              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-848

                                 Filed: 19 May 2020

Guilford County, No. 16 CRS 89906

STATE OF NORTH CAROLINA

             v.

MATTHEW ROBINSON RUSSELL, Defendant.


      Appeal by defendant from judgment entered 25 January 2019 by Judge

Michael D. Duncan in Guilford County Superior Court. Heard in the Court of Appeals

29 April 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Deborah
      Greene, for the State.

      Attorney Jon W. Myers for defendant-appellant.


      BERGER, Judge.


      Matthew Robinson Russell (“Defendant”) appeals his conviction of assault

inflicting serious bodily injury (“AISBI”), alleging the trial court erred when it (1)

denied Defendant’s motion for a jury instruction on consent; and (2) declined to

sanction the State for an alleged discovery violation. We disagree.


                        Factual and Procedural Background
                                  STATE V. RUSSELL

                            Hampson, J., concurring in result.



      In 2016, Defendant and his girlfriend, Jackie Neely (“Neely”), ended their

relationship. Shortly thereafter, Daniel Leonard (“Leonard”) and Neely began a

relationship.

      On November 10, 2016, Leonard and Neely met friends at a local bar in

Greensboro. Defendant was at the bar, and at some point, Defendant asked Leonard

to go outside and talk. During the exchange, Leonard told Defendant to hit him.

Defendant then struck Leonard, breaking his jaw in two places. According to one

witness, the punch was not thrown immediately after Leonard’s statement, but,

rather, it came “kind of out of nowhere.”        As a result of his injuries, Leonard

underwent surgery to repair the damage to his jaw. After Defendant hit Leonard,

Defendant entered the bar and then left in a car.

      Defendant’s case came on for trial on January 24, 2019. A Guilford County

jury found Defendant guilty of AISBI, and he was placed on supervised probation.

Defendant appeals, arguing the trial court erred when it (1) denied Defendant’s

motion for a jury instruction on consent; and (2) declined to sanction the State for an

alleged discovery violation. We disagree.

                                       Analysis

I.    Jury Instruction

      Defendant first argues that the trial court erred when it denied his motion for

 North Carolina Pattern Jury Instruction (“PJI”) 120.20 to be given to the jury when



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                                  STATE V. RUSSELL

                            Hampson, J., concurring in result.



Leonard’s consent to the assault was raised during the course of the trial. Defendant

further argues that absence of consent is a required element of AISBI.

     “A trial judge is required by N.C.G.S. § 15A-1231 and N.C.G.S. § 15A-1232 to

instruct the jury on the law arising from the evidence. This includes instruction on

the elements of the crime.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748

(1989). If a request for a special instruction is made, “which is correct in itself and

supported by evidence, the court must give the instruction at least in substance.”

State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988) (citation and

quotation marks omitted). “Whether a jury instruction correctly explains the law is

a question of law, reviewable by this Court de novo.” State v. Voltz, 255 N.C. App.

149, 156, 804 S.E.2d 760, 765 (2017) (citation and quotation marks omitted).

“Instructions that as a whole present the law fairly and accurately to the jury will

be upheld.” State v. Cagle, ___ N.C. App. ___, ___, 830 S.E.2d 893, 897 (2019)

(citations and quotation marks omitted), cert. denied, 838 S.E.2d 185 (2020).

     “There is no statutory definition of assault in North Carolina, and the crime of

assault is governed by common law rules.” State v. Roberts, 270 N.C. 655, 658, 155

S.E.2d 303, 305 (1967). “An [a]ssault is an intentional attempt, by violence, to do an

injury to the person of another.” State v. Davis, 23 N.C. 98, 99 (1840). “Th[e] common

law rule [of assault] places emphasis on the intent or state of mind of the person

accused.” Roberts, 270 N.C. at 658, 155 S.E.2d at 305.



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                                   STATE V. RUSSELL

                             Hampson, J., concurring in result.



      A defendant may be convicted of AISBI if the State proves beyond a reasonable

doubt that the defendant “assault[ed] another person and inflict[ed] serious injury.”

