                              NO. COA13-1342

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 6 May 2014


STATE OF NORTH CAROLINA

    v.                                     Forsyth County
                                           Nos. 12 CRS 52033-34, 52036
JERRY DENARD POSEY, II



    Appeal by Defendant from judgments entered 30 May 2013 by

Judge William Z. Wood in Superior Court, Forsyth County.                 Heard

in the Court of Appeals 7 April 2014.


    Attorney General Roy Cooper, by Special                 Deputy    Attorney
    General Marc Bernstein, for the State.

    Sharon L. Smith for Defendant.


    McGEE, Judge.



    Jerry Denard Posey, II (“Defendant”) was indicted on 10

December   2012   for   first-degree      murder   of    Terrance    Murchison

(“Mr.   Murchison”),    possession   of    a   firearm    by   a    felon,   and

carrying a concealed gun.        A jury found Defendant guilty of

second-degree murder, possession of a firearm by a felon, and

carrying a concealed gun.      The facts relevant to the issues on

appeal are discussed in the analysis section of this opinion.

Defendant appeals.
                                           -2-
                                I. Physical Restraints

       Defendant        first     argues     the      trial       court     abused     its

discretion in requiring Defendant to wear restraints at trial.

We disagree.

                                A. Standard of Review

       “We review the trial court’s decision of whether to place

[d]efendant       in    physical       restraints     for    abuse    of    discretion.”

State v. Stanley, 213 N.C. App. 545, 548, 713 S.E.2d 196, 199

(2011).       “A       review    for     abuse   of     discretion         requires    the

reviewing court to determine whether the decision of the trial

court is manifestly unsupported by reason, or so arbitrary that

it cannot be the result of a reasoned decision.”                      Id.

                                       B. Analysis

       A defendant may be “physically restrained during his trial

when    restraint       is     necessary    to   maintain         order,    prevent    the

defendant’s escape, or protect the public.”                       State v. Wright, 82

N.C.   App.   450,      451,     346    S.E.2d   510,       511   (1986).      “What    is

forbidden——by the due process and fair trial guarantees of the

Fourteenth Amendment to the United States Constitution and Art.

I,    Sec.   19    of    the    North     Carolina     Constitution——is         physical

restraint that improperly deprives a defendant of a fair trial.”

Id.     In deciding whether restraints are appropriate, a trial
                                         -3-
court    may     consider,       among      other      things,    the      following

circumstances:

            “the seriousness of the present charge
            against     the     defendant;     defendant’s
            temperament and character; his age and
            physical attributes; his past record; past
            escapes or attempted escapes, and evidence
            of a present plan to escape; threats to harm
            others   or   cause   a   disturbance;   self-
            destructive tendencies; the risk of mob
            violence or of attempted revenge by others;
            the possibility of rescue by other offenders
            still at large; the size and mood of the
            audience; the nature and physical security
            of the courtroom; and the adequacy and
            availability of alternative remedies.”

Stanley, 213 N.C. App. at 550, 713 S.E.2d at 200 (quoting State

v.   Tolley,    290    N.C.   349,   368,      226   S.E.2d   353,   368   (1976)).

“However,      the    ultimate   decision       must   remain    with   the   trial

judge, who may not resign his exercise of discretion to that of

his advisors.”        Tolley, 290 N.C. at 368, 226 S.E.2d at 368.

      The record in the present case shows Defendant objected to

having to wear a “stiff knee brace[.]”                  At Defendant’s request,

the trial court held a hearing to determine whether Defendant

should wear the knee brace during trial.                      A deputy testified

that it was “standard operating procedure to place any inmate”

being tried for “a murder offense in some sort of restraint at

any time when [the inmate was] out of [the sheriff’s] custody.”

