Appeal by defendant from judgments entered 23 February 2006 by
Judge A. Leon Stanback in Wake County Superior Court. Heard in the
Court of Appeals 24 January 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jason T. Campbell, for the State.
Haral E. Carlin, for defendant-appellant.
STROUD, Judge.
Defendant Terry Lamont Bagley appeals from judgments entered
upon jury verdicts finding him guilty of robbery with a firearm,
second-degree kidnapping, and assault with a deadly weapon
inflicting serious injury (AWDWISI). Defendant contends that the
trial court erred by: (1) denying his motion to dismiss the charge
of kidnapping, (2) admitting evidence of the circumstances
surrounding his arrest, (3) instructing the jury on the theory of
acting in concert to commit robbery with a firearm, (4) denying his
motion to dismiss the charge of AWDWISI, and (5) peremptorily
instructing the jury that a gunshot wound to the leg is a serious
injury.
We conclude that the State presented substantial evidence that
defendant kidnapped J-Neaka Sutton, and affirm the order of the
trial court denying defendant's motion to dismiss that charge. We
conclude that the trial court did not err in admitting evidence of
the circumstances surrounding defendant's arrest, including
evidence that defendant was found hiding in a closet under a pile
of clothes while police investigated a nearby shooting. We further
conclude that the State presented sufficient evidence to support a
jury instruction on the theory of acting in concert to commit
robbery with a firearm; therefore, the trial court did not err in
giving that instruction. Defendant received a fair trial, free ofreversible error, for second-degree kidnapping and robbery with a
firearm. Judgment is affirmed as to defendant's convictions for
those offenses.
We further conclude that the State presented substantial
evidence to support a jury finding that defendant assaulted Jamaal
Turner with a deadly weapon inflicting serious injury, and affirm
the order of the trial court denying defendant's motion to dismiss
that charge. However, we conclude that the trial court committed
reversible error by instructing the jury that a gunshot wound to
the leg is a serious injury.
(See footnote 1)
Therefore, we reverse defendant's
conviction for assault with a deadly weapon inflicting serious
injury and remand for a new trial on that charge.
I. Background
The evidence in the record tends to show the following:
Defendant Terry Lamont Bagley was a friend of William Harrington
and Courtney Bowens. J-Neaka Sutton was an occasional acquaintance
of Harrington and a marijuana dealer. Jamaal Turner was Sutton's
marijuana supplier. Turner supplied only customers he knew well
and was very wary of strangers.
On 1 September 2004, defendant joined Harrington and Bowens to
“chill.” While “chilling,” Harrington suggested that the three men
rob Sutton. Defendant replied, “No, not today.” Approximately
twenty minutes later, the three men got up to walk across the
street to a store named Kojak's. Crossing the street, they spottedSutton's blue Buick parked near the store. Sutton sat in the
driver's seat of the Buick and Derrick Perry, a friend of Sutton,
sat in the passenger seat. Seeing Sutton in the Buick, Harrington
said, “There go old boy [Sutton] right there.”
The three men approached Sutton's car. After defendant and
Harrington talked to Sutton for a short time, in order to “throw
[Sutton] off guard,” Harrington pointed a small chrome revolver at
Sutton, and demanded “everything.” Sutton removed some of his
jewelry and money and gave it to Harrington. Sutton got out of the
car, and defendant walked Sutton to the side of Kojak's store,
where defendant took Sutton's shirt. Defendant and Sutton then
returned to Sutton's car.
Defendant and Harrington forced Perry out of Sutton's car,
then they got into the car with Sutton and Bowens. Sutton and
Bowens offered inconsistent testimony at trial as to whether
defendant or Harrington was holding the chrome revolver while the
four men were in the car. However, the testimony of Sutton and
Bowens was consistent that defendant and Harrington, working
together, forced Sutton to call Turner and arrange a marijuana deal
in order to entice Turner to meet them at a BP station on the other
side of town. The testimony of Sutton and Bowens was also
consistent that defendant and Harrington forced Sutton to drive
Sutton's car to the BP station where Turner had agreed to meet
Sutton.
