State v Holland, (03-1512) 10/19/2004

Appeal by defendant from judgment entered 20 March 2003 by Judge David S. Cayer in Gaston County Superior Court. Heard in the Court of Appeals 26 August 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.

L. Jayne Stowers, for defendant-appellant.

    CALABRIA, Judge.

    Charles Thomas Holland, Jr. (“defendant”) appeals from judgment entered on jury verdicts finding him guilty of assault with a deadly weapon inflicting serious injury and resisting, obstructing or delaying a public officer. The trial court sentenced defendant to a term of 34 to 50 months' imprisonment in the North Carolina Department of Correction. We find no error.
    The instant case before this Court involves an appeal concerning defendant's participation with Robby Dean Brandon (“Brandon”) in an assault against Carl Riddle (the “victim”). On 23 June 2002, the victim was home watching television with his girlfriend (“Meeks”) when he received a phone call from Brandon. Brandon asked the victim, “Are you with me or against me?” Thevictim discerned Brandon 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 Brandon argued earlier, and Brandon told Sisk he “needed to go get [the victim] because [he was going to] need[] help.” Brandon 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 Brandon and defendant approaching the house. The victim had been friends with Brandon for approximately forty years and had known defendant for approximately three years. As defendant and Brandon 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 Brandon and defendant; both of them appeared to be drunk. The victim told Brandon “you been drinking. You need to go home. I don't want no trouble here.”
    Brandon 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 Brandon started beating the victim with the wooden handles they were carrying. The victim was able to disarm Brandon, who then unsuccessfully attempted to gain admittance into the victim's house. Meanwhile, the victim placed defendant in a “headlock” and disarmed him, but defendant 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 defendant allowed the victim to treat the wound. In the meantime, the police arrived and immediately apprehended Brandon. Defendant 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 on one charge of assault with a deadly weapon inflicting serious injury and one count of resisting, delaying or obstructing a public officer. The indictment for assault provided that defendant “unlawfully, willfully and feloniously did assault [the victim] with a stick, a deadly weapon, inflicting serious injury.” Defendant and Brandon's cases were consolidated for trial. During the State's case-in-chief, the State moved to amend the indictment to replace the word “stick” with the words “garden hoe.” The trial court deferred ruling on the motion until after the State rested its case. Defendant argued the State should not be allowed to amend the indictment due to the prejudicial effect. The trial court allowed the amendment. 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. The jury found defendant guilty of both charges. The trial court entered judgment, and defendant appeals.
    On appeal, defendant asserts the trial court erred in (I) allowing the State to amend the indictment, (II) admitting certain evidence without sufficient identification, and (III) denyingdefendant's motion to dismiss. Defendant also asserts the trial court (IV) committed plain error by allowing certain impeachment testimony.
I. Amendment to the Indictment
    Defendant first asserts the trial court erred in allowing the State to amend the indictment charging assault with a deadly weapon by means of a “stick” to assault with a deadly weapon by means of a “garden hoe” because the amendment changed an essential element of the offense and because the amendment occurred during the State's case-in-chief. We disagree.
    “A criminal pleading must contain . . . [a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5) (2003). With respect to criminal indictments, our Supreme Court has characterized their function as follows: “'to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused . . . .'” State v. Brinson, 337 N.C. 764, 768, 448 S.E.2d 822, 824 (1994) (quoting State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984)). While our statutes provide that “[a] bill of indictment may not be amended[,]” see N.C. Gen. Stat. § 15A-923(e) (2003), this statute “has been construed to mean only that an indictment may not be amended in a way which 'would substantially alter the charge setforth in the indictment.'” Brinson, 337 N.C. at 767, 448 S.E.2d at 824 (quoting State v. Carrington, 35 N.C. App. 53, 240 S.E.2d 475, disc. rev. denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). For indictments charging a crime, one of the elements of which is the use of a deadly weapon, our Supreme Court has “held that it is sufficient to '(1) name the weapon and (2) either to state expressly that the weapon used was a “deadly weapon” or to allege such facts as would necessarily demonstrate the deadly character of the weapon.'” Id., 337 N.C. at 768, 448 S.E.2d at 824 (quoting State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977)). Moreover, an amendment with regards to such indictments that does not “substantially alter the original indictment” will not be held to prejudice a defendant. Id., 337 N.C. at 769, 448 S.E.2d at 825.
