{ "id": 8301072, "name": "STATE OF NORTH CAROLINA v. HENRY WILLIS BROWN, JR. and ALBERT GADSON", "name_abbreviation": "State v. Brown", "decision_date": "2006-04-18", "docket_number": "No. COA05-542", "first_page": "177", "last_page": "193", "citations": [ { "type": "official", "cite": "177 N.C. App. 177" } ], "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": "539 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "516 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132324 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0586-01" ] }, { "cite": "507 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11199755 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/131/0350-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "139 L. Ed. 2d 652", "category": "reporters:federal", "reporter": "L. 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App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131462 ], "year": 2002, "pin_cites": [ { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0713-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "540 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "821" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442413 ], "year": 2000, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0596-01" ] }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] }, { "cite": "563 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "618", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)" }, { "page": "619" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081768 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "501", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)" }, { "page": "501" }, { "page": "503" }, { "page": "503" }, { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0497-01" ] }, { "cite": "257 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "639", "parenthetical": "finding no unfair prejudice where exhibits not provided to the defendant served only to corroborate the testimony of witnesses" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 677", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555655 ], "year": 1979, "pin_cites": [ { "page": "682", "parenthetical": "finding no unfair prejudice where exhibits not provided to the defendant served only to corroborate the testimony of witnesses" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0677-01" ] }, { "cite": "302 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 21", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520056 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0021-01" ] }, { "cite": "263 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "771" }, { "page": "772" } ], "opinion_index": 0 }, { "cite": "299 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575737 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0671-01" ] }, { "cite": "231 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "675", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "291 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558753 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0505-01" ] }, { "cite": "153 L. Ed. 2d 791", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "536 U.S. 930", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254400, 1255201, 1254912, 1255398, 1255087, 1254705, 1254609, 1254996, 1254485, 1254614, 1254871, 1255094, 1254524, 1255069 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/536/0930-02", "/us/536/0930-03", "/us/536/0930-01", "/us/536/0930-13", "/us/536/0930-08", "/us/536/0930-09", "/us/536/0930-07", "/us/536/0930-11", "/us/536/0930-14", "/us/536/0930-04", "/us/536/0930-06", "/us/536/0930-05", "/us/536/0930-10", "/us/536/0930-12" ] }, { "cite": "555 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "354 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138413 ], "year": 2001, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0372-01" ] }, { "cite": "108 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1022", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5540, 5547, 5516, 5166, 5366, 4823, 5560 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1022-04", "/us/494/1022-06", "/us/494/1022-03", "/us/494/1022-05", "/us/494/1022-01", "/us/494/1022-02", "/us/494/1022-07" ] }, { "cite": "373 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564753 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0371-01" ] }, { "cite": "508 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "507-08" } ], "opinion_index": 0 }, { "cite": "349 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571580 ], "year": 1998, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0382-01" ] } ], "analysis": { "cardinality": 1207, "char_count": 36696, "ocr_confidence": 0.745, "pagerank": { "raw": 1.0937698392519282e-07, "percentile": 0.5662791537267231 }, "sha256": "6dd9f0c9196d6adba3575634045f298f048ffcd8217e79e68c17aced6cd08c9f", "simhash": "1:8fb8c42a561e1df0", "word_count": 6110 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HENRY WILLIS BROWN, JR. and ALBERT GADSON" ], "opinions": [ { "text": "McGEE, Judge.