              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1164

                                Filed: 15 August 2017

Catawba County, Nos. 15 CRS 3289-91 and 16 CRS 50116-17

STATE OF NORTH CAROLINA

      v.

PHILLIP VOLTZ, IV, Defendant.


      Appeal by defendant from judgments entered 2 September 2016 by Judge

Gregory R. Hayes in Catawba County Superior Court. Heard in the Court of Appeals

20 April 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Stuart M.
      Saunders, for the State.

      Richard Croutharmel for Defendant.


      TYSON, Judge.


      Phillip Voltz, IV (“Defendant”) appeals from judgments entered after a jury

found him guilty of assault inflicting serious injury, second-degree sexual offense,

assault by strangulation, felonious breaking or entering, and intimidating a witness.

We affirm in part, and find no plain error in part.

                                    I. Background

      Jessica Tony (“Tony”) invited Defendant to the apartment she shared with B.A.

and B.A.’s two-year-old daughter on the evening of 12 May 2015. Defendant brought
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a six-pack of beer with him. Tony, Defendant, and B.A. sat on the porch drinking and

talking. Defendant and B.A. had not met prior to that evening. At around 12:30 a.m.,

B.A.’s daughter woke up and began to cry. Tony left to check on the child, and

eventually fell asleep with her. When B.A. found Tony asleep, she told Defendant he

needed to leave. Defendant responded he could not leave because he did not want to

drive drunk, so B.A. told him he could sleep on the couch. B.A. retired to her bedroom.

      As B.A. was preparing for bed, Defendant entered B.A.’s bedroom and informed

her “that [they] were going to have sex.” B.A. “told [Defendant] no,” and Defendant

pushed B.A. onto the bed, got on top of her, and choked her for a few seconds.

Defendant forced B.A. to put her hands over her head, pulled off her shirt, ripped off

her bra, and inserted his fingers into her vagina while choking her with one hand.

      During a struggle, B.A. managed to fight off Defendant. B.A. then stood up on

the bed, swung her right hand and hit Defendant in the eye, causing him to fall

backwards. Defendant exclaimed “[l]ook what you did to my face,” pulled B.A. down

from the bed, threw her against the wall, and began to choke her again. B.A. was

able to reach the bedroom door, open it, and push Defendant off of her. Defendant

again grabbed B.A., and the pair fell to the floor in the doorway of the bedroom. The

struggle continued into the hallway, during which Defendant picked B.A. up by her

legs and slammed her to the floor three times.




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      Hearing the commotion, Tony came out of her bedroom, screamed, and asked

what was going on. Tony testified that B.A. “kept yelling that [Defendant] raped

her[.]” B.A. testified she told Tony to call the police. B.A. eventually managed to get

away from Defendant.

      As B.A. explained at trial,

             I ran into the bar area of my kitchen and grabbed the
             hammer and told [Defendant] that he needed to get out,
             and so I followed at a safe distance behind him as he went
             out the door and then he turned around and grabbed the
             hammer away from me and slashed it at my arm and told
             me that he would see me again.

The police responded to the scene, but Defendant had left before they arrived.

Defendant was indicted on 15 June 2015 on charges of assault inflicting serious

injury, second-degree sexual offense, and assault by strangulation (collectively, the

“13 May 2015 charges”).

      About eight months later, Kerissa Eller (“Eller”), B.A.’s neighbor, was washing

dishes in her kitchen on 2 January 2016 when a man wielding a knife broke into her

home. The man repeatedly asked “[w]here the f--k is [B.A.’s first name]?” Eller

assumed the man meant B.A. Eller testified that after the man repeated the question

a few times, he stopped, looked around, exclaimed “[o]h s--t,” and ran out. Eller called

the police. The police showed Eller a photographic lineup, which included a photo of

Defendant, but Eller was unable to identify anyone in the lineup. Defendant was




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indicted on 7 March 2016 on charges of felony breaking or entering, felony stalking,

and intimidating a witness (collectively, the “2 January 2016 charges”).

