{ "id": 8525241, "name": "STATE OF NORTH CAROLINA v. BEN WESTER, JR.", "name_abbreviation": "State v. Wester", "decision_date": "1984-11-20", "docket_number": "No. 846SC212", "first_page": "321", "last_page": "332", "citations": [ { "type": "official", "cite": "71 N.C. App. 321" } ], "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": "308 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "316" } ], "opinion_index": 0 }, { "cite": "309 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761304 ], "year": 1983, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0587-01" ] }, { "cite": "309 S.E. 2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "262-63" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 355", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523904 ], "year": 1983, "pin_cites": [ { "page": "357-59" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0355-01" ] }, { "cite": "230 S.E. 2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "187" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550799 ], "year": 1976, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0536-01" ] }, { "cite": "84 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "547" } ], "opinion_index": 0 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "year": 1954, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "241 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 443", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573761, 8573731, 8573705, 8573673, 8573656 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0443-05", "/nc/294/0443-04", "/nc/294/0443-03", "/nc/294/0443-02", "/nc/294/0443-01" ] }, { "cite": "238 S.E. 2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "641" }, { "page": "641-42" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549768 ], "year": 1977, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0462-01" ] }, { "cite": "286 S.E. 2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566071 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0077-01" ] }, { "cite": "292 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573543, 8573584, 8573651, 8573620, 8573564 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0762-01", "/nc/305/0762-03", "/nc/305/0762-05", "/nc/305/0762-04", "/nc/305/0762-02" ] }, { "cite": "266 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548354 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0121-01" ] }, { "cite": "313 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "313 S.E. 2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "542" } ], "opinion_index": 0 }, { "cite": "310 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400499 ], "year": 1984, "pin_cites": [ { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0507-01" ] }, { "cite": "303 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573603, 8573637, 8573542, 8573575, 8573552 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0319-04", "/nc/303/0319-05", "/nc/303/0319-01", "/nc/303/0319-03", "/nc/303/0319-02" ] }, { "cite": "278 S.E. 2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170109 ], "year": 1981, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0166-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "166" }, { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] } ], "analysis": { "cardinality": 918, "char_count": 26042, "ocr_confidence": 0.824, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.287578735285339 }, "sha256": "16205ec2e8d8c68473e2db000d56f390bc5fcf14325792f07cca9427a891f4f5", "simhash": "1:b32ec26b223fc8f1", "word_count": 4417 }, "last_updated": "2023-07-14T17:51:06.115640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Eagles concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BEN WESTER, JR." ], "opinions": [ { "text": "BRASWELL, Judge.\nWhile sitting in his van at Bellamy\u2019s Convenient Mart in Ringwood, North Carolina, William Allen Hales received cuts about his head and face when struck with two glass bottles by the defendant. The defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury, but the jury returned a verdict of guilty of assault with a deadly weapon inflicting serious injury. On appeal, the defendant\u2019s sixteen assignments of error can basically be divided into four categories: (1) arraignment, (2) admission of evidence, (3) jury instructions, and (4) sentencing.\nOn 9 April 1983, at approximately 9:30 p.m. William Allen Hales drove his van to Bellamy\u2019s Convenient Mart where he worked in order to get the store\u2019s keys and money so he could open the store the next morning. Hales went into the store and bought a ten-ounce Pepsi and some popcorn, then returned to his van to wait until he could get the money and the keys when the store closed. As he was waiting in the van with friends, Joe, But-terbean, and Rat, the defendant whom Hales had seen while inside came up to the driver\u2019s window and asked Hales for a ride down the road. When Hales refused, the defendant offered him money for the ride. Hales explained to the defendant that normally he would give him a ride for free, but that he could not that night because he was waiting for someone. Hales testified that he told the defendant that story because he did not want it known that he was waiting for the money from the store. The defendant indicated that he understood and walked away.