STATE OF NORTH CAROLINA
v
.
Gaston County
No. 02 CRS 60315
ROBBY DEAN BRANDON
Attorney General Roy Cooper, by Director of Victims and
Citizens Services William M. Polk, for the State.
Mercedes O. Chut, for defendant-appellant.
CALABRIA, Judge.
Robby Dean Brandon (“defendant”) appeals from judgment entered
on a jury verdict finding him guilty of assault with a deadly
weapon inflicting serious injury. The trial court sentenced
defendant to a term of 59 to 80 months' imprisonment in the North
Carolina Department of Correction. We find no error.
On 23 June 2002, Carl Riddle (the “victim”) was home watching
television with his girlfriend (“Meeks”) when he received a phone
call from defendant. Defendant asked the victim, “Are you with me
or against me?” The victim discerned defendant was drunk and hung
up on him. Later that evening, Scott Sisk (“Sisk”), Meeks' son,
arrived at the victim's house. Sisk stated he and defendant arguedearlier, and defendant told Sisk he “needed to go get [the victim]
because [he was going to] need[] help.” Defendant also stated he
would be bringing “somebody else . . . with him and they w[ere]
going to take care of [the victim and Sisk.]”
Between twenty to thirty minutes after Sisk arrived, the
victim observed defendant and Charles Thomas Holland, Jr.
(“Holland”) approaching the house. The victim had been friends
with defendant for approximately forty years and had known Holland
for approximately three years. As defendant and Holland approached
the gated portion of the fence surrounding the victim's property,
the victim saw both men carrying the type of wooden handles
commonly used with axes or picks. The victim went outside and met
defendant and Holland; both of them appeared to be drunk. The
victim told defendant “you been drinking. You need to go home. I
don't want no trouble here.”
Defendant responded by breaking through the victim's gate
thereby damaging the attached fence and “sucker punching” the
victim in the mouth with his fist. Next, defendant and Holland
started beating the victim with the wooden handles they were
carrying. The victim was able to disarm defendant, who then
unsuccessfully attempted to gain admittance into the victim's
house. Meanwhile, the victim placed Holland in a “headlock” and
disarmed him, but Holland picked up a garden hoe lying in the yard
and struck the victim in the head with the metal portion.
The resulting wound caused profuse bleeding, and the victim
was allowed to go into his home and treat the wound. In themeantime, the police arrived and immediately apprehended defendant.
Holland was apprehended after he unsuccessfully attempted to flee.
The victim was taken to the hospital and treated for various
injuries, including a head injury requiring fourteen stitches
resulting from the wound inflicted by the garden hoe.
Defendant was indicted for assault with a deadly weapon
inflicting serious injury. According to the indictment, defendant
“unlawfully, willfully and feloniously did assault [the victim]
with a ax handle, a deadly weapon, inflicting serious injury.”
Holland was also indicted, and his and defendant's cases were
consolidated for trial. At the close of the State's evidence and
again at the close of all the evidence, defendant moved to dismiss
the charges. The trial court denied defendant's motions and
entered judgment following a jury verdict of guilty of assault with
a deadly weapon inflicting serious injury. Defendant appeals.
On appeal, defendant asserts the trial court erred in (I)
failing to dismiss the charge due to flaws or variances in the
indictment, (II) failing to dismiss the charge due to insufficiency
of the evidence, (III) allowing a jury instruction on acting in
concert, and (IV) admitting an exhibit into evidence despite an
insufficient chain of custody.
I. Indictment
Defendant first asserts his indictment was defective and at
variance with the evidence adduced at trial. Defendant argues
“[t]he trial court received uncontroverted evidence that [the
victim] incurred a serious injury from the blade of a hoe and nota handle” as charged in the indictment. Defendant's argument
implies the victim's only serious injury was that which occurred by
means of the wound to his head resulting from being hit by Holland
with the hoe. We disagree.
In the instant case, the victim's injuries were not limited to
the wound inflicted by the hoe requiring stitches. Rather, the
evidence indicates the victim also received serious injuries
resulting from defendant and Holland's use of the wooden handles.
For example, the victim testified that, due to the beating with the
wooden handles, he experienced pain in his back and sides “for over
a month [and] still had scars[.]” The victim was given pain
medication following the incident. The victim testified that
collectively, both defendant and Holland, “liked to killed me.” In
addition, the victim testified he required medical testing to
determine whether any organs had been damaged as a result of a blow
from a handle near his kidney or liver and received a “big shot in
the kidney area.” Meeks testified the victim “had some bad . . .
big bruises and stuff. I mean bad bruises all over his body.”
Meeks further indicated the bruises were similar to those that
would result from being “beat[en] with a hard -- that would make
like a scab [because the bruise was] so deep.” Meeks testified
that, following the attack, she “would have to help [the victim] a
lot . . . to get up because he would be . . . hurting so bad. So
it was more like [she had] to wait on him because it would hurt so
bad when he would get up.” This testimony concerning the
infliction of serious injury as a result of being beaten by thewooden handles wielded by defendant and Holland comports with the
indictment charging assault with a deadly weapon inflicting serious
injury.
Defendant argues, in the alternative, that “even if [the
victim] received serious injuries from the handle, the indictment
does not adequately allege an assault with a deadly weapon.”
Specifically, defendant contends that a “handle is not an
inherently dangerous weapon[,] [y]et, contrary to case law, the
indictment does not contain allegations about the use of the handle
to demonstrate its alleged deadly character.” Our Supreme Court
has previously held that “it is sufficient for indictments or
warrants seeking to charge a crime in which one of the elements is
the use of a deadly weapon (1) to name the weapon and (2) . . . to
state expressly that the weapon used was a 'deadly weapon' . . . .”
