An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-940

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005


STATE OF NORTH CAROLINA

v .                         Wilkes County
                            No. 03 CRS 52232
KENNETH DAVID KEY, JR.

    Appeal by defendant from judgment entered 12 February 2004 by Judge Melzer A. Morgan, Jr. in Wilkes County Superior Court. Heard in the Court of Appeals 9 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Elizabeth N. Strickland, for the State.

    L. Jayne Stowers, for defendant.

    LEVINSON, Judge.

    Defendant (Kenneth David Key, Jr.) appeals from conviction and judgment for assault with a deadly weapon inflicting serious injury. We hold that defendant received a fair trial, free of prejudicial error.
    The evidence presented at trial tended to show the following:
    On 19 June 2003 Mr. Brown, the prosecuting witness, was driving in his truck with his cousin when he passed defendant driving his car on Congo Road. Congo Road is a two-lane road. Mr. Brown stated he was mad at defendant because of defendant's treatment of Mr. Brown's sister, Ms. White. When he saw defendant coming, he “swerved over in his lane[.]”     After swerving at defendant, Mr. Brown continued driving to his aunt's house where he was living at the time. As Mr. Brown was sitting in his truck in his aunt's driveway that evening, someone brought him the telephone. Defendant was on the line and asked Mr. Brown why he had swerved at him. Mr. Brown told him he was mad. Defendant said he didn't care if Mr. Brown was mad and that “if I mess with him, that he was going to kill Cindy. . . . and everybody on the hill, everybody in my family on the hillside.” Defendant told Mr. Brown over the phone “[t]o come up there and get what I wanted[.]”
    Mr. Brown then drove straight to defendant's house. Mr. Brown entered by the back porch and walked into defendant's living room. “I hollered at him and called him a name.” Defendant was standing up talking on a cell phone. According to Mr. Brown, defendant turned around and swung at Mr. Brown with the cell phone. Mr. Brown hit him in the nose and they fought. Mr. Brown pinned defendant in his chair and told defendant to leave Mr. Brown's family alone. Then Mr. Brown threw defendant to the floor and left. Although Mr. Brown acknowledged that he had a pocket knife in one of his pants pockets, he testified he did not use this knife or any other weapon in the fight.
    Mr. Brown met Brandy Gilreath in the driveway on his way out. She told him he should not have come. Mr. Brown raised his hand to tell her to get out of his way when he was shot in the hand. Defendant turned to run and felt “a hit in the back and in my leg.” He made it to his truck and collapsed. Mr. Brown remembered wakingup at Baptist Hospital. His esophagus was repaired at the hospital and he had feeding tubes. His hand also required surgery. Mr. Brown experienced a great deal of pain.
    Detective Jeff Hemric of the Wilkes County Sheriff's Department testified he was the officer in charge of the investigation. When he arrived at the scene, Detective Hemric searched the exterior of the home first. He found five bullet shell casings on the back porch, collected them, and placed them in a bag. Then he searched the interior of the home where he collected a ballcap and a knife. He stated he did not find any shell casings inside the home. Nor did he find any evidence of bullet strikes or bullet holes in the walls or doors inside the home. He found nothing on the floor inside which caught his attention. Detective Hemric identified the State's photographs depicting the bullet shell casings found on the back porch. He testified the photographs accurately depicted the scene as he had found it on the night of 19 June 2003. He identified the five bullet shell casings themselves as the ones “collected from the porch area as shown in the earlier State's photographs.” Detective Hemric identified State's Exhibit Number 28 as the semi-automatic, .22 caliber rifle that was recovered from the scene of the crime. He testified this type of gun ejects the bullet shell casings from the side.
    Brandy Gilreath testified. She is the daughter of Reba and Keith Gilreath and defendant's friend who had been to defendant's house for supper that evening. She was standing outsidedefendant's home in the driveway by her mother's car when she saw Mr. Brown drive up to defendant's house. Mr. Brown “bust[ed] the door in” as he entered the home. Ms. Gilreath heard the fight start inside. It sounded loud and violent. She put her six year old younger brother in her mother's car. She remained by the car. She watched her mother leave defendant's house, go to a neighboring house, and come back. As her mother was coming back, Ms. Gilreath heard gun shots. At the time, they sounded like “a popping noise. It was like pop, pop or something like that.” Ms. Gilreath testified she did not know how many “pops” she heard. After the shots were fired, she saw Mr. Brown come around the side of the house. He was bleeding as he came over to the car and fell. Ms. Gilreath denied that Mr. Brown had been shot in the hand, leg, or back as he was standing next to her. She saw defendant come around the corner of the house. His face was bleeding and he looked scared. When she saw him, he was not pointing the gun at Mr. Brown. Her mother said, “[s]top, stop, stop” and went back into the house with defendant. Ms. Gilreath's father took her and her brother to Ms. Gilreath's car and she drove away.
