Appeal by defendant from judgments entered 27 April 2005 by
Judge James F. Ammons, Jr. in Robeson County Superior Court. Heard
in the Court of Appeals 11 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Donald R. Teeter, for the State.
Terry F. Rose for defendant-appellant.
Defendant Jerry Locklear appeals his convictions for two
counts of assault with a deadly weapon inflicting serious injury
and one count of assault on a female. On appeal, defendant argues
that the trial court erred (1) by denying his motion for a mistrial
based on a witness' reference to his incarceration, and (2) by
denying his motion to dismiss the charge of assault on a female on
the grounds that the alleged victim initiated the altercation. We
hold that defendant failed to establish that the trial court abused
its discretion in denying the mistrial in light of the measures
used to mitigate any prejudicial effects of the testimony and that,
when the evidence is viewed in the light most favorable to State,
a jury could find that defendant was the aggressor. Accordingly,we conclude that defendant received a trial free of prejudicial
The State's evidence at trial tended to show the following
facts. On 20 October 2000, Allie Locklear Cox and her fiancé, Ron
Jacobs, were visiting Cox's mother, Mollie Bell Smith, at the
family farm owned by Smith. At the time, defendant, who is Cox's
brother and Smith's son, was living on the property in a separate
trailer. Other adult children of Smith lived in houses on the
property as well.
During their visit, Cox and Jacobs sat with Smith and other
family members on the front porch of a house belonging to one of
Smith's daughters. Noting that a number of defendant's friends
were gathering at defendant's trailer, Smith became concerned that
they were using marijuana on her property. She walked to the
trailer and told defendant's friends to leave. Some refused, and
defendant ignored her request for assistance. Smith returned to
the porch very aggravated, but later walked back towards the
trailer with Cox following.
Defendant emerged from behind the trailer and walked toward
Cox. Defendant told Cox, "I should have slapped [Smith] in[to] the
ground." As defendant walked past Cox, she turned and saw that
Smith was standing behind her, and she heard defendant say, "I
believe I will." Cox grabbed defendant so that he could not hit
their mother, and Cox and defendant exchanged blows. Another
sibling stopped the fight. Cox and defendant then had a discussion near his trailer.
Defendant brought up the subject of their deceased brother-in-law
and indicated that he had killed him. Cox's response _ "You don't
know whether you did it or not" _ upset defendant, who picked up a
bumper jack. When he saw Jacobs running towards Cox, defendant
shoved the jack at another woman standing nearby, grabbed Cox
around the neck, and slammed her head into the bed of a truck,
rendering her unconscious.
After Cox regained consciousness, she joined Jacobs, Smith,
and other family members on the porch. Defendant approached them
with a machete. When defendant raised his arm to hit Cox, Smith
intervened to deflect the blow, and the machete sliced her hand.
Defendant then sliced Jacobs when he also tried to stop defendant.
Because the local hospital could not control Smith's bleeding, she
was transferred to Duke University Hospital where she underwent the
first of two surgeries on her hand. Ultimately, Smith lost the use
of one finger and has only partial use of her hand. Jacobs lost
full use of his hand.
On 7 April 2003, defendant was indicted on one count of
assault on a female and two counts of assault with a deadly weapon
inflicting serious injury. A jury found defendant guilty of all
charges, and the trial court sentenced defendant to 150 days
imprisonment for the assault on a female conviction and two
consecutive sentences of 53 to 73 months imprisonment for the two
convictions for assault with a deadly weapon inflicting serious
injury. Defendant timely appealed to this Court.
Motion for Mistrial
Defendant first argues that the trial court erred in denying
his motion for a mistrial. "Upon motion by a defendant, the judge
must declare a mistrial . . . if there occurs during the trial an
error or legal defect in the proceedings, or conduct inside or
outside the courtroom, resulting in substantial and irreparable
prejudice to the defendant's case. The decision to grant or deny
a mistrial rests within the sound discretion of the trial court and
will be reversed on appeal only upon a clear showing that the trial
court abused its discretion." State v. Hurst
, 360 N.C. 181,
187-88, 624 S.E.2d 309, 316 (2006) (internal citations and
quotation marks omitted). Not every error or defect in a court
proceeding requires the declaration of a mistrial. Such a
declaration "'is appropriate only when there are such serious
improprieties as would make it impossible to attain a fair and
impartial verdict under the law.'" State v. Wood
, 168 N.C. App.