State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977).
In the instant case, the indictment identified the weapon used as
an “ax handle” and expressly characterized the handle as “a deadly
weapon.” This assignment of error is overruled.
II. Sufficiency of the evidence
In his second assignment of error, defendant asserts the trial
court erred in failing to dismiss the charge of assault with a
deadly weapon inflicting serious injury on the grounds that there
was insufficient evidence of the crime. “A motion to dismiss on
the ground of sufficiency of the evidence raises . . . the issue
'whether there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator ofthe offense.'” State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108,
131 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003)
(quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925
(1996)). “The existence of substantial evidence is a question of
law for the trial court, which must determine whether there is
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.” Id. “'The court must consider the
evidence in the light most favorable to the State and give the
State the benefit of every reasonable inference from that
evidence.'” Id. (citation omitted).
A person is guilty of the offense of assault with a deadly
weapon inflicting serious injury when he (1) commits an assault on
another (2) with a deadly weapon and (3) inflicts serious injury
that does not result in death. N.C. Gen. Stat. § 14-32(b) (2003).
Relevant to the facts of this case, this Court has held “intent is
an essential element of the crime of assault . . . .” State v.
Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979).
Defendant asserts there was insufficient evidence of serious injury
or of intent. We disagree.
Regarding defendant's intent, the evidence at trial indicated
defendant called the victim before coming over and asked him if he
was with or against defendant. He additionally called Sisk and
informed him that he and another person would be coming over to
“take care of” the victim and Sisk. When he actually arrived at
the victim's house, he brought a wooden handle, which he
subsequently used as a weapon against the victim. Moreover,defendant alone initiated the confrontation when he responded to
the victim's entreaties to return home by punching him in the
mouth. We hold there was sufficient evidence of defendant's intent
to commit an assault.
Regarding the evidence tending to show whether the injury was
serious, our Supreme Court has noted that “as long as the State
presents evidence that the victim sustained a physical injury as a
result of an assault by [a] defendant, it is for the jury to
determine the question of whether the injury was serious.” State
v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994).
“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 this case, the State
presented evidence that defendant inflicted physical injury upon
the victim. Further evidence tended to show the victim received
approximately seven hours of medical treatment at the hospital,
required a convalescence period of approximately one month before
he could regain mobility or the ability to take care of himself,
and testified that he had experienced severe pain throughout his
body. Moreover, as previously referenced, the blows to the
victim's body were sufficiently severe so as to warrant hospital
testing for impaired organ function. Given the State's evidence as
to the infliction and nature of the injury by defendant upon the
victim, we hold the evidence was sufficient to withstand
defendant's motion to dismiss. This assignment of error is
overruled.III. Acting in Concert
Defendant asserts the trial court erred in instructing the
jury on “acting in concert” because Holland and defendant did not
bring the garden hoe to the victim's house and defendant “could not
have engaged in a common scheme to strike Mr. Riddle with the hoe,
as there is no evidence he knew of its existence.” As with
defendant's previous assignments of error, this argument
incorrectly assumes that the only serious injury was inflicted when
Holland took up the garden hoe and struck the victim. For reasons
already given, however, Sisk's testimony of defendant's intent as
well as defendant and Holland's subsequent concerted attack on the
victim constitute sufficient evidence that Holland and defendant
were engaged in an “act together, in harmony or in conjunction one
with another pursuant to a common plan or purpose” to come to the
victim's house and assault him and Sisk. State v. Joyner, 297 N.C.
349, 356, 255 S.E.2d 390, 395 (1979).
We need not address the merits of any argument that the trial
court's reference to a deadly weapon in the jury charge did not
adequately differentiate between the injuries resulting from his
and Holland's concerted actions with the wooden handles as opposed
to Holland's actions with the garden hoe. Presupposing this
argument was meritorious, the transcript reveals that, after the
jury charge was given, defendant raised this issue to the trial
court, and the court offered to give a further instruction to the
jury; however, defendant responded by saying “apparently my client
and I have decided that the best way to resolve [the] issue . . .I've just raised is to probably not do anything about it at this
point.” Whatever error occurred, defendant invited it, and we do
not consider it on appeal. See State v. Barber, 147 N.C. App. 69,
74, 554 S.E.2d 413, 416 (2001) (noting that “a defendant who
invites error has waived his right to all appellate review
concerning the invited error, including plain error review”). This
assignment of error is overruled.
IV. Chain of Custody
Defendant asserts the trial court erred in admitting State's
exhibit eight because the victim referred to the exhibit
alternately as a pick handle or a hoe handle and was unable to
swear to the authenticity of one of the handles used. Defendant
correctly notes that before real evidence can be properly received
into evidence, “the item offered into evidence must be
authenticated as the same object [that was] involved in the
incident[.]” State v. Harding, 110 N.C. App. 155, 163, 429 S.E.2d
416, 422 (1993). That is precisely what the victim in this case
did. When asked about State's exhibit eight, the victim stated
that it had not been at his home before 23 June 2002 and it had
been brought to his home by either defendant or Holland. Moreover,
while the victim testified, in regards to State's exhibit two that
he “couldn't swear” it was one of the handles used, he went on to
expressly affirm that State's exhibit eight, the other handle, had
“some identifying mark on the pick handle that made [him] know that
[it] was one of [the handles used in the attack]. Finally, while
we note there were different types of handles involved in theattack and the references to those handles were not always ideally
consistent, the victim clarified his testimony by affirming that,
despite his references to seeing defendant and Holland carrying
“hoe handles” while approaching the house, he “[a]ctually . . .
meant to say they were carrying . . . pick handles.” This
assignment of error is overruled.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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