Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
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. EARL LEE BRUNSON, III
Filed: 4 December 2007
1. Appeal and Error--preservation of issues--introduction of evidence after denial of
motion to dismiss
Although defendant contends the trial court erred by denying his motion to dismiss the
charges of first-degree kidnapping, second-degree rape, and assault by strangulation, defendant
failed to preserve this issue for review, because: (1) N.C.G.S. § 15-173 provides that if defendant
introduces evidence, he waives any motion for dismissal or judgment as in case of nonsuit which
he may have made prior to the introduction of his evidence and cannot urge such motion as
ground for appeal, and in this case defendant presented evidence following the trial court's denial
of his motion; (2) defendant failed to renew his motion for dismissal at the close of all evidence;
and (3) even if the issue had been properly preserved, there was sufficient evidence to submit
these charges to the jury.
2. Assault--by strangulation--misdemeanor assault on female not a lesser-included
The trial court did not commit plain error by failing to submit the charge of misdemeanor
assault on a female as a lesser-included offense of assault by strangulation, because: (1) N.C.G.S.
§ 14-33(c)(2) provides that the elements of assault on a female are assault upon a female person
by a male person at least 18 years of age, whereas the offense of assault by strangulation only
requires that an individual assault another person and inflict physical injury by strangulation; and
(2) assault on a female is not a lesser-included offense of assault by strangulation since each
offense includes at least one element not present in the other.
3. Criminal Law--trial court's remarks to defense counsel--failure to show prejudice
The trial court did not commit prejudicial error in a first-degree kidnapping, second-
degree rape, and assault by strangulation case by its remarks directed toward defense counsel
when ruling on evidentiary issues, commenting on procedural matter, or urging the prosecutor
and defense counsel to proceed efficiently with the trial of the case, because: (1) N.C.G.S. § 15A-
1222 does not apply to comments made outside of the jury's presence; (2) unless it is apparent
that such infraction of the rules might reasonably have had a prejudicial effect on the result of the
trial, the error is considered harmless and the burden is on defendant to show the remarks
deprived him of a fair trial; (3) a trial court generally is not impermissibly expressing an opinion
when it makes ordinary rulings during the course of the trial; and (4) a review of the record
revealed that the statements were not prejudicial, nor does the record reveal a cumulative effect
of prejudice resulting from any general tone or trend of hostility or ridicule.
Appeal by Defendant from judgments entered 2 August 2006 by
Judge J.B. Allen, Jr., in Wake County Superior Court. Heard in the
Court of Appeals 17 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist, for the State.
Haral E. Carlin, for Defendant.
Defendant, Earl Lee Brunson, III, appeals from judgments
entered on his convictions of first degree kidnapping, second
degree rape, and assault by strangulation. We find no error.
The Defendant was tried before a Wake County jury beginning 31
July 2006. The State's evidence at trial tended to show, in
pertinent part, the following: Heather Burns (Burns) testified
that she was twenty years old and that she and the Defendant
previously had a romantic relationship. Defendant was the father
of Burns' son, born in June 2004, and Burns and Defendant were
still dating in February 2006. On the evening of 17 February 2006
they went shopping and then returned to Burns' apartment. After
Burns fell asleep at around 9:00 p.m., the Defendant took Burns'
car and went out to socialize with friends. Burns woke up at
around 2:30 a.m. on 18 February 2004 and saw that her car was
missing. She could not reach Defendant by cell phone and called
the police to report the car as stolen. When law enforcement
officers came to the apartment, she told them that defendant had
been drinking and did not have a drivers' license.
When Defendant returned to Burns' apartment at around 3:30
a.m., he was angry at Burns for calling the police about her car.
He went to Burns' bedroom and started yelling and cursing at her,
hitting the back of her head, and pulling her hair. Their son cameto the bedroom and Defendant told him to kiss his mother goodbye
because he'd never see her again, then gave Burns a notebook and
crayon to write a note for the child to read after she was dead.