\nHenry Willis Brown, Jr. (Brown) and Albert Gadson (Gadson) (collectively defendants) were convicted of common law robbery and assault inflicting serious bodily injury. Brown was sentenced to a minimum of 15 months and maximum of 18 months on the common law robbery conviction, and a minimum of 19 months and maximum of 23 months on the assault conviction. Gadson also pleaded guilty to the status of habitual felon and was sentenced to a minimum of 120 months and maximum of 153 months.\nThe State\u2019s evidence at trial tended to show that in November 2002, Steven Allen Hall (Hall) was introduced to defendants by a friend, Stanley Blair (Blair). Defendants introduced themselves as brothers. Hall and Blair agreed to do some roofing work on Brown\u2019s home. Before Hall and Blair began work on the roof, they met defendants at Home Depot to purchase lumber. Hall testified that Brown paid for the lumber and gave Hall and Blair a check to cover partial payment of the roofing work and to cover the cost of shingles that Hall was to purchase later. Gadson spent eight hours one day helping Hall and Blair with the roofing job. Hall and Blair paid Gadson forty dollars for his help and owed him another forty dollars.\nOn the afternoon of 21 November 2002, defendants went to the apartment Hall shared with his girlfriend and demanded the forty dollars owed to Gadson. Defendants told Hall they were going to find Blair and collect the forty dollars. Brown told Hall they were \u201cgoing to get that money because they\u2019d been known to f\u2014 people up before.\u201d Defendants left Hall\u2019s apartment, and Hall called the police because he felt \u201cthreatened.\u201d\nThe next day, defendants returned to Hall\u2019s apartment and ordered Hall to go with them to find Blair. Hall attempted to call 911, but Brown yanked the phone cord out of the wall. Gadson hit Hall in the mouth, knocking out one of Hall\u2019s teeth. Defendants grabbed Hall in order to take him out to their vehicle, but Hall fell to the ground, and defendants stomped on his head. Defendants went back inside Hall\u2019s apartment, and Hall followed. Gadson again hit Hall in the mouth, and Brown threw a coffee table at Hall. Hall\u2019s neighbor, Joel Chapman (Chapman), testified that he saw defendants take two television sets from Hall\u2019s apartment and saw defendants load the televisions into the trunk of their vehicle.\nDr. Mark Hess (Dr. Hess) testified that Hall suffered multiple facial fractures around his eye and multiple lacerations. He also testified that Hall had lost a lower tooth. Hall\u2019s vision in his injured eye was 20/100 after the assault and his vision was still affected at the time of trial two years later.\nOn appeal, Brown argues eight assignments of error, and Gadson argues four assignments of error. Defendants\u2019 assignments of error not argued on appeal are deemed abandoned. N.C.R. App. P. 28(b)(6).\nI.\nDefendants argue the trial court erred in denying their motions to sequester the State\u2019s witnesses. Brown filed a pretrial motion to sequester, and Gadson made an oral motion at trial. The trial court denied the motions, stating:\nWell, the last couple of times I\u2019ve tried to sequester witnesses, frankly stated, it\u2019s been a miserable experience. . . . There\u2019s no central place where I can put witnesses. It inevitably becomes a time-consuming process. And when I weigh what, if any, gain might be had by keeping the witnesses out versus keeping them in, in the exercise of my discretion I\u2019m going to deny that motion.\n\u201cA ruling on a motion to sequester witnesses rests within the sound discretion of the trial court[.]\u201d State v. Call, 349 N.C. 382, 400, 508 S.E.2d 496, 507-08 (1998). A trial court\u2019s denial of a motion to sequester will not be disturbed \u201cin the absence of a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d Id. Citing State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), vacated and remanded on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990), defendants argue that the trial court failed to consider the merits of the motion to sequester. However, we find the trial court\u2019s ruling shows adequate deliberation and weighing of the merits of the motion. Moreover, in State v. Anthony, 354 N.C. 372, 396, 555 S.E.2d 557, 575 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002), our Supreme Court held that where a defendant failed to point to any instance in the record where a witness conformed his or her testimony to that of another witness, the defendant failed to show an abuse of discretion in the trial court\u2019s denial of a motion to sequester witnesses. In the present case, neither defendant identified any instance of a witness conforming testimony to that of another witness. Accordingly, we find no error.\nII.\nDefendants argue the trial court erred in allowing Hall\u2019s father, Clarence Hall, to testify at trial when Clarence Hall\u2019s name did not appear on the witness list disclosed by the State prior to trial. For the reasons below, we find no error.