\nAs Hales was talking to Butterbean who was sitting in the back of the van, the defendant went around to the front passenger\u2019s window where Joe was sitting. The defendant told Joe that Hales would not give him a ride. As Joe explained that usually Hales would have given him a ride, the defendant reached in the van, picked up the ten-ounce Pepsi bottle off the console between the seats, and threw it at Hales. When the bottle hit Hales\u2019 head, it broke and split open his head. Joe, Butterbean, and Rat made a break for the nearest door. As Joe got out by the front passenger\u2019s door, the defendant leaned into the van, found a second sixteen-ounce Pepsi bottle, and hit Hales with it. When Hales attempted to escape by the van\u2019s side door, the defendant grabbed his shirt and cut Hales on the back of the neck with the jagged end of the broken sixteen-ounce bottle. The defendant then stabbed Hales in the eye with the bottle, cutting a vein near Hales\u2019 eye. After further hitting and kicking Hales, the defendant released him and walked away. The rescue squad was called and Hales was taken to the hospital.\nArraignment\nThe defendant contends that the trial court erred in denying the defendant\u2019s motion for an arrest of judgment for failure of the trial court to formally arraign the defendant in open court or for its failure to have the defendant sign a written waiver. In his brief the defendant states that he \u201cis aware of cases handed down by this Court and by the North Carolina Supreme Court stating that it is not prejudicial error unless the defendant objects and states that he is not properly informed of the charges. This defendant specifically asks and requests this Court to overrule the previous decisions of this Court and the North Carolina Supreme Court on this point.\u201d We must decline this invitation. The defendant did in no way object or indicate that he was either unaware of the charges against him or that he needed more time to prepare. \u201cWhere there is no doubt that a defendant is fully aware of the charge against him, or is in no way prejudiced by the omission of .a formal arraignment, it is not reversible error for the trial court to fail to conduct a formal arraignment proceeding.\u201d State v. Smith, 300 N.C. 71, 73, 265 S.E. 2d 164, 166 (1980). Because the trial court informed the jury as a part of its charge that the defendant had pled not guilty, we fail to see how he was prejudiced by the lack of a formal arraignment. We hold the trial court properly denied the defendant\u2019s motion for an arrest of judgment.\nThe Evidence\nThe defendant asserts in five assignments of error that the trial court erred in allowing into evidence five items of testimony by three witnesses. Specifically, the defendant asserts that the trial court erred by admitting: (1) the victim\u2019s statement as to how long he was out of work following the attack; (2) the rescue squad member\u2019s reference to Hales as \u201cthe victim\u201d and the \u201ccutting victim\u201d; (3) the rescue squad member\u2019s testimony as to the condition of the victim when he arrived at the scene; and (4) the statement made by the arresting officer to the defendant that he was investigating a felony.\nWith regard to his first argument, the defendant objected to the admission of this evidence because a proper foundation had not been laid. Although from the record a hornbook foundation was not laid, we hold that any error committed by allowing this evidence was harmless. The defendant objected to the question: \u201cWhen did you next go to work after this incident?\u201d This objection was overruled and Hale answered \u201c[a] week later.\u201d The only question to which the defendant has taken an exception in the record on appeal was: \u201cWhen were you scheduled to go to work after this incident?\u201d Hales had already answered this question by previously testifying that he was at the store that night to pick up the key for work the next day. This objected to testimony followed Hales\u2019 other testimony concerning the extent and treatment of his injuries. Although a better foundation could have been laid establishing the fact that Hales did not go to work as scheduled and could not return to work until a week later due to his injuries, the testimony taken as a whole did not prejudice the defendant.\nThe defendant\u2019s assignment of error that the trial court improperly allowed Charles Carmen, rescue squad member, to refer to Hales as \u201cthe victim\u201d and \u201ccutting victim\u201d is likewise without merit. It was not contested at trial that Hales was the victim of a serious attack. There was substantial testimony as to the brutality of the attack and its gory results. There was also no testimony that the defendant was provoked into attacking Hales. We hold it was not error to allow Carmen to refer to Hales as the victim.