An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-327


Filed: 4 February 2003


        v.                            Union County
                                    No. 00 CRS 054105

    Appeal by defendant from judgment entered 6 September 2001 by Judge Mark E. Klass in Union County Superior Court. Heard in the Court of Appeals 31 October 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General Charles J. Murray, for the State.

    Anne Bleyman for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Prentiss Robinson was tried before a jury at the 5 September 2001 Criminal Session of Union County Superior Court after being charged with one count of assault on a female. At trial defendant's mother, Mrs. Ruth Robinson, testified that she was eighty years old and that defendant was one of her sons. Though she could not remember his exact date of birth, she affirmatively stated that he was over the age of eighteen in September 2001. Mrs. Robinson testified that defendant came to her house on 11 September 2000, began talking and walking around the house, and “got kind of violent.” Mrs. Robinson further explained the situation as follows:            Q.    And you said he was upsetting you. What did he do after that?

            A.    Well, he continued to keep on aggravating me until he hauled off and hit me.

            Q.    Where did he hit you at?

            A.    On the head.

            Q.    What did he hit you with?

            A.    Fist.

On cross-examination, Mrs. Robinson stated defendant often came to her house and tried to start arguments, but she tried to avoid confrontations with him. She did not recall any argument between the two of them on 11 September. After defendant hit her, Mrs. Robinson testified that “I just asked him to go ahead and tend to his business and let me be . . . [b]ecause I don't want nobody bothering me.” Defendant lingered at the house for a short time after he struck her, then left.
    Defendant did not present evidence. After consulting with the attorneys and conducting a charge conference, the trial court instructed the jury on the crime of assault on a female. The jury subsequently found defendant guilty of misdemeanor assault on a female. The trial court determined defendant had a prior record level of II and sentenced him to sixty months of supervised probation with special conditions. Defendant appealed.
    On appeal, defendant contends the trial court committed reversible error by (I) improperly responding to a question posed by the jury during its deliberations; and (II) failing to dismiss the case against him at the close of the State's evidence. For thereasons set forth herein, we disagree with defendant's arguments and hold he received a trial free from error.

     Response to Jury Question
    By his first assignment of error, defendant argues the trial court incorrectly responded to the jury question presented during deliberations and violated his state and federal constitutional rights by confusing the jury about the charge for which he was being tried. We do not agree.
    Defendant was charged with one count of assault on a female in violation of N.C. Gen. Stat. § 14-33(c)(2) (2001), which provides:
            (c) Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she:

            * * * *

                    (2) Assaults a female, he being a             male person at least 18 years of age[.]

We note that “[t]here is no statutory definition of assault in North Carolina, and the crime of assault is governed by common law rules. G.S. 14-33 does not create a new offense as to assaults on a female, but only provides for different punishments for various types of assault.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). Assault has generally been defined as
        “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 mustbe sufficient to put a person of reasonable firmness in fear of immediate bodily harm.”

. (quoting 1 Strong's N.C. Index Assault and Battery § 4. See also 2 Strong's N.C. Index 4th Assault and Battery § 12 (1990).
            The essential elements of the assault upon a female crime are (1) assault and (2) upon a female person by a male person. It has been held that G.S. 14-33 merely prescribes the punishment, that the charge need not allege that defendant was over 18 years of age because it is not an essential element of the crime, and that if defendant does not rebut the presumption that he is over 18 years of age, then the defendant may be sentenced to a larger term of imprisonment upon conviction of assault upon a female.

State v. Craig, 35 N.C. App. 547, 549-50, 241 S.E.2d 704, 705 (1978). See also State v. Perry, 291 N.C. 586, 595-96, 231 S.E.2d 262, 268 (1977); and State v. Rick, 54 N.C. App. 104, 109-10, 282 S.E.2d 497, 500-01 (1981). Moreover, there is a rebuttable presumption that a defendant is over the age of eighteen; in the absence of evidence to the contrary, this becomes evidence for the jury, and the defendant bears the burden of showing that he is under the age of eighteen if he wishes to use that fact to limit his punishment. Id. at 110, 282 S.E.2d at 501; see also State v. Courtney, 248 N.C. 447, 450-51, 103 S.E.2d 861, 864 (1958).
    After defendant indicated he would not present evidence, the trial court and the attorneys engaged in the following colloquy:
            THE COURT: I guess we can go ahead and have a charge conference before I bring them back out. What I propose to charge on is the function of the jury, burden of proof, credibility of witness, weight of the evidence, effect of the defendant's decision not to testify, identity of the defendant asthe perpetrator of the crime, and then the substantive charge of assault on a female, and then the concluding instructions. Anything else?