\nGadson argues the State was required, under N.C. Gen. Stat. \u00a7 15A-903(a)(3), to provide a written list of the names of all witnesses the State reasonably expected to call at trial. N.C. Gen. Stat. \u00a7 15A-903 provides:\n(a) Upon motion of the defendant, the court must order the State to:\n(3) Give the defendant, at the beginning of jury selection, a written list of the names of all other witnesses whom the State reasonably expects to call during the trial. ... If there are witnesses that the State did not reasonably expect to call at the time of the provision of the witness list, and as a result are not listed, the court upon a good faith showing shall allow the. witnesses to be called. Additionally, in the interest of justice, the court may in its discretion permit any undisclosed witness to testify.\n(emphasis added). The record does not reveal that either defendant made a motion requesting the trial court to order the State to provide a list of witnesses. Therefore, the State was not required by N.C.G.S. \u00a7 15A-903(a)(3) to provide defendants with a list of the witnesses it intended to call during trial. Gadson\u2019s assignment of error is overruled.\nBrown concedes the State was not required to provide defendants with a witness list under N.C.G.S. \u00a7 15A-903(a)(3). Instead, he argues that because the State volunteered to provide defendants with a witness list, the State\u2019s voluntary list should have complied with N.C. Gen. Stat. \u00a7 15A-903(b) and should have provided the names of all witnesses the State expected to call. N.C. Gen. Stat. \u00a7 15A-903(b) (2005) provides that \u201c [i]f the State voluntarily provides disclosure under N.C.G.S. \u00a7 15A-902(a), the disclosure shall be to the same extent as required by subsection (a) of this section.\u201d N.C. Gen. Stat. \u00a7 15A-902 provides in pertinent part:\n(a) A party seeking discovery under [Article 48] must, before filing any motion before a judge, request in writing that the other party comply voluntarily with the discovery request. A written request is not required if the parties agree in writing to voluntarily comply with the provisions of [this Article].. . .\n(b) To the extent that discovery authorized in this Article is voluntarily made in response to a request or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this Article.\nN.C. Gen. Stat. \u00a7 15A-902(a)(b) (2005).\nBrown cites State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977), in which our Supreme Court held that where the State provides a list of witnesses pursuant to a court order, and the State subsequently seeks to call a witness not on the list, the trial court must \u201clook to see whether the district attorney acted in bad faith, and whether the defendant was prejudiced thereby.\u201d Id. at 523, 231 S.E.2d at 675 (internal citations omitted). Brown argues the standard set forth in Smith should be \u201cequally applicable in the case of a voluntary disclosure as court ordered disclosure.\u201d In noting the distinction between court-ordered discovery and voluntary discovery, Brown presages our analysis. Unlike the facts of Smith, in the present case, there is no indication from the record that either defendant made a request for voluntary discovery by the State. Nor is there any evidence in the record of a written agreement between the State and either defendant to voluntarily comply with the provisions of Article 48. Reading the plain language of N.C.G.S. \u00a7 15A-902(b), it seems that absent a request or written agreement, the State\u2019s witness list is not deemed to have been made under an order of the trial court. See N.C.G.S. \u00a7 15A-902(b) (\u201cTo the extent that discovery authorized in this Article is voluntarily made in response to a request or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this Article.\u201d) (emphasis added). If not deemed to have been made under a court order, such voluntary discovery would seem not to need to be \u201cto the same extent as required by [N.C.G.S. \u00a7 15A-902(a)].\u201d N.C.G.S. \u00a7 15A-903(b).\nHowever, we note that North Carolina cases since Smith have used the Smith standard in cases where discovery was not court-ordered. In State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980), the defendant made an oral request during jury selection that the State orally list the names of all witnesses the State planned to call to testify. Id. at 675, 263 S.E.2d at 771. When the State complied with the oral request, but then later sought to call witnesses not named during jury selection, our Supreme Court analyzed the case pursuant to Smith. The Court held that the trial court\u2019s voir dire examination of the jury satisfied the requirements of Smith: \u201cThe voir dire established that the jurors did not know either of the witnesses the State had failed to name during jury selection. Such inquiry negated the possibility that the State was surreptitiously attempting to place before the jury witnesses who were friendly or influential with the jurors.\u201d Myers, 299 N.C. at 676, 263 S.E.2d at 772. In State v. Mitchell, 62 N.C. App. 21, 302 S.E.2d 265 (1983), this Court applied the Smith standard absent any evidence that the defendant had requested or received a list of witnesses from the State. The defendant in Mitchell appealed the admission of testimony by a witness whose name had not been disclosed by the State prior to jury selection. Id. at 27, 302 S.E.2d at 269. The trial court conducted a voir dire of the jury, was satisfied that none of the jurors knew the witness, and allowed the witness to testify. Id. On review, our Court noted that there was no indication from the record whether the State had voluntarily provided a list of witnesses to the defendant. Id. Applying the Smith standard, our Court found an insufficient showing of bad faith or prejudice, and upheld the trial court\u2019s decision. Id.