\nThe defendant also contends that the trial court improperly allowed Carmen to express a medical opinion that Hales was going into hypovolemic shock without first formally being qualified as an expert witness. The opinion evidence of a non-expert witness is generally not admissible because it invades the province of the jury. \u201cThe basic question in determining the admissibility of opinion testimony, however, is whether the witness is better qualified through his training, skills, and knowledge, than the jury to form an opinion as to the particular issue.\u201d State v. Wright, 52 N.C. App. 166, 175, 278 S.E. 2d 579, 587, disc. rev. denied, 303 N.C. 319 (1981). Carmen testified that he had been a member of the Enfield Rescue Squad for two years, had completed a full EMT course, had endured 121 hours of classroom work and 10 hours of actual emergency room training, and had recently completed 30 hours of training towards his recertification. He was better qualified to form an opinion on Hales\u2019 medical condition than was the jury. We hold the evidence was properly admitted.\nThe defendant also objects to Deputy Sheriff Dan Stanfield\u2019s use of the word \u201cfelony\u201d in his testimony. Stanfield testified that when he arrived at the defendant\u2019s home on the night of the assault that he found the defendant under a bed at his house, partially covered with a blanket. In response to the question, \u201cWhat, if anything, did you do then?\u201d, the Deputy stated:\nHe wanted to know what we wanted. I told him we wanted to question him.\n* * * *\nI advised him on a question with reference to a felony had occurred.\nContrary to the defendant\u2019s assertion, this answer was not unresponsive and prejudicial to him. We hold that the Deputy\u2019s use of \u201cfelony\u201d was merely a shorthand statement of the facts and was therefore admissible. State v. Marlow, 310 N.C. 507, 523-24, 313 S.E. 2d 532, 542 (1984).\nThe defendant\u2019s next assignment of error contends that the warrantless arrest of the defendant was unlawful and the evidence and testimony surrounding the arrest was inadmissible. G.S. 15A-401(b)(2) provides that with regard to offenses committed out of his presence,\n[a]n officer may arrest without a warrant any person who the officer has probable cause to believe:\na. Has committed a felony; or\nb. Has committed a misdemeanor, and:\n1. Will not be apprehended unless immediately arrested. . . .\nDeputy Stanfield had received information from the first officer on the scene that the defendant \u201chad just come back in the area.\u201d Stanfield and other officers went to the defendant\u2019s parents\u2019 home and obtained permission to search the house. The record reveals that at the time of his arrest the officers did have probable cause to believe that the defendant had either committed a felony or that he had committed a misdemeanor and would flee before he could be apprehended if a warrant were first obtained. This assumption was well founded since the defendant did first attempt to leave by the back door when the officers came into the house before turning back and hiding under the bed. We hold the defendant\u2019s arrest was lawful and the testimony and evidence surrounding the arrest was admissible.\nIn his next argument, the defendant contends that the trial court erred by denying the defendant\u2019s motion for a dismissal of the charges and for a directed verdict at the end of the State\u2019s evidence and then again at the end of all the evidence. The basis for this assignment of error is that the evidence presented does not tend to show that Hales received a serious injury as a result of this attack to constitute felonious assault. We must disagree.\nIt is well settled that upon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom.\nState v. Brown, 310 N.C. 563, 566, 313 S.E. 2d 585, 587 (1984). Taken in the light most favorable to the State, the evidence reveals that the defendant without provocation hit Hales with a Pepsi bottle hard enough to break the bottle, hit Hales with a second bottle which broke while Hales tried to get out of the van, attacked Hales with this broken bottle by slashing him on the neck, stabbed Hales in the eye with its jagged end, hit Hales with his fist in the bleeding eye, and kicked him. Since there was substantial evidence that Hales\u2019 injuries were serious enough to constitute felonious assault, we hold the trial court properly denied the defendant\u2019s motions. See State v. Smith, supra, at 78-79, 265 S.E. 2d at 169.\nJury Instructions\nAt the end of all the evidence, the trial court held a jury instruction conference out of the presence of the jury. At that time the defendant orally requested that numerous specific instructions be given to the jury.