            MR. MCCOLLUM [Defendant's Attorney]: No, Your Honor. That's fine.

            MR. GUY [Prosecutor]:    No, Your Honor.

The trial court instructed the jury on the crime of assault on a female as follows:
            The defendant, a male person, has been accused of assault on a female.

            Now I charge that for you to find the defendant guilty of assault on a female by a male person, the State must prove three things beyond a reasonable doubt:

            First, that the defendant intentionally and without justification or excuse assaulted the victim by hitting her on the head.    

            Second, that the victim was a female person.

            And third, that the defendant was a male person, at least eighteen years of age.
            So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally hit the victim on the head, and that the victim was a female person and the defendant was a male person at least eighteen years of age, it would be your duty to return a verdict of guilty of assault on a female person.
            However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

    While deliberating, the jury asked for the definition of felonious assault. The trial court informed the attorneys it couldnot give that definition and could only repeat the instruction given earlier. Defendant's attorney noted the situation for the record, but did not make an objection. When the jury was brought back into the courtroom, the trial court addressed the jurors as follows:
            THE COURT: Ladies and gentlemen, I received your question, what is the definition of felonious assault. At this time all I can tell you is the thing that you need to consider is the assault on a female by a male person over eighteen years of age. That's all I can tell you. I read that instruction to you. With that I'm going to excuse you to go back into the jury room.

    While acknowledging that he did not object to the instructions at trial, defendant urges this Court to examine the instructions for plain error to prevent manifest injustice and to protect his constitutional rights. According to defendant, the jury's question regarding felonious assault indicated that the jurors were confused about the charge defendant was facing. Because assault is an essential element of the charge of assault on a female, defendant maintains the trial court could have defined assault and committed plain error by stating that it did not have authority to give such an instruction. Defendant believes the trial court failed to exercise any discretion at all (thereby committing error), when in fact it had the authority to clarify the case for the jury by instructing the jury on simple assault and/or informing the jury that he was charged with a misdemeanor, not a felony. Thus, the trial court erred in two respects: by failing to define assault and by failing to correct the jury's misapprehension that defendant wascharged with a felony (because assault on a female is a Class A1 misdemeanor).
    Defendant believes the trial court's two errors combined to “artificially lessen[] the State's burden of proof.” Defendant asserts there is a reasonable likelihood that the jury unconstitutionally applied the instruction, thereby denying him his due process rights to notice of the charge and a trial on the elements in the indictment. Lastly, defendant argues the trial court's errors invalidated the indictment against him.
        In giving instructions the court is not required to follow any particular form and has wide discretion as to the manner in which the case is presented to the jury, but it has the duty to explain, without special request therefor, each essential element of the offense and to apply the law with respect to each element to the evidence bearing thereon.