Defendant choked Burns with his hands, hard enough that her vision
blurred, her head hurt, and she had difficulty breathing.
Defendant also threatened Burns with a steak knife. Burns ran into
the kitchen to get her cell phone, but slipped and fell on the
kitchen floor. Defendant followed her into the kitchen, where he
choked her again while she lay on the floor, this time with
After choking Burns a second time, the Defendant demanded she
have sex with him, telling her he was going to get some and that
she didn't have a choice. He dragged her to the living room,
where he used both hands to push [her] on the couch. Burns cried
and told Defendant to stop, but he forced her to have intercourse
with him, and choked her again. As soon as she was able to slip
away from Defendant, Burns picked up her son, left the apartment,
and ran to the Cary Fire Station, about a half mile away. Shortly
after she got there, law enforcement officers from the Cary Police
Department arrived. After speaking with Burns, law enforcement
officers were dispatched to her apartment, where the Defendant was
arrested without incident. Burns was taken to WakeMed Medical
Center's emergency room for an examination; later that morning she
gave a statement to police officers.
Testimony by medical, fire department, and law enforcement
personnel generally corroborated Burns' trial testimony. ScottSidney, a firefighter with the Cary Fire Department, testified that
when Burns arrived at the Fire Station in the early morning hours
of 18 February 2006, she was hysterical and crying. Burns said
that her boyfriend had tried to kill her, that he choked and hit
her, and that he ordered her to write a note to her son to read
after she was dead. A few minutes later, law enforcement officers
arrived and assumed control of the situation. Another firefighter,
Bonnie McDonald, testified that Burns was sobbing and that she
became almost hysterical while repeating how the Defendant had
told her to kiss her son goodbye. McDonald testified that Burns
seemed genuinely in fear for her life.
Lynn MacDonald, the nurse who treated Burns in the emergency
room, testified that Burns reported being raped and choked by the
father of her son, and that Burns had a sore neck and was upset and
crying. Dr. Gay Benevides, the physician who treated Burns in the
emergency room, testified that Burns seemed horrified by what had
happened and that Burns' account of the events of that night was
bone-chilling. Cary City Police Officers Lillian Royal and
Joseph Lengel testified about the statement Burns gave on 18
February 2004, which largely corroborated Burns's trial testimony.
The Defendant testified on his own behalf. He corroborated
Burns' testimony, that on the night in question they had taken
their son shopping and then returned to Burns' apartment; that
after Burns fell asleep he took her car and went out; and that when
he returned the couple argued and fought. However, Defendant
testified that he had Burns' permission to take her car; that theirargument was about his seeing other women, and that his only act of
physical aggression was to push Burns after she attacked him.
Defendant denied having hit or choked Burns, denied
brandishing a knife, threatening her, or dragging her to the living
room to rape her. Defendant acknowledged that he and Burns had sex
in the living room, but testified that it was consensual.
Defendant's mother, father, and stepfather also testified on his
behalf about the relationship between Burns and the Defendant.
However, none of these witnesses were present during the incident
giving rise to these charges.
After the presentation of evidence, the jury found the
Defendant guilty of second degree rape, first degree kidnapping,
and assault by strangulation. Defendant was sentenced to
consecutive prison terms of 100 to 129 months for second degree
rape and eight to ten months for assault by strangulation. The
court continued prayer for judgment on the conviction of first
degree kidnapping. From these convictions and sentences Defendant
 Defendant argues first that the trial court erred by
denying his motion to dismiss the charges against him at the end of
the State's evidence. At the close of the State's evidence,
Defendant moved for dismissal of all charges, on the grounds that
the State had presented insufficient evidence to submit the charges
to the jury. Following the trial court's denial of his motion, the
Defendant presented evidence. Defendant failed to renew his motionfor dismissal at the close of all the evidence. We conclude that
Defendant failed to preserve this issue for appellate review.