      Prior to trial, the State moved to join the 13 May 2015 and the 2 January 2016

charges for a single trial. Defense counsel objected to the motion. After considering

arguments by Defendant and the State, the trial court ruled, “after hearing all the

arguments and reviewing the case law,” joinder “[was] proper in this matter[.]”

      Defendant’s trial began on 29 August 2016. During Eller’s testimony, the trial

court conducted voir dire to determine whether to admit portions of her testimony

regarding B.A.’s character.       In her voir dire testimony, Eller described B.A. as

someone who created drama by, for example, “not keeping up with her dog.” Eller

further testified B.A. “always [had] . . . eight or nine cars in and out of [the apartment

complex] all day.” Also during voir dire, the following colloquy occurred between

Defendant’s counsel and Eller:

             [Defendant’s counsel:]   And what kind of people do you
             see always going in and out of [B.A.’s] house?

             [Eller:]       I don’t really know how to describe it. It’s just
             lots of cars, lots of black men mostly. And there is a couple
             white girls that come in and out a lot but they’re always
             arguing with the people they’re with too, so I just try to stay
             to myself.

             [Defendant’s counsel:]    So is it fair to say you see [B.A.]
             arguing a lot with the variety of people?

             [Eller:]      Yes.



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      Eller further testified during voir dire that she had observed B.A. arguing with

men in the yard outside of the apartment complex, and she could occasionally hear

B.A. loudly arguing with men inside of B.A.’s apartment, which was a considerable

distance away. Following voir dire, the trial court ruled that Eller’s testimony would

be limited to describing statements B.A. made to Eller about the events surrounding

the alleged attack, but Eller was not permitted to testify about B.A.’s “propensity for

violence” or about the “people coming in and out.”

      After all of the evidence was presented, the trial court instructed the jury

regarding each of the charged offenses. With respect to the charge of felonious

breaking or entering, the trial court gave the following oral instruction in open court:

             [Defendant] has been charged with felonious breaking or
             entering into another’s building without her consent with
             the intent to commit a felony. For you to find the defendant
             guilty of this offense the State must prove four things
             beyond a reasonable doubt.

             First, that there was either a breaking or an entry by
             [Defendant]. Coming into the apartment of [Eller], . . . with
             a knife would be a breaking or entering.

             Second, the State must prove that it was a building that
             was broken into or entered.

             Third, that the tenant did not consent to the breaking or
             entering.

             And forth, that at the time of the breaking or entering the
             defendant intended to commit the felony of assault.




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(emphasis added). The trial court further instructed the jury if it found “from the

evidence beyond a reasonable doubt that on or about the alleged date [Defendant]

broke into or entered a building without the consent of the tenant, intending at that

time to commit a felony of assault,” it would be the jury’s duty “to return a verdict of

guilty of felonious breaking or entering.”

      After the trial court had fully instructed the jury as to all offenses, the jury

began deliberations. The next morning, and outside the presence of the jury, the trial

judge stated that he “want[ed] to mention something . . . that [he] added” to the jury

instruction on felonious breaking or entering. With regard to the fourth element of

felonious breaking or entering, the trial court judge explained:

             At the time of the breaking or entering [Defendant]
             intended to commit the felony of felonious assault. That
             was what I read to [the jury]. The footnote after that [in
             the pattern jury instructions] says that the crime -- the
             crime that [Defendant] allegedly intended to commit
             should be briefly defined. Failure to define the crime may
             constitute reversal [sic] error.

The trial judge stated it was his intention to provide the jury with alternate jury

instructions that defined felony assault. Both the State and Defendant’s counsel

reviewed the proposed alternate instructions, and each agreed to them.