N.C. Gen. Stat. § 14-32.4(a) (2019). Again, the statute does not define assault, and

we must refer to the common law definition.            It is undisputed that Defendant

intentionally struck Leonard, thereby causing serious bodily injury.        Defendant

argues on appeal, however, that absence of consent is an element of assault, and the

trial court erred when it declined to so instruct the jury.

      As set forth above, our Supreme Court has defined assault as “an intentional

attempt, by violence, to do an injury to the person of another.” Davis, 23 N.C. at 99.

This definition has stood the test of time. In addition, our Supreme Court has

instructed this Court that the focus of our analysis when trying to determine if an

assault occurred should be “on the intent or state of mind of the person accused.”

Roberts, 270 N.C. at 658, 155 S.E.2d at 305. We see nothing in the common law

definition of assault that supports Defendant’s argument concerning consent.

      Furthermore, because “there is no consent on the part of the State, which is

the complaining party in a criminal prosecution and represents the public interest

invaded by the crime itself, the consent of the [victim] is ordinarily no bar to a

criminal prosecution.” Restatement (Second) of Torts § 892C cmt. b (1979). This case

highlights a foundational principle that undergirds our criminal law: an offense

against a person may also constitute an offense against the interest of the community



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                                          STATE V. RUSSELL

                                   Hampson, J., concurring in result.



at large. Defendant concedes in his brief that “the vast majority of jurisdictions hold

that harmful actions, even if consented to, violate public policy[.]”

        In the case of violent crimes, the State’s interest is implicated by a defendant’s

conduct in breaching the peace. It is for this reason that a victim’s consent to a violent

criminal offense cannot absolve a defendant of criminal liability. While a victim may

release a defendant from civil liability, a victim cannot consent to the commission of

a criminal offense and thereby bind the hands of the State. See State v. Bass, 255

N.C. 42, 45, 120 S.E.2d 580, 582 (1961) (parties could not consent to the crime of

mayhem because the conduct was “an atrocious breach of the king’s peace” at common

law); State v. Fritz, ___ N.C. ___, ___, 45 S.E. 957, 958 (1903) (dueling was “an

aggravated form of affray, and under such indictment the parties [could] be convicted

of a mutual fighting by consent.”); State v. Allen & Royster, ___ N.C. ___, ___, 4 Hawks

356, ___ (1826) (holding that individuals may be convicted of assault, even if

consented to, when occurring “in a public place, to the terror of the citizens.”).1



        1 The State cites authority from across the country on this point: State v. Mackrill, 345 Mont.
469, 476, 191 P.3d 451, 457 (2008) (“[I]t is against public policy to permit a person purposely or
knowingly to cause serious bodily injury to another, even though that conduct and resulting harm
were consented to.”); State v. Fransua, 85 N.M. 173, 174, 510 P.2d 106, 107 (N.M. App. 1973) (“[A]
state enacts criminal statutes making certain violent acts crimes for at least two reasons: One reason
is to protect the persons of its citizens; the second, however, is to prevent a breach of the public peace.
While we entertain little sympathy for either the victim’s absurd actions or the defendant’s equally
unjustified act of pulling the trigger, we will not permit the defense of consent to be raised in such
cases. Whether or not the victims of crimes have so little regard for their own safety as to request
injury, the public has a stronger and overriding interest in preventing and prohibiting acts such as
these.” (citation omitted)); State v. Brown, 143 N.J. Super. 571, 572, 364 A.2d 27, 28 (N.J. Super. Ct.
Law Div. 1976) (“[W]hile the consent of the victim may relieve defendant of liability in tort, this same



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                                         STATE V. RUSSELL

                                   Hampson, J., concurring in result.



        Because absence of consent is not an element of assault, and thus not an

element of AISBI, the trial court did not err when it declined to instruct the jury on

consent.2

II.     Discovery

        Defendant next contends that the trial court erred when it declined to sanction

the State for failure to provide defense counsel with the fee statement of an expert

witness. Defendant contends that not having this information prevented him from

cross-examining the expert. We disagree.

        N.C. Gen. Stat. Section 15A-903 provides that upon request, the State must

provide “notice to the defendant of any expert witnesses that the State reasonably

expects to call as a witness at trial.”3                N.C. Gen. Stat. § 15A-903(a)(2) (2019).

