Appeal by defendant from a judgment entered 1 March 2005 by
Judge William Z. Wood, Jr. in Moore County Superior Court. Heard
in the Court of Appeals 8 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Robert M. Curran, for the State.
Haral E. Carlin for defendant.
BRYANT, Judge.
Defendant Kevin Charles Matthews appeals from a judgment
consistent with a guilty verdict of one count of robbery with a
dangerous weapon and one count of misdemeanor assault with a deadly
weapon entered 1 March 2005. The trial court consolidated the
misdemeanor assault with the armed robbery and sentenced defendant
within the presumptive range of fifty-one months to seventy-one
months as a prior record level I.
The State's evidence shows on the evening of 19 October 2002,
Charles Eddie Thomas, Jr. had car trouble outside a friend's home.
When Thomas' car would not start, he went inside the home to
request assistance. While inside, Thomas observed defendant in a
back bedroom. When defendant came out of the bedroom, he
approached Antonio “Bob” Taylor, who was standing near Thomas, andsaid “Are you ready to do it?” Taylor pulled out a sawed-off
shotgun, pointed it at Thomas, and ordered Thomas to empty his
pockets. Defendant proceeded to go through Thomas' pockets and
took his wallet, identification, $11.00 in cash and his keys.
Taylor told Thomas to go outside and held the shotgun to the
back of Thomas' head. While outside, Thomas was told to get on the
ground and pull his pants down. At this point, Thomas tried to
fight Taylor and defendant, but defendant repeatedly hit Thomas
with a four-foot-long tobacco stick. When defendant's stick broke,
he grabbed another one and continued to hit Thomas on his legs,
arms and knees. Taylor hit Thomas with the butt of a shotgun in
the back of his head. Both Taylor and defendant kicked and punched
Thomas while he was on the ground. Thomas backed up against the
home, where defendant hit him with a metal chair. When Thomas was
on the ground, defendant took Thomas' watch from his wrist.
After thirty minutes of fighting, Thomas ran and got into a
car that was about to leave. Taylor pointed the shotgun at the
windshield and pulled the trigger, but the shotgun did not
discharge. Thomas got out of the car and ran to a nearby house and
called for help. Thomas was taken to the emergency room where he
was given three stitches over his eye. Defendant did not present
evidence at trial and appeals his conviction.
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Defendant raises four issues on appeal, whether the trial
court erred in: (I) excusing a juror for cause when the juror
indicated she was familiar with one of the State's potentialwitnesses; (II) denying defendant's motion to dismiss the charge of
assault with a deadly weapon inflicting serious injury based on a
theory of acting in concert; (III) reinstructing the jury on acting
in concert upon the jury's request; and (IV) denying defendant's
motion to dismiss the charge of robbery with a deadly weapon.
Defendant first argues the trial court erred in excusing a
juror for cause when the juror indicated she was familiar with one
of the State's potential witnesses. We disagree.
The trial judge has broad discretion in
supervising the selection of the jury to the
end that both the state and the defendant may
receive a fair trial. This discretionary power
to regulate the composition of the jury
continues beyond empanelment. It is within the
trial court's discretion to excuse a juror and
substitute an alternate at any time before
final submission of the case to the jury
panel. These kinds of decisions relating to
the competency and service of jurors are not
reviewable on appeal absent a showing of abuse
of discretion, or some imputed legal error.
State v. Tirado, 358 N.C. 551, 586, 599 S.E.2d 515, 539 (2004)
(citations and quotations omitted),
cert. denied, ___ U.S. ___, 125
S. Ct. 1600, 161 L. Ed. 2d 285 (2005).
The trial court examined all potential jurors prior to
empaneling, and all indicated they did not know any of the
potential witnesses. After the jury was empaneled, but prior to
opening statements, a juror indicated to the trial judge that she
recognized one of the State's potential witnesses. Upon individual
questioning by the trial judge and counsel, the juror stated while
she did not know the potential witness well and could remain
impartial as a juror, her daughter was close friends with thewitness' wife. As a result of the relationship between her
daughter and the witness' wife, the juror had heard about the
witness having been in jail, on probation and in trouble with
cocaine. The State informed the trial court that the potential
witness would not in fact be called by the State, but his name
might arise during the course of the trial. The trial court
granted the State's challenge for cause, over defendant's
objection, and an alternate juror was seated.
The trial court determined, after hearing from the juror and
the district attorney, and over objection from defense counsel:
I'm going to allow the motion for cause. I
think it's - that's why we have alternates.
[The juror] realized she'd seen this
[potential witness] or knew something about
him. And I don't want the case decided on
something outside the courtroom. Whether he's
going to testify or not, I just don't think
it's fair to either side to start letting in
suppositions about [the potential
witness] . . . being in or out of jail or in
trouble with probation or not . . . or having
drug problems. Whichever way that goes, it
could be a distraction. And I think it's
fairer to everybody not to let [the juror]
stay.
The trial court had discretion to remove the juror for cause upon
determining her knowledge of a potential witness may have unfairly
affected the trial. Defendant has not shown that the trial court
abused its discretion by excusing the juror in question and
replacing her with an alternate.
State v. Sims, 161 N.C. App. 183,
190, 588 S.E.2d 55, 60 (2003) (“A trial court may be reversed for
an abuse of discretion only upon a showing that its ruling was soarbitrary that it could not have been the result of a reasoned
decision.”) This assignment of error is overruled.