      When the jury was present in the courtroom, the trial judge told the jury the

following:

             I’ve prepared for you sort of at your request a copy of
             everything that I read to you – all yesterday. . . . [I]t’s the
             whole charge from the beginning to end. . . . [Y]ou said you

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             wanted the law yesterday afternoon, and I read it to you,
             but overnight I had time to fix the whole thing that I read
             to you from beginning to end. So I’m going to give you a
             copy of what’s called the judge’s charge, just one copy. But
             it’s everything I read to you from beginning to end,
             okay? . . . I’m exercising the [c]ourt’s discretion to give you
             a written copy of the charge, the oral charge, that I read to
             you yesterday afternoon, okay? So you’ll have a written
             copy of that with you in the jury room.

(emphasis supplied). The written copy of the jury instructions given to the jury was

identical to the oral instructions given the previous day, quoted above, but replaced

the fourth element of the charge of breaking or entering with the following:

             And Fourth, that at the time of breaking or entering,
             [Defendant] intended to commit the felony of felonious
             assault. A felony assault would be Assault with a Deadly
             Weapon with Intent to Kill, Inflicting Serious Bodily
             Injury. Or an attempt to commit Assault with a Deadly
             Weapon with Intent to Kill, Inflicting Serious Bodily
             Injury.

(emphasis omitted). The jury then resumed deliberations.

      Defendant was convicted of assault inflicting serious injury, second-degree

sexual offense, assault by strangulation, felonious breaking or entering, and

intimidating a witness, but was acquitted on the charge of felonious stalking.

Defendant appeals.

                                    II. Jurisdiction

      Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015)

and N.C. Gen. Stat. § 15A-1444(a) (2015).

                                       III. Issues

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   Defendant argues the trial court erred by: (1) granting the State’s motion for

joinder of the two separate sets of charges; and (2) providing the jury with written

jury instructions on the charge of felonious breaking or entering that materially

differed from the trial court’s earlier oral instructions.

                                 IV. Joinder of Offenses

      Defendant argues the trial court erred by allowing joinder of the 15 May 2015

and 2 January 2016 charges. “Whether joinder of offenses is permissible under [N.C.

Gen. Stat. § 15A-926(a)] is a question addressed to the discretion of the trial court

which will only be disturbed if the defendant demonstrates that joinder deprived him

of a fair trial.” State v. Wilson, 108 N.C. App. 575, 582, 424 S.E.2d 454, 458 (1993).

      Defendant argues that portions of Eller’s voir dire testimony at trial was

inadmissible character evidence as to the 13 May 2015 charges, but was essential

testimony for the 2 January 2016 charges. Defendant asserts, had Eller’s testimony

regarding B.A.’s arguments with “lots of black men” been admitted, that testimony

would have raised doubt whether Defendant was the perpetrator of the crimes of

breaking or entering and intimidating a witness.

      Defendant argues the identity of the person who broke into Eller’s apartment

was at issue because Eller was not able to identify Defendant’s photo in a lineup, and

that “it was likely any number of other black men with whom B.A. had a volatile

relationship with” could have mistakenly broken into Eller’s apartment looking for



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B.A. Because the trial court did not allow the admission of this testimony, Defendant

argues, he was denied the opportunity to create reasonable doubt in the jurors’ minds

and, therefore, the trial court erred in joining the two sets of charges for trial. See

State v. Huff, 325 N.C. 1, 23, 381 S.E.2d 635, 647 (1989) (“If consolidation hinders or

deprives the accused of his ability to present his defense, the charges should not be

consolidated.” (citations omitted)), vacated on other grounds, 497 U.S. 1021, 111 L.

Ed. 2d 777 (1990).

      Eller’s voir dire testimony was not relevant to the 2 January 2016 charges and

would have been inadmissible to suggest that another person committed them.

