An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
STATE OF NORTH CAROLINA
Nos. 01 CRS 50984
HENRY LOUIS INGRAM 02 CRS 1072
Appeal by defendant from judgments entered 21 November 2003 by
Judge Michael E. Beale in Anson County Superior Court. Heard in
the Court of Appeals 8 December 2004.
Attorney General Roy Cooper, by Assistant Attorney General
David N. Kirkman, for the State.
Irving Joyner for defendant appellant.
Defendant appeals after being convicted of assault with a
deadly weapon inflicting serious injury and assault inflicting
serious injury. The State's evidence tended to show that on 25
August 2001, Keisha White and Doris Rorie were speaking with Keith
Leak outside of their apartment building in Wadesboro. The two
women saw defendant cross the parking lot, approach Leak from
behind, and tap him on the shoulder. Defendant punched Leak as he
turned around. The two men began struggling on the sidewalk, and
defendant tried to pull something from his pocket. Defendant's
half-brother, Keith Thomas, suddenly appeared and shot Leak. The
bullet hit Leak's hand when he went to cover his face. Leak then
fled and ran up the stairs of the apartment building. White retreated to her apartment on the second floor and
closed the door. After not hearing further shots, White opened her
door slightly and saw defendant, Keith Thomas, and Leak. Defendant
shot at Leak, so White shut her door immediately.
Doris Rorie, who had run into her apartment as well,
eventually opened her door and saw Leak and defendant. She did not
see Keith Thomas. Rorie heard another shot and saw Leak heading
back down the steps.
The two assailants chased Leak, who was shot in the back of
the leg. Keith Thomas fired one more shot. Leak collapsed, and the
two assailants ran down a path behind the building.
Leak received treatment at Carolinas Medical Center in
Charlotte. He remained there until his release in November.
Leak's wounds included a shot to the hand which left him with
limited movement in one finger. Months after the attack, Leak had
a bullet removed from his leg. Previously, the bullet had moved
around inside Leak's leg and caused an infection. Leak's most
serious wound was the gunshot to his stomach. It led to a lengthy
confinement in the hospital and forced his mother to bathe and care
for him for weeks after Leak's release. Tissue from Leak's leg had
to be grafted into his stomach cavity to repair the wound. Because
of the shooting, Leak underwent surgery approximately seven times.
Leak also testified that he and defendant had an altercation
at a party which occurred on the night before the shooting.
Because he feared that further trouble would ensue, Leak left the
party. Defendant's half-brother, Keith Thomas, testified for the
defense. He contended that he and Jimmy Parker of South Carolina
committed the shooting and that defendant was not there.
Michael Yates testified that defendant was not present during
the shooting. He overheard Leak tell the police that he did not
know who had just shot him.
After hearing all of the evidence, the jury found defendant
guilty of assault with a deadly weapon inflicting serious injury
and guilty of assault inflicting serious injury. Defendant
On appeal, defendant argues that the trial court erred by (1)
allowing defendant to be sentenced twice for the same offense and
(2) making incorrect evidentiary rulings during the cross-
examination of prosecution witnesses. Defendant has also filed a
Motion for Appropriate Relief which challenges his aggravated
sentences. We conclude that defendant received a fair trial, free
from reversible error, but that he is entitled to be resentenced.
I. Double Jeopardy
Defendant argues that the trial court erred because
defendant's conviction of both charges violates double jeopardy.
In short, defendant claims that he has been punished twice for the
Pursuant to N.C. R. App. P. 10(b)(1) (2005):
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make ifthe specific grounds were not apparent from
In the present case, defendant failed to raise this issue at
trial. However, on appeal, defendant asserts that this error
constitutes plain error, and the trial court should have intervened
on its own.
Under the plain error rule, plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court. State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (citation omitted). The plain error rule
is always to be applied cautiously and only in the exceptional
case where, after reviewing the entire record, it can be said the
claimed error is a 'fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done . . . .' Id. at 660, 300 S.E.2d at 378 (quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). To
prevail on plain error review, defendant must show the jury would
have likely reached a different result absent the alleged error.
Id. The North Carolina Supreme Court has applied the plain error
rule only to jury instructions and evidentiary matters. State v.
Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert.
denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999).
At the outset, we note that this objection is not related to
jury instructions or evidentiary matters. Even if we assume
arguendo that this argument is properly before us, we cannot
conclude that any alleged error amounts to plain error. The Statepresented evidence tending to show that there were three shootings.
Defendant shot the victim after he tapped defendant on the shoulder
and punched him. The second shooting occurred in front of the
building after the victim ran up the stairs toward Keisha White's
door. Finally, the third shooting occurred as the victim was
running away; Keith Thomas shot the victim in the stomach near a
speed bump in the road. These assaults occurred at three different
intervals, resulted in different wounds, and were committed by two
different gunmen, defendant and his brother.
