State v. Hensley
| Decision Date | 06 September 1988 |
| Docket Number | No. 8725SC1240,8725SC1240 |
| Citation | 371 S.E.2d 498,91 N.C.App. 282 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. James Howell HENSLEY. |
Atty. Gen. Thornburg by Asst. Atty. Gen., Wilson Hayman, Raleigh, for state.
Sam J. Ervin, IV, Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, Morganton, for defendant appellant.
In a prolix 50 page brief defendant contends that the judge's charge to the jury was erroneous in three respects. Neither contention has merit and we overrule them.
Two of defendant's contentions, not based upon exceptions to the charge, are that because of conflicts in the evidence it was "plain error" under the rule laid down in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) not to instruct the jury on the lesser included offenses of attempted first and second degree sexual offense and simple assault. On the sexual offense charge the conflict that would support a finding that the crime was only attempted, so defendant argues, was in the evidence as to penetration. But that evidence was not conflicting at all; for Ms. Cogdell testified that defendant repeatedly penetrated her with the cane, the physical findings testified to by the Emergency Room doctor who examined her bore her out, and no evidence to the contrary was presented. Since there was no evidence that the sexual offense was not accomplished the court was not required to instruct the jury on attempting to commit the offense. State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). In the felony assault case, so defendant argues, the conflict that raised an issue as to simple assault was in the evidence as to using a deadly weapon and inflicting serious injury. In our search of the record we found plenary evidence indicating that defendant repeatedly beat Ms. Cogdell with a metal walking cane, a weapon clearly capable from our observation of inflicting a lethal wound when used as a club, State v. Perry, 226 N.C. 530, 39 S.E.2d 460 (1946), and that she suffered very serious injuries, indeed, as a consequence; but we found no evidence which indicates that she was not beaten with the cane or that she was not seriously injured by it. Thus, the court's failure to charge on simple assault was not error, plain or otherwise. These arguments when analyzed are really not that the evidence on the elements involved was conflicting because defendant offered no evidence, but that because some of the incidental details of the crimes are inconsistent the jury could have rejected it and found that the lesser included offenses were committed. Though the arguments are not without logic, and for that matter are in complete harmony with the instruction given every jury, that they can believe all, part, or none of the evidence as they see fit, our Supreme Court has rejected it many times, State v. Harvey, 281...
To continue reading
Request your trial
-
State v. Bellamy
...that the sexual offense was not accomplished, the court has no duty to instruct on an attempted sexual offense. State v. Hensley, 91 N.C.App. 282, 284, 371 S.E.2d 498, 499 (1988). Bellamy argues that C.B.'s testimony was equivocal, and that the State's evidence could allow a jury to find th......
-
State Carolina v. Wright
...two more times after Mr. Locklear had collapsed. Where the defendant repeatedly hits the victim with a metal pipe, State v. Hensley, 91 N.C.App. 282, 284, 371 S.E.2d 498, 499 (1988) (noting that defendant repeatedly beat the victim “with a metal walking cane, a weapon clearly capable from o......
-
State v. Beal
...to the manner in which they were used. A metal cane has been held to be a deadly weapon if used to strike a blow. State v. Hensley, 91 N.C.App. 282, 371 S.E.2d 498 (1988). Fire has been held to be a deadly weapon when used to burn an occupied dwelling. State v. Riddick, 315 N.C. 749, 340 S.......
-
State v. Inman, COA12–1561.
...the victim with a metal walking cane and that she suffered very serious injuries as a result of that assault. State v. Hens ley, 91 N.C.App. 282, 284, 371 S.E.2d 498, 499 (1988). In Hensley, there was “no evidence which indicate[d] that [the victim] was not beaten with the cane or that she ......