An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-193


Filed: 2 August 2005


v .                         Halifax County
                            No. 02 CRS 056543

    Appeal by defendant from judgment entered 8 July 2003 by Judge W. Russell Duke, Jr., in Halifax County Superior Court. Heard in the Court of Appeals 21 October 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Lorrin Freeman, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant.

    LEVINSON, Judge.

    Defendant (Eric Donnell Rhodes) appeals from conviction and judgment for assault with a deadly weapon with the intent to kill inflicting serious injury. We hold that defendant received a fair trial, free of prejudicial error, but is entitled to a new sentencing hearing.
    The evidence presented at defendant's trial tended to show the following: On the afternoon of 4 October 2002, the victim, McKinnley Brown, was at the home of his cousin, Kenneth Martin. Between approximately 1:00 p.m and 7:00 p.m. Brown and Martin “split” three or four forty-ounce bottles of malt liquor. At approximately 10:00 p.m., Martin drove Brown to the residence ofBrown's friend, Sandra. On the way, Brown and Martin stopped at a convenience store, and Brown purchased a forty-ounce bottle of King Cobra malt liquor and a forty-ounce bottle of Miller beer.
    Sometime after midnight, defendant arrived at Sandra's residence. Defendant was a friend of both Brown and Sandra. According to defendant, he had consumed “two or three cups full of brandy and a couple of beers” before going to Sandra's house, and Brown was drinking a forty-ounce bottle of King Cobra while visiting with Sandra. At some point, Sandra asked defendant and Brown to leave so that she could go to bed. As the two men exited the dwelling, Brown took the bottle of King Cobra even though it was empty by that time. According to defendant, he and Brown began arguing over money; Brown insisted that defendant owed him some money for a cellular telephone, and defendant disagreed. Defendant testified that Brown then threw the empty bottle, which shattered as it hit defendant in the face. The incident produced cuts, bleeding, and swelling of defendant's face.
    Defendant then chased after Brown. Brown eventually fell to the ground, and defendant pinned Brown to the ground, punched, kicked, and “stomped on” him numerous times, struck him with his elbows, and choked Brown with his hands. A witness, Wesley Boone, testified that he heard defendant using profanity and yelling that he was going to kill Brown. Boone characterized the blows to Brown as “hard.” Boone shouted for defendant to stop hitting Brown; defendant then struck Brown two or three additional times before going over and talking to Boone. Brown is approximately five feeteight inches tall and weighed approximately one hundred fifty-five pounds; defendant is approximately six feet two inches tall and weighed over two hundred thirty pounds. As a result of the beating, Brown suffered severe trauma to the head, was rendered completely incapacitated, and permanently lost the ability to walk or talk.
    Police and emergency medical personnel were summoned. At approximately 12:30 a.m. on 5 October 2002, Officer Adam Bondarek of the Roanoke Rapids Police Department arrived at the crime scene. After gathering evidence, Officer Bondarek drove to the neighboring subdivision in response to a call from central dispatch concerning a request for an ambulance to treat a person who had been involved in a fight. Upon arriving at the neighboring subdivision, Officer Bondarek saw defendant come out of a house and speak with paramedics. Defendant was visibly upset. Officer Bondarek encouraged defendant to seek medical treatment.
    Officer Bondarek later approached defendant while he was awaiting treatment in the local emergency room. When the officer approached, defendant was visibly upset and was talking to himself in fragments. According to the officer's testimony,
    [Defendant] stated that he [']went off and lost control.['] And he blurted out[,] [']kick his a--.['] And then he said, [']some s--t two years ago.['] And then he said , [']eight times to the temple with my elbow. It's sore.[']

After being examined, defendant gave the following statement to Officer Bondarek:
    Early tonight I went over [to] a friend's house [and Brown] was there. [Brown] started to talk about stuff inthe past. He said about two years ago I stole a cell phone from him, which was a lie because I gave it back to him. He kept saying I owed him something, as in cash. He said that he could take it from me. Then he hit me in the face with a bottle. He then took off running. I chased him. I caught him. I was on top of him choking him. I tried to squish his larynx. I was trying to choke his life out of him. After I choked him, I did some elbow smashes on him. Then I stood up and kicked him in the head and ribs. I was fired up. I had to kill him for the blood in my eyes. I stopped and walked away. I wanted to go back and finish him but I didn't. Then I went home.

Defendant testified at trial and offered essentially the same account of the attack. Defendant stated that both he and Brown were intoxicated. Moreover, when asked whether he intended to kill Brown, defendant answered, “In the state of mind I was in and what had happened, yes, I [did].”
    The jury returned a verdict of guilty of assault with a deadly weapon with the intent to kill inflicting serious injury, and the trial court imposed a sentence of 145 to 183 months imprisonment. From this conviction and judgment, defendant now appeals.