Defendant contends that the trial court’s ruling “was nothing

more than an accommodation of Sheriff’s Department policy[.]”
                                        -4-
    However, the trial court did not base its decision upon

this testimony alone.             The trial court considered Defendant’s

past convictions for common law robbery, misdemeanor possession

of stolen goods, misdemeanor larceny, and two counts of assault

on a female, along with Defendant’s three failures to appear in

2012 and two failures to appear in 2011, which the trial court

commented   tended     to    show    “some     failure    to   comply    with   the

[c]ourt orders[.]”          The trial court also considered Defendant’s

pending charge for simple assault that arose while Defendant was

in custody.

    As in State v. Simpson, the trial court “was in the better

position    to     observe    []    [D]efendant,     to    know    the   security

available in the courtroom and at the courthouse, to be aware of

other relevant facts and circumstances, and to make a reasoned

decision,     in    light    of     those     factors,    that    restraint     was

necessary or unnecessary.”           State v. Simpson, 153 N.C. App. 807,

809, 571 S.E.2d 274, 276 (2002).              Furthermore, where the “record

fails to disclose that a defendant’s shackles were visible to

the jury, ‘the risk is negligible that the restraint undermined

the dignity of the trial process or created prejudice in the

minds of the jurors,’ and the defendant will not be entitled to

a new trial[.]”       Id. at 809-10, 571 S.E.2d at 276 (quoting State

v. Holmes, 355 N.C. 719, 729, 565 S.E.2d 154, 163 (2002)).
                                               -5-
       In   the    present         case,     counsel    for     Defendant       acknowledged

that the restraint was “not visible” and, when the trial court

commented that it “couldn’t hear any jingling[,]” counsel for

Defendant agreed.             The trial court observed that the knee brace

did not make noise or jingle and that the knee brace could not

be seen by jurors or potential jurors.                           When Defendant later

walked back into the courtroom, the trial court observed that

Defendant “seems to be moving well.”                          The trial court noticed

“no    problems,        no    sign    of     anything.”         Counsel   for     Defendant

replied that he did not dispute the trial court’s observations,

but    that       the       knee     brace     still    constituted         a    restraint.

Furthermore, the trial court allowed Defendant to walk to the

witness stand out of the sight of the jury.

       The present case is analogous to Simpson and Holmes, in

which the shackles were not visible to the jury.                                Holmes, 355

N.C. at 729, 565 S.E.2d at 163; Simpson, 153 N.C. App. at 809,

571 S.E.2d at 276.                 We conclude that the trial court did not

abuse its discretion on this basis.

                  II. Cross-Examination of Medical Examiner

       Defendant next argues the trial court abused its discretion

by “precluding [Defendant] from cross-examining medical examiner

McLemore regarding her preliminary report of death[.]”                             However,

in    “order   for      a    party     to    preserve     for    appellate       review   the
                                      -6-
exclusion of evidence, the significance of the excluded evidence

must be made to appear in the record and a specific offer of

proof is required unless the significance of the evidence is

obvious from the record.”       State v. Jacobs, 363 N.C. 815, 818,

689 S.E.2d 859, 861 (2010).           Our Supreme Court also held that

“the essential content or substance of the witness’ testimony

must be shown before we can ascertain whether prejudicial error

occurred.”      Id.   “Absent an adequate offer of proof, we can only

speculate as to what a witness’s testimony might have been.”

Id. at 818, 689 S.E.2d at 861-62.

    At trial, the State objected when counsel for Defendant

approached the witness with “a document called a preliminary

report of death[.]”        After the jury exited the courtroom, the

State argued that the handwritten note on the report that read

“fighting in a club earlier” constituted hearsay.             Following a

brief    voir    dire   examination    of    the   witness,   counsel   for

Defendant argued to the trial court that “it’s admissible under

the expert rules of testimony.”             It appears that counsel for

Defendant was referring to the preliminary report of death.             The

trial court stated: “I think under Rule 403 it would be excluded

if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the

jury.”
                                          -7-
      Defendant    made     no    offer     of    proof        as    to   the    questions

Defendant’s counsel would have asked of the medical examiner.

Defendant also made no offer of proof as to what the medical

examiner’s response to the questions would have been.                            Defendant

“has failed to preserve this issue for appellate review under

the   standard     set    forth    in”      N.C.        Gen.    Stat.     § 8C-1,         Rule

103(a)(2) (2013).         State v. Braxton, 352 N.C. 158, 184, 531

S.E.2d 428, 443 (2000).