    Defendant testified. On the morning of 19 June 2003 defendant was at a job site remodeling a rental property for Mr. Gilreath. As he and Mr. Gilreath were driving away from the property, Beau White, Mr. Brown's cousin, stepped from behind a tree and fired a shotgun at them. Defendant called 9-1-1. Law enforcement officers came to his house but did not offer assistance. Defendant and Mr. Gilreath then went to the magistrate's office to take out a warrantagainst Mr. White. Later that day as defendant was driving home, he saw Mr. Brown driving a pickup truck. It appeared to defendant that Beau White was with Mr. Brown in the truck. “He swerved over into my lane of traffic.” Defendant was forced onto the shoulder of the road. Defendant went home and made himself a mixed drink. Defendant drank to calm himself down. He was worried because he “[had] been shot at that day and run off the road and [did not] know what was going to happen next.” The Gilreaths came over in the afternoon to check on defendant. That afternoon defendant called Christie Roman's house. Defendant said he called because he could not figure out why Mr. Brown had run him off the road. Defendant left a message threatening Mr. Brown. The Gilreaths later brought defendant supper. Defendant was still drinking and was “under the influence of alcohol at that point.” Defendant did not remember making a telephone call to Mr. Brown that afternoon.
    According to defendant, he was seated on the couch when Mr. Brown suddenly entered his home. Defendant heard someone come through the back door “and before I could . . . get up off the couch, there was somebody on top of me, beating me.” Mr. Brown was striking defendant with his fist and he had something in his hand he used to strike defendant in the head. Defendant later determined it was a knife. Mr. Brown hit him in the face, chest, and head. Mr. Brown got defendant down on the floor and sat on top of him.     At some point, defendant explained during his testimony, he was able to get Mr. Brown off him. Mr. Brown “said he was going to the truck to get something to take care of me once and for all.” Defendant was scared and grabbed his gun from behind the couch. He started shooting Mr. Brown. Defendant testified he shot Mr. Brown in the legs while Mr. Brown was still in the house. Mr. Brown continued to go out the back door. Defendant walked out behind him. Defendant was scared that Mr. Brown would get to his truck so he shot Mr. Brown again as he was stepping off the back porch. Defendant recalled shooting him two or three times as he was coming off the porch. Defendant stopped shooting and he saw Mr. Brown collapse on the front of the car. Reba, Keith and Brandy Gilreath were there. Defendant told Reba she needed to call 9-1-1. Defendant stated he had not intended to shoot Mr. Brown in the back and he had not intended to kill Mr. Brown. He was shooting Mr. Brown to prevent him from getting to his truck. When the police officers arrived, defendant gave one of the officers the .22 caliber rifle.
    A few weeks after the shooting, when defendant was preparing to move out of the mobile home, he found three .22 caliber bullet casings behind the couch in the living room. Defendant had never fired a gun in the house, except the day he shot at Mr. Brown. Defendant told his friend, Mr. Matson, he had found these three shell casings. He did not keep the shell casings because he did not think anyone would believe he had found them. Defendant further testified that, on 18 June 2003, the day before theshooting, defendant and Mr. Matson had shot at a rabbit from the back porch. They each shot at the rabbit once or twice. Defendant stated he and his friends had often shot guns off the back porch.
    Donald Matson, defendant's neighbor, testified during defendant's case. He stated that, on 18 June 2003, he and defendant had been shooting a rabbit from defendant's back porch. Defendant had told Mr. Matson about the shell casings he found, but had not shown them to him.
    John Rebel testified. He was defendant's landlord at the time of the shooting. He stated that he had fired guns off the back porch of the mobile home defendant lived in for about 20 years.
    The jury convicted defendant of assault with a deadly weapon inflicting serious injury. The trial court imposed a sentence of 45-63 months. From this conviction and judgment, defendant appeals.
            ____________________________________
    Defendant first argues that the trial court erred by admitting, as substantive evidence of the crime charged, State's Exhibits Numbers 12 through 16: five .22 caliber bullet shell casings. Defendant argues the State failed to lay a proper foundation because it did not identify the bullet casings adequately and did not provide evidence of their chain of custody.
        [A] two-pronged test must be satisfied before real evidence is properly received into evidence. The item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change.State v. Campbell, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984) (citing State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), overruled on other grounds, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986)).
        The trial court possesses and must exercise sound discretion in determining the standard of certainty that is required to show that an object offered is the same as the object involved in the incident and is in an unchanged condition. A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered. Further, any weak links in a chain of custody relate only to the weight to be given evidence and not to its admissibility.