\nIn the present case, the trial court conducted a voir dire of the jury to determine whether any juror knew Clarence Hall personally or knew anything about him. None of the jurors was familiar with Clarence Hall. Accordingly, under Myers and Mitchell, we find this voir dire disproved any bad faith on the part of the State in calling Clarence Hall as a witness. Moreover, defendant was not unfairly prejudiced by Clarence Hall\u2019s testimony, which the jury was instructed to consider solely for the purpose of corroboration. See State v. Harden, 42 N.C. App. 677, 682, 257 S.E.2d 635, 639 (1979) (finding no unfair prejudice where exhibits not provided to the defendant served only to corroborate the testimony of witnesses).\nAdditionally, N.C.G.S. \u00a7 15A-903(a)(3) empowers the trial court \u201cupon a good faith showing\u201d to allow the State to call a witness whom the State \u201cdid not reasonably expect to call at the time of the provision of the witness list.\u201d In the present case, the State informed the trial court that prior to being approached by Clarence Hall the mom-ing of trial, the State was not aware of Clarence Hall, or that he had observed his son\u2019s injuries. The trial court conducted a voir dire of Clarence Hall, who testified that he had not previously spoken with the State about the case. Following the voir dire of Clarence Hall and of the jury, the trial court, in its discretion, permitted Clarence Hall\u2019s testimony, which the trial court \u201cstrictly limited to corroboration.\u201d We hold that the trial court made the requisite good faith showing and was permitted under N.C.G.S. \u00a7 15A-903(a)(3) to allow the State to call Clarence Hall. This assignment of error is overruled.\nIII.\nDefendants argue the trial court erred in denying their motions to dismiss the charges against them for lack of sufficient evidence. Brown challenges the sufficiency of the evidence as to both charges; Gadson argues only as to the charge of assault inflicting serious bodily injury.\nIn ruling on a motion to dismiss, a trial court must determine \u201c \u2018whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u2019 \u201d State v. Williams, 150 N.C. App. 497, 501, 563 S.E.2d 616, 618 (2002) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). Substantial evidence is any evidence that a reasonable juror would consider sufficient to support a conclusion that each essential element of the crime exists. State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000). A trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom. Williams, 150 N.C. App. at 501, 563 S.E.2d at 619.\nDefendants were charged with assault inflicting serious bodily injury pursuant to N.C. Gen. Stat. \u00a7 14-32.4, which provides in pertinent part:\n(a) Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony. \u201cSerious bodily injury\u201d is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.\nN.C. Gen. Stat. \u00a7 14-32.4(a) (2005). The offense \u201crequires proof of two elements: (1) the commission of an assault on another, which (2) inflicts serious bodily injury.\u201d State v. Hannah, 149 N.C. App. 713, 717, 563 S.E.2d 1, 4, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002).\nBrown argues there was insufficient evidence as to the first element, that he perpetrated an assault on Hall. We disagree and find there was sufficient evidence to submit the question to the jury. At trial, both Hall and Chapman testified that Brown participated in the assault. Brown argues there were inconsistencies in Hall\u2019s testimony and that initially, Chapman did not identify Brown in a photographic lineup. These arguments, however, do not address the sufficiency of the evidence. Alleged contradictions or issues of credibility are for a jury to resolve and do not warrant dismissal. State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980).\nBoth defendants argue the State failed to present substantial evidence of the element of serious bodily injury. The statute defines serious bodily injury in three ways: (1) bodily injury that creates a substantial risk of death, or (2) bodily injury that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or (3) bodily injury that results in prolonged hospitalization. N.C.G.S. \u00a7 14-32.4. Serious bodily injury as defined in N.C.G.S. \u00a7 14-32.4 requires proof of more severe injury than the serious injury element in other assault offenses. Williams, 150 N.C. App. at 503, 563 S.E.2d at 619-20.\nIn the present case, as to Gadson, the trial court\u2019s instruction to the jury on the element of serious bodily injury was identical to the statutory definition. As to Brown, however, the trial court did not instruct the jury on the entire statutory definition of serious bodily injury. The trial court omitted the word \u201cimpairment\u201d from the instruction regarding Brown. Since a defendant may not be convicted of an offense on a theory different from that presented to a jury, our Court must determine whether the State presented substantial evidence of each element of assault inflicting serious bodily injury based on the definition of the offense given to the jury in the trial court\u2019s instructions. Williams, 150 N.C. App. at 503, 563 S.E.2d at 620.