Defendant requested information regarding “[a]ny and all consideration or promises



consent has been held irrelevant in a criminal prosecution, where there is more at stake than a victims
rights.”), aff’d per curiam, 154 N.J. Super. 511, 381 A.2d 1231 (N.J. Super. Ct. App. Div. (1977).
         2 Our concurring colleague contends that there was insufficient evidence from which the jury

could infer that the victim consented at all. It is true that based on all the testimonies from the victim
and the witnesses, there is a strong inference that the victim was not actually inviting Defendant to
hit him, but rather was trying to de-escalate the situation. However, because there was some evidence
from which the jury could infer consent, the trial court had to consider the issue of Defendant’s
requested instruction. It is not for us, or the trial judge, to assign weight and credibility to each
witness’s testimonies. That function belongs to the jury alone.
         3 Defendant’s counsel failed to instruct this Court on how Defendant’s rights under Section

15A-903 were violated beyond a mere cursory discussion of the statute. Defendant’s counsel did not
cite or discuss the statute providing the right Defendant alleges was violated beyond the section
heading of the assignment of error. Further, Defendant’s counsel cites authority that (1) does not
support Defendant’s position and (2) does not stand for the proposition for which it is cited.
Defendant’s counsel is reminded that compliance with the Appellate Rules is a minimum standard for
a case to be reviewed by this Court, and “[i]t is not the duty of this Court to supplement an appellant’s
brief with legal authority or arguments not contained therein.” Goodson v. P.H. Glatfelter Co., 171
N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005); N.C. R. App. P. 28 (2019).

                                                    6
                                   STATE V. RUSSELL

                             Hampson, J., concurring in result.



of consideration given to or made on behalf of government witnesses” including

“witness fees” in a motion in limine on January 18, 2019. The State failed to disclose

information related to the expert’s witness fee prior to trial as requested by Defendant

and disclosed this failure to the court at the sentencing portion of the trial. The trial

court determined that the State’s failure to disclose was an “honest mistake.”

      It is unclear from the record that the trial court found that a discovery violation

had occurred. Even if we assume the trial court’s statement that the failure to

disclose was an “honest mistake” was a finding of a discovery violation, we find no

prejudice to Defendant and no error.

      Where “the prosecutor’s actions constitute[] a discovery violation, the trial

judge still retain[s] broad discretion to determine if sanctions [are] appropriate.”

State v. Nolen, 144 N.C. App. 172, 184, 550 S.E.2d 783, 790 (2001). The trial court’s

decision to impose, or not impose, sanctions for abuse of discovery orders “will not be

reversed absent a showing of abuse of that discretion.” State v. Aguilar-Ocampo, 219

N.C. App. 417, 422, 724 S.E.2d 117, 121-122 (2012) (citation and quotation marks

omitted).   “Abuse of discretion results where the court’s ruling is manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision.” State v. Foster, 235 N.C. App. 365, 377, 761 S.E.2d 208, 217 (2014)

(citations and quotation marks omitted). In addition, the trial court is not required

“to make specific findings on the record that it considered sanctions before



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                                   STATE V. RUSSELL

                             Hampson, J., concurring in result.



determining not to impose sanctions.” State v. Jones, 151 N.C. App. 317, 325, 566

S.E.2d 112, 117 (2002).

       Here, the expert’s testimony was corroborative testimony. It served only to

provide the jury with a clearer picture of the injuries sustained by Leonard, the

surgery required as a result of those injuries, and pain levels Leonard endured.

Defendant has not demonstrated that there was a reasonable probability of a

different result had he been allowed to question the expert about his $875.00 witness

fee.

       In addition, N.C. Gen. Stat. Section 15A-910 requires that prior to imposing

sanctions the trial court “shall consider both the materiality of the subject matter and

the totality of the circumstances surrounding an alleged failure to comply with this

Article or an order issued pursuant to this Article.” N.C. Gen. Stat. § 15A-910(b)

(2019). Here, the trial court determined that no sanctions were appropriate, and,

thus, was not required to “make specific findings on the record that it considered

sanctions.” Jones, 151 N.C. App. at 325, 566 S.E.2d at 117.

       The trial court’s determination that no sanctions were appropriate was based

upon the fact that the prosecutor’s error was an “honest mistake.” There is nothing

in the record from which we could determine this decision was so arbitrary that it

could not have been the result of a reasoned decision. Thus, the trial court did not

err when it declined to sanction the State.



