{ "id": 2552042, "name": "STATE OF NORTH CAROLINA v. DEAN BRINSON", "name_abbreviation": "State v. Brinson", "decision_date": "1994-10-06", "docket_number": "No. 189A93", "first_page": "764", "last_page": "771", "citations": [ { "type": "official", "cite": "337 N.C. 764" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "430 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": -1 }, { "cite": "110 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "year": 1993, "opinion_index": -1 }, { "cite": "8 ALR4th 1268", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "\"Where physical or emotional injury is in excess of that normally present in the offense, multiple iryuries would be an important consideration ... as an additional factor in aggravation ....\"" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "pin_cites": [ { "parenthetical": "\"Where physical or emotional injury is in excess of that normally present in the offense, multiple iryuries would be an important consideration ... as an additional factor in aggravation ....\"" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "202 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "477" } ], "opinion_index": 0 }, { "cite": "284 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564908 ], "year": 1974, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0732-01" ] }, { "cite": "168 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "488", "parenthetical": "bullet wound to neck near spinal cord may be found to constitute serious injury" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 476", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550987 ], "year": 1982, "pin_cites": [ { "page": "478", "parenthetical": "bullet wound to neck near spinal cord may be found to constitute serious injury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0476-01" ] }, { "cite": "225 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "538", "parenthetical": "plastic bag may be a deadly weapon when used to suffocate victim" } ], "opinion_index": 0 }, { "cite": "290 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560744 ], "year": 1976, "pin_cites": [ { "page": "177-78", "parenthetical": "plastic bag may be a deadly weapon when used to suffocate victim" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0169-01" ] }, { "cite": "239 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "293 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566760 ], "year": 1977, "pin_cites": [ { "page": "639-40" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0633-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "313 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "559" } ], "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "year": 1984, "pin_cites": [ { "page": "598-99" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "244 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574594, 8574566, 8574510, 8574546, 8574524 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0737-05", "/nc/294/0737-04", "/nc/294/0737-01", "/nc/294/0737-03", "/nc/294/0737-02" ] }, { "cite": "240 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547131 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0053-01" ] } ], "analysis": { "cardinality": 730, "char_count": 18415, "ocr_confidence": 0.724, "pagerank": { "raw": 4.124706990339996e-07, "percentile": 0.9105594573274349 }, "sha256": "74246d21cba13eec8ebeb0d3d678352bd5f54e904105d89701e177cb647d34b6", "simhash": "1:3e2fcb0b666c8df0", "word_count": 3028 }, "last_updated": "2023-07-14T21:06:06.194618+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DEAN BRINSON" ], "opinions": [ { "text": "EXUM, Chief Justice.\nOn 4 March 1991 defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. On 10 May 1991 a jury found defendant guilty of assault with a deadly weapon inflicting serious injury. After finding aggravating factors, the court sentenced defendant to eight years imprisonment. A divided panel of the Court of Appeals vacated this judgment and remanded for a new trial. We find no error in the trial court proceedings and reverse.\nAt trial the State introduced evidence showing that defendant and John Delton Eason were cellmates at the Nash County Jail on the night of 25 October 1990. Eason was playing checkers with another inmate when defendant began yelling to some females in another cell. Eason told defendant to stop yelling so that he and other inmates would not lose their privileges. Defendant approached Eason, who arose as defendant neared. They stood facing each other for a couple of minutes. Eason turned, but as he did so defendant struck him in the jaw and put him in a full nelson hold.\nDefendant then proceeded to slam Eason\u2019s head against the bars, at which time Eason heard his neck \u201cpop.\u201d Defendant then slammed Eason\u2019s head on the floor several times. A jailor found Eason on the floor, lying on his stomach with his neck twisted and scratches on his face. Eason\u2019s neck was broken, resulting in paralysis below the chest.\nBased on this evidence the jury found defendant guilty of assault with a deadly weapon inflicting serious injury. After finding factors in aggravation and none in mitigation, the trial court sentenced defendant to eight years imprisonment. The majority of the Court of Appeals panel reversed on the ground that the trial court improperly permitted the State to amend the indictment. In the event that the issue might recur at the new trial, the majority also held that a non-statutory aggravating factor found by the trial judge was improper. Judge Cozort dissented on the grounds that the amendment was neither improper nor prejudicial and that the non-statutory aggravating factor was properly considered.