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.
I
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.
II
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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