State v. Carroll ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-989
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Cleveland County
Nos. 11 CRS 50468, 50471, 50473
JACKIE CARROLL
Appeal by defendant from judgments entered 20 February 2013
by Judge Linwood O. Foust in Cleveland County Superior Court.
Heard in the Court of Appeals 5 February 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Heather H. Freeman, for the State.
Gilda C. Rodriguez for defendant-appellant.
BRYANT, Judge.
Where there was no conflict in the facts regarding the
injuries suffered by the victim, the trial court did not err in
denying defendant’s request for an instruction on assault with a
deadly weapon as a lesser-included offense of assault with a
deadly weapon with intent to kill inflicting serious injury.
Because there was sufficient evidence to support an instruction
-2-
on the doctrine of acting in concert as to robbery with a
dangerous weapon, we find no error in the trial court’s jury
instruction as to that charge.
On 11 April 2011, a Cleveland County Grand Jury indicted
defendant Jackie Carroll on charges of assault with a deadly
weapon with intent to kill inflicting serious injury, robbery
with a dangerous weapon, and possession of a firearm by a felon.
The matter came on for trial before a jury during the 18
February 2013 Criminal Session of Cleveland County Superior
Court, in Shelby, the Honorable Linwood O. Foust, Judge
presiding.
The evidence presented at trial tended to show that on the
evening of 2 February 2011, Michael Black, the victim, received
a phone call from defendant’s daughter, Tangie. Tangie and her
boyfriend, Steven, were looking for a ride. After picking up
Tangie and Steven, Tangie told Black that she wanted him to pick
up her mother, defendant. After picking up defendant, someone
proposed heading to the Royal Motel. Black testified that he
had recently been paid and had over $400.00 on his person.
Black paid for the motel room. In the room, everyone but Steven
was drinking beer, and defendant and Tangie were doing drugs.
Black testified that while sitting on the bed talking, defendant
-3-
“just like came up and started hitting me in the head with the
gun. . . . [A]nd then Tangie was trying to help her or whatever
the situation was.” “[T]hey was going in my pockets taking my
money and stuff out.” Black described how he was continually
hit on the head and face, bleeding, and how things became
“fuzzy.” Black then lost consciousness. When Black regained
consciousness, defendant, Tangie, and Steven had left the motel
room. His money had been taken from his pockets, and his car
was gone. Black called 9-1-1.
Following the close of the State’s evidence, defendant made
motions to dismiss the charges of assault with a deadly weapon
with intent to kill inflicting serious injury and robbery with a
dangerous weapon. Both motions were denied. Defendant declined
to present evidence.
Following the trial court’s instructions, the jury returned
guilty verdicts against defendant for the offenses of assault
with a deadly weapon inflicting serious injury, robbery with a
dangerous weapon, and possession of a firearm by a felon. The
trial court entered judgment on the charge of assault with a
deadly weapon inflicting serious injury, sentencing defendant to
a term of 40 to 57 months. In a separate judgment, the trial
court consolidated for sentencing the convictions for robbery
-4-
with a dangerous weapon and possession of a firearm by a felon
and sentenced defendant to a concurrent term of 103 to 133
months. Defendant appeals.
_____________________________________
On appeal, defendant questions whether the trial court
committed plain error (I) in denying her request for an
instruction on a lesser-included offense and (II) instructing
the jury on acting in concert.
I
Defendant first argues that the trial court committed plain
error in denying her request for instruction on the lesser-
included offense of assault with a deadly weapon. We disagree.
Preservation of defendant’s challenge and standard of
review
Defendant was indicted on the charge of assault with a
deadly weapon with intent to kill inflicting serious injury
pursuant to N.C. Gen. Stat. ' 14-32(a). At the close of all of
the evidence, the trial court met with counsel for the State and
the defense in chambers to discuss the proposed jury
instructions. The meeting was not recorded. However, the
parties returned to open court where the trial court summarized
the in-chambers discussion for the record, as follows:
-5-
The Court has informed the defendant and the
State that it intends to give the following
instructions from the patterned jury
instructions . . . 208.10, assault with a
deadly weapon inflicting serious injury -–
208.10, assault with a deadly weapon with
intent to kill inflicting serious injury.
