{ "id": 8521833, "name": "STATE OF NORTH CAROLINA v. WALTER BRYANT, JR.", "name_abbreviation": "State v. Bryant", "decision_date": "1986-04-01", "docket_number": "No. 856SC386", "first_page": "63", "last_page": "70", "citations": [ { "type": "official", "cite": "80 N.C. App. 63" } ], "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": "284 S.E. 2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523728 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0504-01" ] }, { "cite": "319 S.E. 2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "311 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687238, 4680845, 4684206, 4682901, 4686333 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0406-03", "/nc/311/0406-01", "/nc/311/0406-05", "/nc/311/0406-02", "/nc/311/0406-04" ] }, { "cite": "311 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "39-40", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524672 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0318-01" ] }, { "cite": "306 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "786, n. 1", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "302 S.E. 2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "485" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521622 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/62/0251-01" ] }, { "cite": "245 S.E. 2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 206", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551611 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0206-01" ] }, { "cite": "257 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568697 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0149-01" ] }, { "cite": "290 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "305 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569541, 8569509, 8569477, 8569391, 8569437 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/305/0306-05", "/nc/305/0306-04", "/nc/305/0306-03", "/nc/305/0306-01", "/nc/305/0306-02" ] }, { "cite": "284 S.E. 2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "54 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523728 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc-app/54/0504-01" ] }, { "cite": "319 S.E. 2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "311 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687238, 4680845, 4684206, 4682901, 4686333 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/311/0406-03", "/nc/311/0406-01", "/nc/311/0406-05", "/nc/311/0406-02", "/nc/311/0406-04" ] }, { "cite": "311 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "66 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524672 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc-app/66/0318-01" ] }, { "cite": "302 S.E. 2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "62 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521622 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc-app/62/0251-01" ] } ], "analysis": { "cardinality": 675, "char_count": 16804, "ocr_confidence": 0.775, "pagerank": { "raw": 1.4507093317727956e-07, "percentile": 0.6549932061676182 }, "sha256": "977f20b2f49f0165ffa1cbb4f0a336bba87657c312df1c3894764d8e347a8e83", "simhash": "1:032cc02bd637d9d4", "word_count": 2833 }, "last_updated": "2023-07-14T15:01:08.586003+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WHICHARD concurs.", "Judge EAGLES concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. WALTER BRYANT, JR." ], "opinions": [ { "text": "COZORT, Judge.\nThe defendant was tried upon indictments, proper in form, charging him with assault with a deadly weapon with intent to kill Marvin Hardy, his former wife\u2019s boyfriend; assault with a deadly weapon with intent to kill inflicting serious injury on Margie Bryant, his former wife; and discharging a firearm into an occupied vehicle. He was acquitted of the assault on Hardy and convicted of assault with a deadly weapon inflicting serious injury upon Margie Bryant and discharging a firearm into an occupied vehicle. On appeal he contends he was entitled to an instruction on self-defense as to Margie Bryant even though there was no evidence that she committed any overt act of aggression at the time of the alleged assault. He also contends the trial court erred by finding as an aggravating factor that the offense involved damage causing great monetary loss. We find no error.\nThe State\u2019s evidence tended to show the following: Margie Bryant and defendant Walter Bryant, Jr., were divorced in 1982. Mrs. Bryant had custody of the two children born of the marriage. In March of 1984, she began dating Marvin Hardy. In the early evening hours of 18 May 1984, around 6:30 or 7:00, Mrs. Bryant\u2019s sister dropped Mrs. Bryant off at Hardy\u2019s house at Route 2, Enfield, in Halifax County. Her children had been left at a friend\u2019s home for the evening. Hardy and Mrs. Bryant went for a walk and visited Hardy\u2019s uncle, returning to Hardy\u2019s house around 10:00 p.m. Sometime after 1:00 a.m., Hardy and Mrs. Bryant were preparing to leave in Hardy\u2019s automobile when the defendant pulled up in his car directly in front of Hardy\u2019s car. The defendant ran up to the passenger side of Hardy\u2019s car where Mrs. Bryant was sitting, yelled something at Mrs. Bryant, and began shooting a pistol. Mrs. Bryant was shot in the back. The defendant went to the front of the car and fired another shot into the windshield. While defendant was approaching the Hardy auto, Mrs. Bryant pulled a pistol from her purse and placed it on the console between the front seats. After defendant shot Mrs. Bryant, and while defendant was shooting into the windshield, Hardy picked up the pistol and tried to shoot the defendant, but the gun misfired. Mrs. Bryant never touched the pistol after she put it on the console. Hardy opened the car door, \u201crolled out,\u201d and ran to a neighbor\u2019s house to call the police. Defendant drove away in his car.