Id. at 388-89, 317 S.E.2d at 392 (citations omitted).
    In the instant case, Detective Hemric identified State's Exhibits Numbers 12 through 16 as the bullet shell casings which he had collected from defendant's back porch on the day of the shooting and placed in a bag. Although Detective Hemric had not made any notations on the evidence bag, his actions had been recorded in his notes. Detective Hemric testified the bullet shell casings had been in his custody since they were collected. We hold Detective Hemric's testimony adequately identified the bullet shell casings and established a sufficient chain of custody for the same.
    Moreover, even assuming arguendo that a sufficient chain of custody had not been established, defendant must still demonstrate prejudice. See N.C.G.S. § 15A-1443(a) (2003) (“A defendant is prejudiced by errors . . . when there is a reasonable possibilitythat, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.”). Defendant has failed to demonstrate the outcome of the trial was prejudiced by the admission of the bullet shell casings for several reasons.
    First, prior to the admission of the shell casings themselves, Detective Hemric testified that he found five bullet shell casings on defendant's back porch. Secondly, photographs depicting these same shell casings were admitted into evidence without objection; these photographs depict the shell casings in the location in/around the area of the back porch where they were retrieved. Neither the admission of Detective Hemric's testimony about the description and origin of the shell casings, nor the admission of the photographs, have been assigned as error. Finally, defendant himself testified he shot Mr. Brown while defendant was standing on the back porch and Mr. Brown was stepping off the back porch steps heading towards his truck. Defendant's own testimony undermines his argument that the admission of the shell casings themselves impermissibly suggested to the jury that he shot Mr. Brown outside the residence. We conclude that, assuming arguendo the bullet shell casings were erroneously admitted, there is no reasonable probability that a different result would have obtained.
    This assignment of error is overruled.
            ____________________________________
    For a variety of reasons, defendant contends the trial court erred by failing to grant his motion to dismiss based on thefailure of the indictment to charge the crime for which he was tried. Defendant essentially argues that the inclusion of the word “bodily” in the indictment rendered it invalid, such that the trial court lacked jurisdiction to enter judgment on the offense of assault with a deadly weapon inflicting serious injury. We disagree.
    According to N.C.G.S. § 15-153 (2003), a criminal indictment “is sufficient . . . if it express the charge against the defendant in a plain, intelligible, and explicit manner. . . .” “Specifically, the indictment must allege all of the essential elements of the crime sought to be charged. State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) (citing State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958)). “Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage. The use of superfluous words should be disregarded.” State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972) (citation omitted).
        If an indictment contains surplus language, the surplusage may be ignored if its inclusion has not caused prejudice to the defendant. State v. Sisk, 123 N.C. App. 361, 366, 473 S.E.2d 348, 352 (1996), aff'd in part and dismissed in part, 345 N.C. 749, 483 S.E.2d 440 (1997). 'What is important is the defendant's understanding of the charge against which he needs to defend.' State v. Cameron, 83 N.C. App. 69, 73, 349 S.E.2d 327, 330 (1986).