\nI.\nThe first issue presented is whether the trial court committed prejudicial error in permitting the State to amend the indictment. The original indictment stated that defendant\nunlawfully, willfully and feloniously did assault John Delton Eason, Jr. with his fists, a deadly weapon, by hitting John Delton Eason, Jr. over the body with his fists and slamming his head against the cell bars and floor. The assault was intended to kill and resulted in serious injury, a broken neck, which required emergency medical treatment and hospitalization and which left the victim paralyzed. This act was in violation of [N.C.G.S. \u00a7 1452(a) (1993)].\nOn the day of trial before jury selection began, the State moved to amend the indictment. The amended indictment stated that defendant\nunlawfully, willfully and feloniously did assault John Delton Eason, Jr. with his fists by hitting John Delton Eason, Jr. over the body with his fists and slamming his head against the cell bars, a deadly weapon, and floor. The assault was intended to kill and resulted in serious injury, a broken neck, which required emergency medical treatment and hospitalization and which left the victim paralyzed. This act was in violation of the above referenced statute.\nDefendant objected, contending that the grand jury should first determine whether a jail cell or a floor is a deadly weapon. Defendant claimed that he was not prepared to prove that the jail cell and floor were not deadly weapons. The trial court granted the State\u2019s motion and continued the trial to the next morning to give counsel for defendant additional time to prepare.\nDefendant contends that it was error for the court to permit the State to prosecute defendant on the amended indictment. We disagree.\nN.C.G.S. \u00a7 15A-923(e) provides that \u201ca bill of indictment may not be amended.\u201d This statute, however, has been construed to mean only that an indictment may not be amended in a way which \u201cwould substantially alter the charge set forth in the indictment.\u201d State v. Carrington, 35 N.C. App. 53, 240 S.E.2d 475, disc. rev. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). Thus, for example, where time is not an essential element of the crime, an amendment relating to the date of the offense is permissible since the amendment would not \u201csubstantially alter the charge set forth in the indictment.\u201d State v. Price, 310 N.C. 596, 598-99, 313 S.E.2d 556, 559 (1984).\nWe conclude the amendment to the indictment was permissible because it did not substantially alter the charge in the original indictment. The original indictment was sufficient to allege that the cell floor and bars were deadly weapons.\nN.C.G.S. \u00a7 15A-924(a)(5) states:\nA criminal pleading must contain [a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\n\u201c[T]he purpose of an indictment... is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused____\u201d State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984).\nWith regard to indictments \u201cseeking to charge a crime in which one of the elements is the use of a deadly weapon,\u201d we have held that it is sufficient to \u201c(1) name the weapon and (2) either to state expressly that the weapon used was a \u2018deadly weapon\u2019 or to allege such facts as would necessarily demonstrate the deadly character of the weapon.\u201d State v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977).\nWith respect to whether the original indictment properly alleged that the cell bars and floor were deadly weapons, the first prong of Palmer is met as the original indictment specifically referred to the cell bars and cell floor. The second prong of Palmer is likewise met as the indictment stated that the victim\u2019s broken neck and paralysis resulted from the \u201cassault,\u201d which included defendant\u2019s \u201cslamming [the victim\u2019s] head against the cell bars and floor.\u201d This recitation of facts \u201cnecessarily demonstrate [s] the deadly character of\u2019 the cell bars and floor. The original indictment\u2019s statement that defendant \u201cslamm[ed] his head against the cell bars and floor\u201d with the intent to kill resulting in a broken neck and paralysis is drafted with \u201csufficient precision clearly to apprise the defendant\u201d that the cell bars and floor were alleged to be deadly weapons. N.C.G.S. \u00a7 15A-924(a)(5) (1988). If counsel for defendant was unprepared to counter this allegation at trial, it was through no deficiency in the indictment.\nIn attempting to establish the materiality and prejudice of the amendment, defendant emphasizes that the original indictment specifically stated that the fists were deadly weapons. Identifying fists as deadly weapons, however, does not preclude the State from identifying at trial other items as deadly weapons where the indictment both describes them and \u201cnecessarily demonstrates^]\u201d their deadly character. Presumably the fists were identified as deadly weapons as it might not have been clear from the entire indictment, without those words, whether the fists were used as deadly weapons. Since, however, the indictment clearly stated the deadly manner in which the floor and bars were used, it was not necessary under Palmer to allege in the indictment that they were deadly weapons. Also, the indictment said that the victim was assaulted with defendant\u2019s \u201cfists, a deadly weapon, by .. . slamming [the victim\u2019s] head against the cell bars and floor.