\nIn his first assignment of error with regard to jury instructions, the defendant contends that although the trial court did instruct the jury regarding the defendant\u2019s failure to testify he erred by not also instructing the jury regarding the defendant\u2019s failure to offer evidence. Although the transcript shows an oral request of a general nature to charge \u201c[a]s to the Defendant\u2019s failure to offer evidence,\u201d the record fails to contain any written request for a special instruction on the topic as required by G.S. 15A-1231 and as upheld in State v. Harris, 47 N.C. App. 121, 266 S.E. 2d 735 (1980), cert. denied, 305 N.C. 762, 292 S.E. 2d 577 (1982). (\u201cRequests for special instructions must be in writing and must be submitted before the beginning of the charge by the court.\u201d Id. at 123, 266 S.E. 2d at 737.) The judge is not required to compose the words of a request for a special instruction. Because the subject of a failure of a defendant to offer any evidence is a subordinate feature of the case, and because the general subject was adequately covered in the charge concerning the defendant\u2019s failure to testify himself, the failure of the judge to make up and give an instruction on the additional topic did not materially prejudice the case of the defendant. See G.S. 15A-1231(b). We find no error.\nThe defendant\u2019s next three assignments of error stem from the trial court\u2019s failure to instruct the jury on the lesser included offenses of misdemeanor assault with a deadly weapon, simple assault, and affray. The trial court is not required to instruct the jury on every lesser included offense to the original crime charged unless such offenses arise on the evidence. In the present case, the State\u2019s evidence was positive as to each and every element of the crimes on which the jury was instructed. State v. Hall, 305 N.C. 77, 286 S.E. 2d 552 (1982). If the jury believed that the defendant was the person who feloniously assaulted Hales, the only other factual determination for them to resolve was whether the assault was committed with an intent to kill. Contrary to the defendant\u2019s argument, there was no conflicting evidence as to the seriousness of Hales\u2019 injuries to warrant an instruction of these lesser included offenses. \u201cThe \u2018[m]ere contention that the jury might accept the State\u2019s evidence in part and might reject it in part will not suffice.\u2019 \u201d State v. McWhorter, 34 N.C. App. 462, 467, 238 S.E. 2d 639, 641 (1977), disc. rev. denied, 294 N.C. 443, 241 S.E. 2d 844 (1978), quoting State v. Hicks, 241 N.C. 156, 160, 84 S.E. 2d 545, 547 (1954). \u201cThe defendant\u2019s contention that the jury might have convicted the defendant of the lesser included offense of assault with a deadly weapon [as well as simple assault and affray] if they had been given the opportunity does not support the submission of the lesser included offense[s] to the jury.\u201d Id. at 467, 238 S.E. 2d at 641-42. These assignments of error are overruled.\nFurthermore, we note that the defendant\u2019s contention, labeled Assignment of Error No. 9, that the trial court should have also instructed the jury on the crime of assault with a deadly weapon with intent to kill, G.S. 14-32(c), was abandoned without argument in his brief. See Rule 28(b)(5), N.C. Rules App. Proc.\nBecause these assignments of error are without merit, the defendant\u2019s next contention that the trial court erred by failing to define the elements of an assault and to distinguish felonious assault from misdemeanor assault is meritless. Since the crimes of misdemeanor assault with a deadly weapon, simple assault, and affray did not arise on the evidence and did not have to be charged on, the trial court did not err by refusing to explain the difference between the felony and misdemeanor assault-related crimes. Also, within this assignment of error, the defendant contends that the trial court erred in its jury instructions on \u201cintent to kill\u201d and what constitutes a \u201cdeadly weapon.\u201d We have carefully reviewed the charge and find no error in his instruction to the jury in this regard. Additionally, since the defendant was not convicted of a crime requiring the \u201cintent to kill,\u201d we fail to see how he could have been prejudiced by the instructions given.\nThe final assignment of error relating to jury instructions claims that the trial court erred \u201cin refusing to summarize and recapitulate any of the evidence.\u201d There is no record of an oral request or written tender by counsel of a specific instruction on recapitulation of the evidence. However, in the court\u2019s conversation with counsel about a different request, the court volunteered the statement that \u201cI do not intend to recapitulate the evidence.\u201d\nAfter delivering the jury charge the court inquired: \u201cNow do you have any corrections or additions to this charge?\u201d Although an \u201coff-the-record discussion\u201d occurred at the bench, the transcript fails to disclose any requests for corrections or that any additional instructions were requested by defense counsel. We hold this assignment of error to be without merit.