State v. Rowe

• Decision Date: 17 December 2013
• Docket Number: No. COA13–308.,COA13–308.
• Parties: STATE of North Carolina v. Michael Justin ROWE.
• Court: North Carolina Court of Appeals

752 S.E.2d 223

STATE of North Carolina

v.Michael Justin ROWE.

No. COA13–308.

Court of Appeals of North Carolina.

Dec. 17, 2013.

Appeal by Defendant from judgment entered 3 December 2012 by Judge Mark E. Powell in Henderson County Superior Court. Heard in the Court of Appeals 11 September 2013.

Attorney General, Roy Cooper by Special Deputy, Attorney General, Scott T. Slusser, for the State.

William B. Gibson, for Defendant.

STEPHENS, Judge.

Evidence and Procedural History

This matter arises from a violent encounter occurring on 2 September 2011 between Howard Bryson, Defendant Michael Justin Rowe, and four other individuals. Following that encounter, Defendant was tried on a charge of assault inflicting serious injury. The jury found Defendant guilty, and the trial court imposed an active sentence of 60 days, with credit for 1 day served. At trial, the State's evidence tended to show the following:

On 2 September 2011, Bryson was visiting his friend Timothy Wilkie at Wilkie's home in Henderson County. At 7:45 p.m., after Wilkie and Bryson returned from the store, a group of five individuals approached Wilkie's deck. Bryson knew two of those individuals—Defendant and John Alexander. The group began “cursing” at the top of Wilkie's driveway. Wilkie went to the top of the driveway to tell them to leave. Alexander hit Wilkie on the back of the head and knocked him down. At that point, the group proceeded to “whip[ ] the dickens out of ... Wilkie.” This involved a protracted period of kicking and stomping in which Defendant stomped on Wilkie.

While the group was beating Wilkie, Bryson grabbed a golf club and told the group to stop hurting him. One of them tackled Bryson to the ground. Defendant and Alexander began kicking Bryson while he was on the ground. At that point, Defendant kicked Bryson “in the body.” As this occurred, another member of the group took Bryson's golf club and began hitting him in the head. The group was laughing throughout this beating, and, at one point, one of the women said, “Kill him.” The group left together as police officers arrived on the scene. On 14 August 2012, Bryson took out a warrant against Defendant.

Testifying on his own behalf, Defendant stated that he tried to break up the fight by getting in between Wilkie and a member of his group. Defendant's girlfriend testified that she did not see Defendant hit or kick Bryson. She also testified that she could not see the fight clearly.

As a result of the beating, Bryson went to the hospital and received twenty-four staples in his head. There were seventy places on his body with some kind of scar or injury, and the letter “Z” was carved into his back. The next day, Bryson returned to the hospital because his head was swollen. In addition to these physical injuries, Bryson testified that he was emotionally traumatized by the encounter.

At the close of the State's evidence and at the close of all of the evidence, Defendant moved to dismiss the charge of assault inflicting serious injury. The trial court denied both motions. During the charge conference, Defendant requested that the trial court add the lesser-included offense of simple assault to its jury instructions. The court denied that request. Afterward, the trial court gave the following pertinent jury instruction:

[I]f you find from the evidence[,] beyond a reasonable doubt [,] that ... [D]efendant himself or with others acting with a common purpose intentionally assaulted the victim inflicting serious injury by striking him, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or both of these things, it would be your duty to return a verdict of not guilty.

The jury found Defendant guilty. Defendant did not give notice of appeal at trial. On 3 December 2012, Defendant, acting pro se, gave written notice of appeal of his conviction. Defendant concedes, however, that he failed to perfect his appeal by serving notice on the State. The State also raises a number of other deficiencies with Defendant's notice of appeal. Defendant now seeks appellate review pursuant to a petition for writ of certiorari.

Defendant's Petition for Writ of Certiorari

In criminal cases, a party entitled to appeal a judgment must take appeal by either (1) giving oral notice at trial or (2) filing written notice with the clerk of superior court and serving copies of that notice on all adverse parties within fourteen days. N.C.R.App. P. 4(a). Written notice of appeal must specify the party or parties taking the appeal, designate the judgment or orders from which appeal is taken and the court to which appeal is taken, and be signed by counsel of record or a pro se defendant. N.C.R.App. P. 4(b).

Defendant filed an improper notice of appeal. Instead of complying with Rule 4, Defendant filled out a form incorrectly indicating that his case was disposed of in the Henderson County District Court and did not state that he was appealing to this Court. As such, the notice failed to correctly designate the court to which appeal was taken. See, e.g., State v. Gardner, –––N.C.App. ––––, ––––, 736 S.E.2d 826, 829 (2013) (holding that counsel for the defendant failed to correctly designate this Court as the court to which appeal was taken where counsel used a form for appealing decisions from district court to superior court).¹

In addition, Defendant failed to serve notice of his appeal on the State. Accordingly, Defendant lost his right to appeal the trial court's judgment. “[W]hen a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear [that] appeal.” State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). Because Defendant's notice of appeal is not proper under our rules, we must dismiss this appeal.²

Given his failure to comply with Rule 4, Defendant requests that this Court grant his petition for writ of certiorari. A writ of certiorari may be issued “in appropriate circumstances ... to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C.R.App. P. 21(a)(1). The rules regarding the issuance of a writ of certiorari are discretionary. See McCoy, 171 N.C.App. at 638, 615 S.E.2d at 320. Here, Defendant had a right to appeal the judgment finding him guilty of assault inflicting serious injury pursuant to N.C. Gen.Stat. § 7A–27 (2011). In addition, the State acknowledges that “this Court has the discretion to grant the instant petition....” We grant Defendant's petition in our discretion and review this case on its merits.

Discussion

On appeal, Defendant argues that the trial court erred by (1) denying his motion to dismiss, (2) refusing his request to allow the jury to consider the lesser-included offense of simple assault, and (3) ordering Defendant to pay certain jail fees per its judgment and commitment. We find no error at trial, but hold that the court lacked the authority to order Defendant to pay the challenged jail fees.

I. Defendant's Motion to Dismiss

“[We] review[ ] the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).

Upon [the] defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense. If so, the motion is properly denied.

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied,531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988) (citation omitted). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995).

Defendant was charged with assault inflicting serious injury pursuant to N.C. Gen.Stat. § 14–33 (2011). Conviction under that statute requires proof of the commission of an assault on another, which inflicts serious injury. State v. Carpenter, 155 N.C.App. 35, 42, 573 S.E.2d 668, 673 (2002) (citation omitted). “Our courts have defined ‘serious injury’ as injury which is serious but falls short of causing death....” Id. (citation and certain internal quotation marks omitted).

Defendant contends that the trial court erred in denying his motion to dismiss the charge against him because the evidence at trial was insufficient to show that he acted in concert with the other members of the group. Therefore, Defendant asserts, the injuries he inflicted on Bryson by kicking were—alone—insufficient to be considered “serious,” and the State failed to provide substantial evidence of the elements of assault inflicting serious injury. In making this argument, Defendant concedes that the injuries inflicted by the entire group “could rationally be deemed to be ‘serious' by the [jury].” Given that concession, Defendant's argument turns as a threshold matter on whether there was sufficient evidence that he was acting “in concert” with the other members of the group. If so, then the injuries that were inflicted are admittedly serious and the...