State v Brooks, (03-1241) 06/15/2004

Appeal by defendant from judgments entered 20 May 2003 and 21 May 2003 by Judge Richard L. Doughton in the Superior Court in Cleveland County. Heard in the Court of Appeals 7 June 2004.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth N. Strickland, for the State.

Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant- appellant.

HUDSON, Judge.

    Defendant appeals his convictions for assault with a deadly weapon inflicting serious injury and possession of a firearm by a convicted felon. We find no error and affirm the judgments of the trial court.
    The State's evidence tended to show that on the night of 20 September 2002, defendant and Darrell Williams (“Williams”) attended a party at the home of Mike Brooks (“Mike”), defendant's cousin, who lived across the street from Williams. Defendant confronted Williams about a fight between Williams and defendant's uncle two weeks earlier. As Williams was leaving the party, defendant threw a horseshoe at Williams, striking him in the head. Williams turned around and saw Mike load a gun and hand it to defendant. Williams heard a gunshot and “took off running across the road.” When he reached his house, he discovered he had been shot in the back. Williams went to the hospital and received four staples in his head to close the wound from the horseshoe. He was transferred to Carolina Medical Center in Charlotte, North Carolina for treatment of the bullet wound and remained there for “about a week.”
    Calvin Eugene Thoms observed defendant fire four shots at Williams with Mike's .38 caliber revolver. Thoms followed Williams to his house and saw that Williams had been shot in the back. Upon returning to the party, Thoms saw Mike “trying to get the gun from [defendant] and [defendant] wouldn't let him. And then [defendant] ran off somewhere[.]”
    Defendant stipulated to a prior felony conviction in Cleveland County as alleged in his indictment for possession of a firearm by a felon. The written stipulation was entered into evidence and submitted to the jury as an exhibit.
    The trial court denied defendant's motion to dismiss at the conclusion of the State's case. Defendant offered no evidence.
    Defendant first argues that the trial court erred in denying his motion to dismiss the charges for insufficient evidence. A motion to dismiss is properly denied where the evidence, viewed in the light most favorable to the State, would allow a reasonable juror to find defendant guilty of each essential element of the offense beyond a reasonable doubt. See State v. Warren, 348 N.C.80, 102, 499 S.E.2d 431, 443, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998).
    The elements of assault with a deadly weapon inflicting serious injury are as follows: “(1) an assault, (2) with a deadly weapon, (3) inflicting serious injury, (4) not resulting in death.” State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000) (citing N.C. Gen. Stat. § 14-32(b) (1999)). Here, the State's eyewitness testified that defendant shot Williams in the back with a .38 caliber handgun, inflicting an injury that required a week's hospitalization. This evidence was more than adequate to withstand a motion to dismiss. Contrary to his assertion on appeal, defendant presented no evidence that he acted in self-defense and did not request an instruction on self-defense at trial.
    Likewise, the State presented substantial evidence that defendant was in actual possession of a handgun that he used to shoot Williams on 20 September 2002. As defendant stipulated to a prior felony conviction in Cleveland County the trial court properly denied his motion to dismiss the charge of possession of a firearm by a felon. See N.C. Gen. Stat. § 14-415.1 (2001); see also State v. Glasco, 160 N.C. App. 150, 156-57, 585 S.E.2d 257, 262, disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003).
    Defendant next assigns as plain error the trial court's failure to ascertain whether defendant's decision not to testify was the product of a “voluntary and informed choice.” Our Supreme Court has “never require[d] trial courts to inform a defendant of his right to testify or to make an inquiry on the record regardinghis waiver of the right to testify.” State v. Smith, 357 N.C. 604, 618, 588 S.E.2d 453, 463 (2003) (citing State v. Carroll, 356 N.C. 526, 533, 573 S.E.2d 899, 905 (2002), cert. denied, ___ U.S. ___, 156 L. Ed. 2d 640 (2003)). Defendant's assignment of error is overruled.
    Defendant also contends that the trial court committed plain error in failing to give a limiting instruction regarding his stipulation to a prior felony conviction. Before the stipulation was read into evidence, the court instructed the jury as follows:
        Members of the jury, a stipulation is nothing more than the parties agreeing that a particular fact is true and that no further proof thereof is required. So you can accept whatever they stipulate to as being true as a fact in this case.

Defendant neither objected to the court's instruction nor requested a limiting instruction, despite an invitation by the trial court to do so. N.C.R. App. P. 10(a), (b)(1), (c)(4). Evidence of a defendant's prior conviction requires no limiting instruction unless expressly requested by defendant. See State v. Gardner, 68 N.C. App. 515, 521-22, 316 S.E.2d 131, 134 (1984), aff'd, 315 N.C. 444, 340 S.E.2d 701 (1986). Accordingly, defendant cannot show plain error.
    No error.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***