    In the instant case, the testimony adduced at trial revealed defendant and Brandon came to the victim's house brandishing wooden handles commonly used with picks or axes. During the altercation with the victim, both Brandon and defendant were disarmed, and defendant picked up an intact garden hoe lying in the yard and struck the victim with it. The garden hoe was broken into two parts: the wooden handle, which was referred to during the trial as a “stick” and the implement or metal portion. While the portions were collected and introduced at trial separately, there is no confusion that the garden hoe was intact throughout the altercation, and it was defendant's assault with the garden hoe upon the victim that formed the basis of the charge against him. Defendant's attempts to distinguish between the intact garden hoeused in the assault and the same garden hoe, broken into two portions at the time of trial, are unavailing. Defendant's argument regarding the prejudice resulting from the timing of the amendment is premised upon this same hypertechnical distinction and is likewise unavailing. These assignments of error are overruled.
    Defendant also assigns as error the trial court's allowing the State to amend the indictment on the grounds that it allowed the jury to convict defendant on multiple grounds as there were multiple weapons used during the assault. However, we note the trial court instructed the jury, in pertinent part, as follows: “for you to find the defendant guilty of assault with a deadly weapon inflicting serious injury, the State must prove . . . [f]irst, and in the case of [defendant], that he assaulted the victim by intentionally striking him with a hoe . . . .” Defendant has not challenged on appeal the jury charge given, and “[w]e presume 'that jurors . . . attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.'” State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (1993) (quoting Francis v. Franklin, 471 U.S. 307, 324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985)). These assignments of error are overruled.
II. Admission of Evidence
    Defendant assigns as error the admission into evidence of State's exhibit eight without sufficient identification or foundation. We analyzed this issue under these same facts in Statev. Brandon, ___ N.C. App. ___, ___ S.E.2d ___ (2004). For reasons given therein, this assignment of error is overruled.
III. Motion to Dismiss
    Defendant asserts the trial court erred in denying his motion to dismiss on the grounds that there was insufficient evidence to support submission of the charge of assault with a deadly weapon inflicting serious injury to the jury. We note that defendant has recited conflicting evidence in his brief to this Court in a manner that does not clearly indicate which elements defendant contends were unsupported by substantial evidence. Nonetheless, we briefly review the standard and elements as well as the supporting evidence and find no error.
    A motion to dismiss raises the question of whether there is substantial evidence, in the light most favorable to the State, that “the crime charged in the bill of indictment was committed and that defendant was the perpetrator.” State v. Armstrong, 345 N.C. 161, 164, 478 S.E.2d 194, 196 (1996). “Substantial evidence is that amount of 'relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id., 345 N.C. at 165, 478 S.E.2d at 196 (quoting State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995)). “[C]ontradictions and inconsistencies do not warrant dismissal; the trial court is not to be concerned with the weight of the evidence. Ultimately, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances.” State v.Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citations 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). The victim testified that defendant assaulted him by striking him on the head with a garden hoe, resulting in a large head wound and profuse bleeding. The victim further testified the required medical treatment, as a result of the assault, included fourteen stitches to close the wound. Such testimony constitutes substantial evidence of all the elements of the charge as well as defendant being the perpetrator. Any contradictions in testimony adduced at trial were for the jury's consideration. This assignment of error is overruled.
IV. Impeachment
    Defendant asserts the trial court committed plain error in allowing the State to impeach Officer Moore's testimony of the date of the offense and his opinion at that time of the seriousness of the victim's injuries through the testimony of Officer Lovingood and by extrinsic hearsay evidence of Officer Moore's report.
    “[T]he plain error rule . . . is always to be applied cautiously[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). “Under plain error review, 'reversal is justified when the claimed error is so basic, prejudicial, and lacking in its elements that justice was notdone[,]'” see State v. Miller, 357 N.C. 583, 592, 588 S.E.2d 857, 864 (2003) (quoting State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003)), and, “absent the [claimed] error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
    Assuming arguendo the impeachment allowed by the trial court was erroneous, the overwhelming evidence of the seriousness of the victim's injury at the hands of defendant obviates any claim that the jury probably would have reached a different result had the impeachment not been allowed. Defendant has failed to bring forward any argument concerning prejudice resulting from impeachment regarding the date the offense occurred and has thereby abandoned it. N.C. R. App. P. 28(b)(6) (2004). This assignment of error is overruled.
    No error.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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