\nDefendant testified that he went to Hardy\u2019s house looking for Mrs. Bryant to talk to her about the children. He approached Hardy\u2019s car with his hand in his pocket which contained a pistol. According to the defendant, Hardy pulled his gun first, and the defendant shot at Hardy to keep from being shot, never intending to shoot Mrs. Bryant. After the shooting, Hardy ran away. Defendant drove straight to the police station, stopping only to throw his pistol in a creek on the way. The defendant also presented testimony that on two prior occasions, Mrs. Bryant had a gun in her possession while she was having a discussion with the defendant. On one of those occasions she was also carrying a knife.\nAt trial, on the offense of assault with a deadly weapon with intent to kill Marvin Hardy, the trial court instructed the jury that if the defendant acted in self-defense, his actions were excused and defendant was not guilty. The trial court denied the defendant\u2019s request for a self-defense instruction as to the charge of assault with a deadly weapon with intent to kill inflicting serious injury on Margie Bryant. Defendant argues that under State v. Spaulding, 298 N.C. 149, 257 S.E. 2d 391 (1979), he is entitled to an instruction on self-defense as to his former wife because the evidence, taken in the light most favorable to the defendant, would tend to show (1) that defendant was not the aggressor, and (2) it reasonably appeared to be necessary to shoot Mrs. Bryant to protect himself from death or great bodily harm.\nIn Spaulding, our Supreme Court held the trial court erred in refusing to instruct on self-defense where defendant, a Central Prison inmate, offered evidence tending to show he did not provoke the affray, he was not the aggressor, and even though the victim had no weapon on his body and made no show of deadly force toward the defendant, the victim had threatened him in the past, and on this occasion, backed the defendant up to a fence with his hand jammed into his pocket.\nSpaulding is distinguishable. In the instant case, there is no evidence to support defendant\u2019s theory that he had a reasonable basis for believing he needed to defend himself against Margie Bryant. The evidence is clear that defendant never saw Mrs. Bryant holding any weapon while she was seated in the car. She never made any advance toward defendant. The only evidence supporting defendant\u2019s request is his evidence that his former wife owned a gun which he saw on two prior occasions, and his evidence that he did not believe the gun held by Hardy was Mrs. Bryant\u2019s gun. We hold that evidence to be insufficient to form a reasonable basis for apparent necessity for self-defense. Where the defendant fails to present \u201csome evidence\u201d indicating that he acted in self-defense, he is not entitled to a jury instruction on that defense. State v. Brooks, 37 N.C. App. 206, 245 S.E. 2d 564 (1978).\nDefendant\u2019s next assignment of error alleges that the trial court erred by finding as a statutory aggravating factor in the assault of Margie Bryant that the \u201coffense involved damage causing great monetary loss.\u201d At the sentencing hearing, Mrs. Bryant testified that as a result of the injuries she received, she was hospitalized, incurring medical expenses of approximately $5,000.00, which had not yet been paid by her insurance. She was out of work seven or eight weeks, losing approximately $1,000.00 in salary. Her gross income is about $134.00 a week.\nDefendant first argues that the trial court erred because the statutory aggravating factor found by the court was intended to apply to cases where property had been taken or damaged. The statutory aggravating factor in question reads as follows:\nThe offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband.\nG.S. 15A-1340.4(a)(l)m (emphasis added). We do not agree that the factor applies only to property. The use of the word \u201cor\u201d clearly creates two separate situations: The first is an offense involving the attempted or actual taking of property of great monetary value; the second is damage causing great monetary loss. The \u201cdamage\u201d in the second situation is not modified by and therefore not restricted to the \u201cproperty\u201d in the first. We hold that \u201cdamage causing great monetary loss\u201d as an aggravating factor is not restricted to damage to property.