\nIn Williams, our Court addressed the sufficiency of evidence of serious bodily injury where a jury instruction limited the definition of serious bodily injury to \u201c \u2018an injury that creates or causes a permanent or protracted condition that causes extreme pain.\u2019 \u201d Williams, 150 N.C. App. at 503, 563 S.E.2d at 620. In that case, the State presented evidence that the victim suffered a broken jaw that was wired shut for two months, and suffered back spasms for eight months, which resulted in two visits to the emergency room because of difficulty breathing. Id. The treating physician testified the victim\u2019s injury was the type of injury that caused \u201c \u2018quite a bit\u2019 of-pain and discomfort.\u201d Id. at 503-04, 563 S.E.2d at 620. Our Court concluded that \u201ca reasonable juror could find this evidence sufficient to conclude that [the victim\u2019s] injuries created a \u2018protracted condition that cause[d] extreme pain.\u2019 \u201d Id. at 504, 563 S.E.2d at 620.\nIn the present case, Hall testified his facial injuries were \u201cvery\u201d painful, he suffered pain in his mouth for \u201cabout a month,\u201d and his right eye \u201cfelt like it fell out of [his] head.\u201d Hall\u2019s father testified that Hall complained of pain for \u201cabout ten months.\u201d Dr. Hess testified that Hall suffered multiple facial fractures and multiple lacerations, and characterized Hall\u2019s injuries as the type of injuries that caused \u201csevere\u201d and \u201cextreme\u201d pain. Viewing this evidence in the light most favorable to the State, we find there was sufficient evidence that Hall\u2019s injuries created a \u201cprotracted condition that cause[d] extreme pain.\u201d N.C.G.S. \u00a7 14-32.4(a). Since the jury was instructed as to this part of the definition of serious bodily injury for both Gadson and Brown, we hold the State presented sufficient evidence of this element as to both defendants.\nBrown also challenges the sufficiency of the evidence on the charge of common law robbery. He argues there was insufficient evidence of Brown\u2019s intent to permanently deprive Hall or Hall\u2019s girlfriend of property, or to convert it to Brown\u2019s own use. We find no merit in this argument. It is well-established that \u201c[ijntent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.\u201d State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). Chapman testified that both Gadson and Brown took part in assaulting Hall, and that both defendants took televisions and other electrical appliances from the apartment, loaded them into the trunk of their vehicle, and left the scene. This evidence of a forceful taking is sufficient evidence from which the jury could infer Brown intended to deprive Hall and Hall\u2019s girlfriend of the property. Although Brown claims there was some evidence tending to show he told Hall the property would be returned when Hall paid Brown, such discrepancy was for the jury to resolve. See Smith, 300 N.C. at 78, 265 S.E.2d at 169.\nWe find no error in the trial court\u2019s denial of defendants\u2019 motions to dismiss. This assignment of error is overruled as to both defendants.\nIV.\nDefendants argue the trial court erred in submitting a verdict sheet to the jury that listed the assault charge as \u201cfelonious\u201d assault inflicting serious bodily injury. Defendants contend that the inclusion of the word \u201cfelonious\u201d improperly allowed the jury to consider the severity of the potential sentence. Defendants argue the error unfairly prejudiced them because, absent this error, there was a reasonable possibility that the jury result would have been different. We find no merit to this argument.\nDefendants correctly state that \u201cthe function of the jury during the guilt phase is to determine the guilt or innocence of the defendant, not to be concerned about [the defendant\u2019s] penalty].]\u201d State v. Artis, 325 N.C. 278, 295, 384 S.E.2d 470, 479 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). However, even assuming arguendo that it was error for the trial court to characterize the charge as \u201cfelonious,\u201d upon examination of the record, we conclude there is no reasonable possibility that the outcome would have differed had the jury verdict sheet not included the word \u201cfelonious.\u201d\nV.\nBrown argues the trial court committed reversible error when it denied his motion for a mistrial after closing arguments. At trial, Brown objected to the State\u2019s statements to the jury that the lesser-included assault inflicting serious injury was a \u201cmisdemeanor,\u201d and that convicting defendants of the lesser-included offense would be \u201ca slap on the wrist.\u201d\n\u201cIt is within the trial court\u2019s discretion to determine whether to grant a mistrial, and the trial court\u2019s decision is to be given great deference because the trial court is in the best position to determine whether the degree of influence on the jury was irreparable.