An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-407


Filed: 6 April 2004


v .                         Guilford County
                            Nos. 01 CRS 086710
WALTER DEVON POUNCY                    02 CRS 023120

    Appeal by defendant from judgments filed 2 December 2002 by Judge John O. Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 29 January 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.

    Cunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T. Cunningham, Jr., for defendant-appellant.

    BRYANT, Judge.

    Walter Devon Pouncy (defendant) appeals judgments filed 2 December 2002 entered consistent with a jury verdict finding him guilty of second-degree murder (under the theory of acting in concert) and felony riot.
    Defendant was indicted for first-degree murder via short-form indictment on 10 December 2001. On 19 August 2002, an indictment for felony riot was issued. The evidence at trial established in pertinent part that defendant and a group of three or four other men chased the victim and beat him so severely that he died from his injuries. Defendant had stopped beating and kicking the victim by the time one of the other men began beating the victim with awooden object. According to the forensic pathologist who conducted the autopsy, the victim died of blunt force injury to the head, “an unusual product of kicking or punching.”


    The issues are whether the trial court committed plain error: (I) by failing to instruct the jury on misdemeanor assault as a lesser-included offense of second-degree murder and felony riot and (II) in sentencing defendant.

    Defendant contends the trial court committed plain error by failing to submit to the jury instructions on misdemeanor assault, which he claims to be lesser-included offenses of both second- degree murder and felony riot.
    Pursuant to N.C. Gen. Stat. § 15-170, “[u]pon the trial of any indictment,” a defendant may be convicted of: (1) the crime charged in the indictment, (2) a lesser-included offense thereof, (3) an attempt to commit the crime charged, or (4) an attempt to commit a lesser-included offense of the crime charged. N.C.G.S. § 15-170 (2003). For an offense to constitute a lesser-included offense, “'all of the essential elements of the lesser crime must also be essential elements included in the greater crime.'” State v. Westbrooks, 345 N.C. 43, 55, 478 S.E.2d 483, 491 (1996) (citation omitted).
    N.C. Gen. Stat. § 14-33 lists the type of offenses qualifying as misdemeanor assaults. N.C.G.S. § 14-33 (2003). Although in his brief to this Court defendant does not specify the theory ofmisdemeanor assault relied on as the basis of his argument, we assume that he is relying on subsection (c)(1). The elements of misdemeanor assault under section 14-33(c)(1) include: (1) an assault (2) in which the defendant either inflicts serious injury upon another person or uses a deadly weapon. N.C.G.S. § 14- 33(c)(1) (2003).
Lesser-Included Offense of Murder

    The argument that defendant should be granted a new trial because he was entitled to a jury instruction on assault as a lesser-included offense of murder has previously been rejected on the following grounds. In State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989), our Supreme Court held that a short-form indictment charging “that [the] defendant 'unlawfully, willfully and feloniously and of malice aforethought did kill and murder [the victim]' is insufficient to support a verdict of guilty of assault, assault inflicting serious injury or assault with intent to kill” because such a murder indictment does not specify a murder accomplished by assault. Id. at 403, 383 S.E.2d at 919. This ruling has been reaffirmed in State v. Gibson, 333 N.C. 29, 38-39, 424 S.E.2d 95, 100-01 (1992) and State v. Collins, 334 N.C. 54, 63, 431 S.E.2d 188, 193-94 (1993), and this Court has since interpreted Whiteside and Gibson as standing for the proposition that qualification as a lesser-included offense “does not eliminate the requirement that every essential element of the lesser charge be alleged in the indictment before a defendant may be convicted of the lesser charge.” State v. Wilson, 128 N.C. App. 688, 696, 497S.E.2d 416, 422 (1998).
    As defendant in this case was also indicted pursuant to a short-form murder indictment and assault was therefore not alleged as the method by which the murder was accomplished, defendant could not have been convicted of misdemeanor assault even if the trial court had so instructed the jury.
Lesser-Included Offense of Felony Riot

    The theory of felony riot under which defendant was convicted requires proof of: (1) a public disturbance, (2) involving an assemblage (3) of three or more persons, (4) which by disorderly and violent conduct, or the imminent threat of such conduct, (5) results in serious bodily injury. N.C.G.S. § 14-288.2(a), (c)(1) (2003). Our Supreme Court has held that violent conduct is one of “[t]he key words of the statutory definition of riot.” State v. Brooks, 287 N.C. 392, 400, 215 S.E.2d 111, 117 (1975). Assault, on the other hand, is 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 must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.”

State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967) (quoting 1 Strong's North Carolina Index, Assault and Battery § 4). Thus, the definition of assault, which includes the element of fear, varies substantially from the element of violent conduct required under section 14-288.2(a). See State v. Hannah, 149 N.C.App. 713, 717, 563 S.E.2d 1, 4 (the essential elements test and the definitional approach are used to determine whether one offense is a lesser-included offense of another), disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002). Accordingly, assault is not a lesser-included offense of felony riot.
    Defendant also raises an ineffective assistance of counsel claim with respect to his counsel's failure to request an instruction on misdemeanor assault as a lesser-included offense of murder. Because we have found no error pertaining to the trial court's jury instructions, this assignment of error is overruled.

    Defendant next argues the trial court committed plain error in finding a certain aggravating factor. Plain error review, however, is to be applied only to exceptional cases. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Moreover, our Supreme Court has specified that plain error review is limited only to jury instructions and evidentiary rulings and has previously declined to extend such review to sentencing issues. State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230-31 (2000); State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997). As plain error review is therefore not available to defendant, and he failed to object at sentencing, see N.C.R. App. P. 10(b)(1), this assignment of error is not properly before this Court.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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