When they arrived at a restaurant next to the BP station, the
four men got out of the Buick. Harrington and Bowens got back inthe Buick to be ready for a fast getaway, while defendant and
Sutton walked together to Turner's car, a green Chrysler.
Defendant and Sutton entered Turner's car, Sutton in the front
passenger seat and defendant in the back seat. Inside the car,
Turner handed Sutton a package of marijuana and requested payment.
Defendant then pointed the chrome revolver at Sutton and
Turner, grabbed a book bag that contained currency and marijuana
from the back seat, got out of the car, and began to run away.
Turner got out of the car and chased defendant on foot. Defendant
dropped the book bag during the chase, and Turner reached down to
pick it up. When Turner reached down for the book bag, defendant
fired two bullets from the chrome revolver at him. After firing
the bullets, defendant re-joined Harrington and Bowens in Sutton's
car. Harrington, with defendant and Bowens in the car, sped away
to the east.
One of the bullets fired by defendant hit Turner, passing
completely through his right leg. Turner testified that he did not
immediately realize his leg had been hit by a bullet, but sensed
only a “little sting” on impact. Turner refused assistance from a
customer at the BP station. He carried the book bag approximately
fifty feet to his car and then drove between two and three miles
from the BP station to his home, where he opened a cabinet and hid
the book bag containing currency and marijuana.
About a half hour after the shooting, Turner called a friend
and asked to be driven to the hospital. On the way to the
hospital, Turner and his friend saw an ambulance. Hoping to get aride to the hospital in the ambulance, they followed it back to the
BP station where Turner had been shot. When Turner arrived back at
the BP station, Officer D.C. Davis of the Raleigh Police Department
was conducting an investigation of the shooting. Turner limped
over to where Officer D.C. Davis was standing and gave a brief
statement about the shooting and the robbery which preceded it.
After giving his statement to Officer D.C. Davis, Turner
requested treatment for his leg from the paramedics who had come in
the ambulance. The paramedics treated Turner and then the
ambulance transported Turner to the hospital where he stayed
approximately two hours. Hospital staff “took an x-ray and then
squirted some water on [the wound]” and “gave [Turner] some pain
pills.” Turner testified at trial that he suffered pain from the
gunshot wound for two or three weeks, but had no long term effects
from the injury.
On 21 September 2004, almost three weeks after the robbery and
shooting described above, Officer Raymond Davis of the Raleigh
Police Department responded to a shooting on Hay Lane. Officer
Raymond Davis had information that a person involved in that
shooting was inside the house located at 609 Hay Lane. Upon
searching the house, Officer Raymond Davis found defendant in a
bedroom closet hiding under a pile of clothes, with marijuana in
his pocket and a pistol nearby. Officer Raymond Davis arrested
defendant.
On 25 October 2004, the Wake County Grand Jury indicted
defendant for robbing Derrick Perry with a dangerous weapon,robbing J-Neaka Sutton with a dangerous weapon, second-degree
kidnapping of J-Neaka Sutton, robbing Jamaal Turner with a
dangerous weapon, and assaulting Jamaal Turner with a deadly weapon
with intent to kill inflicting serious injury. Defendant was tried
before a jury in Superior Court, Wake County, from 21 to 23
February 2006.
The jury found defendant guilty of: (1) second-degree
kidnapping of Sutton, (2) robbing Turner with a firearm, and (3)
assaulting Turner with a deadly weapon inflicting serious injury.
Defendant was found not guilty of robbing Perry and Sutton with a
firearm. Upon the jury verdict, the trial court sentenced
defendant to consecutive sentences of 90 to 117 months for robbery
with a dangerous weapon, 34 to 50 months for second-degree
kidnapping, and 34 to 50 months for assault with a deadly weapon
inflicting serious injury. Defendant appeals.
II. Issues
On appeal, defendant first contends that the trial court erred
when it denied his motions to dismiss for insufficient evidence the
charges of second-degree kidnapping and AWDWISI. Second, defendant
contends that he is entitled to a new trial on all charges because
the trial court erroneously admitted prejudicial evidence. Third,
defendant contends that he is entitled to a new trial on both the
charge of robbery with a firearm and on the charge of AWDWISI
because the trial court gave improper jury instructions.
