{ "id": 11242838, "name": "STATE OF NORTH CAROLINA v. STEWART VANCE CODY", "name_abbreviation": "State v. Cody", "decision_date": "1999-12-07", "docket_number": "No. COA99-50", "first_page": "722", "last_page": "729", "citations": [ { "type": "official", "cite": "135 N.C. App. 722" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "349 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358185 ], "year": 1986, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0146-01" ] }, { "cite": "51 N.C. (6 Jones) 595", "category": "reporters:state", "reporter": "N.C.", "year": 1859, "opinion_index": 0 }, { "cite": "45 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "135", "parenthetical": "citing State v. West, 51 N.C. (6 Jones) 595 (1859)" } ], "opinion_index": 0 }, { "cite": "228 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625474 ], "year": 1947, "pin_cites": [ { "page": "231", "parenthetical": "citing State v. West, 51 N.C. (6 Jones) 595 (1859)" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0228-01" ] }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "pin_cites": [ { "page": "64-65" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "391 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524487 ], "year": 1990, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0358-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "443", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "year": 1981, "pin_cites": [ { "page": "98", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "365 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "619", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "321 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566706 ], "year": 1988, "pin_cites": [ { "page": "717", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0714-01" ] }, { "cite": "50 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "523", "parenthetical": "\"it is desirable that an application for a continuance should be supported by an affidavit showing sufficient grounds for the continuance\"" } ], "opinion_index": 0 }, { "cite": "229 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166634 ], "year": 1948, "pin_cites": [ { "page": "501", "parenthetical": "\"it is desirable that an application for a continuance should be supported by an affidavit showing sufficient grounds for the continuance\"" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0497-01" ] }, { "cite": "467 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "17-18", "parenthetical": "citations omitted" }, { "page": "17", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795977 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "531-32", "parenthetical": "citations omitted" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0523-01" ] }, { "cite": "300 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "863", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522172 ], "year": 1983, "pin_cites": [ { "page": "525", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0522-01" ] }, { "cite": "234 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571595 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0609-01" ] }, { "cite": "282 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "433", "parenthetical": "citing State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977)" } ], "opinion_index": 0 }, { "cite": "304 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565443 ], "year": 1981, "pin_cites": [ { "page": "153", "parenthetical": "citing State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0149-01" ] } ], "analysis": { "cardinality": 642, "char_count": 16871, "ocr_confidence": 0.714, "pagerank": { "raw": 1.4001818556337187e-07, "percentile": 0.6445503193429424 }, "sha256": "fd90afbefef98ad483db1fd457986bd39608c038a2984a708be6ba8dbad10e1d", "simhash": "1:936540eae2bf1ce7", "word_count": 2791 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STEWART VANCE CODY" ], "opinions": [ { "text": "GREENE, Judge.\nStewart Vance Cody (Defendant) appeals from a jury verdict finding him guilty of assault with a deadly weapon inflicting serious injury.\nOn the morning Defendant\u2019s trial was scheduled to begin, Defendant made and the trial court denied an oral motion for continuance on the ground Defendant had located an additional witness, Christopher Cassell (Cassell), on the previous evening. Cassell lived in Maryland, and Defendant did not know whether he would voluntarily testify, but he could be subpoenaed to testify. Defendant believed if Cassell did testify, he would state Defendant \u201cwasn\u2019t involved, basically\u201d in the assault with which he had been charged, and Defendant \u201cdid not participate until the altercation.\u201d\nThe State presented evidence that on 22 September 1997, Joshua Chambliss (Chambliss), while at his home, spoke to Brandy Teague (Teague), his ex-girlfriend, over the telephone. Teague and Chambliss began to argue, and Chambliss could hear several male voices in the background at Teague\u2019s home. Chambliss and the parties at Teague\u2019s home began threatening one another, and Chambliss stated: \u201cIf you all come over to my house, you will end up leaving in body bags.\u201d Teague then hung up the phone.