\u201d State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1988). Absent a showing of gross abuse of a trial court\u2019s discretion, the trial court\u2019s ruling will not be disturbed on appeal. State v. Roland, 88 N.C. App. 19, 26, 362 S.E.2d 800, 805 (1987), disc. review denied, 321 N.C. 478, 364 S.E.2d 666 (1988).\nOrdinarily, when the State\u2019s jury argument is challenged as improper, the argument of both counsel should be included in the record on appeal. State v. Quilliams, 55 N.C. App. 349, 352, 285 S.E.2d 617, 620, cert. denied, 305 N.C. 590, 292 S.E.2d 11 (1982). When arguments are not contained in the record, the arguments are presumed to be proper. Id. Brown explains that closing arguments are not included in the record on appeal because the arguments were not recorded at trial. Therefore, we have only the colloquy regarding Brown\u2019s objection and motion for mistrial in the record for our review. Without the transcript of the State\u2019s argument, we cannot be certain of the accuracy of Brown\u2019s characterization of the State\u2019s argument. However, even assuming arguendo that Brown\u2019s characterization is proper, we find no abuse of discretion.\nThe contested argument did not unfairly prejudice Brown. As discussed in Part III of this opinion, there was sufficient evidence to support the charge of assault inflicting serious bodily injury. The trial court, in its discretion, did not find the contested statements in the State\u2019s argument to constitute an impropriety sufficient for a mistrial. Given the degree of deference afforded a trial court\u2019s decision on a motion for a mistrial, we are not persuaded that the trial court\u2019s denial of Brown\u2019s motion amounted to an abuse of discretion.\nVI.\nBrown next argues the trial court erred in allowing the introduction of an exhibit pertaining to a real estate transaction between Gadson and Blair. The State called Blair as a witness and questioned him about a proposed real estate sale between Blair and Gadson. Blair testified that Gadson offered to sell Blair some real property, but Gadson did not in fact own the property. The State then moved to introduce Exhibit 27, a bill for a survey of the property Gadson claimed to own. Over Gadson\u2019s objection, the trial court admitted Exhibit 27, stating: \u201cI\u2019ll let it in as to Gadson only, to explain the relationship between the parties. Do not consider that land deal against Defendant Brown, members of the jury.\u201d\nWe first note that Brown failed to object to either the exhibit or the related testimony at trial. Therefore, Brown must show that any error by the trial court amounted to plain error, an error \u201cso fundamental that it undermine[d] the fairness of the trial, or . .. had a probable impact on the guilty verdict.\u201d State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002). We also note the exhibit and testimony were admitted against Gadson only, and the trial court instructed the jury not to consider the evidence against Brown. Brown argues on appeal that \u201cthe taint attributed to Mr. Gadson\u2019s character through the improper questioning firmly attached itself to Mr. Brown\u2019s character and credibility.\u201d We are not persuaded.\n\u201c[O]ur legal system through trial by jury operates on the assumption that a jury is composed of men and women of sufficient intelligence to comply with the court\u2019s instructions and they are presumed to have done so.\u201d State v. Glover, 77 N.C. App. 418, 421, 335 S.E.2d 86, 88 (1985); State v. Richardson, 346 N.C. 520, 534, 488 S.E.2d 148, 156 (1997), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 652 (1998). In light of the fact that the evidence pertained only to Gadson, and the trial court\u2019s limiting instruction to the jury, Brown has not shown that any alleged error was so fundamental as to amount to plain error. This assignment of error is overruled.\nVII.\nBrown next argues the trial court erred in overruling his objection to a question posed by the State to Brown during cross-examination. The questioning at issue was as follows:\nQ. What felony have you been convicted of in the last ten years for which you could have received a penalty of more than 60 days, Mr. Brown?\nA. Social Security fraud, for faulty paperwork.\nQ. And that\u2019s something you\u2019re on probation for right now. Correct?\nA. Yes, sir. It was up in April, I think.\nQ. And the reason you\u2019re denying any involvement in even going over to Mr. Hall\u2019s house is because you know it would violate this federal probation, don\u2019t you?\nMr. Jordan: Objection.\nThe Court: Overruled.\nQ. My question to you, Mr.. Brown, is the reason why you don\u2019t want to admit any involvement in this thing is because you know you\u2019re going to have to do this federal time as a result of it. Correct?\nOn appeal, Brown concedes the State\u2019s initial questions about Brown\u2019s felony conviction were permissible under N.C. Gen. Stat. \u00a7 8C-1, Rule 609, which permits evidence that a witness has been convicted of a felony, for purposes of impeachment. N.C. Gen. Stat. \u00a7 8C-1, Rule 609 (2005). Brown argues the State\u2019s follow-up question about Brown\u2019s motivation for denying involvement went beyond the permissible scope of Rule 609, which limits details of a prior conviction to \u201cname of the crime, the time and place of the conviction, and the punishment imposed.