      III. Sufficiency of the Evidence of Second-Degree Murder

      Defendant    next     argues   the     trial        court      erred      in   denying

Defendant’s      motion     to    dismiss        the     charge      of   second-degree

murder.     Defendant contends there was insufficient evidence that

Defendant acted with malice and not in self-defense.

                            A. Standard of Review

      We review the trial court’s denial of a motion to dismiss

de novo.     State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29,

33 (2007).       The “trial court must determine whether there is

substantial      evidence     (1) of      each         essential      element        of    the

offense charged and (2) that defendant is the perpetrator of the

offense.”      State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345,

347   (2012)   (internal     quotation       marks       omitted).           “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”                        Id.
                                     -8-
       The “trial court must consider the evidence in the light

most favorable to the State, drawing all reasonable inferences

in the State's favor.”       Id. at 92, 728 S.E.2d at 347.                 “All

evidence, competent or incompetent, must be considered.                        Any

contradictions    or   conflicts   in    the    evidence     are    resolved    in

favor of the State, and evidence unfavorable to the State is not

considered.”     Id. at 93, 728 S.E.2d at 347 (internal citations

and quotation marks omitted).

                              B. Analysis

       Defendant presents two different arguments in this section.

First, as to malice, the “intentional use of a deadly weapon

proximately causing death gives rise to the presumption that

(1) the killing was unlawful, and (2) the killing was done with

malice.”    State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772

(1980).    “Evidence raising an issue on the existence of malice

and unlawfulness causes the presumption to disappear, leaving

only   a   permissible   inference      which   the   jury    may    accept     or

reject.”     State v. Weeks, 322 N.C. 152, 173, 367 S.E.2d 895,

907-08 (1988) (internal quotation marks omitted).

       If “there is any evidence of heat of passion on sudden

provocation, either in the State’s evidence or offered by the

defendant, the trial court must submit the possible verdict of

voluntary manslaughter to the jury.”            Id. at 173, 367 S.E.2d at
                                           -9-
908.     In the present case, the trial court did submit the charge

of voluntary manslaughter to the jury.                    Defendant has not shown

error on this basis.

       Second, Defendant argues that the State failed to show that

Defendant did not act in self-defense.                          “A person who kills

another is not guilty of murder if the killing was an act of

self-defense.”       State v. Hamilton, 77 N.C. App. 506, 513, 335

S.E.2d 506, 511 (1985).              To survive a motion to dismiss, the

State must present “evidence which, when taken in the light most

favorable to the State, is sufficient to convince a rational

trier of fact that [the] defendant did not act in self-defense.”

Id.

       Officer     Geddings       testified      that    he     was     monitoring      the

crowds    exiting    from     a    club    shortly      after    2:00    a.m.    when   he

noticed “a muzzle flash of a gun” and heard a gunshot.                                   He

looked in the direction of the gunshot and saw Defendant lower a

gun.     Officer Geddings was about twenty to twenty-five yards

away     from    Defendant.          Officer      Geddings       saw     no     fight   or

altercation before the gunshot.                  He did not see anyone running

or    hear   any   yelling        before   the    gunshot.            Officer    Geddings

allowed Defendant to make calls from his cell phone while in the

back seat of the patrol vehicle.                  Defendant told his mother on

the phone that he “shot somebody.”                   When his mother asked why,
                                        -10-
Defendant answered: “Disrespect.”              Officer Geddings also did not

find any other firearms in the parking lot.

      Tommy Murchison, the brother of Mr. Murchison, testified

that he and his brother went to the club with their girlfriends.