“[W]here the evidence is proffered to show that someone other than the defendant

committed the crime charged, admission of the evidence must do more than create

mere conjecture of another’s guilt in order to be relevant.” State v. May, 354 N.C. 172,

176, 552 S.E.2d 151, 154 (2001) (citation omitted). “Such evidence must (1) point

directly to the guilt of some specific person, and (2) be inconsistent with the

defendant’s guilt.” Id. (citation omitted). Evidence that tends to show “nothing more

than that someone other than the accused had an opportunity to commit the offense,

without tending to show that such person actually did commit the offense and that

therefore the defendant did not do so, is too remote to be relevant and should be

excluded.” State v. Brewer, 325 N.C. 550, 564, 386 S.E.2d 569, 576 (1989) (citation

omitted).



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      In the present case, Eller’s voir dire testimony, that B.A. had “lots of black

men” as visitors to her apartment, and she had frequent disagreements with those

visitors, fails to point to any specific person, who may have committed the 2 January

2016 offenses. Rather, Eller’s testimony would be sheer speculation of the identity of

another pool of suspects with whom she had disagreements, and this testimony does

not show that any person other than Defendant “actually did commit the offense and

that therefore [Defendant] did not do so[.]” Id.

      Further, Eller’s testimony was not inconsistent with Defendant’s guilt, as

required to be admissible under our Supreme Court’s decision in May. Whomever

B.A. chose to have as visitors to her apartment, and the volatility, if any, of her

relationship with those visitors is not connected to the State’s theory that Defendant

mistakenly broke into Eller’s home brandishing a deadly weapon while looking for

B.A. Eller’s testimony was not inconsistent with Defendant’s guilt and “too remote

to be relevant.” Id.   The trial court did not err in excluding Eller’s testimony

concerning the 2 January 2016 charges. Defendant has failed to show error in joining

the 15 May 2015 and 2 January 2016 charges on that basis. Defendant’s arguments

are overruled.

                                 V. Jury Instructions

      Defendant argues the trial court erred by providing the jury with written jury

instructions on the charge of felonious breaking or entering, which conflicted and



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materially differed from the trial court’s earlier oral instructions. Defendant further

argues the trial court plainly erred by failing to define “the felony of assault.” We

disagree.

                 A. General Standard of Review for Jury Instructions

      “Whether a jury instruction correctly explains the law is a question of law,

reviewable by this Court de novo.” State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d

22, 29 (2010) (citation omitted). “This Court reviews jury instructions contextually

and in its entirety. The charge will be held sufficient if it presents the law of the case

in such manner as to leave no reasonable cause to believe the jury was misled or

misinformed[.]” State v. McGee, 234 N.C. App. 285, 287, 758 S.E.2d 661, 663 (2014)

(citation omitted).

      Generally, “an error in jury instructions is prejudicial and requires a new trial

only if there is a reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the trial out of which the

appeal arises.” State v. Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009)

(emphasis supplied) (citations and internal quotation marks omitted).

                  B. Conflicting Instructions upon a Material Point

      Our courts have recognized the principle in criminal and civil cases, “that when

there are conflicting instructions upon a material point, there must be a new trial

since the jury is not supposed to be able to distinguish between a correct and incorrect



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charge.” State v. Carver, 286 N.C. 179, 183, 209 S.E.2d 785, 788 (1974); see State v.

Pope, 163 N.C. App. 486, 490-91, 593 S.E.2d 813, 817 (2004) (“It is true that [a]n

erroneous instruction upon a material aspect of the case is not cured by the fact that

in other portions of the charge the law is correctly stated.” (citations and internal

quotation marks omitted)); Jones v. Morris, 42 N.C. App. 10, 13, 255 S.E.2d 619, 621

(1979). In order to demonstrate prejudice, the appealing party must show both that

the instructions conflicted and varied on a material point(s). See, e.g., Jones, 42 N.C.

App. at 13, 255 S.E.2d at 621.

      This principal only applies where the instructions are conflicting and the

conflict impacts material points. State v. Stevenson, 327 N.C. 259, 265, 393 S.E.2d

527, 530 (1990). Where the instructions are “not internally contradictory, but [were],

at most, incomplete at one important point,” the instructions are not conflicting such

that a new trial is automatically required. Id. at 266, 393 S.E.2d at 530 (holding

instructions were not conflicting where the court initially properly instructed on the

elements of first-degree murder, but later omitted an element in the final mandate).

