STATE OF NORTH CAROLINA
v
.
Mecklenburg County
Nos. 03 CRS 249263, 64
03 CRS 249267, 68
03 CRS 249271
FABRICE PEAN
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph E. Herrin, for the State.
Haral E. Carlin, for defendant.
LEVINSON, Judge.
Defendant (Fabrice Pean) appeals from his convictions and
judgments on two charges of attempted robbery with a dangerous
weapon, two charges of assault with a deadly weapon inflicting
serious injury, and one charge of conspiracy to commit robbery with
a dangerous weapon. We find no error in the trial of these
matters, but remand for a new sentencing hearing.
The evidence presented at trial may be summarized as follows:
China Dexter Jones (hereafter “Jones”), who worked as the manager
at a Burger King restaurant in Charlotte, N.C., testified he was
attacked by defendant and another man as Jones and his co-worker
were leaving the restaurant together during the early morning hoursof 14 October 2003. At approximately midnight, Jones and Ivan
Dawkins (hereafter “Dawkins”) exited the restaurant. “[A]s soon as
we closed the front door we [saw] two guys jump out of the bushes.
It startled us so we just, you know, walked towards the car.”
Jones reached his car, got into the driver's seat, and closed the
driver's door. Jones watched the two men “and wondered what was
going on and then I reached over to let [Dawkins] in and that's
when the gun went off and they shot me.” He was shot in his
abdomen. Jones stated the gun was held by the man with defendant.
The police arrived shortly thereafter. Jones was transported to
Carolinas Medical Center, where he underwent surgery on his
stomach. A part of Jones' small intestine was removed. Thirty-two
staples were required to suture the incision. Following the
operation, Jones experienced internal bleeding and remained in the
intensive care unit for three days. He was out of work for two and
one half months following the surgery.
Jones testified he recognized his two assailants. He knew the
men from his work at Burger King. Defendant and the man who shot
him came to the restaurant almost every day in the late afternoon.
Jones often gave them free food.
Dawkins testified he and Jones were attacked by two black men
as they left the Burger King. As he and Jones walked to Jones' car
in the parking lot, “we saw two guys jump[] over the median . . .
[and] as [Jones and I] walked over to the car and that's when [sic]
they said, give it up, give it up[.]” Jones was shot through the
car window. As Dawkins ran for help, he fell down and noticed thathe had also been shot. Dawkins stated that the man holding the gun
and defendant regularly came into the Burger King restaurant
together.
Officer Ryan Jackson of the Charlotte Mecklenburg Police
Department testified. He was patrolling near the Burger King on
the night of 13 October 2003 when he heard approximately five gun
shots from the direction of the Burger King. Jackson was not able
to apprehend the two black male suspects he observed running from
the scene with tee-shirts over their heads.
Dr. Mike Runyon, a physician employed by Carolinas Medical
Center, treated Dawkins in the emergency room on the morning of 14
October 2003. Runyon testified that Dawkins had “two wounds that
appeared to be gunshot wounds, “one . . . at the side of the hip .
. . and then one straight out the buttock in the back.” The wounds
were circular, approximately one centimeter in diameter. When he
arrived in the emergency room, Dawkins was awake and coherent,
complaining of pain from the wounds. Runyon cleaned and bandaged
the wounds. Dawkins was prescribed pain medication. According to
Runyon, Dawkins' injuries were “serious.”
Antwan Mobley testified that he and defendant planned and
committed the attempted robbery of Jones and Dawkins together on
the night of 13 October 2003. Because he believed Jones would
recognize them, Mobley decided to hide their faces with tee-shirts.
When Mobley and defendant saw Jones leaving the restaurant, they
jumped over a wall into the Burger King parking lot. Mobley ran to
the driver's side door of Jones' car and pulled out a gun. Mobleysaw Dawkins on the other side of the car “[make] a move and I just
reacted and the gun went off and I jerked back and [it] went off
again.” While in jail, Mobley wrote a letter to defendant. Mobley
testified he wrote defendant because he was wondering “[h]ow come
[sic] [defendant] just can't come to court and just tell the truth?
. . . I feel[] like he should just come to court and just tell you
all what happened that night[.]” Mobley read his letter during his
testimony. In the letter, Mobley asked defendant, “why [can't you]
just say you [were] there and you know it is true.”
Detective Arvin Fant of the Charlotte Mecklenburg Police
Department was the detective assigned to the case. Fant created
photographic line-ups for each suspect and showed them to Dawkins
and Jones. Jones identified Mobley as the man who shot him, and
identified defendant as the other man involved in the attack.
Dawkins was able to identify Mobley as the man who shot him, but
was not able to identify defendant in the photo line-up. The two
photo line-ups were admitted into evidence.
Defendant offered evidence but did not testify. Defendant's
evidence consisted of the testimony of several family members and
friends who provided an alibi for defendant.