III. Error Assigned to Entire Trial
[1] Defendant argues that he is entitled to a new trial on all
charges, because the trial court committed reversible error by
admitting unfairly prejudicial evidence of the circumstances
surrounding his arrest. We disagree.
A criminal defendant is entitled to a new trial if the trial
court committed “reversible error which denied the defendant a fair
trial conducted in accordance with law.” N.C. Gen. Stat. § 15A-
1447(a) (2005). Reversible error is present when “there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached.”
State v.
Williams, 322 N.C. 452, 456-57, 368 S.E.2d 624, 627 (1988)(citation
omitted).
Defendant specifically contends that evidence that he was
arrested after being found under a pile of clothes while the police
were searching for a person involved in a shooting near his home
was offered by the State as a bad act intended to prove the bad
character of defendant and show that he acted in conformity with
his character. At trial, the State contended that evidence of the
circumstances surrounding defendant's arrest was offered as
evidence of flight, not to show that defendant acted in conformity
with bad character.
Evidence of bad acts other than the crime for which defendant
is being tried must be excluded, even though relevant, if its only
purpose is to show that defendant has the propensity or disposition
to commit a similar crime. N.C.R. Evid. 404(b);
State v. Berry,
356 N.C. 490, 505, 573 S.E.2d 132, 143 (2002). However, ifevidence of other bad acts is offered for a purpose other than to
show propensity or disposition to commit a similar crime and is
otherwise relevant, it may be excluded if “its probative value is
substantially outweighed by the danger of unfair prejudice.”
N.C.R. Evid. 403;
see, e.g.,
State v. Hutchinson, 139 N.C. App.
132, 136-37, 532 S.E.2d 569, 572-73 (2000) (finding the admission
of evidence of subsequent offenses relevant to defendant's intent
and motive and not unfairly prejudicial).
A determination of admissibility under the balancing test of
Rule 403 is within the sound discretion of the trial court.
State
v. Wallace, 104 N.C. App. 498, 504, 410 S.E.2d 226, 229 (1991),
disc. review denied and appeal dismissed, 331 N.C. 290, 416 S.E.2d
398,
cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992). Such a
determination will be disturbed only if it “is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.”
Hutchinson, 139 N.C. App.
at 137, 532 S.E.2d at 573 (citation omitted).
Flight is defined as leaving the scene of the crime and
taking “steps to avoid apprehension.”
State v. Levan, 326 N.C.
155, 165, 388 S.E.2d 429, 434 (1990). Though flight is not one of
the enumerated exceptions of Rule 404(b), those exceptions are
examples and are not exclusive. N.C.R. Evid. 404(b);
State v.
Bagley, 321 N.C. 201, 206-07, 362 S.E.2d 244, 247-48 (1987).
Flight is a bad act which tends to show the character of
defendant.
See, e.g., N.C. Gen. Stat. § 20-141.5(a) (2005)
(criminalizing the operation of a motor vehicle while attempting toelude police). Reading Rule 404 and Rule 403 together with North
Carolina's common law on flight, evidence of flight is inadmissible
if it is meant to show the propensity of defendant to commit a
crime similar to the one charged. On the other hand, evidence of
flight is admissible if offered for the purpose of showing
defendant's guilty conscience as circumstantial evidence of guilt
of the crime for which he is being tried,
State v. King, 343 N.C.
29, 468 S.E.2d 232 (1996) (running away from a police officer more
than four months after the crime charged is admissible as
circumstantial evidence to show consciousness of guilt), but even
if offered for that purpose, it may be excluded if the danger of
unfair prejudice substantially outweighs the probative value of the
evidence, N.C.R. Evid. 404(b).
At trial, the State elicited the following testimony from the
arresting officer, Raymond Davis:
Q. What was the nature of the call [on Hay
Lane] that you were responding to?
A. A shooting call.
. . .
Q. What was the reason [for] going in [the]
residence [at 609 Hay Lane]?
A. I believe we had information that . . . a
possible person involved in the shooting
was inside the house.