\u201d State v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993). Brown\u2019s reliance on Rule 609 is misplaced. The State\u2019s question about Brown\u2019s denial of involvement did not concern any impermissible details about Brown\u2019s prior, felony conviction. Rather, the State sought to elicit that Brown had a motive for untruthfulness when he denied involvement in the crime. The State concedes the question could be considered a question concerning a prior bad act, but contends the question was permissible under Rule 404(b), in that it was admitted for the purpose of showing motive. We agree. Under N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2005), evidence of prior bad acts or crimes is admissible for purposes other than to prove a witness\u2019s conformity with the prior act. Such evidence is admissible to show, inter alia, the witness\u2019s motive. Id. Accordingly, this assignment of error is overruled.\nVIII.\nBrown argues the trial court abused its discretion by sentencing him to consecutive sentences upon conviction of the two offenses. Brown acknowledges the trial court\u2019s authority, under N.C. Gen. Stat. \u00a7 15A-1354, to impose a sentence consecutively, but urges this Court to reconsider its rulings upholding the trial court\u2019s statutory authority. We decline. We reiterate our response to a similar argument promulgated by the defendant in State v. Love, 131 N.C. App. 350, 507 S.E.2d 577 (1998), aff\u2019d, 350 N.C. 586, 516 S.E.2d 382, cert. denied, 350 N.C. 586, 539 S.E.2d 653 (1999). In Love, our Court addressed the question of a trial court\u2019s discretion under N.C.G.S. \u00a7 15A-1354, and we reiterate our response in Love: \u201cThis is, at best, a question for the legislature to resolve, but for our purposes it is an argument without merit on appeal.\u201d Id. at 359, 507 S.E.2d at 584.\nNo prejudicial error.\nChief Judge MARTIN and Judge STEELMAN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General' Jeffrey R. Edwards, for the State.", "White and Crumpler, by David B. Freedman, for defendant-appellant Henry Willis Brown, Jr.", "Moser Schmidly & Roose, by Richard G. Roose, for defendant-appellant Albert Gadson." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HENRY WILLIS BROWN, JR. and ALBERT GADSON\nNo. COA05-542\n(Filed 18 April 2006)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nDefendants\u2019 assignments of error not argued on appeal are deemed abandoned under N.C. R. App. P. 28(b)(6).\n2. Witnesses\u2014 denial of motion to sequester \u2014 failure to show abuse of discretion\nThe trial court did not abuse its discretion in a common law robbery and assault inflicting serious bodily injury case by denying defendants\u2019 motions to sequester the State\u2019s witnesses, because: (1) the trial court\u2019s ruling showed adequate deliberation and weighing of the merits of the motion; and (2) where defendants failed to point to any instance in the record where a witness conformed his testimony to that of another witness, defendants failed to show an abuse of discretion.\n3. Discovery\u2014 voluntary witness list \u2014 failure to disclose witness prior to trial \u2014 voir dire \u2014 good faith\nThe trial court did not err in a common law robbery and assault inflicting serious bodily injury case by allowing the victim\u2019s father to testify at trial when his name did not appear on the witness list disclosed by the State prior to trial, because: (1) the record does not disclose that either defendant made a motion requesting the trial court to order the State to provide a list of witnesses, and thus, the State was not required under N.C.G.S. \u00a7 15A-903(a)(3) to provide defendants with a list of the witnesses it intended to call during trial; (2) there was no indication from the record that either defendant made a request for voluntary discovery by the State, nor was there evidence of a written agreement between the State and either defendant to voluntarily comply with the provisions of Article 48; (3) absent a request of written agreement, the State\u2019s witness list is not deemed to have been made under an order of the trial court, and thus, such voluntary discovery would not need to be to the same extent as required by N.C.G.S. \u00a7 15A-902(a); (4) the trial court conducted a voir dire of the jury to determine whether any juror knew the witness personally or knew anything about him, and this voir dire disproved any bad faith on the part of the State in calling the witness; (5) defendants were' not unfairly prejudiced by the witness\u2019s testimony which the jury was instructed to consider solely for the purpose of corroboration; and (6) the State made the requisite good faith showing and was permitted under N.C.G.S. \u00a7 15A-903(a)(3) to call the witness.