STATE OF NORTH CAROLINA
v. New Hanover County
Nos. 01 CRS 52413
ANTHONY KEITH COOPER, 01 CRS 52414
Defendant.
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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