\u201d Thus, the indictment clearly linked the deadly nature of the fists to their use in slamming the victim into the bars. Whether an item is deadly often depends entirely on its use. See, e.g., State v. Strickland, 290 N.C. 169, 177-78, 225 S.E.2d 531, 538 (1976) (plastic bag may be a deadly weapon when used to suffocate victim).\nThe original indictment, then, was sufficient to allege that both the fists of defendant and the cell bars and floor were deadly weapons. Thus, under the original indictment the State properly may have asserted at trial that defendant\u2019s fists, the cell floor, the cell bars, or a combination thereof were the deadly weapons which caused the victim\u2019s serious injury. Since the amendment to the indictment was not necessary to permit the jury to consider the cell bars and floor as deadly weapons, the amended indictment did not substantially alter the original indictment. There was, therefore, no error in the trial court\u2019s ruling allowing the amendment.\nThe decision of the Court of Appeals reversing the conviction for assault with a deadly weapon inflicting serious injury is reversed; defendant therefore remains convicted of that crime.\nII.\nThe next issue is whether the trial court erred by aggravating defendant\u2019s sentence for \u201cassault with a deadly weapon inflicting serious injury\u201d with the finding that the victim sustained \u201cextremely severe and permanent injuries.\u201d A majority of the Court of Appeals concluded that the finding was error because it was based on the same evidence used to prove the serious injury element of the crime. We disagree.\nDefendant was convicted under N.C.G.S. \u00a7 14-32(b), which states, \u201cAny person who assaults another person with a deadly weapon and inflicts serious injury shall be punished as a Class H felon.\u201d The trial judge found as a non-statutory aggravating factor that \u201c[t]he injuries sustained by the victim were extremely severe and permanent.\u201d Based on this finding and on the aggravating factor found at N.C.G.S. \u00a7 15A-1340.4(a)(l)o, relating to prior crimes, defendant was sentenced to eight years imprisonment, in excess of the presumptive term of three years, N.C.G.S. \u00a7 15A-1340.3(f)(6) (1988).\nDefendant contends the trial court violated N.C.G.S. \u00a7 15A-1340.3(a)(l), which states that \u201c[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . .\u201d We disagree.\nThe evidence relating to the victim\u2019s broken neck, aside from evidence relating to the resulting paralysis, was sufficient to establish the element of the crime that the defendant inflicted a \u201cserious injury\u201d upon the victim. See, e.g., State v. Marshall, 5 N.C. App. 476, 478, 168 S.E.2d 487, 488 (1982) (bullet wound to neck near spinal cord may be found to constitute serious injury).\nThe evidence relating to the broken neck, however, was not used in making the finding that the \u201cinjuries sustained by the victim were extremely severe and permanent\u201d; instead, that finding rested solely on the victim\u2019s paralysis. In making this conclusion we first recognize the principle that an appellate court is to presume the trial court\u2019s findings were based only on competent evidence. See, e.g., Contracting Co. v. Ports Authority, 284 N.C. 732, 739, 202 S.E.2d 473, 477 (1974). By analogy, we presume that absent any indication to the contrary in the record, the trial court in making its findings of fact relied only on evidence which was proper to consider. Thus, without any indication in the record to the contrary, we axe to presume that the trial court did not improperly aggravate the sentence with evidence necessary to prove the crime.\nMoreover, the trial court\u2019s finding here affirmatively indicates that it did not improperly aggravate defendant\u2019s sentence. Since the victim\u2019s broken neck will heal in time whereas his paralysis is permanent, the \u201cpermanent\u201d injuries used by the trial court to aggravate the sentence must refer to the victim\u2019s paralysis and not the broken neck. We are also persuaded that the trial court did not use evidence of the broken neck, which supported the \u201cserious injury,\u201d to aggravate the sentence since the trial court described the injuries constituting the aggravating factor as not merely \u201cserious,\u201d but \u201cextremely severe,\u201d thereby clearly indicating that it was considering injury above and beyond that necessary to establish the crime.\nSince the \u201cextremely severe and permanent\u201d injuries used by the trial court to aggravate the sentence for assault went beyond the \u201cserious injury\u201d necessary to convict for the offense, it did not violate N.C.G.S. \u00a7 15A-1340.4(a)(1). Cf. State v. Blackwelder, 309 N.C. 410, 413 n.1, 306 S.E.2d 783, 786 n.1 (1983) (\u201cWhere physical or emotional injury is in excess of that normally present in the offense, multiple iryuries would be an important consideration ... as an additional factor in aggravation ....\u201d).\nThus, we find no error in the sentence imposed by the trial court.\nThe decision of the Court of Appeals is\nREVERSED.\n. A full nelson is defined as \u201ca hold gained by a wrestler, who from a position behind his opponent, places both arms under his opponent\u2019s arms and clasps his hands or wrists behind the opponent\u2019s neck.\u201d Webster\u2019s Third New International Dictionary 919 (1971).\n. N.C.G.S. \u00a7 14-32(a) states that \u201c[a]ny person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury shall be punished as a Class F felon.