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                            STATE V. RUSSELL

                      Hampson, J., concurring in result.



                                    Conclusion

For the foregoing reasons, Defendant received a fair trial, free from error.

NO ERROR.

Judge DILLON concurs.

Judge HAMPSON concurs in separate opinion.




                                      9
 No. COA19-848 – State v. Russell


        HAMPSON, Judge, concurring in result.


        I concur in the result reached by the majority. My analysis, however, differs

on the question of whether the trial court erred in failing to provide a specific

instruction to the jury on the victim’s alleged consent to the assault inflicting serious

bodily injury.

        I conclude, like the majority, the trial court did not err in declining to give the

instruction requested by Defendant. In my analysis, though, I would simply hold the

evidence did not support submission of the instruction relating to the victim’s consent

to the jury. See State v. Brown, 182 N.C. App. 115, 117, 646 S.E.2d 775, 777 (2007)

(“A trial court must give a requested instruction if it is a correct statement of the law

and supported by the evidence.” (emphasis added) (citation omitted)). The victim here

certainly did not consent to the assault by Defendant inflicting serious bodily injury.

Indeed, it is arguable whether the evidence could support a finding the victim actually

consented to any assault whatsoever.4




         4 The majority takes issue with this assertion.         However, contrary to the majority’s
characterization, this does not mean I think there is “insufficient evidence” to go to the jury as to
consent to any assault. Rather, I mean what I say: the evidence is arguable as to consent to any
assault—or to put it in the parlance of the majority: “there is a strong inference that the victim was
not actually inviting Defendant to hit him.” The real gist of the majority’s critique is that my analysis
somehow invades the province of the jury to weigh the evidence of consent. Not so. It is a judicial
function to determine whether the evidence supports submission of a particular instruction to the jury.
Here, on the facts of this case, the evidence does not support a finding the victim consented to assault
inflicting serious bodily injury supporting Defendant’s requested instruction. In any event, under the
                                        STATE V. RUSSELL

                                  Hampson, J., concurring in result.



       The evidence reflects: Defendant and the victim were acquaintances.

Defendant discovered the victim at a bar with Defendant’s ex-girlfriend and others.

Defendant became angry, and he and the victim stepped out of the bar “to talk.”

Defendant was visibly agitated. The victim testified: “We had a conversation. We

walked out. I started the conversation. I told him I was sorry for what I did. I know

you’re mad. If you want to hit me, hit me, but this is not the way we need to solve

this issue. We’re both adults.” The victim further testified the argument continued

and Defendant subsequently blindsided the victim with a punch that broke the

victim’s jaw in two places.

       Two eyewitnesses testified to hearing the victim invite Defendant to “hit me.”

However, the first eyewitness testified: “[Defendant] was angry, yelling about a

situation . . . [the victim] was trying to talk it out. . . . I believe he did say let’s talk

about it, and even after he did get hit, he did still try to talk about it. But he never

showed any aggression in return.” The second eyewitness testified the victim “said

hit me at least twice, and then the arguing continued.” The second eyewitness

confirmed: “[the victim] said it multiple times, and there was arguing in between. So

it wasn’t immediate.” According to this second eyewitness, when the punch occurred,

“[i]t was kind of out of nowhere.” The second eyewitness recalled her impression: “I



majority opinion, consent may never be a jury issue in a criminal assault case—a far less narrow result
with potentially far-reaching ramifications well beyond a bar fight.
       .


                                                 -2-
                                   STATE V. RUSSELL

                             Hampson, J., concurring in result.



mean I wasn’t in fear of either. I didn’t think that they would actually get into an

altercation.” Thus, put in context, the evidence reflects the victim was not inviting

an assault but attempting to deescalate the situation by trying to convince Defendant

to talk through the disagreement.

      Therefore, because the evidence did not, in fact, reflect the victim’s consent to

being sucker punched by Defendant resulting in serious bodily injury, the trial court

did not err in declining to provide the instruction requested by Defendant. See id.

(citation omitted). Consequently, I agree there was no error in Defendant’s trial.

Accordingly, I concur in the result.




                                           -3-
