The State's evidence tended to show the following. The
victim, Quentin Lloyd, was riding his bike home from a friend's
house between midnight and 1:00 a.m. on 13 June 2003. Lloyd was
approached by defendant, Kendrick Green, and a third individual
whom Lloyd did not know. Defendant and Green both had guns. The
unknown individual, along with defendant, began punching Lloyd,
while Green held up his gun and demanded money. Lloyd handed over
$600.00 in cash and ran.
Lloyd went to a friend's house, armed himself with a gun, and
left in search of his assailants. When he found defendant and
Green in a park, he demanded that they return his money. Defendant
shot Lloyd in the chest and when Lloyd fell to the ground, Green
shot him again in the leg. As a result of his injuries, Lloyd was
hospitalized for over two months. He sustained damage to his right
lung and is paralyzed, possibly permanently.
A jury convicted defendant of robbery with a firearm and
assault with a deadly weapon with intent to kill inflicting serious
injury. As to the robbery conviction, the trial judge sentenced
defendant in the aggravated range to a term of 95 to 123 months,
finding as an aggravating factor that "defendant joined with morethan one other person in committing the offense and was not charged
with committing a conspiracy." As to the assault conviction, the
trial judge also imposed an aggravated sentence of 125 to 159
months, finding as an aggravating factor that the victim had
suffered "serious injury that is permanent and debilitating." The
sentences were to run consecutively.
Defendant argues that the indictment with respect to the
charge of assault with a deadly weapon with intent to kill
inflicting serious bodily injury was insufficient because it did
not provide specific information regarding the nature of the
serious injury and did not state underlying facts supporting an
intent to kill. Defendant did not challenge the indictment at
trial. Our Supreme Court has held:
As a general rule, a defendant waives an
attack on the indictment when the indictment
is not challenged at trial. However, when an
indictment is alleged to be facially invalid,
thereby depriving the trial court of its
jurisdiction, it may be challenged at any
time, notwithstanding a defendant's failure to
contest its validity in the trial court.
State v. Call
, 353 N.C. 400, 428_29, 545 S.E.2d 190, 208 (internal
citations omitted), cert. denied
, 534 U.S. 1046, 151 L. Ed. 2d 548,
122 S. Ct. 628 (2001). We may, therefore, review the facial
validity of the indictment.
As this Court has explained, "an indictment couched in the
language of the statute is sufficient to charge the statutory
offense." State v. Blackmon
, 130 N.C. App. 692, 699, 507 S.E.2d
42, 46, cert. denied
, 349 N.C. 531, 526 S.E.2d 470 (1998). "It isalso generally true that an indictment need only allege the
ultimate facts constituting the elements of the criminal offense
and that evidentiary matters need not be alleged." Id.
In the present case, the indictment alleges that "defendant .
. . unlawfully, willfully and feloniously did assault Queintin
[sic] Lloyd, with a handgun, a deadly weapon, with the intent to
kill and inflicting serious injury." The corresponding statute
provides, "Any person who assaults another person with a deadly
weapon with intent to kill and inflicts serious injury shall be
punished as a Class C felon." N.C. Gen. Stat. § 14_32(a) (2003).
The indictment's language thus directly parallels that of the
relevant statute and alleges the necessary ultimate facts. The
facts that defendant contends should have been included are
evidentiary matters that the State was not required to allege. We,
therefore, hold that the indictment was facially valid.
Defendant assigns as error the trial court's admission, over
his objection, of the following testimony from an eyewitness, Nikki
Barnhill: "[Defendant] said everybody was telling him that I left
in the car with the police officers. He knew that I snitched. And
if he found out that I snitched he was going to do something to me,
if he found out I snitched."
Although defendant does not dispute that this testimony is
relevant, defendant nonetheless argues that the testimony should
have been excluded because its prejudicial effect outweighed its
probative value under N.C.R. Evid. 403. A trial court's weighingof the probative value of the evidence against its potential for
causing unfair prejudice is evaluated on appeal under an abuse of
discretion standard. State v. Prevatte
, 356 N.C. 178, 250, 570
S.E.2d 440, 480 (2002), cert. denied
, 538 U.S. 986, 155 L. Ed. 2d
681, 123 S. Ct. 1800 (2003). Accordingly, we may only disturb the
trial court's ruling if we find it to be "so arbitrary that it
could not have been based on reason." Id.