\nThe statute, G.S. 15A-1232 does not require the trial judge in his charge to recite verbatim, repeat, recount, or recapitulate the testimony of each witness. Such repetition would be redundant to a juror\u2019s ears and lengthen jury instructions unnecessarily. We believe that the judge\u2019s duty is performed when he summarizes only so much of the evidence as is necessary for him to apply the law. State v. Moore, 31 N.C. App. 536, 542, 230 S.E. 2d 184, 187 (1976). Our review of the entire instructions as given to the jury reveals their application of the law to the facts. The final mandate of the charge here complied with the statute. See State v. Norfleet, 65 N.C. App. 355, 357-59, 309 S.E. 2d 260, 262-63 (1983).\nSentencing\nIn this assignment of error, the defendant contends that the trial court erred in finding two aggravating factors against the defendant and sentencing him to a term greater than the presumptive sentence. The defendant first asserts that the State\u2019s method of proving the defendant\u2019s prior criminal record was not in accordance with G.S. 15A-1340.4(e). The State introduced a PIN (Police Information Network) computer printout of the defendant\u2019s record from the District of Columbia. The defendant contends that the State was required to offer into evidence the defendant\u2019s prior criminal record by either stipulation of the parties or by a certified copy of the court record. We disagree and hold that the use of the PIN report to establish the defendant\u2019s prior criminal record was proper. G.S. 15A-1340.4(e) provides that a prior record may be proven by certified court records or by stipulation, but they are not exclusive methods by which prior convictions may be shown. State v. Graham, 309 N.C. 587, 593, 308 S.E. 2d 311, 316 (1983). As always, the defendant must be given the opportunity to refute the proffered evidence.\nThe second aggravating factor objected to by the defendant was that this crime was \u201cespecially heinous, atrocious, or cruel.\u201d See G.S. 15A-1340.4(a)(l)f. The evidence shows that the defendant attacked Hales without provocation by striking him with two Pepsi bottles with enough force to break them. The defendant then stabbed Hales in the eye with the broken bottle and punched him in the bleeding area after Hales had fallen to the ground. Thereafter the defendant kicked Hales twice before walking away. We hold therefore that there was evidence to support the finding of this aggravating factor. Based on these two aggravating factors, the trial court did not err in imposing more than the presumptive sentence.\nWe hold the defendant\u2019s trial was without prejudicial error.\nNo error.\nJudges Webb and Eagles concur.", "type": "majority", "author": "BRASWELL, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General Philip A. Telfer for the State.", "Hux, Livermon & Armstrong by James S. Livermon, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BEN WESTER, JR.\nNo. 846SC212\n(Filed 20 November 1984)\n1. Criminal Law 8 22\u2014 no formal arraignment \u2014 no prejudice\nDefendant\u2019s motion for arrest of judgment for failure of the court to formally arraign him in open court or to have him sign a written waiver was properly denied where defendant did not object or indicate that he was unaware of the charges against him or that he needed more time to prepare, the court informed the jury that defendant had pled not guilty, and defendant was not prejudiced by the lack of a formal arraignment.\n2. Assault and Battery \u00a7 13\u2014 testimony about victim\u2019s return to work \u2014 no prejudice\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, a better foundation could have been laid for establishing that the victim did not go to work as scheduled and could not return to work until a week later due to his injuries, but the testimony taken as a whole did not prejudice the defendant.\n3. Assault and Battery 8 13\u2014 reference to \u201cvictim\u201d \u2014 no error\nThere was no error in allowing a rescue worker to refer to \u201cthe victim\u201d and the \u201ccutting victim\u201d where it was not contested that there was a victim of a serious attack, there was substantial testimony as to the brutality of the attack and its gory results, and there was no testimony that defendant was provoked into the attack.\n4. Criminal Law 8 50.2\u2014 medical opinion from rescue squad member \u2014 no error\nThe court properly admitted testimony from a rescue squad member that the victim was going into hypovolemic shock where the witness had been a member of the Enfield Rescue Squad for two years, had completed a full EMT course, had endured 121 hours of classroom work and 10 hours of actual emergency room training, and had recently completed 30 hours of training towards his recertification. He was better qualified to form an opinion on the victim\u2019s medical condition than the jury.