Thereafter, defendant asked for a bench conference, on the
record but outside the presence of the jury, to consider the
admissibility of further evidence related to the circumstances
surrounding his arrest. Defendant expressed concern that the Statewould elicit testimony that he was found under a pile of clothes,
with marijuana in his pocket and with a pistol near his bed, and
that such testimony would be meant only to show that defendant had
a propensity to shoot people in order to get marijuana. After
hearing from both sides, the trial court instructed the State not
to ask about the pistol and the marijuana, but permitted the State
to ask questions about defendant hiding under a pile of clothes.
The jury returned, whereupon the State elicited further testimony
from Officer Raymond Davis.
Q. Did you find . . . anyone inside [the]
house [at 609 Hay Lane]?
A. We located [Terry Lamont Bagley] in one
of the bedrooms in a closet [under a pile
of] clothes.
. . .
Q. Is it a correct statement that . . . Mr.
Bagley was not charged in any way with
the assault that occurred out on Hay
Lane?
. . .
A. That is not the one I was dealing with.
Q. And after Mr. Bagley was found in that
closet under the clothes, was he then
placed into custody?
A. Yes.
We conclude that the trial court did not abuse its discretion
by admitting evidence of the circumstances surrounding defendant's
arrest. The transcript shows that the trial court carefully
considered each part of the officer's testimony. The trial court
did not allow testimony that defendant was found with marijuana anda pistol, which it considered to be unfairly prejudicial in a trial
for robbing and shooting a marijuana supplier. However, the trial
court did allow testimony that defendant hid when police entered
the building he was in. This evidence tended to show defendant's
guilty conscience, a type of evidence which the North Carolina
Supreme Court has found to be probative as circumstantial evidence
of guilt and not unfairly prejudicial. King, 343 N.C. at 40, 468
S.E.2d at 239. Neither the substance of this evidence, nor the
careful procedure by which the trial court considered this evidence
outside the presence of the jury, suggests that the trial court
made an arbitrary or unreasonable decision. Accordingly, we find
no error in the admission of evidence of the circumstances
surrounding defendant's arrest.
IV. Kidnapping
[2] Defendant contends that the trial court erred when it
denied his motion to dismiss the kidnapping charge for insufficient
evidence. However, we find that the State presented substantial
evidence to support a jury finding that defendant kidnapped J-Neaka
Sutton. Therefore, we affirm the order of the trial court denying
defendant's motion to dismiss the kidnapping charge.
N.C. Gen. Stat. § 15A-1227 (2005) allows a defendant to move
to dismiss a criminal charge when the evidence is not sufficient to
sustain a conviction. Evidence is sufficient to sustain a
conviction when, viewed “in the light most favorable to the State”
and giving the State “every reasonable inference” therefrom,
State
v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988), thereis substantial evidence “to support a [jury] finding,”
id., 368
S.E.2d at 383, of “each essential element of the offense charged,”
and of “defendant's being the perpetrator of such offense,”
State
v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation
omitted). The denial of a motion to dismiss for insufficient
evidence is a question of law,
State v. Vause, 328 N.C. 231, 236,
400 S.E.2d 57, 61 (1991), which this Court reviews
de novo,
Shepard
v. Ocwen Fed. Bank, FSB, 172 N.C. App. 475, 478, 617 S.E.2d 61, 64
(2005).
The essential elements of kidnapping relevant to the case
sub
judice are: (1) restraint or removal of a person from one place to
another, (2) without that person's consent, (3) for the purpose of
facilitating the commission of any felony. N.C. Gen. Stat. §
14-39(a) (2005). If the defendant is also charged with the felony
underlying the kidnapping charge, the double jeopardy clause of the
Fifth Amendment prohibits a conviction for kidnapping if the
restraint or removal is merely an inherent part of the felony,
rather than a separate and distinct action.
State v. Irwin, 304
N.C. 93, 103, 282 S.E.2d 439, 446 (1981). In
Irwin, the North
Carolina Supreme Court reversed a conviction for kidnapping because
the only evidence that the defendant removed or restrained his
victim was that the defendant forced the victim to go to the back
of the store to open the safe during the course of an armed
robbery. 304 N.C. at 103, 282 S.E.2d at 446.