The jury convicted defendant on all charges. The trial court
consolidated defendant's convictions, and sentenced him to two
consecutive terms of imprisonment. Defendant appeals.
Defendant first argues that the trial court committed plain
error by allowing the State to elicit testimony from Mobley that
violated his right not to incriminate himself. Specifically,defendant contends it was error for the trial court to allow the
following testimony:
How come he just can't to court and just tell
the truth . . . . I feel[] like he should just
come to court and just tell you all what
happened that night. Open up like a man even
though we were wrong for what we were doing.
I [felt] like he should come out here today
and [do] this--tell you all the truth.
. . . .
And I [felt] like I should write him because I
love him so much and he should just come out
and tell the truth. . . .
. . . .
But why [can't you] just say you [were] there
and you know it is true. . . . [I] just wish
you [would] just tell them so I will not have
to. Better from you than from me telling them
about you[.]
The law regarding the admission of evidence regarding a
defendant's right to remain silent following his arrest is well
established:
It is impermissible for the trial court to
admit testimony relating to a defendant's
exercise of his right to remain silent and to
request counsel. State v. Elmore, 337 N.C.
789, 792, 448 S.E.2d 501, 502 (1994). Such an
error requires the defendant be granted a new
trial unless it can be shown the error was
harmless beyond a reasonable doubt. Id.
(citing N.C. Gen. Stat. § 15A-1443(b)).
However, [where] defense counsel failed to
object to this testimony at trial . . . our
review is limited to plain error. State v.
Walker, 316 N.C. 33, 38, 340 S.E.2d 80, 83
(1986). See also State v. Black, 308 N.C. 736,
741, 303 S.E.2d 804, 807 (1983) (holding plain
error review to be appropriate regarding
situations involving evidentiary rulings by
the trial court).
. . . . In State v. Alexander, our Supreme Court held
the admission of testimony regarding the
defendant's post-arrest silence did not
constitute plain error because (1) the
comments regarding the defendant's silence
were relatively benign; (2) the prosecutor did
not attempt to emphasize the defendant's
silence; and (3) the evidence of the
defendant's guilt was substantial. State v.
Alexander 337 N.C. 182, 196, 446 S.E.2d 83, 91
(1994).
State v. Walker, 167 N.C. App. 110, 130, 605 S.E.2d 647, 660-61
(2004), disc. review denied, 359 N.C. 642, 614 S.E.2d 921 (2005).
“[T]o constitute plain error the appellate court must be convinced
that absent the error, the jury probably would have reached a
different verdict.” Id. (citing State v. Odom, 307 N.C. 655, 661,
300 S.E.2d 375, 379 (1983)).
In the instant case, defendant did not object to the
introduction of the testimony he now complains about on appeal.
Even assuming, arguendo, that defendant can raise this
constitutional objection for the first time on appeal, we conclude
the admission of the testimony did not constitute plain error.
Here, there was substantial evidence of defendant's guilt.
Jones, who was well acquainted with defendant, identified him as
one of his attackers; Mobley testified defendant was his accomplice
in committing the crimes. Other than eliciting Mobley's testimony,
the record does not reveal any comment by the prosecution regarding
defendant's failure to testify. Based on the evidence in the
instant case, we cannot hold the admission of Mobley's testimony
constitutes plain error. This assignment of error is overruled. Defendant next argues the court committed reversible error by
failing to instruct the jury on the lesser included offense of
assault with a deadly weapon for the charge of assault with a
deadly weapon inflicting serious injury as to Ivan Dawkins.
Defendant contends there was conflicting evidence regarding the
seriousness of the injury sustained by Dawkins. We disagree.
The elements of assault with a deadly weapon inflicting
serious injury are: (1) an assault, (2) with a deadly weapon, (3)
inflicting serious injury, (4) not resulting in death. N.C. Gen.
Stat. § 14-32(b) (2005); State v. Wade, 161 N.C. App. 686, 689, 589
S.E.2d 379, 381-82 (2003), disc. review denied, 358 N.C. 241, 594
S.E.2d 33 (2004).
The term “inflicts serious injury” means
physical or bodily injury resulting from an
assault with a deadly weapon. . . . The
injury must be serious but it must fall short
of causing death. Further definition seems
neither wise nor desirable. Whether such
serious injury has been inflicted must be
determined according to the particular facts
of each case.
State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). “Factors
our courts consider in determining if an injury is serious include
pain, loss of blood, hospitalization and time lost from work.”
State v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983).
Misdemeanor assault with a deadly weapon is a lesser included
offense of assault with a deadly weapon inflicting serious injury.
State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 316 (2002).