581, 583, 608 S.E.2d 368, 370 (quoting State v. Blackstock
N.C. 232, 243-44, 333 S.E.2d 245, 252 (1985)), disc. review denied
359 N.C. 642, 614 S.E.2d 923 (2005).
In this case, when the prosecutor asked Cox on direct
examination if defendant looked the same at trial as he had at the
time of the assault, Cox replied: "[H]onestly, [defendant] looks
better right now while he's been locked up . . . ." Defense
counsel objected, and the trial judge removed the jury from the
courtroom. The trial judge then denied defense counsel's motion
for a mistrial, but instructed other witnesses in the courtroom notto mention defendant's incarceration. He offered defense counsel
a choice of curative instructions for the jury. When the jury
returned, he gave the curative instruction chosen by defense
counsel, and directed the jury:
[T]he last statement of this witness is to be
disregarded by you. I don't know whether you
heard it or not _ she spoke it kind of low _
but if you did hear it, just strike it from
your mind. It's not to play any part in the
determination of any fact in this matter.
In response to the trial judge's inquiry, after this instruction,
each member of the jury raised his or her hand, indicating that the
juror could abide by this instruction.
Our courts have held that when a trial court takes measures
such as these to mitigate or eliminate the prejudicial impact of an
error or defect, "'any prejudice is ordinarily cured,'" because
jurors are presumed to follow a trial court's instructions. State
, 164 N.C. App. 298, 302, 595 S.E.2d 804, 808 (2004)
(quoting State v. Walker
, 319 N.C. 651, 655, 356 S.E.2d 344, 346
(1987)). Indeed, this Court, in Morgan
, found no abuse of
discretion when the trial court proceeded precisely as the trial
court did here. Id.
(holding that trial court did not err by
denying defendant's motion for a mistrial despite inadmissible
testimony regarding possible crimes committed by defendant, because
the court's instruction to the jury to disregard the statement and
its request that any juror who could not do so raise a hand was
sufficient to mitigate any prejudice).
Defendant nevertheless argues that Cox's testimony after the
denial of the motion for a mistrial _ recounting defendant's remarkclaiming responsibility for their brother-in-law's death _
exacerbated the prejudice from Cox's reference to defendant's
incarceration such that the trial court should have intervened ex
and ordered a mistrial. At the time of that testimony,
counsel for defendant did not object; indeed, he elicited further
testimony regarding defendant's remark during cross-examination of
Cox. We need not, however, address whether the trial court should
have ordered a mistrial on its own motion because defendant has not
made that argument the subject of an assignment of error. "[T]he
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal . . . ."
N.C.R. App. P. 10(a). Defendant's assignment of error states only:
"Did trial court [sic] err in denying the Defendant's motion for a
mistrial following a witness' testimony that the Defendant had been
incarcerated." Accordingly, we do not consider this aspect of
Motions to Dismiss
Defendant next contends that the trial court erred in denying
his motion to dismiss the charge of assault on a female. In
considering a motion to dismiss, the trial court must determine
whether the State presented substantial evidence of each essential
element of the offense charged and of the defendant's being the
perpetrator of the offense. State v. Wardrett
, 145 N.C. App. 409,
412, 551 S.E.2d 214, 216 (2001). Substantial evidence is that
amount of relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. State v. Williams
, 133 N.C. App.326, 328, 515 S.E.2d 80, 82 (1999). In ruling on a motion to
dismiss, the trial court must consider all of the evidence in the
light most favorable to the State, and the State is entitled to all
reasonable inferences that may be drawn from the evidence. Id.
An assault on a female consists of the following four
elements: "(1) an assault (2) upon a female person (3) by a male
person (4) who is at least eighteen years old." State v. Wortham
318 N.C. 669, 671, 351 S.E.2d 294, 296 (1987). See also
Stat. § 14-33(c)(2) (2005) (setting out the elements of the crime
of assault on a female). Defendant does not contest the
sufficiency of the evidence of these elements, but instead argues
that the evidence established that Cox initiated the altercation
and that defendant acted in self defense.
When self defense is claimed,
(See footnote 1)
the "State has the burden of
proving that a defendant is not entitled to the defense." State v.
, 148 N.C. App. 588, 597, 560 S.E.2d 186, 192 (2002). In
this case, the jurors were presented with different versions of the
circumstances surrounding Cox's injury. The State offered evidence
that after the initial fight between Cox and defendant ended, there
was a period of calm. A reasonable juror could conclude that
defendant thereafter initiated a new confrontation during the
conversation near the trailer and that he was, therefore, the
aggressor. Although defendant argues that his statement to the
police at the time of his arrest "should certainly be more reliableas to the events at the time than a recollection some five (5)
years later," questions regarding the witnesses' credibility are
for the jury to determine. See, e.g.
, State v. Hyatt
, 355 N.C.
642, 666, 566 S.E.2d 61, 77 (2002) ("[I]t is the province of the
jury, not the court, to assess and determine witness
credibility."), cert. denied
, 537 U.S. 1133, 154 L. Ed. 2d 823, 123
S. Ct. 916 (2003). The trial court, therefore, properly denied
defendant's motion to dismiss.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).