State v. Russell, 051920 NCCA, COA19-848

Docket Nº:COA19-848
Opinion Judge:BERGER, Judge.
Party Name:STATE OF NORTH CAROLINA v. MATTHEW ROBINSON RUSSELL, Defendant.
Attorney:Attorney General Joshua H. Stein, by Assistant Attorney General Deborah Greene, for the State. Attorney Jon W. Myers for defendant-appellant.
Judge Panel:Judge DILLON concurs. Judge HAMPSON HAMPSON, Judge,
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

MATTHEW ROBINSON RUSSELL, Defendant.

No. COA19-848

Court of Appeals of North Carolina

May 19, 2020

Heard in the Court of Appeals 29 April 2020.

Appeal by defendant from judgment entered 25 January 2019 by Judge Michael D. Duncan in Guilford County Superior Court. No. 16 CRS 89906

Attorney General Joshua H. Stein, by Assistant Attorney General Deborah Greene, for the State.

Attorney Jon W. Myers for defendant-appellant.

BERGER, Judge.

Matthew Robinson Russell ("Defendant") appeals his conviction of assault inflicting serious bodily injury ("AISBI"), alleging the trial court erred when it (1) denied Defendant's motion for a jury instruction on consent; and (2) declined to sanction the State for an alleged discovery violation. We disagree.

Factual and Procedural Background

In 2016, Defendant and his girlfriend, Jackie Neely ("Neely"), ended their relationship. Shortly thereafter, Daniel Leonard ("Leonard") and Neely began a relationship.

On November 10, 2016, Leonard and Neely met friends at a local bar in Greensboro. Defendant was at the bar, and at some point, Defendant asked Leonard to go outside and talk. During the exchange, Leonard told Defendant to hit him. Defendant then struck Leonard, breaking his jaw in two places. According to one witness, the punch was not thrown immediately after Leonard's statement, but, rather, it came "kind of out of nowhere." As a result of his injuries, Leonard underwent surgery to repair the damage to his jaw. After Defendant hit Leonard, Defendant entered the bar and then left in a car.

Defendant's case came on for trial on January 24, 2019. A Guilford County jury found Defendant guilty of AISBI, and he was placed on supervised probation. Defendant appeals, arguing the trial court erred when it (1) denied Defendant's motion for a jury instruction on consent; and (2) declined to sanction the State for an alleged discovery violation. We disagree.

Analysis

I. Jury Instruction

Defendant first argues that the trial court erred when it denied his motion for North Carolina Pattern Jury Instruction ("PJI") 120.20 to be given to the jury when Leonard's consent to the assault was raised during the course of the trial. Defendant further argues that absence of consent is a required element of AISBI.

"A trial judge is required by N.C. G.S. § 15A-1231 and N.C. G.S. § 15A-1232 to instruct the jury on the law arising from the evidence. This includes instruction on the elements of the crime." State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989). If a request for a special instruction is made, "which is correct in itself and supported by evidence, the court must give the instruction at least in substance." State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988) (citation and quotation marks omitted). "Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo." State v. Voltz, 255 N.C.App. 149, 156, 804 S.E.2d 760, 765 (2017) (citation and quotation marks omitted). "Instructions that as a whole present the law fairly and accurately to the jury will be upheld." State v. Cagle, ___ N.C.App. ___, ____, 830 S.E.2d 893, 897 (2019) (citations and quotation marks omitted), cert. denied, 838 S.E.2d 185 (2020).

"There is no statutory definition of assault in North Carolina, and the crime of assault is governed by common law rules." State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). "An [a]ssault is an intentional attempt, by violence, to do an injury to the person of another." State v. Davis, 23 N.C. 98, 99 (1840). "Th[e] common law rule [of assault] places emphasis on the intent or state of mind of the person accused." Roberts, 270 N.C. at 658, 155 S.E.2d at 305.

A defendant may be convicted of AISBI if the State proves beyond a reasonable doubt that the defendant "assault[ed] another person and inflict[ed] serious injury." N.C. Gen. Stat. § 14-32.4(a) (2019). Again, the statute does not define assault, and we must refer to the common law definition. It is undisputed that Defendant intentionally struck Leonard, thereby causing serious bodily injury. Defendant argues on appeal, however, that absence of consent is an element of assault, and the trial court erred when it declined to so instruct the jury.

As set forth above, our Supreme Court has defined assault as "an intentional attempt, by violence, to do an injury to the person of another." Davis, 23 N.C. at 99...

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