Irwin held that
“mere technical asportation” inherent in the armed robbery itselfwas not sufficient to also convict the defendant of a separate
kidnapping charge. 304 N.C. at 103, 282 S.E.2d at 446.
In his motion to dismiss, defendant argued that the State
failed to present evidence that Sutton was removed or restrained
for the purpose of committing a felony. Specifically, defendant
offers the following syllogism: Armed robbery was the felony
alleged in the indictment charging defendant with kidnapping
Sutton. Defendant was found not guilty of robbing Sutton with a
firearm. Therefore, the State did not present evidence of
facilitation of a felony sufficient to support the kidnapping
charge, and the trial court should have granted defendant's motion
to dismiss the kidnapping charge.
Alternatively, defendant argues that even if there was
substantial evidence of armed robbery, the State did not present
evidence that defendant's restraint and removal of Sutton was a
separate and distinct act not merely an inherent part of the armed
robbery. Defendant therefore concludes that the trial court should
have granted his motion to dismiss the kidnapping charge in order
to protect his Fifth Amendment right to be free from double
jeopardy.
It is of no moment that defendant was found not guilty of
robbing
J-Neaka Sutton with a firearm. The indictment alleged that
defendant kidnapped Sutton to facilitate the felony of armed
robbery; it did not allege that Sutton was the victim of the armed
robbery. To the contrary, the evidence shows that defendant
kidnapped Sutton for the singular purpose of robbing
Jamaal Turner. Defendant forced Sutton to drive to the other side of town in order
to use Sutton as a decoy to facilitate the robbery of Turner. The
robbery of
Turner could not have occurred without the kidnapping of
Sutton. This is substantial evidence that defendant removed and
restrained Sutton for the purpose of committing the felony of armed
robbery. It is also substantial evidence that the restraint and
removal of Sutton was far more than mere technical asportation
inherent in that armed robbery. The trial court did not err in
denying defendant's motion to dismiss the kidnapping charge for
insufficient evidence.
V. Robbery with a Firearm
[3] Defendant argues that he is entitled to a new trial on the
charge of robbery with a firearm because the trial court erred by
instructing the jury on the theory of acting in concert to commit
robbery with a firearm. Defendant contends that because he said,
“No, not today,” when asked about robbing Sutton, and because the
State presented no evidence that defendant acted in concert with
anyone to commit robbery with a firearm, instructing the jury on
acting in concert was error. We disagree.
This Court reviews jury instructions only for abuse of
discretion.
State v. Shepherd, 156 N.C. App. 603, 607, 577 S.E.2d
341, 344 (2003). Abuse of discretion means “manifestly unsupported
by reason or . . . so arbitrary that it could not have been the
result of a reasoned decision.”
Hutchinson, 139 N.C. App. at 137,
532 S.E.2d at 573 (citation omitted). Jury instructions must be
supported by the evidence.
State v. Dammons, 293 N.C. 263, 272, 237S.E.2d 834, 840 (1977). Conversely, all essential issues arising
from the evidence require jury instructions.
State v. Owen, 111
N.C. App. 300, 307, 432 S.E.2d 378, 383 (1993). To support an
instruction of acting in concert, the State must present evidence
that the defendant is “present at the scene of the crime” and acts
“together with another who does the acts necessary to constitute
the crime pursuant to a common plan or purpose to commit the
crime.”
State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395
(1979).
Evidence that defendant said, “No, not today,” when Harrington
asked if defendant wanted to rob Sutton is not dispositive as to
whether the evidence supported a jury instruction on the theory of
acting in concert to commit armed robbery. To the contrary, after
reviewing the entire record, we conclude that the State presented
sufficient evidence to support a jury instruction that defendant
and Harrington acted in concert to rob Sutton. In particular,
defendant was present with Harrington at Kojak's store when
Harrington robbed Sutton at gunpoint. Defendant chatted with
Sutton to throw him off guard before Harrington pointed the gun at
Sutton. Defendant stole Sutton's clothes right after Harrington
had threatened Sutton with the gun.
