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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ROGER ALAN POINTER
Filed: 02 January 2007
1. Assault_specific intent to kill_evidence sufficient
The trial court did not err by denying defendant's motion to dismiss charges of assault
with intent to kill inflicting serious injury where defendant presented expert testimony that he
could not have formed the specific intent to kill due to mental disorders and an excessive dose of
medication, and the State presented evidence of the nature of the assaults.
2. Criminal Law_jury impaneled after opening argument_harmless error
The trial court's error in not impaneling the jury until after the State's opening argument
3. Criminal Law_jury request to view evidence_jury not returned to
Defendant waived any assertion of error in the court not bringing the jury back to the
courtroom after its requests to review evidence by consenting to the court communicating with
the jury by sending exhibits or writing a note explaining the denial of the jury's requests.
4. Appeal and Error_preservation of issues--lack of argument or authority
An assignment of error was deemed abandoned where defendant did not state any
supporting reasoning or argument or cite authority.
Appeal by defendant from judgment entered 12 August 2005 by
Judge Robert C. Ervin in Lincoln County Superior Court. Heard in
the Court of Appeals 12 October 2006.
Attorney General Roy C. Cooper, by Assistant Attorney General
Jane L. Oliver, for the State.
Haral E. Carlin for defendant-appellant.
Defendant appeals two convictions of assault with a deadly
weapon with intent to kill inflicting serious injury because heasserts that he did not have the ability to form the intent to
kill. For the reasons stated herein, we find no prejudicial error.
The State's evidence tended to show that Kimberly Rogers
(Rogers) invited her brother, Roger Allen Pointer (defendant),
to live with her in Lincolnton, North Carolina in 2002. Rogers
lived with her three children: Seth, age sixteen; Karissa, age
thirteen; and, Tiffany, age twelve. It was agreed that defendant
would obtain employment and assist Rogers with household expenses.
However, defendant did not maintain any kind of steady employment.
In 2004, Rogers told defendant he needed to leave because she
could not continue to support herself, her children, and defendant.
However, defendant made no effort to find a new place to live. On
27 September 2004, at approximately 10:00 a.m., Rogers told
defendant that he had to leave the home that day. Defendant became
irritated and complained that he had no place to go. He took four
tablets of Klonopin, a medicine he took for an anxiety disorder.
The normal dose was one tablet, twice a day. The defendant felt
groggy after taking the pills. He testified at trial that he did
some laundry, played computer games, and checked his e-mail after
taking the Klonopin.
Rogers left the home with her children, returned at
approximately 6:00 p.m., and found defendant asleep on the couch.
Rogers contacted the Sheriff's Department and told defendant to
leave. Rogers told defendant that the police were on the way.
Defendant became angry, grabbed his things, and left the residence.Between 2:00 a.m. and 2:30 a.m., defendant returned to the home.
He used a key to gain entry to the home. Rogers was confronted by
defendant, who was standing beside her bedroom door. Defendant
attacked her with a large kitchen knife. Rogers eventually fell
down, and defendant got on top of her and continued to stab her.
Defendant did not say anything during the attack. Rogers was
stabbed twenty-two times in the neck and chest.
Karissa Rogers was awakened by her mother's screams. She
started striking defendant in an effort to make him stop stabbing
her mother. Defendant turned on Karissa and began stabbing her.
She was stabbed five times: once in the upper stomach resulting in
liver damage, once in the chest causing damage to her diaphragm,
and several times on her arm. Seth Rogers was also awakened by his
mother's screams. He entered the living room and saw defendant
stabbing Rogers and Karissa. Seth punched defendant and was able
to stop him from attacking Karissa. Defendant fled the home.
Defendant was found by a Sheriff's deputy riding a bicycle away
from the residence. He was taken into custody and admitted to
Lincoln County Sheriff's Department Detective Johnson that he had
attacked Rogers but did not recall how many times he stabbed her or
if he had stabbed anyone else.
At trial, defendant contended that he did not have the intent
to kill Rogers or Karissa. Defendant presented Dr. John Warren as
an expert witness in the fields of psychology and forensic
psychology. Dr. Warren testified that defendant did not remember
the actual attacks or what happened. Dr. Warren expressed theopinion that as a result of taking the four Klonopin tablets on the
day of the attack, defendant's ability to form the specific intent
to kill would have been grossly impaired if there at all.
The jury found defendant guilty of: (1) assault with a deadly
weapon with intent to kill inflicting serious injury upon Rogers;
(2) assault with a deadly weapon with intent to kill inflicting
serious injury upon Karissa; (3) assault with a deadly weapon upon
Seth. Defendant was given consecutive active sentences totaling
176 months to 230 months. Defendant appeals.