It is well-established in this State that evidence of a
defendant's efforts to intimidate a witness are admissible as
tending to show the defendant's consciousness of his guilt. See,
, State v. Mason
, 337 N.C. 165, 171, 446 S.E.2d 58, 61 (1994)
(holding that testimony concerning the defendant's threats to the
State's principal witness was a strong indication of the
defendant's awareness of his own guilt); State v. Hicks
, 333 N.C.
467, 485, 428 S.E.2d 167, 177 (1993) (holding that a witness'
testimony that defendant "had pushed him to the floor, held a steak
knife over him, and threatened to kill him if he told anyone what
the defendant had done" was admissible), overruled in part on other
grounds by State v. Buchanan
, 353 N.C. 332, 543 S.E.2d 823 (2001).
Defendant has not pointed to any circumstance or fact in this case
that made Barnhill's testimony more prejudicial than in similar
cases in which such testimony was allowed. See Mason
, 337 N.C. at
171-72, 446 S.E.2d at 61 (finding no abuse of discretion when
testimony was not presented in a manner designed to inflame the
jury or otherwise suggest decision on an improper basis). We,therefore, hold that the trial court did not abuse its discretion
in admitting this testimony.
Defendant next argues that Barnhill's testimony regarding
defendant's out-of-court statement was inadmissible hearsay. Even
, that the statement constituted an out-of-court
statement offered for the truth of the matter asserted, N.C.R.
Evid. 801(c), since the statement was made by defendant himself, it
constituted an admission of a party-opponent and, therefore, was
admissible. N.C.R. Evid. 801(d) ("A statement is admissible as an
exception to the hearsay rule if it is offered against a party and
it is . . . his own statement, in either his individual or a
representative capacity . . . .").
Finally, defendant argues that Barnhill's testimony should
have been the subject of a limiting instruction. Specifically,
defendant contends that the trial judge should have instructed the
jury to "consider the testimony only to the extent that they found
it indicated ill will or fear on the part of the victim towards the
defendant and for no other reason in the case." Since, however,
defendant did not specifically request such a limiting instruction
at trial, he has not properly preserved this objection for
appellate review. State v. Stager
, 329 N.C. 278, 310, 406 S.E.2d
876, 894 (1991) ("The defendant, having failed to specifically
request or tender a limiting instruction at the time the evidence
was admitted, is not entitled to have the trial court's failure to
give limiting instructions reviewed on appeal."). Accordingly,
this assignment of error is overruled.
With respect to the jury instructions, defendant argues that
the trial court erred in instructing the jury that a handgun is a
deadly weapon and that a gunshot wound to the chest is a serious
injury. The challenged instruction reads as follows:
The defendant has also been charged with
assault with a deadly weapon with intent to
kill inflicting serious injury.
For you to find the defendant guilty of
this offense the state must prove four things
beyond a reasonable doubt: First, that the
defendant assaulted the victim by
intentionally and without justification or
excuse shooting the victim.
Second, that the defendant used a deadly
weapon. A deadly weapon is a weapon that is
likely to cause death or serious bodily
injury. A handgun is a deadly weapon.
Third, the state must prove that the
defendant had the specific intent to kill the
. . . .
Fourth, that the defendant inflicted
serious injury. Serious injury may be defined
as such physical injury as causes great pain
A gunshot wound to the chest would be a
Since defendant did not object to this instruction at trial, we may
only review this particular jury instruction for plain error.
N.C.R. App. P. 10(b)(2) & (c)(4).