\nChambliss testified that approximately twenty or thirty minutes later, Joseph Ingle, II (Ingle), a friend of Teague, began beating on his front door, and when Chambliss opened the door Ingle struck him. The two began to struggle, and Chambliss pulled an unloaded BB gun (the gun) from his belt and hit Ingle with the gun. The gun then slipped out of Chambliss\u2019s hand, and Chambliss and Ingle began fighting on the ground.\nAfter the fighting began, Defendant and Cassell ran toward where Chambliss and Ingle were struggling on the ground, and attacked Chambliss. One of the men struck Chambliss in the head several times with the gun, and Chambliss was also struck in the head with a log. Defendant, Ingle, and Cassell then ran away, and Chambliss telephoned for an ambulance. He was taken to the hospital, where he received fifteen stitches in his head and treatment for a broken finger and two hematomas near his brain.\nIngle testified that on the day of the incident he drove Defendant, Cassell, Teague, and Christina Pearce (Pearce) to Chambliss\u2019s house. Ingle went to the door and began to fight with Chambliss, and Cassell later joined in the fight and struck Chambliss on the head with the gun. Ingle and Cassell then began kicking Chambliss, and Cassell struck him on the head with a log. Ingle testified he did not see Defendant strike Chambliss.\nJana Osada, an investigator with the district attorney\u2019s office, testified Ingle met with her and other members of the district attorney\u2019s staff prior to Defendant\u2019s trial date. Ingle stated in the meeting that during the 22 September 1997 incident, Defendant kicked Chambliss all over his body, including his head. Defendant then picked up a log and, after telling Chambliss to remove his hands from his face, \u201cswung the log down [onto] his face.\u201d Pearce testified that while riding to Chambliss\u2019s house on the date of the incident, the parties riding in the car decided they would fight Chambliss if he had a gun, and if he did not have a gun they would just speak with him. After the parties arrived at Chambliss\u2019s house, Pearce saw Chambliss had a gun and screamed \u201cgun.\u201d The parties fought, and Pearce saw Defendant kick Chambliss a few times and hit him with \u201ca branch or a log.\u201d\nAt the close of the State\u2019s case-in-chief, Defendant requested dismissal, in pertinent part, of the charge of assault with a deadly weapon inflicting serious injury, and the trial court denied this motion.\nDefendant then proceeded to present evidence. Teague testified for Defendant the parties did not plan to fight with Chambliss when they drove to his house, but planned only to speak to him. After they arrived, Teague saw Chambliss had a gun and screamed \u201cgun.\u201d She stated Defendant did not participate in the fight with Chambliss, and she did not see anyone with a stick during the fight.\nAt the close of Defendant\u2019s case-in-chief, Defendant made a second motion for dismissal of the assault with a deadly weapon inflicting serious injury charge, and the trial court again denied the motion.\nOver Defendant\u2019s objection, the trial court charged the jury, in pertinent part, on the doctrine of acting in concert under North Carolina Pattern Jury Instruction 202.10, as follows:\nFor a person to be guilty of a crime, it is not necessary that he, himself, do all of the acts necessary to constitute the crime. If two or more persons join in a purpose to commit a crime, each of them, if actually constructively present, is not only guilty of that crime of assault if the other commits the crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose to commit the assault. So I charge you that if you find, from the evidence beyond a reasonable doubt, that on or about the date alleged that [Defendant], acting either by himself or acting together with others, did intentionally assault the victim with a stick or log, and that such stick or log was a deadly weapon, thereby inflicting serious injury upon the victim, it would be your duty to return a verdict of guilty of assault with a deadly weapon inflicting serious injury. However, if you do not so find or have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of assault with a deadly weapon inflicting serious injury.\nThe issues are whether: (I) Defendant was entitled to a continuance to subpoena a witness who was not located until one day prior to the trial date; (II) the State presented substantial evidence of the charge of assault with a deadly weapon inflicting serious injury; and (III) North Carolina Pattern Jury Instruction 202.10, acting in concert, was erroneously submitted to the jury.\nI\nDefendant argues the denial, of his motion for continuance deprived him of his constitutional right to present witnesses to confront the evidence against him. We disagree.\nWhen a motion for continuance raises a constitutional issue, the trial court\u2019s ruling is a question of law and is fully reviewable on appeal. State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981) (citing State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977)). Further, a motion for continuance made on the ground Defendant needs to secure a witness at trial raises a constitutional issue because a defendant has a constitutional right to present witnesses to confront the witnesses and testimony against him. U.S. Const. amend. VI; N.C. Const. art. I, \u00a7 23; see State v. Davis, 61 N.C. App. 522, 525, 300 S.E.2d 861, 863 (1983) (citations omitted). If an appellate court determines denial of such a motion was erroneous, the denial is prejudicial error unless the State demonstrates beyond a reasonable doubt the error was harmless. N.C.G.S. \u00a7 15A-1443(b) (1997).