An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-989
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 March 2014


STATE OF NORTH CAROLINA


      v.                                      Cleveland County
                                              Nos. 11 CRS 50468, 50471, 50473
JACKIE CARROLL



      Appeal by defendant from judgments entered 20 February 2013

by Judge Linwood O. Foust in Cleveland County Superior Court.

Heard in the Court of Appeals 5 February 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Heather H. Freeman, for the State.

      Gilda C. Rodriguez for defendant-appellant.


      BRYANT, Judge.


      Where there was no conflict in the facts regarding the

injuries suffered by the victim, the trial court did not err in

denying defendant’s request for an instruction on assault with a

deadly weapon as a lesser-included offense of assault with a

deadly weapon with intent to kill inflicting serious injury.

Because there was sufficient evidence to support an instruction
                                             -2-
on    the   doctrine    of      acting      in   concert    as    to     robbery       with    a

dangerous weapon, we find no error in the trial court’s jury

instruction as to that charge.

       On 11 April 2011, a Cleveland County Grand Jury indicted

defendant Jackie Carroll on charges of assault with a deadly

weapon with intent to kill inflicting serious injury, robbery

with a dangerous weapon, and possession of a firearm by a felon.

The    matter    came      on   for    trial      before   a     jury    during        the    18

February     2013    Criminal         Session      of   Cleveland       County       Superior

Court,      in   Shelby,        the    Honorable        Linwood     O.        Foust,    Judge

presiding.

       The evidence presented at trial tended to show that on the

evening of 2 February 2011, Michael Black, the victim, received

a phone call from defendant’s daughter, Tangie.                           Tangie and her

boyfriend, Steven, were looking for a ride.                            After picking up

Tangie and Steven, Tangie told Black that she wanted him to pick

up her mother, defendant.                After picking up defendant, someone

proposed heading to the Royal Motel.                       Black testified that he

had   recently      been    paid      and   had    over    $400.00       on    his     person.

Black paid for the motel room.                   In the room, everyone but Steven

was drinking beer, and defendant and Tangie were doing drugs.

Black testified that while sitting on the bed talking, defendant
                                      -3-
“just like came up and started hitting me in the head with the

gun. . . . [A]nd then Tangie was trying to help her or whatever

the situation was.”       “[T]hey was going in my pockets taking my

money and stuff out.”          Black described how he was continually

hit   on   the   head   and   face,   bleeding,   and    how   things   became

“fuzzy.”      Black then lost consciousness.            When Black regained

consciousness, defendant, Tangie, and Steven had left the motel

room.      His money had been taken from his pockets, and his car

was gone.     Black called 9-1-1.

      Following the close of the State’s evidence, defendant made

motions to dismiss the charges of assault with a deadly weapon

with intent to kill inflicting serious injury and robbery with a

dangerous weapon.       Both motions were denied.        Defendant declined

to present evidence.

      Following the trial court’s instructions, the jury returned

guilty verdicts against defendant for the offenses of assault

with a deadly weapon inflicting serious injury, robbery with a

dangerous weapon, and possession of a firearm by a felon.                  The

trial court entered judgment on the charge of assault with a

deadly weapon inflicting serious injury, sentencing defendant to

a term of 40 to 57 months.            In a separate judgment, the trial

court consolidated for sentencing the convictions for robbery
                                              -4-
with a dangerous weapon and possession of a firearm by a felon

and   sentenced     defendant      to     a    concurrent      term     of    103    to    133

months.     Defendant appeals.

                      _____________________________________

      On    appeal,      defendant       questions        whether     the    trial    court

committed     plain      error     (I)    in        denying    her     request      for     an

instruction on a lesser-included offense and (II) instructing

the jury on acting in concert.

                                                    I

      Defendant first argues that the trial court committed plain

error in denying her request for instruction on the lesser-

included offense of assault with a deadly weapon.                          We disagree.

      Preservation        of     defendant’s            challenge    and     standard       of

review

      Defendant was indicted on the charge of                          assault with a

deadly     weapon   with       intent    to    kill       inflicting    serious      injury

pursuant to N.C. Gen. Stat. ' 14-32(a).                       At the close of all of

the evidence, the trial court met with counsel for the State and

the   defense       in      chambers      to        discuss     the     proposed          jury

instructions.         The      meeting    was       not    recorded.         However,      the

parties returned to open court where the trial court summarized

the in-chambers discussion for the record, as follows:
                                     -5-
         The Court has informed the defendant and the
         State that it intends to give the following
         instructions   from   the   patterned   jury
         instructions . . . 208.10, assault with a
         deadly weapon inflicting serious injury -–
         208.10, assault with a deadly weapon with
         intent to kill inflicting serious injury.
         Alternatively the Court will give the lesser
         included offense of assault with a deadly
         weapon inflicting serious injury. That’s
         208.15.