Under N.C. Gen. Stat. § 15-173 (2005), [i]f the defendant
introduces evidence, he thereby waives any motion for dismissal or
judgment as in case of nonsuit which he may have made prior to the
introduction of his evidence and cannot urge such prior motion as
ground for appeal. Moreover, N.C.R. App. P. 10(b)(3) specifically
(b) (3) A defendant in a criminal case may not
assign as error the insufficiency of the
evidence to prove the crime charged unless he
moves to dismiss the action . . . at trial.
If a defendant makes such a motion after the
State has presented all its evidence and . . .
the defendant then introduces evidence, his
motion for dismissal . . . made at the close
of State's evidence is waived. Such a waiver
precludes the defendant from urging the denial
of such motion as a ground for appeal.
A defendant may make a motion to dismiss the
action or judgment as in case of nonsuit at
the conclusion of all the evidence[.] . . .
However, if a defendant fails to move to
dismiss the action or for judgment as in case
of nonsuit at the close of all the evidence,
he may not challenge on appeal the sufficiency
of the evidence to prove the crime charged.
See also, e.g., State v. Farmer, 177 N.C. App. 710, 717-18, 630
S.E.2d 244, 249 (2006) (Defendant failed to preserve for appellate
review his assignment of error regarding the sufficiency of the
evidence by failing to renew his motion to dismiss after offering
evidence.). We further note that even if the issue had been
properly preserved, there appears to be sufficient evidence to
submit these charges to the jury. This assignment of error is
 Defendant argues next that the trial court erred by
failing to submit to the jury the offense of misdemeanor assault on
a female as a lesser included offense of assault by strangulation.
Initially, we note that Defendant also failed to preserve this
issue for review. N.C.R. App. P. 10(b)(2) provides in pertinent
A party may not assign as error any portion of
the jury charge or omission therefrom unless
he objects thereto before the jury retires to
consider its verdict, stating distinctly that
to which he objects and the grounds of his
objection; provided, that opportunity was
given to the party to make the objection out
of the hearing of the jury, and, on request of
any party, out of the presence of the jury.
Where a defendant neither objects to the trial court's instructions
nor requests instructions on lesser offenses, he is barred by Rule
10(b)(2) of the North Carolina Rules of Appellate Procedure from
assigning as error the trial court's failure to instruct the jury
on lesser-included offenses supported by evidence at trial. State
v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993) (citing
State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)). Collins noted
In Odom, this Court adopted the plain error
rule to allow for review of some assignments
of error normally barred by waiver rules such
as Rule 10(b)(2). . . . [T]o reach the level
of plain error contemplated in Odom, the
error in the trial court's jury instructions
must be so fundamental as to amount to a
miscarriage of justice or which probably
resulted in the jury reaching a different
verdict than it otherwise would have reached.
Collins, 334 N.C. at 62, 431 S.E.2d 193 (quoting Odom, 307 N.C. at
659-60, 300 S.E.2d at 378; and State v. Bagley, 321 N.C. 201, 213,
362 S.E.2d 244, 251 (1987)). Accordingly, we review this
assignment of error under the plain error analysis.
A trial court is required to give instructions on a
lesser-included offense . . . when there is evidence to support a
verdict finding the defendant guilty of the lesser offense. State
v. Singletary, 344 N.C. 95, 103, 472 S.E.2d 895, 900 (1996)
(citations omitted). Defendant argues that he was entitled to an
instruction on the offense of assault on a female, on the grounds
that it is a lesser included offense of assault by strangulation.
Accordingly, we consider whether assault on a female is a lesser
included offense of assault by strangulation.
In State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378
(1982), overruled in part on other grounds by Collins, 334 N.C. at
61, 431 S.E.2d at 193, the North Carolina Supreme Court held that:
[T]he definitions accorded the crimes
determine whether one offense is a lesser
included offense of another crime. In other
words, all of the essential elements of the
lesser crime must also be essential elements
included in the greater crime. If the lesser
crime has an essential element which is not
completely covered by the greater crime, it is
not a lesser included offense. The
determination is made on a definitional, not a
Under N.C. Gen. Stat. § 14-33(c)(2) (2005), the essential elements
of assault on a female are (1) assault (2) upon a female person (3)
by a male person at least 18 years of age. In contrast, the
offense of assault by strangulation requires only that anindividual assault another person and inflict physical injury by
strangulation. See N.C. Gen. Stat. § 14-32.4(b) (2005). State v.