Alternatively the Court will give the lesser
included offense of assault with a deadly
weapon inflicting serious injury. That’s
208.15.
. . .
The Court will now allow the defendant to
place on record the instructions that she
requested that the Court has denied.
[Defense Counsel]: Your Honor, I’ve also
requested instructions 208.50, assault with
a deadly weapon and 208.60, assault
inflicting serious injury.
Following the jury instructions, the trial court permitted
counsel for the State and counsel for the defense an opportunity
to object to the instructions given. As noted in defendant’s
brief to this Court, counsel for the defense did not object.
Pursuant to our North Carolina Rules of Appellate
Procedure, “[a] party may not make any portion of the jury
charge or omission therefrom the basis of an issue presented on
appeal unless the party objects thereto before the jury retires
to consider its verdict . . . out of the presence of the jury.”
N.C. R. App. P. 10(a)(2) (2013); see also State v. Young, 196
N.C. App. 691, 697-98, 675 S.E.2d 704, 708 (2009) (holding that
-6-
where the defense counsel presented his request for a jury
instruction during the charge conference and the trial court
denied the request but noted the objection, the objection was
properly preserved despite a failure to object at the time of
the jury charge); accord Wall v. Stout, 310 N.C. 184, 188-89,
311 S.E.2d 571, 574 (1984) (“It is our conclusion that neither
Rule 10(b)(2) [(now Rule 10(a)(2))] nor Rule 21 [of the General
Rules of Practice for the Superior and District Courts] required
plaintiffs to repeat their objections to the jury instructions
after the charge was given in order to preserve their objections
for appellate review. These rules were obviously designed to
prevent unnecessary new trials caused by errors in instructions
that the court could have corrected if brought to its attention
at the proper time. It is our opinion that this policy is met
when a request to alter an instruction has been submitted and
the trial judge has considered and refused the request. In most
instances, it is obvious that further objection at the close of
the instructions would be unavailing.”).
As the record reflects, defense counsel made requests of
the trial court to instruct on two additional lesser-included
offenses of assault with a deadly weapon with intent to kill
inflicting serious injury, i.e., assault with a deadly weapon
-7-
and assault inflicting serious injury. These requests were
denied and noted for the record; therefore, defendant’s
challenge to the jury instruction is preserved for appellate
review. See Young, 196 N.C. App. at 697-98, 675 S.E.2d at 708.
Where a defendant preserves her challenge to jury
instructions for appellate review, we review the challenged
instructions de novo. See State v. Osorio, 196 N.C. App. 458,
466, 675 S.E.2d 144, 149 (2009).
Analysis
The trial court instructed the jury on the offense of
assault with a deadly weapon with intent to kill inflicting
serious injury and assault with a deadly weapon inflicting
serious injury. The trial court denied defendant’s request for
an instruction on assault with a deadly weapon and assault
inflicting serious injury. Following deliberation, the jury
found defendant guilty of assault with a deadly weapon
inflicting serious injury.
On appeal, defendant contends the trial court committed
plain error in failing to instruct the jury on the lesser-
included offense of assault with a deadly weapon. Defendant
argues there was conflicting evidence as to the “serious injury”
-8-
element of the charge “assault with a deadly weapon inflicting
serious injury,” for which she was convicted.
The serious injury element of N.C. Gen.
Stat. § 14–32 [(Felonious assault with
deadly weapon with intent to kill or
inflicting serious injury; punishments)]
means a physical or bodily injury. The
courts of this State have declined to define
serious injury for purposes of assault
prosecutions other than stating that the
term means physical or bodily injury
resulting from an assault, and that further
definition seems neither wise nor desirable.
State v. Walker, 204 N.C. App. 431, 446-47, 694 S.E.2d 484, 494-
95 (2010) (citations omitted). “It is well-established that
whether serious injury has been inflicted must be determined
according to the particular facts of each case and is a question
the jury must answer under proper instruction.” State v.