         . . .

         The Court will now allow the defendant to
         place on record the instructions that she
         requested that the Court has denied.

         [Defense Counsel]: Your Honor, I’ve also
         requested instructions 208.50, assault with
         a   deadly   weapon   and  208.60,  assault
         inflicting serious injury.

    Following the jury instructions, the trial court permitted

counsel for the State and counsel for the defense an opportunity

to object to the instructions given.            As noted in defendant’s

brief to this Court, counsel for the defense did not object.

    Pursuant     to   our    North      Carolina     Rules     of    Appellate

Procedure,   “[a]   party   may   not   make   any   portion    of   the   jury

charge or omission therefrom the basis of an issue presented on

appeal unless the party objects thereto before the jury retires

to consider its verdict . . . out of the presence of the jury.”

N.C. R. App. P. 10(a)(2) (2013); see also State v. Young, 196

N.C. App. 691, 697-98, 675 S.E.2d 704, 708 (2009) (holding that
                                   -6-
where   the   defense   counsel   presented   his   request   for   a   jury

instruction during the charge conference and the trial court

denied the request but noted the objection, the objection was

properly preserved despite a failure to object at the time of

the jury charge); accord Wall v. Stout, 310 N.C. 184, 188-89,

311 S.E.2d 571, 574 (1984) (“It is our conclusion that neither

Rule 10(b)(2) [(now Rule 10(a)(2))] nor Rule 21 [of the General

Rules of Practice for the Superior and District Courts] required

plaintiffs to repeat their objections to the jury instructions

after the charge was given in order to preserve their objections

for appellate review. These rules were obviously designed to

prevent unnecessary new trials caused by errors in instructions

that the court could have corrected if brought to its attention

at the proper time. It is our opinion that this policy is met

when a request to alter an instruction has been submitted and

the trial judge has considered and refused the request. In most

instances, it is obvious that further objection at the close of

the instructions would be unavailing.”).

    As the record reflects, defense counsel made requests of

the trial court to instruct on two additional lesser-included

offenses of assault with a deadly weapon with intent to kill

inflicting serious injury, i.e., assault with a deadly weapon
                                               -7-
and   assault       inflicting         serious       injury.           These     requests          were

denied       and       noted     for     the     record;            therefore,        defendant’s

challenge to the jury instruction is preserved for appellate

review.      See Young, 196 N.C. App. at 697-98, 675 S.E.2d at 708.

       Where       a     defendant        preserves            her     challenge            to     jury

instructions           for    appellate       review,         we     review     the     challenged

instructions de novo.              See State v. Osorio, 196 N.C. App. 458,

466, 675 S.E.2d 144, 149 (2009).

                                            Analysis

       The    trial      court     instructed         the       jury       on   the   offense        of

assault with a deadly weapon with intent to kill inflicting

serious      injury      and     assault       with       a    deadly       weapon      inflicting

serious injury.              The trial court denied defendant’s request for

an    instruction        on     assault       with    a       deadly       weapon     and    assault

inflicting         serious      injury.        Following            deliberation,           the    jury

found       defendant         guilty     of     assault             with    a    deadly          weapon

inflicting serious injury.

       On    appeal,         defendant      contends          the    trial      court    committed

plain    error      in       failing   to     instruct         the     jury     on    the    lesser-

included offense of assault with a deadly weapon.                                       Defendant

argues there was conflicting evidence as to the “serious injury”
                                        -8-
element of the charge “assault with a deadly weapon inflicting

serious injury,” for which she was convicted.

                  The serious injury element of N.C. Gen.
             Stat. § 14–32 [(Felonious assault with
             deadly weapon with intent to kill or
             inflicting   serious   injury;   punishments)]
             means a physical or bodily injury. The
             courts of this State have declined to define
             serious injury for purposes of assault
             prosecutions other than stating that the
             term   means   physical   or   bodily   injury
             resulting from an assault, and that further
             definition seems neither wise nor desirable.

State v. Walker, 204 N.C. App. 431, 446-47, 694 S.E.2d 484, 494-

95 (2010) (citations omitted).                “It is well-established that

whether serious injury has been inflicted must be determined

according to the particular facts of each case and is a question

the   jury   must      answer   under   proper    instruction.”      State      v.

