State v. Lee, 2011 N.C. App. LEXIS 200 (NC Ct. App. 2010)

STATE OF NORTH CAROLINA v. TYREE SHAJUAN LEE

NO. COA10-381

COURT OF APPEALS OF NORTH CAROLINA

2011 N.C. App. LEXIS 200

September 29, 2010, Heard in the Court of Appeals

February 1, 2011, Filed

COUNSEL:
Attorney General Roy Cooper, by Special Deputy AttorneyGeneral David J. Adinolfi II, for the State.
Geoffrey W. Hosford, for defendant-appellant.

JUDGES: Judges HUNTER, Robert C. and GEER concur.

OPINION BY: CALABRIA

CALABRIA, Judge.

Tyree Shajuan Lee (“defendant”) appeals a judgment entered upon a jury verdict finding him guilty of assault inflicting serious bodily injury. We find no error.

I. Background

Defendant was a student at Wakefield High School (“WHS”) in Raleigh, North Carolina. On 22 September 2008, defendant and some friends were standing together before classes began for the day. Defendant was bouncing a tennis ball, occasionally throwing it at other students who were passing by in the hallway .

“Dominic” 1 was one of the students who was hit by the tennis ball. In response, Dominic, who was smaller than defendant, approached defendant and punched him in the face multiple times. When he was finished, defendant dropped his backpack, grabbed Dominic by the legs, and knocked him to the floor. When Dominic fell, he hit his head on a metal lock that was on the floor. Defendant jumped on top of Dominic and began to punch him in the face repeatedly. Defendant then got up and ran away with some friends.

While Dominic was on the ground, defendant’s friend “Matthew” entered the fray and stomped on Dominic’s face a number of times with his feet. Defendant never requested assistance from Matthew. However, another student saw defendant, Matthew, and others fleeing the scene of the fight together.

When school administrators arrived at the scene of the fight, Dominic was alone and covered in blood. Shortly thereafter, Dominic was transferred to WakeMed Hospital, where it was determined that he had suffered multiple fractures to his face and nose. In addition, Dominic sustained injuries that required his jaw to be wired shut for several weeks.

Corporal Doug Royalty (“Corporal Royalty”) of the Raleigh Police Department, the student resource officer at WHS, investigated the fight. Corporal Royalty determined that defendant hit Dominic with a tennis ball and Dominic responded by hitting defendant in the face. Subsequently, defendant knocked Dominic to the ground and punched him. Corporal Royalty also received witness reports that Matthew jumped into the fight and began stomping on Dominic while defendant was punching him. Additionally, after defendant and Matthew left the scene, defendant changed into a different shirt provided by defendant’s friend “Samuel.”

As a result of Corporal Royalty’s investigation, defendant, Matthew, and Samuel were all arrested for their roles in the incident. Pursuant to a plea arrangement with the State, Samuel pled guilty to accessory after the fact to assault inflicting serious bodily injury. Matthew, pursuant to his own plea arrangement with the State, pled guilty to assault inflicting serious bodily injury. As part of his plea, Matthew also admitted to the aggravating factor of “acting with others.” Defendant pled not guilty.

Beginning 1 June 2009, defendant was tried by a jury for the charges of assault inflicting serious bodily injury and assault with a deadly weapon inflicting serious injury in Wake County Superior Court. At the close of the State’s evidence and at the close of all evidence, defendant made motions to dismiss both charges, which were denied by the trial court. After all the evidence was presented, the trial court instructed the jury on the applicable law; these instructions included the theory of “acting in concert,” over defendant’s objection. Additionally, defendant’s request that the jury be instructed on the theory of self-defense was denied by the trial court.

On 5 June 2010, the jury returned a verdict finding defendant guilty of assault inflicting serious bodily injury. The jury was unable to reach a verdict on the charge of assault with a deadly weapon inflicting serious bodily injury. As a result, the trial court declared a mistrial on that charge. The trial court sentenced defendant to a minimum of 15 months to a maximum of 18 months in the North Carolina Department of Correction. Defendant appeals.

II. Acting in Concert

Defendant argues that the trial court erred by instructing the jury on the theory of acting in concert. In support of this argument, defendant references testimony presented at trial that defendant fled the scene before Matthew stomped on Dominic’s face. Thus, defendant contends, the instruction was not supported by the evidence at trial. We disagree.

“‘The prime purpose of a court’s charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.'” State v. Jenkins, N.C. App. , , 688 S.E.2d 101, 105 (quoting State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973)), disc. rev. denied, 364 N.C. 245, 698 S.E.2d 665 (2010). Thus, the trial court should not instruct the jury on possible theories of conviction which are not supported by the evidence. State v. Baskin, 190 N.C. App. 102, 111, 660 S.E.2d 566, 573 (2008). “Where jury instructions are given without supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). “Assignments of error challenging the trial court’s decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).

In the instant case, the trial court instructed the jury, over defendant’s objection, on the theory of acting in concert. Under this theory,

if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.