The State charged defendant with three crimes. Defendant was
acquitted of the charge of attempted first-degree murder and found
guilty of assault with a deadly weapon inflicting serious injury
and assault inflicting serious injury. Although the jury did not
find all of the elements of attempted first-degree murder, the two
assault verdicts were rationally based on the evidence presented.
Therefore, defendant cannot show that absent the alleged error, the
jury would have reached a different result at trial. We overrule
this assignment of error.
II. Evidentiary Rulings
Defendant insists that the trial court erred in a number of
its evidentiary rulings. We will consider each argument in turn.
First, defendant argues that the trial court erred in limiting
the cross-examination of Keisha White. During her testimony, White
indicated that defendant was wearing a hat during the attack. She
also stated that the hat was a derby hat, and it was similar to the
kind of hats defendant wore all the time. White could not rememberthe color of the hat and could not recall if she mentioned the hat
to police. At some point, the questioning became repetitive, and
the trial judge prevented defendant's attorney from asking the
witness again whether she had described the hat to police.
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 611(a) (2003),
[t]he court shall exercise reasonable control
over the mode and order of interrogating
witnesses and presenting evidence so as to (1)
make the interrogation and presentation
effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue
After reviewing the transcript closely, we believe that the
trial judge was exercising reasonable control over the mode of
interrogation. Because the judge acted to avoid needless
consumption of time and to protect the witness from harassment,
this argument is without merit.
Defendant next contends that the trial court erred by
preventing defendant's attorney from asking White about an
appearance she made on the Jerry Springer Show. Defendant claims
that White went on the program and made false statements about
events that never happened. In contrast, the State argues that
this was a role playing situation in which White read from a
script. The State also suggests that the probative value of the
evidence was outweighed by the prejudicial effect it would have on
the jury. At trial, the judge excluded the evidence under Rule
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 (2003), [a]lthough relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
Whether or not to exclude evidence under . . . [this rule] is
a matter within the sound discretion of the trial judge. State v.
Schultz, 88 N.C. App. 197, 203, 362 S.E.2d 853, 857 (1987), aff'd,
322 N.C. 467, 368 S.E.2d 386 (1988).
We believe that the trial judge did not abuse his discretion
in this case. Defendant has not shown that people who give
scripted performances are less credible than others. Furthermore,
this evidence's probative value is outweighed by the danger of
unfair prejudice. Thus, the trial judge acted appropriately in
Defendant alleges that the trial court erred by limiting his
cross-examination of Jacklyn Kindall. First, defendant claims that
the trial judge prevented defendant's attorney from asking Kindall
about a statement she made to the police after the shooting. The
statement, which the officer prepared, mistakenly described the
building where the shooting occurred as Building Seven, instead of
Building Five, the correct location. Defendant's attorney asked
Kindall to read the statement that she made to the police. As she
did, Kindall noticed that the building listed in the number was
wrong. She said, I don't know what building he has there. But it
is supposed to be building five. Defendant's attorney then asked
if the statement said seven instead of five. Kindallresponded, No. It looks like a two. The prosecutor then
objected, and the trial judge sustained the objection because the
question had been asked and answered.
Defendant has not shown that the trial judge committed
reversible error by sustaining the objection. The record shows
that Kindall could not ascertain the number on the written
statement, and she testified that the number should have been five.
Furthermore, because the question was asked and answered, it was
appropriate for the trial court to prevent repetitive questioning.
Lastly, defendant argues that the trial court erred in
preventing his attorney from asking Kindall about a prior
conviction for giving fictitious information to a police officer.
However, the record indicates that minutes earlier, defense counsel
had asked the exact same question, and Kindall admitted that she
had been convicted of that offense. Since the question had been
asked and answered, the trial judge acted appropriately in
preventing defendant's attorney from asking the question again.
Even if we assume arguendo that any of the evidentiary rulings
were improper, [n]ot every erroneous ruling on the admissibility
of evidence will result in a new trial. State v. Knox, 78 N.C.
App. 493, 496, 337 S.E.2d 154, 157 (1985). Defendant is only
entitled to a new trial if there is a reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial. N.C. Gen. Stat. § 15A-
1443(a) (2003). Defendant has the burden of showing such prejudice
under this subsection. Id. In the present case, defendant has not shown that a different
result would have been reached if the alleged errors had not been
committed. Therefore, we overrule this assignment of error.
Defendant has also filed a Motion for Appropriate Relief in
which he contends that he was unconstitutionally sentenced to terms
in the aggravated range based on judicial findings that certain
aggravating factors existed. Specifically, defendant contends that
his sentences could not be aggravated in the absence of a jury
finding beyond a reasonable doubt that the alleged aggravating
factor existed. We agree and remand for defendant to be sentenced
in accordance with the principles set forth in Blakely v.
, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied
, ___ U.S.
___, 159 L. Ed. 2d 851 (2004), and State v. Allen
, 359 N.C. 425,
615 S.E.2d 256 (2005).
After reviewing the record, transcript, and briefs, we
conclude that defendant received a fair trial free from reversible
error; however, we remand for imposition of new sentences.
No error in trial; remanded for resentencing.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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