings in aggravation and mitigation. G.S. 15A-1340.4(b); State v. Welch, 69 N.C. App. 668, 318 S.E. 2d 4 (1984).

For the foregoing reasons, we hold that defendant had a fair trial free of prejudicial error.

No error.