231 N.C. App. 462
N.C. Ct. App.2013Background
- On 2 September 2011, Bryson was on Wilkie’s porch when a group including Defendant Rowe and John Alexander beat them, with Bryson kicked while another hit him with a golf club; Bryson sustained head staples, numerous scars, and a carved “Z” on his back.
- Defendant was charged with assault inflicting serious injury under N.C. Gen. Stat. § 14-33 and was convicted by a jury; he received a 60-day active sentence with 1 day credit.
- Defendant testified he tried to break up the fight; his girlfriend testified she did not see him strike Bryson.
- Bryson later sought appellate review via a writ of certiorari after a defective notice of appeal and issues with jail-fee awards.
- The appellate court granted certiorari on the merits, reviewing (1) sufficiency of the evidence for acting in concert, (2) whether the court should have instructed on simple assault, and (3) jail-fee amounts.
- The court ultimately vacated and remanded regarding jail fees and affirmed other rulings, with no error in the conviction on the charged offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports acting in concert to inflict serious injury | State—defendant acted with others under a common plan | Rowe—no concert evidence; injuries not all attributable to him | Yes; substantial evidence supported acting in concert |
| Whether the trial court should have instructed on simple assault | State—no lesser offense instruction needed given evidence | Defendant—evidence could permit simple assault | Denied; no error; evidence did not warrant lesser offense instruction |
| Whether jail fees were properly imposed | State—fees permissible under § 7A-304; the court imposed them | Fees beyond $10/day improperly imposed; statutory flaw | Vacated and remanded to correct judgment for jail fees; otherwise no error on conviction |
Key Cases Cited
- State v. Wright, 304 N.C. 349 (1981) (lesser-included offense instruction depends on evidence capable of guiding rational verdicts)
- State v. Conaway, 339 N.C. 487 (1994) (due process requires lesser-included instruction only if evidence permits conviction of lesser offense)
- State v. Smith, 186 N.C. App. 57 (2007) (substantial evidence standard for denial of dismissal motion)
- State v. Fisher, 318 N.C. 512 (1986) (reversible error for failure to give necessary lesser-included instruction)
- State v. Rose, 339 N.C. 172 (1994) (instructional duties in light of evidence viewed in State’s favor)