Wallace, 197 N.C. App. 339, 347, 676 S.E.2d 922, 928 (2009)

(citation        and   quotations     omitted).      “Relevant     factors     in

determining whether serious injury has been inflicted include,

but are not limited to: (1) pain and suffering; (2) loss of

blood;     (3)    hospitalization;      and    (4)   time   lost   from    work.

Evidence     that      the   victim   was   hospitalized,   however,      is   not

necessary for proof of serious injury.”                State v. Morgan, 164

N.C. App. 298, 303, 595 S.E.2d 804, 809 (2004) (citing State v.

Joyner, 295 N.C. 55, 65, 243 S.E.2d 367, 374 (1978)).
                                          -9-
       At     trial,    the   State    presented      the    following       evidence

regarding the extent of Black’s injuries.                         During the early

morning hours of 3 February 2011, Officer Michael Howard of the

City of Kings Mountain Police Department was dispatched to the

Royal Motel in response to a report of an assault and robbery.

When     he    first    encountered         Michael   Black,       Officer        Howard

described him as “[b]loody.”

               He was complaining of head injury and neck
               injury, that he was hurting. When I had
               first arrived on the scene and began
               speaking to him, he had stated that he
               believed he had went unconscious during the
               assault.

       Emergency       Medical    Service       responder     Casey       Woods     also

reported to the scene.

               Q. What wounds, if any, were you able to
               determine he had?

               A.   According   to  my   detailed physical
               findings his face had some soft tissue
               swelling/bruising.     He    had   bleeding
               controlled laceration to the head. Neck, he
               complained of neck pain without swelling or
               bruising noted. . . . His head had some
               bleeding around his nose.

       Black    was    transported     to    the   Cleveland      Regional    Medical

Center      Emergency    Room    for   further     evaluation       and    treatment.

Using hospital records, the treating nurse gave the following

testimony       regarding       Black’s     condition       and    treatment        upon
                                     -10-
admission to the hospital:

            [Black] had a hematoma which [sic] bruising
            to his forehead and lacerations to the left
            and right side of his -– the back of his
            head.

            . . .

            Q. Does the hospital record indicate what
            kind of treatment Mr. Black underwent as a
            result of having those injures?

            A. Yes. EMS notes his lacerations which are
            the cuts on the back of his head were
            cleansed. We took him to CT for his
            lacerations on his head to make sure he
            didn’t have bleeding inside of his head. . .
            . Looks like the physician stapled the
            laceration in his head on both sides.

            . . .

            Q. Would those kind of injuries have
            required him to receive some sort of follow
            up care?

            . . .

            A. He would need to follow up for a recheck
            and have the staples removed.

       The evidence of the seriousness of Michael Black’s wounds

is not conflicting.      The victim was beaten about the head with a

gun,     causing    bleeding   and   lacerations   requiring   emergency

medical treatment which resulted in staples to his head on both

sides.     Based on these facts, it was proper for the trial court

to instruct and for the jury to find that the injuries suffered
                                   -11-
by Black’s wounds were serious injuries.           See Wallace, 197 N.C.

App. 339, 676 S.E.2d 922 (holding no error in the trial court’s

denial of defendant’s motion to dismiss the charge of assault

with a deadly    weapon with intent to kill inflicting serious

injury after defendant argued there was no serious injury where

the evidence indicated that defendant and co-defendant bloodied

their 79-year-old victim’s face by beating him with their fists

and tree limbs).   Defendant’s argument is overruled.

                                    II

    Next,    defendant   argues    the    trial   court   committed   plain

error in instructing the jury on the theory of acting in concert

as it applied to the offense of robbery with a firearm.                  We

disagree.

    Defendant acknowledges that she failed to object to the

trial court’s instruction on acting in concert given with the

armed robbery instruction.        As such, defendant requests that we

review this issue for plain error.

            [T]he plain error rule ... is always to be
            applied   cautiously   and   only   in   the
            exceptional case where, after reviewing the
            entire record, it can be said the claimed
            error is a fundamental error, something so
            basic, so prejudicial, so lacking in its
            elements that justice cannot have been done,
            or where [the error] is grave error which
            amounts to a denial of a fundamental right
            of the accused, or the error has resulted in
                                          -12-
            a miscarriage of justice or in the denial to
            appellant of a fair trial or where the error
            is such as to seriously affect the fairness,
            integrity or public reputation of judicial
            proceedings or where it can be fairly said
            the instructional mistake had a probable
            impact on the jury's finding that the
            defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333

(2012) (citation and quotations omitted).

