Defendant appeals his convictions of three counts of assault with a deadly weapon inflicting serious injury and one count of attempted robbery with a dangerous weapon. We find defendant had a fair trial free of prejudicial error.
On 13 September 1995, defendant was arrested on warrants charging him with: (1) three counts of assault with a deadly weapon inflicting serious injury for the shooting of Leroy King (95 CrS 34726), Brian Lamont Garris (95 CrS 34727), and Douglas Walter Legrand (95 CrS 34728); and (2) robbery with a dangerous weapon of Miles Bowman (95 CrS 34729). On 12 February 1996, the cases were tried with a jury at a criminal session of Forsyth County Superior Court, Judge Russell G. Walker, Jr. presiding. The jury returned verdicts of guilty on the three counts of assault with a deadly weapon inflicting serious injury and guilty on one count of attempted robbery with a dangerous weapon. On 15 February 1996, Judge Walker entered judgments and commitments on these verdicts. Defendant appeals.
At trial, the State presented evidence of the following events. On the evening of 7 September 1995, defendant, Jermaine Shore, and Larry Cason went to Miles Bowman's room at the Travel Host Motel in Winston-Salem to get change for a $100 bill. Bowman sent Brian Garris to his room to get the change. When Garris returned, Shore handed defendant a .38 caliber revolver. Defendant pointed the gun at Bowman demanding the $100 bill and the change. Bowman relinquished all the money. During this exchange, defendant shot Garris as Garris attempted to flee. Defendant also fired at Bowman but missed. Bowman testified that defendant then began shooting wildly in the parking lot of the motel hitting Douglas Legrand and Leroy King.
When an officer arrived at the scene, he found Legrand sitting on a chair with a bullet wound to his thigh and found King with a bullet wound to his neck and upper shoulder. As emergency personnel arrived, the officer learned that Garris had also been shot. At the hospital, the officer observed Garris had a bullet wound to his right arm. All three victims were treated at the hospital for their injuries.
Defendant presented evidence of the following variation of the above events. He testified he went with Shore and Cason to Bowman's room to get change but when they arrived, Shore and Cason began arguing with Bowman, demanding he return money they had given him for bad drugs. Defendant testified he walked away when he saw Shore pull out a gun and that he then heard a shot and saw Bowman running. He heard two other shots but they sounded like they came from a different gun. Defendant testified he ran towards Cason's car and he left with Shore and Cason in Cason's car.
Sandra Dashiell, an occupant of the motel, testified she heard Cason, in the presence of Woods, Shore and Legrand, plan to "hit up" Bowman. After retreating to her room, she heard a single shot. She opened her door and saw Bowman running to the front office yelling for someone to call the police and yelling "They're trying to kill me." Dashiell then heard two other shots and saw Woods, Shore, and Cason running to a white car.
Legrand testified he heard Cason and Shore stating, in his and defendant's presence, that they were going to "stick up" Bowman. Shortly thereafter, as he was knocking on Leroy King's door, Legrand heard a gunshot and saw Bowman running through the parking lot. He heard a second shot and then a third shot struck him in the back of his leg. He saw Leroy King holding his side, unable to stand up. Legrand was taken to a hospital where he was treated for his injury.
Defendant first contends errors in the trial court's acting in concert instructions entitle him to a new trial. We disagree.
Defendant relies on State v. Straing, 342 N.C. 623, 466 S.E.2d 278 (1996) and State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994) to support his contention that the acting in concert instructions given were prejudicial error. We first note our Supreme
Here, the crimes were committed on 7 February 1995 and defendant was sentenced on 15 February 1996. Thus, unlike the situation in Barnes, the law in existence when the crimes were committed and when defendant was sentenced was the law as applied in Blankenship. This scenario raises the issue of whether application of Barnes to this case would violate the constitutional prohibition on application of ex post facto laws.
However, we need not decide whether Barnes applies in this appeal because the acting in concert instructions given by the trial court comport with the law set forth in Blankenship and its progeny. Blankenship found error in acting in concert jury instructions which permitted conviction of a defendant for a specific intent crime, premeditated and deliberated murder, without a jury finding that he had specific intent to kill. Blankenship, 337 N.C. at 557, 562, 447 S.E.2d at 735-36, 739. The Court stated:
Blankenship, 337 N.C. at 558, 447 S.E.2d at 736 (internal citations omitted).