\nIn this case, Defendant\u2019s motion for continuance raises a constitutional issue and is therefore reviewable by this Court as a question of law. A motion for continuance must be supported by \u201cdetailed proof\u2019 which \u201cfully established]\u201d the reasons for the delay, and a party is entitled to a continuance only upon a showing of material prejudice if its motion is denied. State v. Jones, 342 N.C. 523, 531-32, 467 S.E.2d 12, 17-18 (1996) (citations omitted). The \u201cdetailed proof\u201d may be in the form of an unsworn statement by the movant\u2019s attorney or an affidavit by the attorney which establishes the reason for delay and how the movant will be prejudiced if its motion is denied. While it is the better practice to support a motion for continuance with an affidavit, State v. Gibson, 229 N.C. 497, 501, 50 S.E.2d 520, 523 (1948) (\u201cit is desirable that an application for a continuance should be supported by an affidavit showing sufficient grounds for the continuance\u201d), an affidavit is not required, see Jones, 342 N.C. at 531, 467 S.E.2d at 17 (citations omitted) (motion for continuance should be supported by affidavit).\nIn this case, Defendant made an oral motion requesting a continuance on the day of the trial because he had not discovered the location of Cassell until the previous day. Defendant\u2019s motion was not supported by an affidavit, and Defendant did not provide any detailed information regarding the significance of Cassell\u2019s testimony; rather, Defendant\u2019s counsel, in an unsworn statement, merely stated he believed Cassell would testify Defendant \u201cwasn\u2019t involved, basically\u201d in Chambliss\u2019s assault and \u201cdid not participate until the altercation.\u201d This unsworn statement failed to provide detailed proof regarding how Defendant would be materially prejudiced by Cassell\u2019s absence. Indeed, the statement Defendant did not participate in Chambliss\u2019s assault \u201cuntil the altercation\u201d appears to support the State\u2019s contention Defendant participated in the assault. Because the unsworn statement of Defendant\u2019s counsel was insufficient to provide detailed proof of a reason for delay, the trial court did not err by denying Defendant\u2019s motion for a continuance. It follows Defendant was not deprived of his constitutional right to present witnesses to confront the evidence against him.\nII\nDefendant contends the trial court erred by denying his motion, made at the close of Defendant\u2019s case-in-chief, for dismissal of the charge of assault with a deadly weapon inflicting serious injury. We disagree.\nA motion to dismiss based on insufficiency of the evidence to support a conviction must be denied if, when viewing the evidence in the light most favorable to the State, there is \u201csubstantial evidence to establish each essential element of the crime charged and that defendant was the perpetrator of the crime.\u201d State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619 (1988) (citations omitted). \u201cSubstantial evidence \u2018must be existing and real,\u2019 and is \u2018such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Id. (quoting State v. Irwin, 304 N.C. 93, 98, 282 S.E.2d 439, 443 (1981) (citations omitted)).\nIn this case, Defendant was charged with assault with a deadly weapon inflicting serious injury, and the State bore the burden of proving: (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; and (4) not resulting in death. N.C.G.S. \u00a7 14-32(b) (1993); see State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990).\nDefendant first contends the State did not present substantial evidence Defendant assaulted Chambliss. The State, however, presented evidence Chambliss saw Defendant participate in the fight and, while he did not identify which participants struck him with which instruments, he was hit with both a gun and a log. In addition, Pearce testified she witnessed Defendant kick Chambliss \u201ca few times\u201d and hit Chambliss with \u201ca branch or a log.\u201d Viewing this evidence in the light most favorable to the State, a reasonable mind could find Defendant not only participated in Chambliss\u2019s beating, but also struck Chambliss with a log. The State therefore presented substantial evidence Defendant assaulted Chambliss.\nDefendant also contends the State did not present substantial evidence Defendant used a deadly weapon during the assault. An instrument is a deadly weapon if it is \u201clikely to produce death or great bodily harm under the circumstances of its use,\u201d and when the question of whether an instrument might be deadly or produce great bodily harm turns on its manner of use, the determination is a question of fact for a jury. State v. Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373 (1978).