      Our Supreme Court has held no conflicting instructions occurred where “the

complaint [was] not of two inconsistent statements of the law,” and any “confusion,

assuming it to exist, was completely clarified in the other portions of the charge.”

State v. Schultz, 294 N.C. 281, 284-85, 240 S.E.2d 451, 454 (1978); see also State v.

Roseboro, 344 N.C. 364, 378, 474 S.E.2d 314, 321-322 (1996) (holding the omission of



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an element of larceny in the body of the jury charge “did not create internally

contradictory instructions,” because the final jury mandate included all elements of

larceny).

      Here, the trial court’s initial oral instructions to the jury on the charge of

felonious breaking and entering stated, in part, “that at the time of the breaking or

entering the defendant intended to commit the felony of assault.” After deliberations

commenced, the jury foreman submitted a question to the trial court requesting

“copies of the laws[,] what the judge read,” and specifically asked for clarification on

what constitutes a second degree sexual offense and serious injury. That evening the

trial court orally re-instructed the jury on the second degree sex offense and serious

injury. The trial court further indicated, based upon the jury’s request, he was

inclined to give a copy of the entire charge to the jury the next morning.

      The next morning, outside the presence of the jury, the trial judge noted to

counsel that he wanted to add to the definition of “the felony of assault” in the

felonious breaking and entering instruction in the written instructions to be given to

the jury. The trial judge gave each attorney a copy of the suggested additional

language. Each attorney expressly agreed to the additional instructions and stated

no objection.

      The written copy of the jury instructions as delivered stated, in part:

                And Fourth, that at the time of breaking or entering,
                [Defendant] intended to commit the felony of felonious


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             assault. A felony assault would be Assault with a      Deadly
             Weapon with Intent to Kill, Inflicting Serious         Bodily
             Injury. Or an attempt to commit Assault with a         Deadly
             Weapon with Intent to Kill, Inflicting Serious         Bodily
             Injury. (emphasis omitted).

      Defendant contends the trial court’s oral and written instructions contain

conflicting language to warrant a new trial. We disagree. The instructions were “not

internally contradictory, but [were], at most incomplete at one important point.”

Stevenson, 327 N.C. at 266, 393 S.E.2d at 530; Roseboro, 344 N.C. at 378, 474 S.E.2d

at 321-322. Recognizing the oral instruction may have been insufficient, the trial

court provided the additional language contained in the written instructions, simply

to further define “the felony of assault,” to clarify the fourth element of felony

breaking and entering.

      The trial court may clarify its instructions where and after the trial court

recognizes the original instructions may have been confusing, or where the jury

requests clarifying or additional instructions on a charge. See State v. Harris, 315

N.C. 556, 563, 340 S.E.2d 383, 388 (1986); State v. Rogers, 299 N.C. 597, 603-05, 264

S.E.2d 89, 93-94 (1980).

      Defendant cannot materially distinguish the cases cited by the State, which

allow the trial court to clarify the oral instructions either upon the request of counsel,

the jury, or upon the trial court’s own realization of potential error. Harris, 315 N.C.

at 563, 340 S.E.2d at 388; Rogers, 299 N.C. at 603-05, 264 S.E.2d at 93-94.



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      Defendant asserts the trial court did not explicitly mention the change in the

felonious breaking and entering instruction to the jury. This argument ignores the

fact that “[o]ur system of trial by jury is ‘based upon the assumption that the trial

jurors are men [and women] of character and of sufficient intelligence to fully

understand and comply with the instructions of the court, and are presumed to have

done so.’” State v. King, 343 N.C. 29, 45, 468 S.E.2d 232, 242 (1996) (quoting State v.

Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938)).