\n5. Criminal Law \u00a7 71\u2014 reference to felony during questioning \u2014 shorthand statement of fact\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, a deputy\u2019s testimony that he had referred to \u201ca felony [that] had occurred\u201d when questioning defendant was merely a shorthand statement of fact and was therefore admissible.\n6. Arrest and Bail 8 3.1\u2014 warrantless arrest \u2014 probable cause\nDefendant\u2019s warrantless arrest was lawful, and testimony and evidence surrounding the arrest was admissible, where the arresting officers had probable cause to believe that defendant had committed a felony or a misdemeanor and would flee before he could be apprehended if a warrant was first obtained. G.S. 15A-401(b)(2).\n7. Assault and Battery 8 14.3\u2014 assault with a deadly weapon with intent to kill inflicting serious injury \u2014 evidence sufficient\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, defendant\u2019s motions for dismissal and a directed verdict, based on insufficient evidence of a serious injury, were properly denied where the evidence showed that defendant without provocation hit the victim with a Pepsi bottle hard enough to break the bottle, hit the victim with a second bottle which broke while the victim tried to get out of his van, attacked the victim with this broken bottle by slashing him on the neck, stabbed the victim in the eye with the jagged end of the bottle, hit the victim with his fist in the bleeding eye, and kicked the victim.\n8. Criminal Law 8 113.3\u2014 no instruction on defendant\u2019s failure to offer evidence \u2014 subordinate feature of the case \u2014no request for instruction\nThe court did not err by not instructing the jury on defendant\u2019s failure to offer evidence where the subject was a subordinate feature of the case, defendant did not make a written request for a special instruction as required by G.S. 15A-1231, and the general subject was covered in the charge concerning defendant\u2019s failure to testify.\n9. Assault and Battery 8 16.1\u2014 no instruction on lesser degrees of offense \u2014no error\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the court did not err by not instructing the jury on the lesser included offenses of misdemeanor assault with a deadly weapon, simple assault, and affray where the State\u2019s evidence was positive on each element of the crimes on which the jury was instructed, and there was no conflicting evidence as to the seriousness of the victim\u2019s injuries.\n10.Assault and Battery 8 16.1\u2014 failure to instruct on distinction between felony and misdemeanor assault \u2014 no prejudice\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err by refusing to explain the difference between felony and misdemeanor assault related crimes since the crimes of misdemeanor assault with a deadly weapon, simple assault, and affray did not arise on the evidence and did not have to be charged on. Moreover, defendant was not prejudiced by the court\u2019s instructions on \u201cintent to kill\u201d because he was not convicted of a crime involving intent to kill.\n11. Criminal Law \u00a7 113.1\u2014 no recapitulation of the evidence \u2014no error\nThe court did not err by not summarizing and recapitulating the evidence where the record shows no oral request or tender of a special instruction, the court indicated that it did not intend to recapitulate the evidence, the court asked if there were additions or corrections after delivering the charge, the instructions given applied the law to the facts, and the final mandate complied with the statute. G.S. 15A-1232.\n12. Criminal Law \u00a7 138\u2014 PIN report of prior offenses\nThe court did not err by finding as an aggravating factor that defendant had a prior criminal record based on a Police Information Network computer printout of defendant\u2019s record from the District of Columbia. G.S. 15A-1340.4(e) provides that a prior record may be proven by certified court records or by stipulation, but they are not exclusive methods by which prior convictions may be shown.\n13. Criminal Law \u00a7 138\u2014 aggravating factor \u2014 especially heinous, atrocious, or cruel offense \u2014 evidence sufficient\nThere was sufficient evidence to find as an aggravating factor that the crime was especially heinous, atrocious, or cruel where the evidence showed that defendant attacked the victim without provocation by striking him with two Pepsi bottles with enough force to break them, then stabbed the victim in the eye with the broken bottle, punched the victim in the bleeding area after he had fallen to the ground, and kicked the victim twice before walking away. G.S. 15A-1340.4(a)(l)f.\nAPPEAL by defendant from Barefoot, Judge. Judgment entered 8 June 1983 in Superior Court, HALIFAX County. Heard in the Court of Appeals on 19 October 1984.\nAttorney General Rufus L. Edmisten by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General Philip A. Telfer for the State.\nHux, Livermon & Armstrong by James S. Livermon, Jr., for defendant appellant." }, "file_name": "0321-01", "first_page_order": 355, "last_page_order": 366 }