An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-776


Filed: 1 April 2003


         v.                        New Hanover County
                                Nos. 01 CRS 52413
ANTHONY KEITH COOPER,                    01 CRS 52414

    Appeal by defendant from judgments entered 1 November 2001 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    ELMORE, Judge.

    On 30 April 2001, the New Hanover County grand jury indicted defendant on three counts of robbery with a dangerous weapon and one count of assault with a deadly weapon inflicting serious injury. At trial, the State presented evidence tending to show the following:
    On 16 March 2001, three men entered a Domino's Pizza in Wilmington at about 10:00 p.m. One of the men, later identified as defendant, was carrying a silver handgun. The men forced the employees and a customer to lie on the floor and later took money and personal possessions from them. When the men demanded thetill, the manager took defendant to the back of the store and gave the business's cash and checks to him. Although the employees had previously pointed out the business's only safe, which was empty because it was broken, defendant and the other men continued to demand to be shown a safe.
    Employee Justin Meccia (“Justin”) led defendant back to the front of the business where the broken safe was located. Defendant asked Justin several questions as they walked toward the safe and struck him in the head with the handgun after Justin answered each of the questions. Justin testified he was struck with the handgun “several times.” He knew he was being hit with the handgun because it was “very hard” and made of metal, and he could hear a clicking sound and “could see blood flowing.”
    When one of the other men subsequently asked Justin where his car was, Justin said his “face was too bloody” and he “could barely see . . . .” After Justin vaguely pointed out to the parking lot, that man punched him so hard that his contact fell out and he lost consciousness. Justin testified that he suffered two severe lacerations to his head which required stitches and staples, and he was told by a doctor that his skull could be seen through one of the lacerations. Police apprehended defendant and three other men in connection with the robbery later that evening.
    Defendant made a motion at the close of the State's evidence to dismiss the charges, which the trial court denied. Defendant's counsel informed the trial court that he did not anticipate presenting evidence for the defendant. While conducting the chargeconference, the trial court indicated it would not only instruct the jury as to the charge of assault with a deadly weapon inflicting serious injury, but that it would also instruct on the lesser included offenses of assault inflicting serious injury and assault with a deadly weapon. Defendant did not request jury instructions as to any additional lesser included offenses.
    During the charge conference, defense counsel again informed the trial court that defendant was “not going to testify or offer evidence in this case.” The following exchange then occurred between the trial court and defendant:
        THE COURT: [Y]our lawyer has indicated that there would not be evidence for and on behalf of the defendant, either through you or through any witnesses that you intend to call. Is that your understanding?

        THE DEFENDANT: No, sir.

        THE COURT: Okay. Let __ let me say this to you also, no one can make you testify. They can't compel you to come up here and __ and testify. Likewise, nobody can keep you from testifying, if that's what you desire to do. Do you understand that?

        THE DEFENDANT: Yes.

        THE COURT: Okay. And __ and __ and hopefully that you would make that decision after conferring with your lawyer. And you've had a[n] opportunity to do that; is that true?

        THE DEFENDANT: Yes, your honor.

        THE COURT: All right, sir. And at __ at this time, I understand that you have elected to not offer testimony by your own testimony; is that correct?

        THE DEFENDANT: That's right.

        THE COURT: And you understand that if you wantto, you can?

        THE DEFENDANT: Yes, sir.