Defendant's Ability to Form an Intent to Kill
 In his first two arguments defendant contends that the
trial court erred in denying his motions to dismiss the two charges
of assault with a deadly weapon with intent to kill inflicting
serious injury because of insufficient evidence of his intent to
kill. We disagree.
In State v. Barnes, 334 N.C. 67, 430 S.E.2d 914 (1993), our
Supreme Court reiterated the standard of review for motions to
dismiss in criminal trials:
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
Id. 334 N.C. at 75, 430 S.E.2d at 918 (quoting State v. Powell, 299
N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
Evidence is substantial if relevant and adequate to convince
a reasonable mind to accept a conclusion. State v. Vick, 341 N.C.
569, 583-84, 461 S.E.2d 655, 663 (1995) (citing State v. Vause, 328
N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). If there is substantial
evidence, whether direct or circumstantial, to support a finding
that the offense charged has been committed and that the defendant
committed it, the motion to dismiss should be denied and the case
should be submitted to the jury. See State v. Williams, 319 N.C.
73, 79, 352 S.E.2d 428, 432 (1987). In considering a motion to
dismiss, the trial court must analyze the evidence in the light
most favorable to the State and give the State the benefit of everyreasonable inference from the evidence. State v. Gibson, 342 N.C.
142, 150, 463 S.E.2d 193, 199 (1995).
The elements of assault with a deadly weapon with intent to
kill inflicting serious injury are: (1) an assault, (2) with a
deadly weapon, (3) with an intent to kill, and (4) inflicting
serious injury, not resulting in death. See N.C.G.S. § 14-32(a)
(2003); State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515,
534(2004). On appeal, defendant contends that the State failed to
present sufficient evidence and failed to prove beyond a reasonable
doubt the third element - that defendant had the specific intent to
kill the victims, Rogers and Karissa.
Defendant introduced the expert testimony of Dr. Warren who
testified that in his opinion defendant could not have formed the
specific intent to kill at the time of the attacks due to the
presence of multiple mental disorders and defendant's excessive
dose of Klonopin prior to the attacks. The State offered no expert
testimony to rebut Dr. Warren's testimony. Defendant argues that
Dr. Warren's testimony rebutted the element of intent to kill and
that the State failed to present any contrary evidence.
An intent to kill is usually shown through inferences from the
established underlying facts and circumstances of the case. State
v. Thacker, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972). The
nature of the assault, the manner in which it was made, the weapon,
if any, used, and the surrounding circumstances are all matters
from which an intent to kill may be inferred. Moreover, an
assailant must be held to intend the natural consequences of hisdeliberate act. State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d
460, 462 (2000) (internal citations and quotation marks omitted).
A qualified expert may give her opinion about whether a defendant
could have formed an intent to kill. State v. Jackson, 340 N.C.
301, 310, 457 S.E.2d 862, 868 (1995). Expert testimony, however,
does not bind a trier of fact. Correll v. Allen, 94 N.C. App. 464,
470, 380 S.E.2d 580, 584 (1989). 'Even though unimpeached and
uncontradicted,' expert testimony is not conclusive upon the trier
'since the trier may apply his own experience or knowledge in
determining how far to follow the expressed opinion.' Id.
(quoting Security-First Nat'l Bank of Los Angeles v. Lutz, 322 F.2d
348, 355 (9th Cir. 1963)); see also N.C.P.I.--Crim 104.94 (2002).
While the State did not present expert testimony contradicting
the testimony of Dr. Warren, the trial court properly considered
the nature of the assaults on Rogers and Karissa in deciding
whether the State presented sufficient evidence of intent.
Evidence showed that defendant stabbed Rogers twenty-two times. In
the course of stabbing her, defendant knocked her to the ground,
got on top of her, and continued stabbing her. Defendant also
stabbed Karissa five times inflicting serious injuries. The number
of stab wounds and the manner in which the stabbing of Rogers and
Karissa took place were all relevant factors for the jury to
consider. Grigsby, 351 N.C. at 457, 526 S.E.2d at 462.
These facts, taken together with defendant's own testimony
and defendant's statement to Detective Johnson that he had attacked
Rogers, support the reasonable inference that defendant intended tokill Rogers and Karissa. Thus, the State satisfied its burden of
offering sufficient evidence to support the element of intent to
kill. See Grigsby, 351 N.C. 454, 526 S.E.2d 460 (holding that
evidence of intent to kill existed when the defendant jumped on the
victim's back, threatened the victim, and used a knife that enabled
the defendant to stab the victim without losing his grip). While
Dr. Warren provided testimony that defendant did not form an intent
to kill, it was for the jury to decide whether an intent to kill
was present, and they were not bound by the opinion of defendant's
We further note that the trial court gave the jury
instructions on a defendant's voluntary intoxication by drugs. See
N.C.P.I.--Crim. 305.19 (2002). If upon considering the evidence,
the jury had a reasonable doubt as to whether defendant had the
requisite intent, the jury was instructed to find defendant not
guilty. The jury found defendant had the requisite intent to kill
to support his conviction of assault. The trial court did not err
in denying defendant's motion to dismiss the two charges of assault
with a deadly weapon with intent to kill inflicting serious injury.