State v. Mundy, 265 N.C. 528, 529, 144 S.E.2d 572, 573 (1965). The decision whether or not to provide additional jury instructions is within the discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of that discretion. State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986).     The State argues, and we agree, that the definition of felonious assault was completely irrelevant to the Class A1 misdemeanor offense of assault on a female, with which defendant was properly indicted. An instruction on felonious assault would have been counterproductive to the main purposes of instructing juries, which are “clarification of the issues, elimination of extraneous matters, and declaration and application of the lawarising upon the evidence.” State v. Jackson, 228 N.C. 656, 658, 46 S.E.2d 858, 859 (1948). See also Strong's N.C. Index 4th, Criminal Law, § 708, p. 244-45. Defendant was not charged with felonious assault and it was not an issue in this case. There was neither testimony nor allegations regarding felonious assault; therefore, there was no reason for the trial court to instruct the jury on that crime. Indeed, the trial court would have erred had it given an instruction on felonious assault. See State v. Davis, 291 N.C. 1, 14, 229 S.E.2d 285, 294 (1976). It is also likely that an instruction on felonious assault would have prejudiced defendant. Thus, the trial court's refusal to define felonious assault (characterized as an “error” by defendant) was actually favorable to defendant, and thus not appealable. “A new trial will not be awarded for error in the charge which is favorable or not prejudicial to defendant. Since defendant could only have been helped by th[e] instruction, he has no reason to complain and his assignment of error is overruled.” State v. Stimpson, 15 N.C. App. 606, 607, 190 S.E.2d 378, 379, cert. denied, 282 N.C. 155, 191 S.E.2d 604 (1972); see also State v. Shinn, 238 N.C. 535, 538-39, 78 S.E.2d 388, 390 (1953).
    Defendant's first assignment of error is overruled.
     Motion to Dismiss
    By his second assignment of error, defendant contends the trial court committed plain error by failing to dismiss the case at the close of the State's evidence because the State failed to prove the essential elements of the case--namely, his age. We disagree.    Though defendant did not move for dismissal at the close of the State's evidence and failed to preserve the issue for appeal, N.C.R. App. P. 10(b)(3) (2002), he is nonetheless entitled to appellate review of the sufficiency of the evidence to support the verdict as a matter of law. N.C. Gen. Stat. § 15A-1446(d)(5) (2001).
            When faced with a motion for nonsuit, the trial court must decide whether there is substantial evidence of each element of the crime charged. “Substantial evidence” is the amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The evidence must be considered in the light most favorable to the State, and all inconsistencies and contradictions must be disregarded.

State v. Batts
, 303 N.C. 155, 160-61, 277 S.E.2d 385, 389 (1981) (citations omitted).
    Our Court has previously held that age is not an essential element of the crime of assault on a female. See Craig, 35 N.C. App. at 549-50, 241 S.E.2d at 705. Defendant nonetheless contends that the age requirement is specified by statute. See N.C. Gen. Stat. § 14-33(c)(2); and State v. Bagley, 321 N.C. 201, 210, 362 S.E.2d 244, 249 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). In further support of his argument, defendant points out that the trial court instructed the jury that the State had to prove beyond a reasonable doubt “that the defendant was a male person, at least eighteen years of age.”
    In the present case, defendant's mother testified that her son hit her on the head with his fist. While Mrs. Robinson could notrecall her son's exact date of birth, she affirmatively stated, both on direct and cross-examination, that defendant was over the age of eighteen. Upon review of the indictment, we note that defendant was thirty-two years old at the time of the offense. Thus, even if age were an essential element of the offense of assault on a female, the State proved that fact beyond a reasonable doubt. “In reviewing challenges to the sufficiency of the evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993). In any event, Mrs. Robinson's testimony clearly established the elements of the offense of assault on a female -- an assault upon a female person by a male person. See Craig, 35 N.C. App. at 549-50, 241 S.E.2d at 705. As the State established the elements of assault on a female, dismissal was inappropriate.
    Defendant also argues the statute under which he was convicted is unconstitutional. We note, however, that the statute has previously been held constitutional by this Court. See State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668 (1979).
    Finally, defendant argues that his trial attorney provided ineffective assistance of counsel because he failed to move for dismissal at the close of the State's evidence. We do not agree. “When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell belowan objective standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985).
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). This test for ineffective assistance of counsel applies to both federal constitutional rights and state constitutional rights. Braswell, 312 N.C. at 562, 324 S.E.2d at 248.
    In the present case, defendant argues his attorney's failure to move for dismissal of the charge at the close of the State's evidence constituted ineffective assistance of counsel. Based on the strength of the State's case-in-chief, such a motion would have been futile and therefore could not serve as the basis for a claim of ineffective assistance of counsel. Defendant's final assignment of error is therefore overruled.
    After careful consideration of the record and the parties' arguments, we conclude defendant received a fair trial, free from error.
    No error.
    Judges WALKER and CAMPBELL concurred in this opinion prior to 31 December 2002.
    Report per Rule 30(e).

*** Converted from WordPerfect ***