State v. Bowens, 140 N.C. App. 217, 224, 535 S.E.2d 870, 875 (2000).    The indictment returned against defendant cited “N.C.G.S. § 14-32(c)” and read as follows:
    The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did assault Johnny Lee Brown, with a .22 caliber rifle, a deadly weapon, with intent to kill and inflicting serious bodily injury.

N.C.G.S. 14-32 (a), (b), (c) (2003) provides:

    (a) 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.

    (b) Any person who assaults another person with a deadly weapon and inflicts serious injury shall be punished as a Class E felon.

    (c) Any person who assaults another person with a deadly weapon with intent to kill shall be punished as a Class E felon.
    Defendant was found guilty of assault with a deadly weapon inflicting serious injury pursuant to G.S. § 14-32(b). This is a lesser-included offense of assault with a deadly weapon with intent to kill and inflicting serious injury pursuant to G.S. 14-32(a). See State v. Jones, 18 N.C. App. 531, 534, 197 S.E.2d 268, 269 (1973).
    Defendant cites State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1 (2002), for the proposition that the words “bodily injury” connote a greater injury than mere “serious injury”, and therefore materially changed the nature of the State's evidence that would have been required here to sustain a conviction. In Hannah, defendant was indicted with the crime of assault with a deadly weapon with intent to kill and inflicting serious injury, G.S. § 14-32, but was convicted of assault inflicting serious bodilyinjury under N.C.G.S. § 14-32.4 (2003). Id. at 716, 563 S.E.2d at 4. This Court held that assault inflicting serious bodily injury was not a lesser included offense of assault with a deadly weapon with intent to kill and inflicting serious injury since “serious bodily injury” required proof of a greater injury than “serious injury.” Id. at 719, 563 S.E.2d at 5. Therefore, in Hannah, defendant was entitled to a new trial. Id.
    Hannah does not control the outcome of the present matter. Here, defendant was not tried and convicted for a crime different from the one with which he was charged. The subject indictment accurately stated all the essential elements of assault with a deadly weapon with intent to kill and inflicting serious injury. Defendant was convicted of a lesser included offense, assault with a deadly weapon inflicting serious injury. “The term 'serious injury' as employed in G.S. § 14-32(a) means physical or bodily injury resulting from an assault with a deadly weapon.” State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988). Therefore, the inclusion of the word “bodily” in the present indictment was mere surplusage, and it was properly disregarded by the trial court.
    Furthermore, defendant has shown no prejudice from the inclusion of the word “bodily” in the indictment. Defendant did not indicate to the trial court any confusion or surprise concerning the criminal charge lodged against him, and presented a defense that he shot at the victim with a .22 caliber rifle in defense of his home and himself, but did so without the requisiteintent to kill. We hold the trial court did not err in failing to dismiss the charge.
    Defendant's further arguments regarding this issue are without merit, and this assignment of error is overruled.

____________________________________

    Defendant's third argument on appeal is that the trial court erred by allowing evidence of defendant's prior acts of violence against his former girlfriend, Cindy White, the victim's sister, and against an unidentified male companion of Ms. White. Defendant argues the prior acts of violence, having been committed more than two months prior to the date of the offense charged, were too remote in time and too factually dissimilar to be relevant and that their prejudice to defendant outweighed any probative value. We disagree.
    Relevant evidence is evidence which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (2003). “Although '[a] trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.” Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991)).
    Rule 403 of the North Carolina Rules of Evidence provides in pertinent part:        Although 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 cumulative evidence.

N.C.G.S. § 8C-1, Rule 403 (2003). “Whether or not to exclude evidence under [Rule] 403 is a matter within the sound discretion of the trial judge.” State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986) (citation omitted).
    Rule 404(b) of the North Carolina Rules of Evidence provides in pertinent part:
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. . . .