Following a lunch recess, defense counsel stated again in open court that “the defendant would elect not to present evidence in this matter.” The trial court subsequently instructed the jury, and defendant did not object to those instructions. After the jury found defendant to be guilty of the three counts of robbery with a dangerous weapon and one count of assault with a deadly weapon inflicting serious injury, the trial court imposed sentences having a combined term of 343 to 449 months imprisonment. From the trial court's judgments, defendant appeals.
    In his first argument, defendant contends the trial court committed plain error by allowing his trial to proceed without determining whether he had voluntarily and knowingly waived his right to present evidence in his own defense. He asserts the trial court ignored his negative response to its query as to his understanding that evidence would not be presented in his behalf. We disagree.
    “It is well established that a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.” State v. McDowell, 301 N.C. 279, 291, 271 S.E.2d 286, 294 (1980), cert. denied, 450 U.S. 1025, 68 L. Ed. 2d 220 (1981). An appellant must have asserted a constitutional or statutory right and raised the issue before the trial court in order to assert the right on appeal. Id.    The record before this Court does not show that defendant asserted his right to present evidence. At the close of the State's evidence, after defendant's counsel informed the trial court that defendant would not be presenting evidence, defendant responded “No, sir” when the trial court asked if it was defendant's understanding that no evidence would be introduced on his behalf. The trial court then proceeded to question defendant as to whether he intended to testify, and defendant clearly informed the trial court that he had elected not to testify. Defendant again did not challenge his counsel's statement in open court after the lunch recess that “the defendant would elect not to present evidence in this matter.”
    By failing to take any action contrary to his counsel's statement, defendant engaged in conduct inconsistent with a purpose to insist upon the exercise of his right to present evidence. Therefore, his conduct at trial amounts to a waiver of this right. See id. While defendant seeks plain error review of this issue, see N.C.R. App. P. 10(c)(4), he has not met the heavy burden placed on him under the plain error rule. “Before granting a new trial to a defendant under the plain error rule or standard, the appellate court must be convinced that absent the alleged error, the jury probably would have reached a different verdict.” State v. Mitchell, 328 N.C. 705, 711, 403 S.E.2d 287, 290 (1991). Defendant has not shown error, much less plain error, by the trial court. This assignment of error is overruled.
    In his second argument, defendant contends the trial courtcommitted plain error by not instructing the jury on the lesser included offense of simple assault. He argues the evidence was conflicting as to the seriousness of Justin's injuries. He also asserts the State presented no evidence that any of the injuries resulted from being struck with the handgun rather than fists. We are not persuaded by defendant's arguments.
    A defendant “is 'entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (citation omitted). However, a “trial court is not . . . obligated to give a lesser included instruction if there is 'no evidence giving rise to a reasonable inference to dispute the State's contention.'” State v. Hamilton, 132 N.C. App. 316, 321, 512 S.E.2d 80, 84 (1999) (citation omitted). Generally, "[w]hether a serious injury has been inflicted depends upon the facts of each case and is generally for the jury to decide under appropriate instructions." State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000). "Pertinent factors for jury consideration include hospitalization, pain, blood loss, and time lost at work." State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997).
    In the instant case, Justin testified that the man with the gun hit him in the back of the head “pretty hard” several times with the gun. Justin testified that after being struck with the gun, he “could see blood flowing,” that his “face was too bloody,”and that he “could barely see[.]” Justin testified that it was only after being beaten with the gun that he was subsequently struck with a fist and knocked unconscious. Justin's skull was visible through one of his head lacerations. According to Justin's testimony, he was already bleeding profusely before he was ever struck by a fist. Although a paramedic testified Justin informed her afterwards that he had not lost consciousness, this apparent inconsistency does not negate the evidence of the source and severity of the lacerations to Justin's head. “The mere possibility that a jury might reject part of the prosecution's evidence does not require submission of a lesser included offense.” Hamilton, 132 N.C. App. at 321, 512 S.E.2d at 84. Again, defendant has not met the heavy burden placed on him under the plain error rule. See Mitchell, 328 N.C. at 711, 403 S.E.2d at 290. He has not shown error, much less plain error, by the trial court, and we overrule this assignment of error.
    In his third argument, defendant contends the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon inflicting serious injury. We disagree. When ruling on a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State; the State is entitled to every reasonable inference which can be drawn from the evidence presented, and all contradictions and discrepancies are resolved in the State's favor. See State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). “If there is substantial evidence_whether direct, circumstantial, or both_tosupport a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied.” State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975). In light of our resolution of the preceding argument, defendant's contention as to the absence of evidence of serious injury being inflicted on the victim with the firearm is without merit. The State presented substantial evidence as to the source and severity of the injuries inflicted on Justin in the form of testimony by Justin, his co-workers, and a paramedic. This assignment of error is without merit.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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