\nIn this case, the State presented evidence that while Chambliss was lying on the ground, Defendant, Ingle, and Cassell struck Chambliss, and Defendant hit him on his head with a log. Chambliss suffered two hematomas near his brain as a result of the incident, and received fifteen stitches. Based on the severity of Chambliss\u2019s injuries and the manner in which the log was used, a jury could find the log was a deadly weapon. See State v. Randolph, 228 N.C. 228, 231, 45 S.E.2d 132, 135 (1947) (citing State v. West, 51 N.C. (6 Jones) 595 (1859)) (actual effects of using weapon may be considered when determining whether character of weapon was deadly). This issue was therefore properly submitted to the jury.\nIll\nDefendant argues the trial court erred by submitting to the jury North Carolina Pattern Jury Instruction 202.10, acting in concert, because the State failed to establish the existence of a common purpose to commit the crime of assault. We disagree.\nAn instruction on the doctrine of acting in concert is proper when the State presents evidence tending to show the defendant was present at the scene of the crime and \u201cacted together with another who did acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.\u201d State v. Robinson, 83 N.C. App. 146, 148, 349 S.E.2d 317, 319 (1986).\nIn this case, the State presented evidence Defendant was at the scene of the crime. Further, Pearce testified Defendant, Cassell, and Ingle decided they would fight Chambliss if he had a gun. After Defendant arrived at Chambliss\u2019s house, Chambliss struck Ingle with a gun and the two began to fight. Further, Pearce and Teague saw Chambliss had a gun and began to scream \u201cgun.\u201d Defendant and Cassell then attacked Chambliss.\nBecause the State\u2019s evidence tends to show Defendant, Cassell, and Ingle planned to assault Chambliss if he possessed a gun, and the State presented evidence Defendant, Cassell, and Ingle did assault Chambliss after discovering he had a gun, the trial court did not err by submitting to the jury an instruction on the doctrine of acting in concert.\nNo error.\nJudges WALKER and TIMMONS-GOODSON concur.\n. Defendant also argues in his brief to this Court that the trial court erred by denying Defendant\u2019s motion for dismissal of the assault with a deadly weapon inflicting serious injury charge at the close of the State\u2019s case-in-chief. Defendant, however, waived his right to appellate review of this issue when he presented evidence, N.C.E. App. P. 10(b)(3), and this issue is consequently not before this Court.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Christopher W. Brooks, for the State.", "Thomas R. Young, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEWART VANCE CODY\nNo. COA99-50\n(Filed 7 December 1999)\n1. Criminal Law\u2014 denial of continuance \u2014 time to subpoena witness \u2014 reason for delay \u2014 prejudice\nIn an assault with a deadly weapon inflicting serious injury case, defendant was not deprived of his constitutional right to present witnesses to confront the evidence against him by the trial court\u2019s denial of defendant\u2019s motion for continuance to subpoena a witness who was not located until one day prior to the trial date because defense- counsel\u2019s unsworn statement, that he believed the witness would testify that defendant was not involved in the victim\u2019s assault and did not participate until the altercation, failed to provide detailed proof regarding a reason for delay and how defendant would be materially prejudiced by the witness\u2019s absence.\n2. Assault\u2014 deadly weapon inflicting serious injury \u2014 sufficiency of evidence\nViewing the evidence in the light most favorable to the State, the trial court did not err by denying defendant\u2019s motion to dismiss the charge of assault with a deadly weapon inflicting serious injury at the close of defendant\u2019s case-in-chief because the State presented evidence that: (1) the victim saw defendant participate in the fight and while the victim did not identify which participants struck him with which instruments, he was hit with both a gun and a log; (2) another witness saw defendant kick the victim a few times and hit the victim with a branch or a log; and (3) the victim suffered two hematomas near his brain and received fifteen stitches after being hit in the head with a log while lying on the ground, revealing a jury could find the log was a deadly weapon based on the severity of the victim\u2019s injuries and the manner in which the log was used.\n3. Assault\u2014 deadly weapon inflicting serious injury \u2014 instruction on acting in concert \u2014 sufficiency of evidence\nThe trial court did not err in an assault with a deadly weapon inflicting serious injury trial by submitting the acting in concert theory under North Carolina Pattern Jury Instruction 202.10 because the State presented evidence that defendant was at the scene of the crime, defendant and two other men planned to assault the victim if he had a gun, and the three men did assault the victim after discovering he had a gun.\nAppeal by defendant from judgment dated 4 June 1998 by Judge James E. Lanning in Buncombe County Superior Court. Heard in the Court of Appeals 26 October 1999.\nAttorney General Michael F. Easley, by Associate Attorney General Christopher W. Brooks, for the State.\nThomas R. Young, for defendant-appellant." }, "file_name": "0722-01", "first_page_order": 756, "last_page_order": 763 }