            For error to constitute plain error, a
            defendant    must    demonstrate    that     a
            fundamental error occurred at trial. To show
            that an error was fundamental, a defendant
            must    establish    prejudice—that,     after
            examination of the entire record, the error
            had a probable impact on the jury's finding
            that the defendant was guilty.

Id.   at    518,   723   S.E.2d      at     334    (citations   and    quotations

omitted).

      Codified     under        General    Statutes,       section    14-87,   the

essential    elements      of    armed    robbery,    as    articulated   by   our

Supreme Court, are “(1) the unlawful taking or an attempt to

take personal property from the person or in the presence of

another (2) by use or threatened use of a firearm or other

dangerous weapon (3) whereby the life of a person is endangered

or threatened.”      State v. Hope, 317 N.C. 302, 305, 345 S.E.2d

361, 363 (1986) (citation and quotations omitted); see also N.C.

Gen. Stat. ' 14-87(a) (2013).                    Acting in concert is not an
                                       -13-
element of armed robbery; therefore, adding the theory of acting

in concert to the indictment would amount to surplusage.                          See

State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996)

(“A criminal indictment is sufficient if it expresses the charge

against the defendant in a plain, intelligible, and explicit

manner.   Specifically,      the    indictment     must     allege    all    of   the

essential    elements       of   the    crime      sought     to     be     charged.

Allegations beyond the essential elements of the crime sought to

be charged are irrelevant and may be treated as surplusage.”

(citations and quotations omitted)); see also State v. Sanders,

No. COA06–783, 2007 N.C. App. LEXIS 244, at *8 (6 February 2007)

(“Acting in concert is not an essential element of robbery with

a dangerous weapon and, thus, would have been surplusage if

included in the indictment.” (citation omitted)).

    Here,    the    grand    jury    found    defendant      unlawfully       stole,

took, and carried away $400.00 in United States currency from

the person of Michael Black and that defendant committed this

act having in possession and with the use and threatened use of

a .45 caliber handgun whereby the life of Michael Black was

endangered   or    threatened.         Defendant    does    not    challenge      the

validity of the indictment.

    Following the close of the evidence, the trial court gave
                                 -14-
the   following   instruction   on   armed   robbery   along   with   an

instruction on acting in concert:

          The defendant has been charged with robbery
          with a firearm which is taking and carrying
          away of the personal property of another
          from his person or in his presence without
          his consent by endangering or threatening a
          person’s life with a firearm the taker
          knowing that he was not entitled to take the
          property and intending to deprive another of
          its use permanently.

          . . .

          For a person to be guilty of a crime, it is
          not necessary that she personally do all of
          the acts necessary to constitute the crime.

          If two or more persons join in a common
          purpose to commit robbery with a dangerous
          weapon, each of them, if actively or
          constructively present, is not only guilty
          of that crime if the other person commits
          the crime, but is also guilty of any other
          crimes committed by the other person in
          pursuance of the common purpose to commit
          robbery with a dangerous weapon or a natural
          or probable consequence of thereof.

          If you find from the evidence beyond a
          reasonable doubt that on or about the
          alleged date the defendant either by herself
          or together with Tangie Carroll and Steve
          Clark had in their possession a firearm and
          took and carried property from the person or
          presence   of   that   person  without   his
          voluntary   consent    by   endangering   or
          threatening his life with the use or
          threatened use of a firearm the defendant
          knowing that she was not entitled to take
          the property and intending to deprive that
          person of its use permanently, it would be
                              -15-
         your duty to return a verdict of guilty.

         If you do     not so find or if you have a
         reasonable   doubt as to one or more of these
         things, it    would be your duty to return a
         verdict of   not guilty.

    The evidence presented at trial clearly showed defendant,

armed with a gun, began beating Black in the head and face with

the gun while having her daughter, Tangie, assist in relieving

Black of his money.

         I wasn’t paying [defendant] no attention to
         her being a threat. I was just like talking,
         and then she just like came up and started
         hitting me in the head with the gun.

              . . .

         [Defendant] called for Tangie, and then
         Tangie was trying to help her or whatever
         the situation was.

         . . .

         . . . I don’t really remember when I
         released [defendant’s arm] or all that. The
         only thing I know was they was going in my
         pockets taking my money and stuff out.

         . . .

         Q.   Did you see who it was that was going
         [through your pockets?]

         A.   . . . I know [defendant] went in there.

    This evidence was more than sufficient to support the jury

instruction on acting in concert.    Therefore, we hold the trial
                                    -16-
court   did   not   err   in   giving   this   instruction   to   the   jury.

Defendant’s argument is overruled.

    No error.

    Judges STEPHENS and DILLON concur.

    Report per Rule 30(e).