    In his first argument on appeal, defendant contends that the trial court erred in denying his request to instruct the jury on the lesser-included offense of assault inflicting serious injury. We do not agree.
    A trial court must submit a lesser-included offense to the jury “when, and only when, there is evidence from which the jury can find that [the] defendant committed the lesser-included offense.” State v. Summitt, 301 N.C. 591, 596, 273 S.E.2d 425, 427 (1981). “Conversely, when all the evidence tends to show thatdefendant committed the crime charged in the bill of indictment and there is no evidence of the lesser-included offense, the court should refuse to charge on the lesser-included offense.” Id. (citation omitted). Where the State presents positive evidence as to all of the elements of the offense alleged in the indictment, and there is no contradiction in the evidence as to any of the elements, defendant is not entitled to an instruction as to a lesser-included offense. See State v. Cain, 79 N.C. App. 35, 49, 338 S.E.2d 898, 906 (1986); see also State v. Oliver, 334 N.C. 513, 523, 434 S.E.2d 202, 207 (1993) (“All the evidence . . . tends to show a shooting with a deadly weapon with the intent to kill. Accordingly, the trial court did not err in refusing to submit [a] lesser [included] offense . . . .”). In such instances, defendant is either guilty of the indicted offense or not guilty. Cain, 79 N.C. App. at 49, 338 S.E.2d at 207.
    “The essential elements of [assault with a deadly weapon with intent to kill inflicting serious injury] are (1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death.” State v. Reid, 335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994). “Misdemeanor assault inflicting serious injury . . . [is a] lesser included offense[] of assault with a deadly weapon with intent to kill inflicting serious injury[.]” State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002). The elements of this lesser-included offense are (1) an assault (2) inflicting serious injury. See N.C.G.S. § 14-33(c)(1) (2003).     In the instant case, defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury and sought to have assault inflicting serious injury submitted to the jury as a lesser-included offense. The State presented positive evidence that defendant used his hands, fists, elbows, and feet as deadly weapons and that defendant intended to kill Brown. An eyewitness to the incident provided evidence that defendant used his hands, feet, and elbows to brutally beat Brown and simultaneously exclaimed that he was going to kill Brown. Medical evidence indicated that Brown's injuries were severe and permanent. Moreover, in his statement to Officer Bondarek and in his testimony at trial, defendant admitted that he was using his hands, feet, and elbows in an attempt to kill Brown and that he, in fact, intended to kill him. There was no contradictory or alternative evidence tending to show that defendant intended any non-lethal use of his hands, feet, and elbows or that he did not intend to kill Brown as he was beating him. Accordingly, the trial court did not err in denying defendant's request to submit assault inflicting serious injury as a lesser-included offense. This assignment of error is overruled.
    In his second argument on appeal, defendant contends that the trial court erred by instructing the jury to consider Brown's intoxication in determining whether defendant's hands, fists, elbows, or feet were used as deadly weapons. Defendant asserts that the trial court improperly expressed an opinion as to the factthat Brown was intoxicated and improperly directed the jury to consider Brown's intoxication without also directing the jury to consider defendant's intoxication. We are unpersuaded by this contention.
    It is the duty of the trial judge to instruct the jury as to the law arising on the evidence of a case. See N.C.G.S. §§ 15A- 1231 and 1232 (2003). In instructing the jury, the judge shall not express an opinion as to whether or not a controverted fact has been proven. G.S. § 15A-1232; State v. McLean, 17 N.C. App. 629, 632, 195 S.E.2d 336, 338 (1973) (discussing predecessor to G.S. § 15A-1232). When reviewing jury instructions for error, our appellate courts view the entire instruction in context and isolated portions of the charge will not be held prejudicial where the charge as a whole is correct. State v. White, 343 N.C. 378, 392, 471 S.E.2d 593, 601 (1996).
     A deadly weapon has been defined as “any instrument which is likely to produce death or great bodily harm, under the circumstances of its use . . . . The deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself.” Lowe, 150 N.C. App. at 686, 564 S.E.2d at 316; see also State v. Palmer, 293 N.C. 633, 642-43, 239 S.E.2d 406, 412-13 (1977). “This Court has held that hands and
fists may be considered deadly weapons, given the manner in which they were used and the relative size and condition of the parties involved.” State v. Rogers, 153 N.C. App. 203, 211, 569 S.E.2d657, 663 (2002), disc. review denied, 357 N.C. 168, 581 S.E.2d 442 (2003).
    In the instant case, the trial court instructed the jury concerning the use of a deadly weapon as follows:
    [F]or you to find the defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury the State must prove four things beyond a reasonable doubt.