Wallace, 197 N.C. App. 339, 347, 676 S.E.2d 922, 928 (2009)
(citation and quotations omitted). “Relevant factors in
determining whether serious injury has been inflicted include,
but are not limited to: (1) pain and suffering; (2) loss of
blood; (3) hospitalization; and (4) time lost from work.
Evidence that the victim was hospitalized, however, is not
necessary for proof of serious injury.” State v. Morgan, 164
N.C. App. 298, 303, 595 S.E.2d 804, 809 (2004) (citing State v.
Joyner, 295 N.C. 55, 65, 243 S.E.2d 367, 374 (1978)).
-9-
At trial, the State presented the following evidence
regarding the extent of Black’s injuries. During the early
morning hours of 3 February 2011, Officer Michael Howard of the
City of Kings Mountain Police Department was dispatched to the
Royal Motel in response to a report of an assault and robbery.
When he first encountered Michael Black, Officer Howard
described him as “[b]loody.”
He was complaining of head injury and neck
injury, that he was hurting. When I had
first arrived on the scene and began
speaking to him, he had stated that he
believed he had went unconscious during the
assault.
Emergency Medical Service responder Casey Woods also
reported to the scene.
Q. What wounds, if any, were you able to
determine he had?
A. According to my detailed physical
findings his face had some soft tissue
swelling/bruising. He had bleeding
controlled laceration to the head. Neck, he
complained of neck pain without swelling or
bruising noted. . . . His head had some
bleeding around his nose.
Black was transported to the Cleveland Regional Medical
Center Emergency Room for further evaluation and treatment.
Using hospital records, the treating nurse gave the following
testimony regarding Black’s condition and treatment upon
-10-
admission to the hospital:
[Black] had a hematoma which [sic] bruising
to his forehead and lacerations to the left
and right side of his -– the back of his
head.
. . .
Q. Does the hospital record indicate what
kind of treatment Mr. Black underwent as a
result of having those injures?
A. Yes. EMS notes his lacerations which are
the cuts on the back of his head were
cleansed. We took him to CT for his
lacerations on his head to make sure he
didn’t have bleeding inside of his head. . .
. Looks like the physician stapled the
laceration in his head on both sides.
. . .
Q. Would those kind of injuries have
required him to receive some sort of follow
up care?
. . .
A. He would need to follow up for a recheck
and have the staples removed.
The evidence of the seriousness of Michael Black’s wounds
is not conflicting. The victim was beaten about the head with a
gun, causing bleeding and lacerations requiring emergency
medical treatment which resulted in staples to his head on both
sides. Based on these facts, it was proper for the trial court
to instruct and for the jury to find that the injuries suffered
-11-
by Black’s wounds were serious injuries. See Wallace, 197 N.C.
App. 339, 676 S.E.2d 922 (holding no error in the trial court’s
denial of defendant’s motion to dismiss the charge of assault
with a deadly weapon with intent to kill inflicting serious
injury after defendant argued there was no serious injury where
the evidence indicated that defendant and co-defendant bloodied
their 79-year-old victim’s face by beating him with their fists
and tree limbs). Defendant’s argument is overruled.
II
Next, defendant argues the trial court committed plain
error in instructing the jury on the theory of acting in concert
as it applied to the offense of robbery with a firearm. We
disagree.
Defendant acknowledges that she failed to object to the
trial court’s instruction on acting in concert given with the
armed robbery instruction. As such, defendant requests that we
review this issue for plain error.
[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,
or where [the error] is grave error which
amounts to a denial of a fundamental right
of the accused, or the error has resulted in
-12-
a miscarriage of justice or in the denial to
appellant of a fair trial or where the error
is such as to seriously affect the fairness,
integrity or public reputation of judicial
proceedings or where it can be fairly said
the instructional mistake had a probable
impact on the jury's finding that the
defendant was guilty.
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333
(2012) (citation and quotations omitted).