      The jury requested a written copy of instructions and clarification upon certain

points of law. The trial court recognized a need to clarify the instructions of the

felonious breaking and entering charge.         The attorneys for both parties had an

opportunity to review the written instructions and both counsel approved the

additional language. Once the written instructions were given to the jurors, there

was no objection and no requests from either counsel or the jury for further

clarification. Based upon the record before us, Defendant has failed to show that any

differences between the trial court’s oral and written instructions rise to the level of

“conflicting instructions” to the jury “upon a material point” to warrant a new trial.

Carver, 286 N.C. at 183, 209 S.E.2d at 788.

                               C. Plain Error Analysis




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      Because the jury instructions were not conflicting on a material point to award

Defendant a new trial, we address whether the trial court’s instructions on felonious

breaking and entering constitute plain error.

                               1. Standard of Review

      When a defendant fails to object to the jury instructions, this Court reviews for

plain error. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012); N.C. R.

App. 10(a)(2). To demonstrate plain error, the appealing party must not only show

an error occurred in the jury instruction, but also must show prejudice and “that the

erroneous jury instruction was a fundamental error—that the error had a probable

impact on the jury verdict.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334; see also

State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (holding the error 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”).

      Only in rare cases will improper instructions “justify reversal of a criminal

conviction when no objection has been made in the trial court” to award a new trial.

State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (citation and quotation

marks omitted).

      Defendant raised no objection to either the oral instruction or the written

instruction, and, in fact, affirmatively agreed to the clarification included in the



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written instruction on the felonious breaking or entering charge. As such, our review

is limited to plain error of any alleged error in the jury instructions

                                      2. Analysis

      Defendant was charged with felonious breaking or entering. The essential

elements of felonious breaking or entering are (1) the breaking or entering (2) of any

building (3) with the intent to commit any felony or larceny therein. N.C. Gen. Stat.

§ 14-54(a) (2015); State v. Litchford, 78 N.C. App. 722, 338 S.E.2d 575 (1986) (holding

the trial court did not plainly error by omitting the third element of felonious

breaking or entering in its final mandate to the jury where the previous instructions

included all essential elements of the charge).

      Here, the trial court announced he intended to add clarifying language in the

written jury instructions based upon review of a footnote in the North Carolina

Pattern Jury Instruction for felonious breaking or entering. This footnote states

“[t]he crime that [defendant] allegedly intended to commit should be briefly defined.

Failure to define the crime may constitute reversible error.” N.C.P.I. Crim. 214.30

(emphasis supplied).

      It is true that the failure of the trial court to define the crime that the

defendant allegedly intended to commit may be reversible error. Compare State v.

Foust, 40 N.C. App. 71, 71, 251 S.E.2d 893, 894 (1979); State v. Elliot, 21 N.C. App.

555, 556, 205 S.E.2d 106, 107 (1974); with State v. Simpson, 299 N.C. 377, 383, 261



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S.E.2d 661, 664 (1980); State v. Lucas, 234 N.C. App. 247, 257-58, 758 S.E.2d 672,

679-80 (2014).    However, our Supreme Court in Simpson limited its previous

holdings. Simpson, 299 N.C. at 382, 261 S.E.2d at 664.

      In Simpson, the defendant was charged with burglary in the first degree, which

like felonious breaking or entering, requires the defendant to have the intent to

commit a felony. Id.    In the instructions to the jury, the trial court noted “the

defendant intended to commit larceny” but did not further define what constitutes a

larceny for the jury. Id. at 382-83, 261 S.E.2d at 664. The Supreme Court stated

“[a]ssuming arguendo that the court’s failure to define larceny was erroneous, . . . we

hold that such failure was not prejudicial on the facts of this case.” Id. at 383, 261

S.E.2d at 664.