    . . . .

    Second, that the defendant used a deadly weapon. A deadly weapon is a weapon that is likely to cause death or serious bodily injury. In determining whether the defendant's hands, fists[,] elbows or feet were deadly weapons[,] you should consider the manner in which they were used and the size and strength of the defendant as compared to the victim when the victim was in a state or some state of intoxication.

We hold that the trial court did not commit prejudicial error by giving this instruction to the jury.
    With respect to defendant's argument that the trial court impermissibly expressed an opinion that Brown was intoxicated, we note that the court did not express an opinion as to the level of Brown's intoxication or the effect of Brown's drinking on his vulnerability to an attack. Rather, the court's instruction left for the jury the issue of whether Brown was so intoxicated as to be peculiarly vulnerable to an attack such that defendant's hands, fists, elbows, and feet were used as deadly weapons. Moreover, the uncontradicted evidence at trial revealed that Brown had consumed a significant amount of alcohol prior to the assault. Brown's cousin testified that he and Brown had “split” approximately one hundred sixty ounces of alcohol in the hours before the assault andthat Brown had taken an additional forty-ounce bottle of malt liquor to consume at Sandra's house. Defendant himself testified that Brown was drinking a forty-ounce bottle of malt liquor at Sandra's home. Defendant further testified that Brown was intoxicated on the night of the assault. An officer who responded to the scene of the assault stated that he smelled alcohol on or about Brown's person and classified the smell as “[p]robably mild.” The nurse who found Brown after he had been injured indicated that she detected a “moderate” smell of alcohol on or about Brown's person. In light of this evidence, including defendant's own testimony, we are unpersuaded that the trial court erred in instructing the jury to “consider the manner in which [defendant's hands, fists, elbows, and feet] were used and the size and strength of the defendant as compared to [Brown] when [Brown] was in a state or some state of intoxication.”
    Likewise, we reject defendant's argument that the trial court committed prejudicial error by not specifically instructing the jury to consider the defendant's intoxication. Defendant did not request such an instruction from the trial court. As such, defendant has failed to preserve this question for review. See N.C.R. App. P. 10(b)(2) (“A party may not assign as error any . . . omission [from the jury charge] unless he objects thereto before the jury retires to consider its verdict[.]”). Though defendant's assignment of error asserts plain error, defendant has not complied with the requirement that he argue plain error in his brief. See State v. Cummings, 352 N.C. 600, 636-37, 536 S.E.2d 36, 61 (2000). Nevertheless, we have reviewed the alleged instructional omission for plain error pursuant to our discretion under N.C.R. App. P. 2. We are unpersuaded that, by not instructing the jury as to defendant's intoxication, the trial court committed “a fundamental error, something so basic, so prejudicial . . . that justice cannot have been done” or that “this [alleged] instructional mistake had a probable impact on the jury's finding that the defendant was guilty.” See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations and internal quotation marks omitted). Indeed, the trial court directed the jury to consider defendant's relative size and strength during the attack such that defendant's alleged intoxication was before the jury.     This assignment of error is overruled.

    In his third argument on appeal, defendant contends that he is entitled to a new sentencing hearing because the trial court's prior record level determination is unsupported by the evidence. After careful review of the transcript, we agree with defendant that insufficient evidence was presented as to his prior convictions and reject the State's argument that defendant's prior record level was proved by an “implied stipulation.” Defendant is entitled to a new sentencing hearing in which the trial court shall determine defendant's prior record level based on proof of prior convictions in accordance with N.C.G.S. § 15A-1340.14(f) (2003).
    In his fourth and final argument on appeal, defendant argues that the trial court erred by sentencing him in excess of the statutory maximum based on aggravating factors not submitted to the jury and not admitted by defendant. Defendant argues he is entitled to a new sentencing hearing pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, __ U.S. __, 159 L. Ed. 2d 851 (2004). We agree.
    In the instant case, defendant's sentence was aggravated based on findings that “[t]he victim . . . suffered serious injury that is permanent and debilitating,” and that “[d]efendant continued to strike, kick and stomp victim after the victim was rendered helpless and incapacitated.” The trial court sentenced defendant at the top of the aggravated range to a term of 145 to 183 months. The aggravating factors were not found beyond a reasonable doubt by the jury, and were not admitted by defendant. Therefore, we remand for resentencing in conformity with the rulings in Blakely and State v. Allen, ___ N.C. ___, ___ S.E.2d ___ (No. 485PA04) (filed 1 July 2005).
    No error in trial; remanded for resentencing.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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