Additionally, the State presented evidence, sufficient to
support a jury instruction, that defendant acted in concert with
Harrington to rob Turner. Defendant and Harrington went together
to the BP station where Turner was robbed. Defendant used
Harrington's gun to rob Turner. Harrington sat in the getaway carand waited while defendant robbed Turner, then they left the crime
scene together. On this evidence, the trial court's decision to
instruct the jury on the theory of acting in concert was not
arbitrary or unreasonable. Therefore, the trial court did not
abuse its discretion when it instructed the jury on the theory of
acting in concert. Accordingly, we find no error in the
instruction.
VI. AWDWISI
[4] Defendant contends that the trial court erred when it
denied his motion to dismiss the charge of assault with a deadly
weapon with the intent to kill and inflicting serious injury
(AWDWIKISI)
(See footnote 2)
for insufficient evidence. Alternatively, defendant
contends that the trial court erred by peremptorily instructing the
jury that a gunshot wound to the leg is a serious injury.
As stated above, N.C. Gen. Stat. § 15A-1227 (2005) allows a
defendant to move to dismiss a criminal charge when the evidence is
not sufficient to sustain a conviction. Evidence is sufficient to
sustain a conviction when, viewed “in the light most favorable to
the State” and giving the State “every reasonable inference”
therefrom,
Locklear, 322 N.C. at 358, 368 S.E.2d at 382, there is
substantial evidence “to support a [jury] finding,”
id., 368 S.E.2d
at 383, of “each essential element of the offense charged” and of
“defendant's being the perpetrator of such offense,”
Scott, 356
N.C. at 595, 573 S.E.2d at 868 (citation omitted). The denial ofa motion to dismiss for insufficient evidence is a question of law,
Vause, 328 N.C. at 236, 400 S.E.2d at 61, which this Court reviews
de novo,
Shepard, 172 N.C. App. at 478, 617 S.E.2d at 64.
“The elements of AWDWISI are: (1) an assault, (2) with a
deadly weapon, (3) inflicting serious injury . . . not resulting in
death.”
State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922
(2000) (citing N.C. Gen. Stat. § 14-32(b) (1999)). Assault is “an
overt act or attempt, with force or violence, to do some immediate
physical injury to the person of another, which is sufficient to
put a person of reasonable firmness in fear of immediate physical
injury.”
State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721
(1995). A deadly weapon is “any article, instrument or substance
which is likely to produce death or great bodily harm.”
State v.
Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981). A
pistol or a revolver is a deadly weapon
per se.
State v.
Pettiford, 60 N.C. App. 92, 98, 298 S.E.2d 389, 392 (1982).
Serious injury is “physical or bodily injury resulting from an
assault with a deadly weapon,”
State v. James, 321 N.C. 676, 688,
365 S.E.2d 579, 586 (1988), but serious injury has not been defined
with specificity for the purposes of AWDWISI,
State v. Ezell, 159
N.C. App. 103, 110, 582 S.E.2d 679, 684 (2003). This is because
whether an injury is serious within the meaning of AWDWISI is
usually a factual determination that rests with the jury.
State v.
Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997).
Substantial evidence of a serious injury that is sufficient to
survive a motion to dismiss includes, but is not limited to,evidence of “hospitalization, pain, blood loss, and time lost at
work.”
Id.;
see also James, 321 N.C. at 688, 365 S.E.2d at 587.
The evidence, viewed in the light most favorable to the State
and giving the State every reasonable inference therefrom, is as
follows: Defendant fired two bullets at Jamaal Turner. This is
substantial evidence of an overt attempt to do immediate physical
injury which would have put a person of reasonable firmness in fear
of immediate physical injury. The bullets were fired from a
revolver, which is a deadly weapon
per se in North Carolina. One
of the bullets defendant fired at Turner went completely through
Turner's right leg. After suffering the bullet wound, Turner's leg
hurt too badly to drive himself to the hospital. He was treated at
the hospital for the wound and suffered pain for two or three weeks
afterwards. This is substantial evidence to support a jury finding
that defendant inflicted a serious injury on Turner. Because the
state presented substantial evidence on all three elements of
AWDWISI, we hold that the trial court did not err in denying
defendant's motion to dismiss that charge.