      The Court explained:

             Defendant was on trial for burglary—not larceny. Intent to
             commit larceny is the felonious intent supporting the
             charge of burglary. In this context, the court in defining
             felonious intent used the word “larceny” as a shorthand
             statement of its definition, i.e., to steal, take and carry
             away the goods of another with the intent to deprive the
             owner of his goods permanently and to convert same to the
             use of the taker. In the instant case, the jury did not need
             a formal definition of the term “larceny” to understand its
             meaning and to apply that meaning to the evidence. The
             use of the word “larceny” as it is commonly used and
             understood by the general public was sufficient in this case
             to define for the jury the requisite felonious intent needed
             to support a conviction of burglary. There is no reasonable
             possibility that failure to define “larceny” contributed to
             defendant’s conviction or that a different result would have


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             likely ensued had the word been defined.

Id. at 383-84, 264 S.E.2d at 665; see also Lucas, 234 N.C. App. at 247, 758 S.E.2d at

672 (holding the failure to further define larceny did not constitute plain error based

upon the Supreme Court’s ruling in Simpson.).

      In this case, after realizing the oral instruction on felonious breaking or

entering may not have been sufficient, the trial court further defined what

constituted a felonious assault in the written instructions given to the jury.

Presuming, arguendo, the trial court erred in its charge to the jury on felonious

breaking or entering, under plain error review, Defendant has not shown prejudice

or that the error was “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.” Bagley, 321 N.C. at 213, 362 S.E.2d at 251.

      The felonious breaking and entering charge was based upon evidence that

Defendant entered Eller’s home on 2 January 2016. Eller lived in the duplex next

door to B.A. Eller and a police officer testified concerning the event. The evidence

tends to show that, Eller had just put her baby down and was washing dishes when

a man burst through her door. The man was holding a knife. He began cursing at

Eller, and said, “where the f---k is [B.A.]?” Eller testified the man “was really close

to [her] daughter, so [she] was freaking out” and scared “because [she] couldn’t get to




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                                   Opinion of the Court



her [daughter] before he could.” Eller testified after asking where B.A. was several

times, the man then stopped, looked around, said “[o]h, s--t,” and ran out the door.

      Eller called 911. When the police arrived she described the man as thin, black,

with long dreadlocks and a mark she believed was under his left eye. She testified

the man was wearing a blue jersey. The police showed Eller a lineup, which included

a photo of Defendant, but she was unable to identify anyone.

      Defendant was not charged with assault, but with felonious breaking or

entering with intent to commit an assault therein.         Based upon the evidence

presented and under plain error review, we are “satisfied that ‘the jury did not need

a formal definition of the term [assault] to understand its meaning and to apply that

meaning to the evidence.’” Lucas, 234 N.C. App. at 257, 758 S.E.2d at 679 (quoting

Simpson, 299 N.C. at 384, 261 S.E.2d at 665).

      The primary purpose of a charge is to aid the jury in arriving at a correct

verdict according to law. Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484 (1948). “The

chief object contemplated in the charge of the judge is to explain the law of the case,

to point out the essentials to be proved on the one side and on the other, and to bring

into view the relation of the particular evidence adduced to the particular issue

involved.” State v. Friddle, 223 N.C. 258, 261, 25 S.E.2d 751, 753 (1943). The trial

court’s charge on felonious breaking or entering was sufficient to enable the jury, in




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                                     Opinion of the Court



its deliberations, to arrive at a verdict with a correct understanding of the law relative

to this charge. See Simpson, 299 N.C. at 383, 261 S.E.2d at 664.

                                     VI. Conclusion

      For the reasons stated, the trial court did not err in joining the 15 May 2015

and 2 January 2016 charges for a single trial. That portion of the trial court’s order

is affirmed. We do not find a conflict upon a material point exists in trial court’s oral

and written instructions such that Defendant is entitled to a new trial.

      Defendant has failed to demonstrate the court committed plain error in the

instructions to the jury on felonious breaking and entering. We affirm in part, and

find no plain error in part. It is so ordered.

      AFFIRMED IN PART; NO PLAIN ERROR IN PART.

      Chief Judge MCGEE and Judge DILLON concur.




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