N.C.G.S. § 8C-1, Rule 404(b) (2003).
    In State v. White, our Supreme Court held that a defendant's “acts of violence against [his former girlfriend,] though not part of the crimes charged, was admissible since it pertained to the chain of events explaining the context, motive and set-up of the crime and formed an integral and natural part of an account of the crime . . . necessary to complete the story of the crime for the jury.” 349 N.C. 535, 552, 508 S.E.2d 253, 264 (1998) (internal quotations omitted). In White, the accused kidnapped and beat his former girlfriend one month before her grandmother and grandmother's friend were killed. Id. at 543, 508 S.E.2d at 259. Defendant also repeatedly threatened to kill his girlfriend's family if she ever left him. Id. at 542, 508 S.E.2d at 258. “This evidence supported the State's theory that defendant killed the victims in retaliation against [his former girlfriend] for resisting his control. . . . The trial court correctly ruled that this evidence was admissible under Rule 404(b) to show that defendant's motive in killing [his former girlfriend's] family members was retaliation and to identify defendant as the person who committed the murders.” Id. at 552, 508 S.E.2d at 264. Our Supreme Court also held that evidence of defendant's violence towards his former girlfriend, even that occurring eleven months before the killings, was admissible “to show identity and motive, namely, retaliation for [his former girlfriend's] resistance to defendant's forceful control.” Id. at 552, 508 S.E.2d at 265.
    In the instant case, defendant was charged with shooting Mr. Brown, the brother of his former girlfriend, Cindy White, following a day marked by escalating confrontations between Mr. Brown and defendant. According to the State's theory, the cause of the conflict between the two men was defendant's treatment of Ms. White. Defendant and Ms. White had been involved in a romantic relationship. They had lived together for a period of time and had a child together. The trial court allowed Mr. Brown and Mr. Randy Bell to testify about defendant's previous acts of violence towards Ms. White and her companion. Mr. Brown testified that, within the four months preceding the shooting, he witnessed a violent incident between defendant and Ms. White:         I was helping her move her things, . . . I went out behind him carrying mattresses, and she was hitting him when I went out the door, and he drawed [sic] back to hit her and I throwed [sic] the mattresses down and hollered at him not to hit her, and he did not hit her, and he went back in the house and got a .357 and come [sic] out with the gun.

    Mr. Randy Bell testified that, on 25 April 2003, he observed defendant, Ms. White, and a male companion while he was parked outside a convenience store. Mr. Bell watched defendant “jump” out of his car and “[run] up behind the male subject that was with her, and he had a knife in his hand.” He saw defendant attempt to stab the man in the back. Ms. White yelled, defendant approached her, and they appeared to be arguing. Defendant then went back to his car, put it in reverse, and attempted to back over Ms. White and the man. Mr. Bell saw them jump up on the curb in front of the store to get out of the way.
    The trial court specifically allowed evidence of defendant's prior violence towards Ms. White and her companion based on our Supreme Court's analysis in White, 349 N.C. 535, 508 S.E.2d 253. The trial court ruled that the evidence of defendant's violence was admissible to “show the backdrop of the defendant's anger towards his former girlfriend and the alleged victim here, her brother, [and] also . . . to show the alleged motive to eliminate a person who was standing up for his sister in retaliation for his objections . . . .” The trial court ruled the probative value of the evidence was not unduly prejudicial to defendant.
    Giving deference to the trial court's evidentiary rulings, see Dunn, 162 N.C. App. at 266, 591 S.E.2d at 17, we concludedefendant's prior acts of violence were relevant to establishing his motive to commit the offense charged and “pertained to the chain of events explaining the context, . . . and set-up of the crime.” White, 349 N.C. at 552, 508 S.E.2d at 264. Moreover, the trial court did not abuse its discretion in failing to exclude the evidence pursuant to Rule 403. This assignment of error is overruled.
    Defendant's final argument is without merit.
    No error.
    Chief Judge MARTIN and Judge TYSON concur.
    Report per Rule 30(e).
    

*** Converted from WordPerfect ***