Braxton, 183 N.C. App. 36, 41, 643 S.E.2d 637, 641 (2007). Because
each offense includes at least one element not present in the
other, assault on a female is not a lesser included offense of
assault by strangulation. This assignment of error is overruled.
 Finally, Defendant argues that the trial court committed
reversible error by engaging in improper and disrespectful conduct
towards Defendant's trial counsel in violation of Defendant's
statutory and Constitutional rights. Defendant cites several
occasions when the trial court ruled on an evidentiary issue,
commented on a procedural matter, or urged the prosecutor and
defense counsel to proceed efficiently with the trial of the case.
Defendant characterizes the court's remarks as showing hostility
and ridicule towards defense counsel and thereby prejudicing
Defendant's right to a fair trial. We disagree.
Under N.C. Gen. Stat. § 15A-1222 (2005), the trial court may
not express during any stage of the trial, any opinion in the
presence of the jury on any question of fact to be decided by the
jury. Further, every criminal defendant is entitled to a trial
'before an impartial judge and an unprejudiced jury in an
atmosphere of judicial calm.' State v. McLean
, 181 N.C. App. 469,
640 S.E.2d 770, 773 (2007) (quoting State v. Staley
, 292 N.C. 160,
161, 232 S.E.2d 680, 681 (1977) (internal quotation marks omitted).
'Thus repeated indications of impatience and displeasure of suchnature to indicate that the judge thinks little of counsel's
intelligence and what he is doing are most damaging to a fair
presentation of the defense.' Staley
, 292 N.C. at 163, 232 S.E.2d
at 683 (quoting United States v. Ah Kee Eng
, 241 F.2d 157, 161 (2nd
Cir. 1957)). 'Even if it cannot be said that a remark or comment
is prejudicial in itself, an examination of the record may indicate
a general tone or trend of hostility or ridicule which has a
cumulative effect of prejudice.' State v. Theer
, 181 N.C. App.
349, 371, 639 S.E.2d 655, 669 (2007) (quoting Staley
, 292 N.C. at
165, 232 S.E.2d at 684).
However, G.S. § 15A-1222 does not apply to comments made
outside of the jury's presence. See, e.g., State v. Bright
N.C. 243, 253, 271 S.E.2d 368, 375 (1980) (noting long line of
cases holding that G.S. [§] 15A-1222 is not intended to apply when
the jury is not present during the questioning). Further,
'unless it is apparent that such infraction of the rules might
reasonably have had a prejudicial effect on the result of the
trial, the error will be considered harmless.' This burden to show
prejudice 'rests upon the defendant to show that the remarks of the
trial judge deprived him of a fair trial.' Theer,
__ N.C. App. at
__, 639 S.E.2d at 670 (quoting State v. Perry
, 231 N.C. 467, 471,
57 S.E.2d 774, 777 (1950); and State v. Waters
, 87 N.C. App. 502,
504, 361 S.E.2d 416, 417 (1987)). In this regard, a trial court
generally is not impermissibly expressing an opinion when it makes
ordinary rulings during the course of the trial. State v. Weeks
322 N.C. 152, 158, 367 S.E.2d 895, 899 (1988) (citations omitted). Here, after careful examination of the record before us, we
conclude that the statements made by the trial court were not
prejudicial. The record does not reveal a cumulative effect of
prejudice resulting from any general tone or trend of hostility or
ridicule. This assignment of error is overruled.
For the reasons discussed above, we conclude that the
Defendant had a fair trial, free of reversible error.
Judges CALABRIA and STEPHENS concur.
*** Converted from WordPerfect ***