We first note that Blankenship and Straing dealt with specific intent crimes. See Blankenship, 337 N.C. at 557, 447 S.E.2d at 736; Straing, 342 N.C. at 627, 466 S.E.2d at 280. Blankenship does not apply to general intent crimes. Evans, 346 N.C. at 227, 485 S.E.2d at 275 (citing State v. McCoy, 122 N.C. App. 482, 485, 470 S.E.2d 542, 544, disc. review denied, 343 N.C. 755, 473 S.E.2d 622 (1996)). Here, attempted robbery with a dangerous weapon, one of the offenses for which defendant was convicted, is a specific intent crime. State v. Irwin, 304 N.C. 93, 99-100, 282 S.E.2d 439, 444 (1981). However, assault with a deadly weapon inflicting serious injury under N.C.Gen.Stat. § 14-32(b)(1993), the other offense for which defendant was convicted, is not a specific intent crime. State v. Curie, 19 N.C. App. 17, 20, 198 S.E.2d 28, 30 (1973)(holding intent not an element of this offense).
Since only the attempted armed robbery with a dangerous weapon conviction invokes the Blankenship and Straing specific intent instruction requirements, we address defendant's argument as to this offense only. On this offense, the trial court charged, in pertinent part, as follows:
In addition, the trial court repeatedly gave an instruction on the doctrine of acting in concert when explaining the several offenses for which defendant was convicted. This instruction, repeated in substantially the same form in relation to each crime, was as follows:
In response to a jury question, the trial judge restated the acting in concert instruction for the attempted robbery with a dangerous weapon charge as follows:
We first note the trial court's general instructions on the doctrine of acting in concert differ significantly from the general acting in concert instructions given in both Straing and Blankenship. The instructions given here make it clear defendant could be found guilty of attempted robbery with a dangerous weapon only if that crime was "part of the common plan." See Blankenship, 337 N.C. at 558, 447 S.E.2d at 736. The instructions given comport with the statement in Blankenship that "specific intent may be proved by evidence tending to show that the specific intent was a part of the common plan." See id.
The instructions held erroneous in Straing and Blankenship shared a common flaw, i.e., both sets of instructions permitted conviction of a defendant for a specific intent crime without a jury finding that the defendant had the specific intent for the particular specific intent crime charged. See Straing, 342 N.C. at 627, 466 S.E.2d at 281; Blankenship, 337 N.C. at 557, 447 S.E.2d at 735-36. This flaw is not present in the instructions given here because the instructions focus on the charged crime making it clear the jury had to find the defendant had the specific intent to commit the crime. The focus in the general acting in concert instructions given on "common purpose to commit a crime" and use of the phrases "that crime" and "the crime" make it clear defendant had to have the specific intent to commit attempted robbery with a dangerous weapon. (Emphasis added). The trial judge clarified this issue further when, in response to a jury question, he restated the acting in concert instructions for attempted armed robbery with a dangerous weapon giving emphasis to acting "with a common purpose to commit the particular crime." (Emphasis added). We find no error in the instructions challenged by defendant in regard to his conviction for attempted robbery with a dangerous weapon. Since the
Defendant next contends the trial court committed prejudicial error by admitting into evidence hospital records of victims King and Garris. Specifically, he asserts the State was required to present these records through the in-court testimony of a medical expert witness to establish admissibility under N.C.R.Evid. 803(6), the business records exception to the hearsay rule.
We first note that, in his brief, defendant does not argue admission of these records violated his constitutional right to confront witnesses. Rather, he focuses on the confrontation concerns underlying the rule against admission of hearsay. As our Supreme Court has stated: "[t]he general rule against the admissibility of hearsay evidence reflects the same conviction [as the constitutional protection]: that face-to-face confrontation enhances the truth-seeking process." State v. Deanes, 323 N.C. 508, 524-25, 374 S.E.2d 249, 260 (1988), cert. denied, 490 U.S. 1101, 109 S.Ct. 2455, 104 L.Ed.2d 1009 (1989). With this in mind, we have examined the hearsay concerns expressed by defendant and find no error.