Tommy Murchison exited the club at 2:00 a.m., with his brother

behind him, but he was parted from his brother on the way to the

vehicle.    Tommy Murchison testified that he heard a gunshot and

later saw his brother lying on the ground.                   At that time, Tommy

Murchison thought his brother was on the ground because he was

simply intoxicated.          An officer helped Mr. Murchison into the

vehicle.         Tommy    Murchison    testified      that    they     went    to    get

something for his brother to eat.                    He then noticed that his

brother was injured and went directly to a hospital.                                Tommy

Murchison testified that he did not see his brother with a gun

that night, nor did he see a weapon in the vehicle.

      Tiara Stowe (“Ms. Stowe”), the driver of the vehicle, also

testified that no one in her vehicle had a gun.                   Mr. Murchison’s

shirt and pants were “fitted tight on him, so you would be able

to   see”   if    there    was   a   weapon    in    his    pockets.      Ms.       Stowe

testified that, from her position in the club, she kept an eye

on her group.            She saw “a little fight break out” near Mr.

Murchison    around       closing     time,    but    Mr.    Murchison        was    not

involved in the fight.
                                            -11-
       Officer Bullard testified that he was about seventy-five

feet away from where he thought he heard the gunshot originate.

When he approached, he saw an individual staggering and falling

to his knees.          The individual told Officer Bullard that he had

been    shot.         Officer        Bullard    testified      that    he     called     an

ambulance, and that the individual would not speak further to

him.    Officer Bullard saw no weapon on the individual.

       Dedrick    Springs         (“Mr.    Springs”)   testified       for     Defendant

that he saw “one guy”                approach      Defendant and say “something

like,   I’m     going       to    get    you   after   the   club.”         He    further

testified     that      this      individual     and   Defendant       were    “in     each

other’s faces.”             When Mr. Springs exited the club at closing

time,    he     saw    the       same    individual    “pull     his    gun      out    on”

Defendant.       Mr. Springs testified that the individual pulled the

gun from his pocket.

       Defendant testified that, as he walked to the bathroom, Mr.

Murchison asked him “what the f--- [Defendant] was looking at.”

Defendant further testified that Mr. Murchison approached him

aggressively,         and    Tommy      Murchison   pulled   Mr.      Murchison        away.

When Defendant exited the club at closing time, Mr. Murchison

walked up to Defendant, “looked [Defendant] in the eyes, g[a]ve

[him] a[n] evil look and said he was going to f---ing kill

[Defendant].”         Defendant testified that he kept walking, trying
                                        -12-
to avoid Mr. Murchison, but Mr. Murchison came toward him again

and pulled a weapon.        Defendant testified that he shot at the

ground to scare Mr. Murchison, but when he shot, “the gun lifted

up, like recoiled like that[.]”

    Although Defendant contends on appeal that “[a]ll of the

evidence in the record supported a finding that the shooting

occurred    during   a   sudden    quarrel          between”   Mr.    Murchison   and

Defendant,    the    transcript        belies       this   assertion.          Officer

Geddings    testified    that     he    was    outside     the    club    to   provide

security, and he testified that he saw no fight or altercation

before the gunshot.

    As previously stated, the “trial court must consider the

evidence in the light most favorable to the State, drawing all

reasonable inferences in the State's favor.”                     Bradshaw, 366 N.C.

at 92, 728 S.E.2d at 347.              “Any contradictions or conflicts in

the evidence are resolved in favor of the State, and evidence

unfavorable to the State is not considered.”                         Id. at 93, 728

S.E.2d at 347 (internal citations and quotation marks omitted).

    The State’s evidence in the present case, particularly the

testimony    of   Officer   Geddings,          is    sufficient      to   convince   a

rational trier of fact that there was no quarrel or altercation

between Mr. Murchison and Defendant prior to the shooting, and

that Defendant did not act in self-defense.                        The discrepancy
                              -13-
between the testimony of Officer Geddings and the testimony of

Defendant presented a conflict in the evidence, which was for

the jury to resolve.   Hamilton, 77 N.C. App. at 514, 335 S.E.2d

at 511.   The trial court did not err in denying Defendant’s

motion to dismiss and in submitting the charge of second-degree

murder, along with the charge of voluntary manslaughter, to the

jury.

     No error.

     Chief Judge MARTIN and Judge CALABRIA concur.
