An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1037


Filed: 18 April 2006


v .                         Moore County
                            Nos. 02 CRS 54965 and 54968

    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.


    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.

    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.

    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.

    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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