\u201d", "type": "majority", "author": "EXUM, Chief Justice." }, { "text": "Justice Webb\ndissenting.\nI dissent from that part of the majority opinion which holds the superior court did not commit error by using evidence necessary to prove an element of the offense to prove an aggravating factor. One element of the offense was that the defendant inflicted serious injury upon the victim.\nIn order to prove the serious injury element, the State introduced evidence that the victim\u2019s neck was broken and he was paralyzed below the chest. After considering the evidence, the jury found the victim suffered serious injury. We cannot say what part of the evidence the jury used to reach its verdict, but I believe we should say it considered all of it.\nThe majority says that the evidence of the broken neck was sufficient to find the victim was seriously injured, which left the court free to use the evidence of paralysis to find as an aggravating factor that the victim sustained \u201cextremely severe and permanent injuries.\u201d The State, when presenting its case in chief, offered all the evidence it could to prove the serious injury. The paralysis was relevant and competent to prove this element. I believe we are perverting the statute by allowing the State now to use this evidence to prove an aggravating factor. By our decision today, we have adopted a rule that after the State has used what evidence it feels is necessary to convict a defendant, it may then decide what of that evidence was necessary to convict and reuse the other evidence to prove an aggravating factor. I believe we should hold that all the evidence was necessary to prove the element of the crime. The State must have thought so or it would not have used it.\nI vote to affirm the Court of Appeals in its holding that it was error to consider the evidence of paralysis in finding an aggravating factor. I agree with the majority opinion as to the first issue in this appeal.", "type": "dissent", "author": "Justice Webb" } ], "attorneys": [ "Michael F. Easley, Attorney General, by Jo Anne Sanford, Special Deputy Attorney General, and William B. Grumpier, Associate Attorney General, for the State-appellant.", "Terry W. Alford for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DEAN BRINSON\nNo. 189A93\n(Filed 6 October 1994)\n1. Assault and Battery \u00a7 16 (NCI4th); Indictment, Information, and Criminal Pleadings \u00a7 40 (NCI4th)\u2014 aggravated assault \u2014 amendment of indictment \u2014 cell bars and floor as deadly weapons\nAn indictment alleging that defendant assaulted the victim \u201cwith his fists, a deadly weapon, by hitting [the victim] over the body with his fists and slamming his head against the cell bars and floor\u201d and that this assault resulted in the victim\u2019s broken neck and paralysis was sufficient to allege that the cell bars and floor were deadly weapons since the indictment specifically referred to the cell bars and floor, and the recitation of facts in the indictment necessarily demonstrated the deadly character of the cell bars and floor. Therefore, the trial court did not err by permitting the State to amend the indictment to allege that the cell bars and floor were deadly weapons since the amendment was not necessary to permit the jury to consider the cell bars and floor as deadly weapons, and the amendment did not substantially alter the charge in the original indictment. N.C.G.S. \u00a7 15A-923(e).\nAm Jur 2d, Assault and Battery \u00a7\u00a7 90, 91; Indictments and Informations \u00a7\u00a7 171 et seq.\nComment Note. \u2014 Power of court to make or permit amendment of indictment. 17 ALRSd 1181.\nParts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery. 8 ALR4th 1268.\nStationary object or attached fixture as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide. 8 ALRSth 775.\n2. Criminal Law \u00a7\u00a7 1098, 1120 (NCI4th)\u2014 aggravated assault \u2014 broken neck as serious injury \u2014 paralysis as basis for severe and permanent injuries aggravating factor\nThe trial court did not improperly aggravate defendant\u2019s sentence for assault with a deadly weapon inflicting serious injury with evidence necessary to prove the serious injury element of the crime by finding as a nonstatutory aggravating factor that the victim sustained \u201cextremely severe and permanent\u201d injuries where the evidence showed that the victim suffered a broken neck and paralysis from the assault; the evidence relating to the victim\u2019s broken neck was sufficient to establish the serious injury element of the crime; the trial court\u2019s finding that the victim suffered \u201cextremely severe and permanent\u201d injuries was based solely on the victim\u2019s paralysis; and the injuries used by the trial court to aggravate the sentence thus went beyond the \u201cserious injury\u201d necessary to convict for the offense. N.C.G.S. \u00a7 15A-1340.3(a)(l).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nJustice Webb dissenting.\nAppeal of right by the State pursuant to N.C.G.S. \u00a7 7A-30(2) from an unpublished decision of a divided panel of the Court of Appeals, 110 N.C. App. 314, 430 S.E.2d 313 (1993), vacating the trial court\u2019s judgment against defendant entered on 10 May 1991 by Reid, J., in Superior Court, Nash County and remanding for a new trial. Heard in the Supreme Court 14 October 1993.\nMichael F. Easley, Attorney General, by Jo Anne Sanford, Special Deputy Attorney General, and William B. Grumpier, Associate Attorney General, for the State-appellant.\nTerry W. Alford for defendant-appellee." }, "file_name": "0764-01", "first_page_order": 792, "last_page_order": 799 }