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury's finding
that the defendant was guilty.
Id. at 518, 723 S.E.2d at 334 (citations and quotations
omitted).
Codified under General Statutes, section 14-87, the
essential elements of armed robbery, as articulated by our
Supreme Court, are “(1) the unlawful taking or an attempt to
take personal property from the person or in the presence of
another (2) by use or threatened use of a firearm or other
dangerous weapon (3) whereby the life of a person is endangered
or threatened.” State v. Hope, 317 N.C. 302, 305, 345 S.E.2d
361, 363 (1986) (citation and quotations omitted); see also N.C.
Gen. Stat. ' 14-87(a) (2013). Acting in concert is not an
-13-
element of armed robbery; therefore, adding the theory of acting
in concert to the indictment would amount to surplusage. See
State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996)
(“A criminal indictment is sufficient if it expresses the charge
against the defendant in a plain, intelligible, and explicit
manner. Specifically, the indictment must allege all of the
essential elements of the crime sought to be charged.
Allegations beyond the essential elements of the crime sought to
be charged are irrelevant and may be treated as surplusage.”
(citations and quotations omitted)); see also State v. Sanders,
No. COA06–783, 2007 N.C. App. LEXIS 244, at *8 (6 February 2007)
(“Acting in concert is not an essential element of robbery with
a dangerous weapon and, thus, would have been surplusage if
included in the indictment.” (citation omitted)).
Here, the grand jury found defendant unlawfully stole,
took, and carried away $400.00 in United States currency from
the person of Michael Black and that defendant committed this
act having in possession and with the use and threatened use of
a .45 caliber handgun whereby the life of Michael Black was
endangered or threatened. Defendant does not challenge the
validity of the indictment.
Following the close of the evidence, the trial court gave
-14-
the following instruction on armed robbery along with an
instruction on acting in concert:
The defendant has been charged with robbery
with a firearm which is taking and carrying
away of the personal property of another
from his person or in his presence without
his consent by endangering or threatening a
person’s life with a firearm the taker
knowing that he was not entitled to take the
property and intending to deprive another of
its use permanently.
. . .
For a person to be guilty of a crime, it is
not necessary that she personally do all of
the acts necessary to constitute the crime.
If two or more persons join in a common
purpose to commit robbery with a dangerous
weapon, each of them, if actively or
constructively present, is not only guilty
of that crime if the other person commits
the crime, but is also guilty of any other
crimes committed by the other person in
pursuance of the common purpose to commit
robbery with a dangerous weapon or a natural
or probable consequence of thereof.
If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date the defendant either by herself
or together with Tangie Carroll and Steve
Clark had in their possession a firearm and
took and carried property from the person or
presence of that person without his
voluntary consent by endangering or
threatening his life with the use or
threatened use of a firearm the defendant
knowing that she was not entitled to take
the property and intending to deprive that
person of its use permanently, it would be
-15-
your duty to return a verdict of guilty.
If you do not so find or if you have a
reasonable doubt as to one or more of these
things, it would be your duty to return a
verdict of not guilty.
The evidence presented at trial clearly showed defendant,
armed with a gun, began beating Black in the head and face with
the gun while having her daughter, Tangie, assist in relieving
Black of his money.
I wasn’t paying [defendant] no attention to
her being a threat. I was just like talking,
and then she just like came up and started
hitting me in the head with the gun.
. . .
[Defendant] called for Tangie, and then
Tangie was trying to help her or whatever
the situation was.
. . .
. . . I don’t really remember when I
released [defendant’s arm] or all that. The
only thing I know was they was going in my
pockets taking my money and stuff out.
. . .
Q. Did you see who it was that was going
[through your pockets?]
A. . . . I know [defendant] went in there.
This evidence was more than sufficient to support the jury
instruction on acting in concert. Therefore, we hold the trial
-16-
court did not err in giving this instruction to the jury.
Defendant’s argument is overruled.
No error.
Judges STEPHENS and DILLON concur.
Report per Rule 30(e).