State v. Littlejohn

• Decision Date: 20 February 2018
• Docket Number: No. COA 17-551,COA 17-551
• Citation: 809 S.E.2d 927 (Table)
• Parties: STATE of North Carolina v. Jimmy Orlando LITTLEJOHN
• Court: North Carolina Court of Appeals

809 S.E.2d 927 (Table)

STATE of North Carolina

v.Jimmy Orlando LITTLEJOHN

No. COA 17-551

Court of Appeals of North Carolina.

Filed: February 20, 2018

Attorney General Joshua H. Stein, Raleigh, by Assistant Attorney General Scott K. Beaver, for the State.

Michael E. Casterline, Asheville, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Defendant Jimmy Orlando Littlejohn appeals from judgments entered upon jury verdicts finding him guilty of first-degree burglary and assault with a deadly weapon inflicting serious injury. We conclude the trial court did not commit plain error in failing to sua sponte submit to the jury an instruction on misdemeanor assault inflicting serious injury.

I. Factual and Procedural Background

The State's evidence tended to show the following. In late 2013, Defendant entered into a romantic relationship with E.G. ("Elena").¹ On 11 June 2014, Elena spoke with Defendant over the telephone and told him she was breaking up with him. Defendant became upset over the break-up and repeatedly phoned Elena to discuss their relationship. Elena became frustrated with the phone calls from Defendant and she informed him she would take out "stalking papers" if he kept calling. In the early morning hours of 13 July 2014, Defendant telephoned Elena multiple times, and she repeated her threat to "take out stalking papers" if he didn't stop calling. Shortly thereafter, a rock flew through Elena's bedroom window, breaking the glass. Elena then heard another loud noise from the direction of her kitchen. Elena and several other people living in the home, including her mother, aunt, and two sons, went to the kitchen to investigate the noise. There, they discovered the glass in the kitchen door was shattered and Defendant was inside the house. Defendant got into a struggle with Elena. He stabbed her multiple times with a pocketknife with a three-inch long blade. Defendant stopped attacking Elena and temporarily left her home, whereupon she and her family locked themselves in a bedroom. Elena's mother telephoned 911 requesting police and ambulance assistance, and they arrived shortly thereafter. Medical personnel transported Elena to a hospital where she was treated for multiple cutting wounds

, including six stab wounds in her torso and back requiring four staples and three stitches. Defendant returned to Elena's home later that morning, where he was arrested.

The trial court instructed the jury on the offenses of first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, and the lesser-included offenses of assault with a deadly weapon inflicting serious injury, assault with a deadly weapon with intent to kill, and misdemeanor assault with a deadly weapon. The jury found Defendant guilty of first-degree burglary and assault with a deadly weapon inflicting serious injury, and the trial court sentenced Defendant to concurrent sentences of 111 to 146 and 35 to 54 months' imprisonment for his respective convictions. Defendant filed timely written notice of appeal from the judgments entered.

II. Standard of Review

"A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires[.]" N.C. R. App. P. 10(a)(2) (2017). Nonetheless, our State Supreme Court "has elected to review un-preserved issues for plain error when they involve ... alleged errors in the judge's instructions to the jury [.]" State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Under the plain error standard, a defendant must "demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error ‘had a probable impact on the jury's finding that the defendant was guilty.’ " State v. Juarez, 369 N.C. 351, 358, 794 S.E.2d 293, 299-300 (2016) (quoting State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) ). "[P]lain error is to be ‘applied cautiously and only in the exceptional case’ in which a defendant can show that the error is one that ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ " Juarez at 358, 794 S.E.2d at 300 (quoting Lawrence at 365 N.C. at 518, 723 S.E.2d at 334 ). For this Court to find plain error, "it must be probable, not just possible, that absent the instructional error the jury would have returned a different verdict." Juarez at 358, 794 S.E.2d at 300.

III. Analysis

Defendant argues the trial court erred in failing to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury, because the court did not hold the pocketknife used by Defendant was a deadly weapon as a matter of law and the State's evidence would support a conviction on that charge. See State v. Tillery , 186...