State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991) (internal quotations and citation omitted). “This is true even where the other person does all the acts necessary to commit the crime.” State v. Abraham, 338 N.C. 315, 329, 451 S.E.2d 131, 137 (1994) (internal quotations and citation omitted). “The theory of acting in concert does not require an express agreement between the parties. All that is necessary is an implied mutual understanding or agreement to do the crimes.” State v. Hill, 182 N.C. App. 88, 93, 641 S.E.2d 380, 385 (2007) (internal quotations and citation omitted).

In the instant case, there is sufficient evidence in the record to support an acting in concert instruction. The State presented testimony that Matthew stomped on Dominic’s face either at the same time that defendant was punching him or shortly thereafter, while defendant was still at the scene, and that defendant fled the scene with Matthew and others. WHS student “Melissa,” who witnessed the fight, testified that “there was (sic) two or three guys that had pulled the defendant off of [Dominic] after he had hit him a couple of times, and then they started, like — like, stomping on him, and then they just — they all ran away after that.” Additionally, Corporal Royalty took a statement from Melissa shortly after the incident where she stated that “[defendant] jumped on [Dominic] and started beating on him. During this another black kid started kicking [Dominic] in the head.” WHS principal Mark Savage testified that defendant had told him that another male student had “jumped into” his fight with Dominic.

Defendant and Matthew both testified that they were friends who lived in the same neighborhood. Matthew testified that he saw Dominic hit defendant in the face. As a result, he “involved [him]self into” the fight in order to “help [defendant] out.” While Matthew also stated that defendant had left by the time Matthew became involved, WHS student “Richard” testified that he witnessed defendant, Matthew and others fleeing from the scene together. Finally, Matthew testified that when he pled guilty to assault inflicting serious bodily injury, he also admitted to the aggravating factor of “acting with others.”

Defendant contends that this evidence was insufficient to support an acting in concert instruction because (1) there was no evidence of any agreement between defendant and Matthew; and (2) there was additional testimony indicating that defendant had fled the scene before Matthew entered the fight. Defendant’s arguments are without merit. The previously chronicled evidence presented by the State that defendant and Matthew, who were friends, attacked Dominic simultaneously and then fled the scene together sufficiently suggests an implied understanding between the two to commit an assault upon Dominic. Thus, evidence of an express agreement between defendant and Matthew was unnecessary. Hill, 182 N.C. App. at 93, 641 S.E.2d at 385.

Additionally, any contradictory testimony at trial about the timing of Matthew’s entry into the fight simply created a question of fact to be decided by the jury; it did not provide a basis to deny the acting in concert instruction. Jury instructions are erroneous only when they are given on a theory that was not supported by the evidence presented at trial. Porter, 340 N.C. at 331, 457 S.E.2d at 721. Since there was evidence presented that supported a determination that defendant and Matthew were acting in concert to assault Dominic, we find no error in the trial court’s instruction on that theory. This assignment of error is overruled.

Defendant also briefly argues that the trial court erred by denying his motion to dismiss the charge of assault inflicting serious bodily injury, because there was no evidence presented that defendant inflicted serious bodily injury upon Dominic without reliance upon the theory of acting in concert. Since this argument is premised upon defendant’s previous unsuccessful argument that there was insufficient evidence presented that defendant and Matthew acted in concert, we find it to be without merit. This assignment of error is also overruled.

III. Self-Defense

Defendant argues that the trial court erred when it denied his request for an instruction on the theory of self-defense. We disagree.

“A defendant is entitled to a requested jury instruction only when the instruction is ‘correct in itself and supported by evidence[.]'” State v. Cook, 165 N.C. App. 630, 634, 599 S.E.2d 67, 70 (2004) (quoting State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993)).

A defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense. The right of self-defense is only available, however, to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so. Furthermore, when confronted with a nonfelonious assault, a party is required to retreat if there is any way of escape open to him.

State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998) (internal quotations and citations omitted). “We consider the facts in the light most favorable to Defendant in determining whether the trial court should have instructed the jury on self-defense.” Id.

In the instant case, even considering the evidence in the light most favorable to defendant, an instruction on self-defense was inappropriate. Although there was testimony presented at trial that Dominic punched defendant without provocation, all of the witnesses, including defendant, testified that Dominic had stopped punching defendant when defendant grabbed Dominic’s legs and knocked him to the ground. Additionally, there was no testimony of any continuing threat to defendant after Dominic was on the ground. Nonetheless, defendant then jumped on Dominic and proceeded to punch him repeatedly. Thus, defendant was neither without fault nor did he abandon the fight, withdraw from it, give notice to Dominic that he would do so, or make any attempt to retreat. As a result, the trial court correctly denied defendant’s request for a self-defense instruction. This assignment of error is overruled.

IV. Conclusion

The record on appeal includes an additional assignment of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6) (2008), we deem this assignment of error abandoned and need not address it. There was sufficient evidence to support the trial court’s instruction to the jury on the theory of acting in concert. In addition, the evidence at trial was insufficient to support an instruction on self-defense, and so the trial court correctly denied defendant’s request for that instruction. Thus, defendant received a fair trial, free from error.
No error.

Judges HUNTER, Robert C. and GEER concur.

Footnotes:

1 All of the students involved in this incident were minors at the time of the incident. Accordingly, all students other than defendant are referred to by pseudonyms in order to protect their identities.