Defendant argues that "[w]hile a 'handgun' of some varieties
and employed in certain circumstances may be a deadly weapon, a
handgun in and of itself is not." Our courts have, however, ruledto the contrary. State v. Powell, 238 N.C. 527, 531, 78 S.E.2d
248, 251 (1953) (holding that a pistol is a "deadly weapon per
se"); State v. Pettiford, 60 N.C. App. 92, 98, 298 S.E.2d 389, 392
(1982) (holding that an instruction "that a pistol or revolver was
a deadly weapon" was not error because "[a] pistol is a deadly
weapon per se"). Accordingly, defendant's objection to this
portion of the jury instructions has no merit.
We also hold that the trial court did not err in instructing
the jury that the gunshot wound to Lloyd's chest constituted a
serious injury. "[W]here, as in the case at bar, the State's
evidence with respect to the injuries is uncontradicted and the
injuries could not conceivably be considered anything but serious,
then the trial judge may instruct the jury that if they believe the
evidence as to the injuries, then they will find that there was
serious injury." State v. Davis, 33 N.C. App. 262, 264, 234 S.E.2d
762, 763 (1977) (holding, with respect to an assault instruction,
that trial court properly instructed the jury that a "fractured
skull is a serious injury"). Here, the victim's undisputed
testimony was that he had sustained damage to one of his lungs as
a result of the bullet in his chest, was no longer able to walk,
and had spent two and a half months in the hospital following the
assault. The evidence was, therefore, sufficient to justify the
trial court's instruction.
Defendant next seeks a new sentencing hearing. He first
contends with respect to both convictions that the trial courterred in sentencing him as a Level II offender when the State
offered no evidence of defendant's prior record level. During
defendant's sentencing hearing, the record suggests that the only
information supplied to the trial court as to defendant's prior
record level was a worksheet completed by the State. The record
does not contain any indication that the State submitted evidence
regarding defendant's prior record level and it does not contain
any express stipulation by defendant to that record level. See
N.C. Gen. Stat. § 15A-1340.14 (2003) (specifying the methods by
which a prior record level may be proven).
The law is well-established that "the State's unverified
assertion that a defendant was convicted of the prior crimes listed
on a prior record level worksheet" is not sufficient to support a
sentence. State v. Goodman
, 149 N.C. App. 57, 72, 560 S.E.2d 196,
205 (2002), rev'd in part on other grounds per curiam
, 357 N.C. 43,
577 S.E.2d 619 (2003). Thus, as a matter of law, the State did not
present sufficient evidence of defendant's prior crimes. See State
, __ N.C. App. __, __, 605 S.E.2d 672, 675 (2004) (State
failed to satisfy its burden of proving defendant's prior record
level merely by submitting a prior record level worksheet). In
accordance with Goodman
, we hold that the trial court
erred in sentencing defendant as a Level II offender based solely
on the State's prior record level worksheet. Defendant is,
therefore, entitled to a new sentencing hearing to determine his
prior record level.
Defendant also challenges his aggravated sentence on the
assault charge on the grounds that it was based on facts not found
by a jury in violation of Blakely v. Washington
, 542 U.S. 296, 159
L. Ed. 2d 403, 124 S. Ct. 2531 (2004).
(See footnote 1)
The trial court based its
aggravated sentence on its finding that "[t]he victim of this
offense suffered serious injury that is permanent and
As our Supreme Court recently held, based on Blakely
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed presumptive range must be
submitted to a jury and proved beyond a reasonable doubt." Allen
359 N.C. at 437, 615 S.E.2d at 265 (citing Blakely
, 542 U.S. at __,
159 L. Ed. 2d at 413_14, 124 S. Ct. at 2537; Apprendi v. New
, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348,
2362 (2000)). The failure to do so constitutes structural error
and is reversible per se
at 449, 615 S.E.2d at 272.
Accordingly, defendant is, as to his assault conviction, entitled
to a new sentencing hearing at which any aggravating circumstances
shall be found by a jury beyond a reasonable doubt. In summary, this case is remanded to the trial court for a new
sentencing hearing at which defendant's prior record level may
properly be determined for both the robbery and assault sentences.
With respect to his sentence for assault, file number 03 CRS 57799,
he is also entitled to a new sentencing hearing in compliance with
No error in part; remanded for a new sentencing hearing in
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).