This argument is without merit.
Impaneling the jury
 In his third argument, defendant contends that the trial
court committed reversible error by failing to properly impanel the
jury. We disagree, and hold that any error was not prejudicial.
Our standard of review for failure to properly impanel the
jury is for prejudicial error. State v. Stephens, 51 N.C. App.244, 246, 275 S.E.2d 564 (1981). N.C. Gen. Stat. § 15A-1216
provides that the clerk impanels the jury after all members of the
jury have been selected. Defendant cites to Stephens, 51 N.C. App.
at 246, 275 S.E.2d at 275, for its holding that prejudicial error
exists where the trial court completely fails to impanel the jury.
Stephens is distinguishable from defendant's case. In
Stephens the jury was never impaneled. In the instant case, the
judge did not impanel the jury until after the State's opening
statement to the jury. Although the trial court erred in failing
to impanel the jury at the proper time in accordance with N.C. Gen.
Stat. § 15A-1216, defendant presents no argument of prejudice
arising from this error. There being no evidence of prejudice, we
find the error to be harmless.
Trial Court's Handling of Jury Request to Review Evidence
 In his fourth and fifth arguments, defendant contends the
trial court violated the mandatory requirements of N.C. Gen. Stat.
§ 15A-1233(a) when responding to the jury's request to review
evidence during their deliberations and that he is entitled to a
new trial. We disagree.
N.C. Gen. Stat. § 15A-1233(a) states:
If the jury after retiring for deliberation
requests a review of certain testimony or
other evidence, the jurors must be conducted
to the courtroom. The judge in his discretion,
after notice to the prosecutor and defendant,
may direct that requested parts of the
testimony be read to the jury and may permit
the jury to reexamine in open court the
requested materials admitted into evidence. In
his discretion the judge may also have the
jury review other evidence relating to thesame factual issue so as not to give undue
prominence to the evidence requested.
We review the trial court's decision in these matters for
abuse of discretion. Id
; see also State v. Porter
340 N.C. 320,
329, 457 S.E.2d 716, 720 (1995).
After the jury started its deliberations, the jury sent a note
to the trial court asking to review certain evidence. The trial
court, with the consent of both the State and defendant, sent two
exhibits, one diagram and a photograph, to the jury room for
review. The trial court did not conduct the jurors to the
courtroom after this request. The jury also requested that they be
able to view two statements defendant gave to Detective Johnson.
The trial court correctly denied this request on the grounds that
they had not been admitted into evidence. See State v. Hines
N.C. App. 457, 462, 508 S.E.2d 310, 314 (1998). The trial court
did not conduct the jurors into the courtroom following this
request. The trial court instead wrote a note to the jurors,
approved by both counsel, explaining the reason for denying the
request. Defendant did not object.
We note that although defendant did not object at trial, [a]
lack of objection at trial does not bar a defendant's right to
assign error to a judge's failure to comply with the mandates of
Section 15A-1233(a). State v. Helms
, 93 N.C. App. 394, 401, 378
S.E.2d 237, 241 (1989) (citing State v. Ashe
, 314 N.C. 28, 40, 331
S.E.2d 652, 659 (1985)). However, when a defendant's lawyer
consents to the trial court's communication with the jury in a
manner other than bringing the jury back into the courtroom, thedefendant waives his right to assert a ground for appeal based on
failure to bring the jury back into the courtroom. Helms
, 93 N.C.
App. at 401, 378 S.E.2d at 241. Defendant, therefore, waived the
right to have the jury returned to the courtroom. This argument is
 Defendant also contends that the trial court failed to
exercise its discretion when the jury requested they view
defendant's two statements to Detective Johnson during
deliberations. Although defendant properly assigned error to this
contention in the record, he fails to state any reasoning or
argument or cite authority that there was any abuse of discretion
on the part of the trial court. This assignment of error is
therefore deemed abandoned. N.C. R. App. P. 28(b)(6) (2006).
For the foregoing reasons, defendant received a fair trial
free from prejudicial error.
NO PREJUDICIAL ERROR.
Judge GEER concurs.
Judge STEPHENS concurs prior to 31 December 2006.
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