The State offered the challenged medical records by presenting written affidavits/certifications from the custodian of the records. In his brief, defendant does not contend the custodian should have been present to testify at trial. In addition, at trial, he did not object to the fact that the custodian was not present to testify in person. In fact, his attorney stated: "I'm not asking they produce the librarian." Thus, we need not address whether the affidavits/certifications were sufficient under N.C.R.Evid. 803(6), in lieu of the custodian's in-court testimony, because defendant has not argued this issue on appeal and did not preserve it by objection at trial. See N.C.R.App.P. 28(a) (1997); N.C.R.App.P. 10(b)(1)(1997).
What defendant does contend is that the State was required to introduce these records through the medical experts who evaluated King and Garris. Defendant's contention is an attempt to obtain what N.C.R.Evid. 803(6), upon proper foundation, expressly refuses to require—the in-court testimony of the persons who made the business records (the hearsay declarants), being the medical personnel who examined King and Garris. However, under Rule 803(6), once the proper foundation for admission is established "by the testimony of the custodian or other qualified witness," the record is admissible regardless of the fact that it is hearsay. N.C.R.Evid. 803(6) explicitly permits use of a record custodian's testimony to establish a foundation for admission of the records; it does not require that this foundation be established by a "medical expert" as sought by defendant. These medical records were properly admitted under N.C.R.Evid. 803(6).
Defendant next contends the trial court committed prejudicial error by permitting the jury to take State's Exhibit Number One, King's medical records, to the jury room without his consent.
N.C.Gen.Stat. § 15A-1233(b)(1988) provides, in pertinent part: "Upon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence." It is error for a trial court to allow a jury to take exhibits to the jury room without the consent of all parties. See State v. Cannon, 341 N.C. 79, 83, 459 S.E.2d 238, 241 (1995).
However, the record discloses defendant did not object to the exhibit being taken to the jury room, and in fact, consented to the jury's request. In pertinent part, the transcript reads as follows:
At the time the jury actually requested King's medical records, the transcript reads as follows, in pertinent part:
Although defendant lodged an objection, this objection was made to preserve his objection to the admissibility of the exhibit. He did not object to the court's decision to permit the jury to take the exhibit into the jury room. This is evidenced by defendant's attorney's statement that he would not inconvenience the jury and make them sit in the courtroom to review the exhibit. In light of defendant's consent, the court did not err by permitting the jury to take King's medical records to the jury room.
Defendant's final contention is that the trial court erred by denying his motion to dismiss for insufficient evidence the three counts of assault with a deadly weapon inflicting serious injury. We disagree.
"On a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382 (1988). If substantial evidence has been presented that the defendant committed the charged offense, the motion to dismiss should be denied. Id. at 358, 368 S.E.2d at 383. "` "Substantial evidence" is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" State v. Corbett and State v. Rhone, 307 N.C. 169, 182-83, 297 S.E.2d 553, 562 (1982) (quoting State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981)).
Defendant was convicted of three counts of assault with a deadly weapon inflicting serious injury under G.S. § 14-32(b). "The elements of a charge under G.S. § 14-32(b) are (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death." State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990).
Although defendant offers some minimal argument regarding the sufficiency of the evidence on all elements of this offense, his primary contention is that there was insufficient evidence of the "inflicting serious injury" element as to all three victims.
Whether serious injury has been inflicted turns on the facts of each case and is generally a determination for the jury. State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991). Pertinent factors for jury consideration include hospitalization, pain, blood loss, and time lost at work. Id. Evidence of hospitalization, however, is not necessary for proof of serious injury. Id.
Here, the State presented evidence that all three victims—Legrand, King, and Garris— suffered bullet wounds which required hospital treatment. This evidence showed Garris suffered a wound resulting from a bullet entering and then exiting his right arm. There was evidence that King was taken from the scene in an ambulance, that he suffered a bullet wound to his neck and
As to the remaining elements of this offense, after examining the record, we find the evidence sufficient to support a jury verdict of guilty on all three counts.
GREENE and WALKER, JJ., concur.