II
Defendant next argues the trial court erred in denying
defendant's motion to dismiss the charge of assault with a deadly
weapon inflicting serious injury based on the theory of acting in
concert. Defendant contends there was no evidence that defendant
acted in concert with Taylor to commit the offense of assault with
a deadly weapon inflicting serious injury. We disagree.
The theory of acting in concert requires a common purpose to
commit a crime.
State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d
390, 395 (1979). It is not strictly necessary that the defendant
share the intent or purpose to commit the particular crime actually
committed.
State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,
286 (1991).
Upon a motion to dismiss, the court must determine if there is
substantial evidence to support the allegations in the indictment.
State v. Franklin, 327 N.C. 162, 171-72, 393 S.E.2d 781, 787
(1990). Substantial evidence is relevant evidence a reasonable
mind might accept to support a conclusion.
Id. “If there is any
evidence tending to prove guilt . . . it is for the jury to say
whether it is convinced beyond a reasonable doubt of defendant's
guilt.”
Id. (citations omitted). The elements of assault with a
deadly weapon inflicting serious injury are (1) an assault (2) with
a deadly weapon (3) inflicting serious injury and (4) not resulting
in death. N.C. Gen. Stat. § 14-32(b) (2005). The evidence shows that defendant approached Taylor and said
“are you ready to do it” and Taylor pulled out the shotgun and
pointed it at the victim. Defendant searched the victim's pockets
while Taylor held the shotgun. While outside, defendant and Taylor
began hitting the victim repeatedly. Defendant used a tobacco
stick, a metal chair and his fist. At the same time, Taylor hit
the victim in the head with the butt of a shotgun. The victim
received medical treatment for injury to his eye. Such evidence
shows that defendant, acting in concert with Taylor, assaulted the
victim with a deadly weapon. Our Supreme Court has noted that “as
long as the State presents evidence that the victim sustained a
physical injury as a result of an assault by [a] defendant, it is
for the jury to determine the question of whether the injury was
serious.”
State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87
(1994). This evidence was sufficient for the trial court to
properly deny defendant's motion to dismiss. This assignment of
error is overruled.
III
Defendant argues the trial court erred in reinstructing the
jury on acting in concert upon the jury's request. We disagree.
Absent some error in the charge, the trial court may repeat
instructions previously given to the jury in its discretion.
State
v. Bartow, 77 N.C. App. 103, 334 S.E.2d 480 (1985). A trial
court's repetition of its instructions on acting in concert has
been upheld where the jury specifically requested such an
instruction.
State v. Buchanan, 108 N.C. App. 338, 340-41, 423S.E.2d 819, 821 (1992) (“[A]n instruction which is repeated at the
jury's request does not constitute an additional instruction[.]”).
After thirty minutes of deliberation, the jury sent a note to
the judge stating “[t]he jury would like the judge to explain the
criteria for acting in concert again.” The jury was brought back
into the courtroom and the trial judge repeated the previous
instruction on acting in concert. Defendant argues the trial court
is required by N.C. Gen. Stat. § 15A-1233(a) to also instruct the
jury that they must consider the trial judge's instruction in the
context of all the evidence in the case. N.C.G.S. § 15A-1233(a)
(2005). Such a limiting instruction is only required when the jury
requests review of testimony or evidence, which the jury did not
seek in this instance.
Id. Here, the jury's request was merely
for additional
instruction on the law, not to hear additional
evidence.
See N.C. Gen. Stat. § 15A-1234 (2005). It was not error
for the trial court to repeat its previous instruction on acting in
concert without a limiting instruction. Defendant's assignment of
error is overruled.
IV
Defendant contends the trial court erred in denying
defendant's motion to dismiss the charge of armed robbery with a
deadly weapon. Defendant argues the State failed to produce
sufficient evidence of each element of robbery with a deadly
weapon. We disagree.
The essential elements of robbery with a dangerous weapon are
“(1) the unlawful taking or attempt to take personal property fromthe person or in the presence of another (2) by use or threatened
use of a firearm or other dangerous weapon (3) whereby the life of
a person is endangered or threatened.”
State v. Small, 328 N.C.
175, 181, 400 S.E.2d 413, 416 (1991) (citation omitted). The State
must also demonstrate that the defendant had the intent to
permanently deprive the owner of his property at the time of the
taking.
State v. Richardson, 308 N.C. 470, 474, 302 S.E.2d 799,
802 (1983).
When considering a motion to dismiss for insufficiency of the
evidence, the trial court must determine whether there is
substantial evidence of each essential element of the offense
charged and of defendant being the perpetrator.
State v. Bond, 345
N.C. 1, 478 S.E.2d 163 (1996),
cert. denied, 521 U.S. 1124, 138 L.
Ed. 2d 1022 (1997). The court must consider the evidence in the
light most favorable to the State, and the State is entitled to
every reasonable inference to be drawn therefrom.
Id.
In the case
sub judice, the victim testified that after
defendant went through his pockets, defendant took the victim's
money and threw the remaining contents of his pockets on the floor.
The victim also testified that while he was forced to lie on the
ground, defendant removed the victim's watch from his wrist. The
victim testified he did not know what happened to his watch after
it was taken.
See State v. Kemmerlin, 356 N.C. 446, 473, 573
S.E.2d 870,
889 (2002) (citation omitted) (intent to permanently
deprive need not be established by direct evidence, but may be
inferred from the surrounding circumstances). The State presentedeach and every element of the charge of armed robbery with a
dangerous weapon, including showing defendant's intent to
permanently deprive the victim of personal property. This
assignment of error is overruled.
No error.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
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