“'The primary distinction between felonious assault under G.S. §
14-32 and misdemeanor assault under G.S. § 14-33 is that aconviction of felonious assault requires a showing that a deadly
weapon was used and serious injury resulted, while if the evidence
shows that only one of the two elements was present, i.e., that
either a deadly weapon was used or serious injury resulted, the
offense is punishable only as a misdemeanor.'” Id. (quoting Owens,
65 N.C. App. at 110-11, 308 S.E.2d at 498).
A defendant is “'entitled to an instruction on a lesser
included offense if the evidence would permit a jury rationally to
find him guilty of the lesser offense and acquit him of the
greater.'” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924
(2000) (quoting Keebler v. United States, 412 U.S. 205, 208, 36
L.E.2d 844, 847 (1973)). Where there is “no genuine dispute in the
evidence as to the serious nature of the prosecuting witness'
injury[,]” the defendant is not entitled to an instruction on a
lesser included offense which does not include the element of
“serious injury.” State v. Uvalle, 151 N.C. App. 446, 455, 565
S.E.2d 727, 733 (2002).
In the instant case, the evidence at trial tended to show
Dawkins received two bullet holes in his hip and buttock. Dawkins
was taken to the hospital, where the wounds were cleaned and
bandaged. Dawkins was complaining of pain on his arrival at the
hospital and received pain medication. The emergency room
physician who treated Dawkins testified Dawkins' injury was
“serious.” We conclude the trial court did not err by failing to
instruct on the lesser included offense of misdemeanor assault with
a deadly weapon. See State v. Crisp, 126 N.C. App. 30, 37, 483S.E.2d 462, 466-67 (1997) (reasonable minds could not have differed
that an injury caused by a bullet passing through victim's calf
muscle, requiring hospital treatment, was a serious injury). This
assignment of error is overruled.
In a related argument, defendant contends the trial court
erred by denying defendant's motion to dismiss the charge of
assault with a deadly weapon inflicting serious injury as to
Dawkins because the evidence was insufficient to establish that the
injury Dawkins received was serious. We disagree.
The standard of review for a motion to dismiss in a criminal
trial is as follows:
“Upon defendant's motion for dismissal, the
question for the Court is whether there is
substantial evidence (1) of each essential
element of the offense charged, or of a lesser
offense included therein, and (2) of
defendant's being the perpetrator of such
offense. If so, the motion is properly
denied.”
State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)
(quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980)). “[T]he trial court is to consider the evidence in the
light most favorable to the State, which entitles the State 'to
every reasonable intendment and every reasonable inference to be
drawn from the evidence[.]'” State v. Bailey, 157 N.C. App. 80,
83, 577 S.E.2d 683, 686 (2003) (quoting State v. Earnhardt, 307
N.C. 62, 67, 296 S.E.2d 649, 653 (1982)). “Whether a serious
injury has been inflicted depends upon the facts of each case and
is generally for the jury to decide under appropriateinstructions.” State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d
309, 318 (1991) (citation omitted).
In the instant case, there was sufficient evidence to
demonstrate that Dawkins' injuries were serious. Dawkins suffered
two bullet holes in his hip and buttock. Dawkins required medical
attention to clean and bandage the wounds as well and pain
medication. The emergency room physician who treated Dawkins
described Dawkins' injuries as “serious.” Accordingly, the trial
court did not err by denying defendant's motion to dismiss. Accord
State v. Streeter, 146 N.C. App. 594, 597, 553 S.E.2d 240, 242
(2001) (concluding wounds made from a bullet which pierced the
prosecuting witness' shoulder, ricocheted off his shoulder blade,
and exited his body creating two bullet holes in his upper body
causing the victim pain was sufficient evidence for a jury to
determine the injury was serious). This assignment of error is
overruled.
Defendant next argues the trial court committed plain error by
allowing witness Jones to testify he observed defendant's “mug
shots” in the photo line-up. Defendant contends this constitutes
reversible error because it suggested to the jury that defendant
was previously in police custody. We disagree.
Defendant did not object to the witness' use of the words “mug
shot” when the witness answered questions concerning the photo
line-up, or to the admission of the photo line-up. We therefore
review for plain error. “A plain error is one so fundamental as to
amount to a miscarriage of justice or which probably resulted inthe jury reaching a different verdict than it otherwise would have
reached.” State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908
(2002) (internal quotation marks and citation omitted).
Assuming arguendo the reference by Jones to defendant's
photograph as a “mug shot” was error, we cannot conclude this
constituted plain error. Defendant, an acquaintance of Jones, was
identified by Jones as the perpetrator of the crimes. Furthermore,
Mobley testified at length that defendant was his accomplice during
the attempted robberies. Based on all the evidence of record, we
cannot hold that, absent the reference to the possibility that
defendant was once in police custody, that the jury would probably
have reached a different result. This assignment of error is
overruled.
Defendant next contends, and the State agrees, that the trial
court erred in sentencing defendant by not requiring the State to
prove defendant's prior criminal convictions by a preponderance of
the evidence. See N.C. Gen. Stat. § 15A-1340.14(f) (2005). After
reviewing the record, we agree and therefore remand for a new
sentencing hearing.
No error in the trial, remanded for resentencing.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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