\n4. Assault\u2014 inflicting serious bodily injury \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendants\u2019 motions to dismiss the charge of assault inflicting serious bodily injury, because: (1) there was sufficient evidence to submit the question to the jury concerning whether defendant Brown perpetrated an assault on the victim when at trial two witnesses testified that defendant participated in the assault; (2) although defendant contends there were inconsistencies in the victim\u2019s, testimony and that initially another witness did not identify defendant in a photographic lineup, alleged contradictions or issues of credibility are for a jury to resolve and do not warrant dismissal; and (3) viewing the evidence in the light most favorable to the State, the evidence was sufficient to show the victim\u2019s injuries created a protracted condition that caused extreme pain to satisfy the element of serious bodily injury.\n5. Robbery\u2014 common law \u2014 intent\u2014motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of common law robbery even though defendant contends there was insufficient evidence of his intent to permanently deprive the victim or the victim\u2019s girlfriend of property or to convert it to defendant\u2019s own use, because: (1) a witness testified that both defendants took part in assaulting the victim, both took televisions and other electrical appliances from the apartment, loaded them into the trunk of their vehicle, and left the scene; (2) this evidence of a forceful taking was sufficient for the jury to infer defendant intended to deprive the victim and the victim\u2019s girlfriend of the property; and (3) although defendant contends there was some evidence tending to show he told the victim the property would be returned when the' victim paid defendant, such discrepancy was for the jury to resolve.\n6. Assault\u2014 verdict sheet \u2014 \u201cfelonious\u201d assault inflicting serious bodily injury\nThe trial court did not err by submitting a verdict sheet to the jury that listed the assault charge as \u201cfelonious\u201d assault inflicting serious bodily injury because, even assuming arguendo that it was error for the trial court to characterize the charge as felonious, upon examination of the record there was no reasonable possibility that the outcome would have differed absent this alleged error.\n7. Criminal Law\u2014 prosecutor\u2019s argument \u2014 convicting of lesser-included offense would be slap on wrist \u2014 motion for mistrial\nThe trial court did not abuse its discretion in an assault inflicting serious bodily injury case by denying defendant\u2019s motion for a mistrial based on the State\u2019s alleged statements to the jury that the lesser-included assault inflicting serious injury was a misdemeanor and that convicting defendants of the lesser-included offense would be a slap on the wrist, because: (1) the jury arguments are not contained in the record on appeal and thus are presumed to be proper; and (2) even assuming arguendo that defendant\u2019s characterization of the argument is proper, there was no abuse of discretion when the argument did not unfairly prejudice defendant.'\n8. Evidence\u2014 exhibit \u2014 credibility of codefendant \u2014 limiting instruction \u2014 plain error analysis\nThe trial court did not commit plain error in a common law robbery and assault inflicting serious bodily injury case by allowing the introduction of an exhibit pertaining to a real estate transaction between defendant Gadson and another man even though defendant Brown contends the taint attributed to his codefendant attached itself to his character and credibility as well, because: (1) the trial court instructed the jury that the exhibit and testimony were admitted against Gadson only and not to consider the evidence against defendant Brown; and (2) a jury is presumed to be able to comply with the trial court\u2019s instructions.\n9. Evidence\u2014 prior crimes or bad acts \u2014 federal probation\u2014 not impermissible details \u2014 motive\nThe trial court did not err by allowing the State to ask defendant on cross-examination whether he denied involvement in the crimes for which he was on trial since he knew his commission of those crimes would violate his federal probation for a prior felony since the State\u2019s question did not concern impermissible details about defendant\u2019s prior felony conviction in violation of N.C.G.S. \u00a7 8C-1, Rule 609, and the question was permissible under N.C.G.S. \u00a7 8C-1, Rule 404(b) to show motive.\n10.Sentencing\u2014 consecutive sentences \u2014 abuse of discretion standard\nThe trial court did not abuse its discretion in a common law robbery and assault inflicting serious bodily injury case by sentencing defendant to consecutive sentences, because: (1) defendant acknowledges the trial court\u2019s authority under N.C.G.S. \u00a7 15A-1354 to impose a sentence consecutively; and (2) this question is best left for the legislature to resolve.\nAppeal by defendants from judgments dated 22 October 2004 by Judge W. Douglas Albright in Superior Court, Forsyth County. Heard in the Court of Appeals 23 January 2006.\nAttorney General Roy Cooper, by Assistant Attorney General' Jeffrey R. Edwards, for the State.\nWhite and Crumpler, by David B. Freedman, for defendant-appellant Henry Willis Brown, Jr.\nMoser Schmidly & Roose, by Richard G. Roose, for defendant-appellant Albert Gadson." }, "file_name": "0177-01", "first_page_order": 211, "last_page_order": 227 }