[5] Finally, we consider defendant's argument that the trial
court erred by peremptorily instructing the jury that a gunshot
wound to the leg is a serious injury. Defendant properly objected
to this instruction during the charge conference and then renewed
his objection after the charge to the jury was given. In
exceptional cases, the trial court may remove the element of
serious injury from consideration by the jury by peremptorily
declaring the injury to be serious.
State v. Hedgepeth, 330 N.C.38, 53-54, 409 S.E.2d 309, 318 (1991). However, such a declaration
is appropriate only when the evidence “is not conflicting and is
such that reasonable minds could not differ as to the serious
nature of the injuries inflicted.”
Id. (quoting
State v.
Pettiford, 60 N.C. App. 92, 97, 298 S.E.2d 389, 392 (1982));
State
v. Owens, 65 N.C. App. 107, 308 S.E.2d 494 (1983) (concluding that
reasonable minds could differ as to the seriousness of a gunshot
wound to the arm which required hospitalization for only three
hours).
We concluded above that the record contained substantial
evidence to support a jury finding that defendant inflicted a
serious injury on Turner. The record also contains the following
evidence which suggests that the injury was not serious: After
sustaining the bullet wound, Turner refused help from a passerby at
the scene, carried a book bag containing currency and marijuana
fifty feet to his car, drove home, and stored the book bag in a
cabinet. Turner then waited almost a half hour, without seeking
treatment, before asking a friend for a ride to the hospital.
After starting for the hospital, Turner changed his mind and
returned to the crime scene instead, where he gave a statement to
police before asking a paramedic at the scene for treatment of the
bullet wound. When Turner finally arrived at the hospital, the
staff took x-rays of the wound, “squirted water on it,” gave him
pain pills, and released him after about two hours. Turner has no
on-going difficulties from the wound. We conclude that on this evidence, reasonable minds could
differ as to whether Turner's injury was serious, and the trial
court erroneously gave a peremptory instruction to the jury that
the gunshot wound to Turner's leg was serious. This instruction
was error.
Having concluded that the trial court erred by instructing the
jury that a gunshot wound to the leg is a serious injury, we now
consider if it was reversible error which entitles defendant to a
new trial. On the evidence presented, we hold that there is a
reasonable possibility that the jury would have found the injury
was not serious. If the jury had found the injury not to be
serious, it probably would have found defendant not guilty of
AWDWISI. This result is different from the guilty verdict reached
by the jury in defendant's trial for AWDWISI. The error was
therefore reversible, and defendant is entitled to a new trial.
Accordingly, we reverse defendant's conviction for AWDWISI, and
remand for a new trial on this charge.
VII. Conclusion
We conclude that the State presented substantial evidence that
defendant kidnapped J-Neaka Sutton, and affirm the order of the
trial court denying defendant's motion to dismiss that charge. We
conclude that the trial court did not err in admitting evidence of
the circumstances surrounding defendant's arrest, including
evidence that defendant was found hiding in a closet under a pile
of clothes while police investigated a nearby shooting. We further
conclude that the State presented sufficient evidence to support ajury instruction on the theory of acting in concert to commit
robbery with a firearm; therefore, the trial court did not err in
giving that instruction. Defendant received a fair trial, free of
reversible error, for second-degree kidnapping and robbery with a
firearm. Judgment is affirmed as to defendant's convictions for
those offenses.
We also conclude that the State presented substantial evidence
to support a jury finding that defendant assaulted Jamaal Turner
with a deadly weapon inflicting serious injury, and affirm the
order of the trial court denying defendant's motion to dismiss that
charge. However, we hold that the trial court committed reversible
error by peremptorily instructing the jury that a gunshot wound to
the leg is a serious injury. Therefore, we reverse defendant's
conviction for assault with a deadly weapon inflicting serious
injury and remand for a new trial on that charge.
NO ERROR IN PART, REVERSED IN PART, AND REMANDED FOR NEW TRIAL
ON 04 CRS 074558.
Judges TYSON and STEPHENS concur.
Footnote: 1