STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 02 CRS 229570
RICHARD CRIST FISHER
Attorney General Roy Cooper, by Assistant Attorney General
Victoria L. Voight, for the State.
William D. Auman for defendant_appellant.
THORNBURG, Judge.
Richard Crist Fisher (“defendant”) appeals from a conviction
of assault with a deadly weapon inflicting serious injury.
Defendant asserts that the trial court erred by (1) failing to
allow defendant to question a witness concerning the victim's prior
arrest history, (2) failing to instruct the jury on the lesser
included offense of assault inflicting serious injury and by
characterizing the stick used by defendant as a deadly weapon per
se, and (3) failing to dismiss the charges against defendant due to
insufficiency of the evidence. For the reasons stated herein, we
find no prejudicial error. At trial, the victim, James Garmon (“Garmon”) testified as
follows: On 17 June 2002, Garmon was at defendant's house doing
some repair work on defendant's car. Garmon left defendant's house
to take a break but returned and asked defendant for some money.
Defendant swung at Garmon and Garmon kicked at defendant. Garmon
then started walking back up the street. Defendant followed Garmon
and hit Garmon on the head and across the back with a stick.
Defendant also testified that he hit Garmon several times with
a stick. However, defendant testified that he hit Garmon because
Garmon had a knife and was going to cut defendant. The jury
returned a verdict of guilty of assault with a deadly weapon
inflicting serious injury. Defendant was sentenced to a minimum of
42 months and a maximum of 60 months in the custody of the North
Carolina Department of Correction. Defendant appeals.
Defendant's first assignment of error asserts that the trial
court erred in failing to allow defendant to question defense
witness Officer Craig Varnum of the Charlotte-Mecklenburg Police
Department (“Officer Varnum”) regarding Garmon's prior arrests. On
redirect examination by defense counsel, Officer Varnum testified
that he had arrested Garmon at least four times. Defense counsel
then asked Officer Varnum if he knew what those individual charges
were. The trial court sustained the State's objection to this
question. Defendant argues that this question and Officer Varnum's
answer should have been admitted under North Carolina Rules of
Evidence 405(a) and 608(b). We disagree. Under Rule 405, evidence of specific instances of conduct is
admissible in proving character only if character “is an essential
element of a charge, claim, or defense[.]” N.C. Gen. Stat. § 8C-1,
Rule 405(b)(2003). In the instant case, defendant claimed at trial
that he hit Garmon in self-defense. Thus, defendant was entitled
to introduce evidence as to Garmon's character for violence for the
purpose of showing the reasonableness of defendant's apprehension
and use of force. However, this Court has held that “[t]he
specific incident of conduct a defendant seeks to enter into
evidence becomes relevant 'only if defendant knew about it at the
time of the [assault].'” State v. Dewberry, __ N.C. App. __, __,
600 S.E.2d 866, 871 (2004)(quoting State v. Shoemaker, 80 N.C. App.
95, 101, 341 S.E.2d 603, 607 (1986)).
In the case at bar, defendant has not pointed this Court to
evidence of record that tends to show that defendant had knowledge
of Officer Varnum's arrests of Garmon at the time of the events
underlying defendant's conviction. Furthermore, assuming arguendo
that sustaining the State's objection was error, defendant has not
met his burden of proving that he was prejudiced by the error as
several witnesses, including Officer Varnum, testified as to
Garmon's reputation for violence. See State v. Watson, 338 N.C.
168, 188, 449 S.E.2d 694, 706 (1994)(holding that the trial court's
error in not allowing a question about the victim's reputation for
violence was harmless given the extensive testimony concerning the
victim's reputation for violence that was admitted), cert. denied,514 U.S. 1071, 131 L. Ed. 2d 569 (1995), overruled on other grounds
by State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995).
This testimony was also not admissible under Rule 608(b).
This rule permits questions during cross-examination about specific
instances of conduct concerning the character for truthfulness or
untruthfulness of another witness. N.C. Gen. Stat. § 8C-1, Rule
608(b) (2003). In the instant case, Officer Varnum was asked to
testify about Garmon's character for violence, not about his
veracity. Furthermore, the question was asked during redirect, not
cross-examination. Therefore, we conclude that the trial court did
not err in sustaining the State's objection to defendant's question
to Officer Varnum. This assignment of error is overruled.
Defendant's next assignment of error asserts that the trial
court erred by characterizing the stick used by defendant as a
deadly weapon per se and failing to instruct the jury on the lesser
included offense of assault inflicting serious injury.
Defendant asserts that whether an instrumentality is a deadly
weapon is a question of law only where there is no dispute
regarding the facts. This argument is misplaced in that while
several witnesses gave different versions of the exact course of
events underlying defendant's conviction, there is no dispute that
defendant assaulted Garmon with the weapon that was introduced into
evidence and variously referred to as a “board,” a “bat” a “stick”
and a “club.” Similarly, there is no conflict in the evidence as
to the manner of its use. Both defendant and Garmon testified that
defendant hit Garmon on the head and the back. Finally, there isno conflict in the evidence indicating that Garmon was seriously
injured due to defendant's use of the weapon. Officer Theodore
Castano of the Charlotte-Mecklenburg Police Department testified
that Garmon was hurting and bleeding, that Garmon had a gash in his
head, and that the wound was spurting blood. Garmon testified that
clamps were put into his head at the hospital and that he was dizzy
for a couple of weeks after the assault. Because both the nature
of the weapon and the manner of its use were of such character as
to admit but one conclusion, the trial court did not err in
deciding, as a matter of law, that the weapon used was a deadly
weapon. State v. Parker, 7 N.C. App. 191, 195-96, 171 S.E.2d 665,
667-68 (1970). This argument fails.
Defendant also argues that the trial court erred by failing to
instruct the jury on the lesser included offense of assault
inflicting serious injury. “[A] trial judge must instruct the jury
on all lesser included offenses that are supported by the evidence,
even in the absence of a special request for such an instruction,
and [the] failure to do so is reversible error which is not cured
by a verdict finding the defendant guilty of the greater offense.”
State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995).
However, “the trial court is not required to submit lesser degrees
of a crime to the jury 'when the State's evidence is positive as to
each and every element of the crime charged and there is no
conflicting evidence relating to any element of the charged
crime.'” State v. McKinnon, 306 N.C. 288, 300-01, 293 S.E.2d 118,126 (1982) (quoting State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d
706, 714 (1972)).
As defendant's contention in reference to this argument is
that the State did not present positive evidence that defendant
used a deadly weapon, this argument must fail based on our
conclusion, supra, that the trial court did not err by instructing
the jury that the weapon used is a deadly weapon. This assignment
of error is overruled.
Defendant's final assignment of error asserts that the trial
court erred in failing to dismiss all charges due to insufficiency
of the evidence. At trial, defendant made a motion to dismiss at
the close of the State's evidence. However, defendant failed to
renew this motion at the close of all the evidence. Thus, this
issue was not properly preserved and is not properly before this
Court. N.C. R. App. P. 10(b)(3)(2003); State v. Leonard, 300 N.C.
223, 231, 266 S.E.2d 631, 636, cert. denied, 449 U.S. 960, 66 L.
Ed. 2d 227 (1980). This assignment of error is dismissed.
No error.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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