\nDefendant\u2019s second and more important argument concerning this aggravating factor is his contention, citing State v. Medlin, 62 N.C. App. 251, 302 S.E. 2d 483 (1983), that it is improper to consider the nature and results of injuries as an aggravating factor. In Medlin, this Court held the trial court erred by finding, in a case of assault with a deadly weapon with intent to kill inflicting serious injury, as a non-statutory aggravating factor, \u201c \u2018that the victim suffered very severe physical disability.\u2019 \u201d Id. at 255-56, 302 S.E. 2d at 485. The court reasoned that \u201cthe \u2018resulting disability to the victim\u2019 factor . . . does not relate to the character or conduct of the defendant.\u201d Id. at 255-56, 302 S.E. 2d at 486.\nIn State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983), decided after Medlin, the Supreme Court discussed the \u201cimpact\u201d of the crime on the victim:\nAlso relevant to the question of sentencing and properly considered under G.S. 15A-1340.4(a)(l) is the impact of the crime on the victim. Where the physical or emotional injury is in excess of that normally present in the offense, multiple injuries would be an important consideration either as an additional factor in aggravation or as proof that the offense was especially heinous, atrocious, or cruel.\nId. at 413, n. 1, 306 S.E. 2d at 786, n. 1 (emphasis in original).\nSimilar reasoning was applied in State v. Nichols, 66 N.C. App. 318, 311 S.E. 2d 38, disc. rev. denied, 311 N.C. 406, 319 S.E. 2d 278 (1984), where this Court, in a common law robbery case upheld as an aggravating factor the finding that the defendant inflicted serious bodily injury upon the victim, and stated the following:\nSerious injury is not an element of common law robbery. We believe the fact that the victim suffered serious injury in this case makes it a worse crime than it would otherwise have been, and it is reasonably related to the purposes of sentencing. We hold that Judge Brown properly found this aggravating factor.\nId. at 321, 311 S.E. 2d at 39-40 (emphasis added).\nFollowing that line of reasoning, we hold that it is proper to find as an aggravating factor in cases of assault inflicting serious injury that the offense involved damage causing great monetary loss, because the evidence of the great monetary loss is not an element of the offense itself and makes the crime worse than it would otherwise have been. In the instant case, Margie Bryant was shot in the back by defendant. The evidence of the resulting serious injury was uncontradicted. Thus, the question before us is whether the evidence of the costs of her hospitalization and the evidence of her loss of income from her absence from work are beyond that necessary to prove the serious injury element of the assault crime and sufficient to make the offense worse than it would otherwise have been. Our review of the record shows the evidence of hospitalization costs and loss of income were not necessary to prove the serious injury element of the assault charge against defendant. That evidence was offered during the sentencing phase, not at the trial phase. At trial, Mrs. Bryant described being shot, the severe pain, the hospitalization, and her staying out of work as a result. Dr. F. G. Jarman, Jr., the attending physician, testified about the seriousness of the wound, the surgery, and Mrs. Bryant\u2019s recovery. Neither gave evidence at trial of the economic impact of the injury. We find the evidence of the costs of hospitalization and loss of income were not necessary to prove the serious injury element of the offense.\nWe now consider whether the economic impact made the crime worse than it would otherwise have been. In State v. Rotenberry, 54 N.C. App. 504, 284 S.E. 2d 197 (1981), we held that \u201c \u2018[sjerious injury\u2019 . . . means physical or bodily injury resulting from an assault with a deadly weapon. The injury must be serious, but evidence of hospitalization is not required.\u201d Id. at 511, 284 S.E. 2d at 201. Since it is not necessary to prove hospitalization to show a serious injury, an assault resulting in serious injury becomes a worse crime if the injury does result in hospitalization and absence from work which has a serious economic impact, a great monetary loss, to the victim. Here, the victim was supporting two minor children on a gross income of about $134.00 a week. A hospital bill of $5,000.00 and lost wages of $1,000.00 is a great monetary loss in this case, making the crime worse than it would otherwise have been. We hold the trial court correctly found as an aggravating factor that the offense involved damages causing great monetary loss.\nNo error.\nJudge WHICHARD concurs.\nJudge EAGLES concurs in part and dissents in part.", "type": "majority", "author": "COZORT, Judge." }, { "text": "Judge Eagles\ndissenting in part.\nI dissent from the portions of the majority opinion which sanction the use of the statutory aggravating factor in G.S. 15A-1340.4(a)(l)m in this assault with a deadly weapon inflicting serious bodily injury case.\nG.S. 15A-1340.4(a)(l)m reads: \u201cThe offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband.\u201d\nThe language relied on by the majority is the \u201c[t]he offense involved . . . damage causing great monetary loss, . . . .\u201d The evidence which they contend supports this finding is the $5,000 hospital and medical expenses and approximately $1,100 in lost wages suffered by the victim.\nTheir logic is flawed in several respects. First, the statutory element deals with property taken or attempted to be taken, large amounts of contraband (again property) and \u201cdamage causing great monetary loss.\u201d [Emphasis added.] The language chosen by the General Assembly was not \u201cinjury\u201d or \u201cpersonal injury\u201d but \u201cdamage,\u201d a term usually associated with harm to property rather than injury to people. The word \u201cdamage\u201d is linked amid a series of other property-oriented criteria.\nMy research discloses no prior decisions of our appellate courts which sanction the use of the statutory aggravating factor at G.S. 15A-1340.4(a)(l)m when its only support is evidence of hospitalization and medical expenses and lost wages of the victim or even evidence of serious bodily injury. On the contrary, in State v. Medlin, 62 N.C. App. 251, 302 S.E. 2d 483 (1983), we held that the trial court erred in finding as a non-statutory aggravating factor \u201cthat the victim suffered very severe physical disability,\u201d where the charge was, as in the instant case, assault with a deadly weapon with intent to kill inflicting serious injury.\nThe majority relies on State v. Nichols, 66 N.C. App. 318, 311 S.E. 2d 38, cert. denied, 311 N.C. 406, 319 S.E. 2d 278 (1984) but it was a common law robbery case where serious injury to the victim was not an element of the offense, unlike the charge before us here.\nSecondly, the evidence relied upon to justify the statutory aggravating factor chosen (15A-1340.4(a)(l)m) is also some of the evidence necessary to prove an element of the offense, infliction of serious injury.\nWhere the charge is assault with a deadly weapon inflicting serious injury, evidence of the gravity of the injury is important to establish an essential element, serious injury.\nThe sentencing statute expressly forbids the use of evidence necessary for proof of an element of the offense to also support a finding that an aggravating factor exists: \u201cEvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .\u201d G.S. 15A-1340.4(a)(l).\nWhile the absence of evidence of hospitalization is not fatal to proof of serious injury, State v. Rotenberry, 54 N.C. App. 504, 284 S.E. 2d 197 (1981), cert. denied, 305 N.C. 306, 290 S.E. 2d 705 (1982), its presence in a case like this is highly probative of the existence of serious injury.\nFor these reasons I respectfully dissent from the majority\u2019s endorsement of a finding of a G.S. 15A-1340.4(a)(l)m aggravating factor based solely upon evidence of lost wages and substantial hospital and medical expenses.", "type": "dissent", "author": "Judge Eagles" } ], "attorneys": [ "Attorney General Lacy H. Thornburg by Associate Attorney Dolores 0. Nesnow for the State.", "Appellate Defender Adam Stein by First Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WALTER BRYANT, JR.\nNo. 856SC386\n(Filed 1 April 1986)\n1. Assault and Battery \u00a7 15.7\u2014 assault with firearm \u2014instruction on self-defense refused \u2014 no error\nThe trial court did not err by denying defendant\u2019s request for a self-defense instruction as to the charge of assault with a deadly weapon with intent to kill inflicting serious injury on defendant\u2019s former, wife where the only evidence supporting the request was that defendant\u2019s former wife owned a gun which defendant had seen on two prior occasions and that defendant did not believe the gun held by his wife\u2019s companion was his wife\u2019s gun. Defendant never saw his former wife holding any weapon and she never made any advance toward him.\n2. Criminal Law \u00a7 138.26\u2014 aggravating factor \u2014 great monetary loss \u2014 lost wages from assault \u2014 no error\nThe trial court did not err by finding as an aggravating factor when sentencing defendant for assault with a deadly weapon with intent to kill inflicting serious injury that the offense involved great monetary loss based on the victim\u2019s medical expenses and lost wages. This factor was not intended to apply only to property damage, and it was not error to consider the result of the assault as an aggravating factor because in this case the evidence of hospital costs and loss of income was not necessary to prove the serious injury element, and monetary loss made the crime worse than it would otherwise have been. N.C.G.S. 15A-1340.4(a)(l)m.\nJudge Eagles dissenting in part.\nAppeal by defendant from Allsbrook, Judge. Judgment entered 17 August 1984 in Superior Court, HALIFAX County. Heard in the Court of Appeals 18 October 1985.\nAttorney General Lacy H. Thornburg by Associate Attorney Dolores 0. Nesnow for the State.\nAppellate Defender Adam Stein by First Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant appellant." }, "file_name": "0063-01", "first_page_order": 91, "last_page_order": 98 }