State v. Russell
| Decision Date | 19 May 2020 |
| Docket Number | No. COA19-848,COA19-848 |
| Citation | 844 S.E.2d 586,271 N.C.App. 560 |
| Parties | STATE of North Carolina v. Matthew Robinson RUSSELL, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Deborah Greene, for the State.
Attorney Jon W. Myers, for defendant-appellant.
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.
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.
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.
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. This definition has stood the test of time. In addition, our Supreme Court has instructed this Court that the focus of our analysis when trying to determine if an assault occurred should be "on the intent or state of mind of the person accused." Roberts , 270 N.C. at 658, 155 S.E.2d at 305. We see nothing in the common law definition of assault that supports Defendant's argument concerning consent.
Furthermore, because "there is no consent on the part of the State, which is the complaining party in a criminal prosecution and represents the public interest invaded by the crime itself, the consent of the [victim] is ordinarily no bar to a criminal prosecution." Restatement (Second) of Torts § 892C cmt. b (1979). This case highlights a foundational principle that undergirds our criminal law: an offense against a person may also constitute an offense against the interest of the community at large. Defendant concedes in his brief that "the vast majority of jurisdictions hold that harmful actions, even if consented to, violate public policy[.]"
In the case of violent crimes, the State's interest is implicated by a defendant's conduct in breaching the peace. It is for this reason that a victim's consent to a violent criminal offense cannot absolve a defendant of criminal liability. While a victim may release a defendant from civil liability, a victim cannot consent to the commission of a criminal offense and thereby bind the hands of the State. See State v. Bass , 255 N.C. 42, 45, 120 S.E.2d 580, 582 (1961) (); State v. Fritz , 133 N.C. 725, ––––, 45 S.E. 957, 958 (1903) (); State v. Allen & Royster , 11 N.C. 356, 4 Hawks 356, –––– (1826) ().1
Because absence of consent is not an element of assault, and thus not an element of AISBI, the trial court did not err when it declined to instruct the jury on consent.2
Defendant next contends that the trial court erred when it declined to sanction the State for failure to provide defense counsel with the fee statement of an expert witness. Defendant contends that not having this information prevented him from cross-examining the expert. We disagree.
N.C. Gen. Stat. Section 15A-903 provides that upon request, the State must provide "notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial."3 N.C. Gen. Stat. § 15A-903(a)(2) (2019). Defendant requested information regarding "[a]ny and all consideration or promises of consideration given to or made on behalf of government witnesses" including "witness fees" in a motion in limine on January 18, 2019. The State failed to disclose information related to the expert's witness fee prior to trial as requested by Defendant and disclosed this failure to the court at the sentencing portion of the trial. The trial court determined that the State's failure to disclose was an "honest mistake."
It is unclear from the record that the trial court found that a discovery violation had occurred. Even if we assume the trial court's statement that the failure to disclose was an "honest mistake" was a finding of a discovery violation, we find no prejudice to Defendant and no error.
Where "the prosecutor's actions constitute[ ] a discovery violation, the trial judge still retain[s] broad discretion to determine if sanctions [are] appropriate." State v. Nolen , 144 N.C. App. 172, 184, 550 S.E.2d 783, 790 (2001). The trial court's decision to impose, or not impose, sanctions for abuse of discovery orders "will not be reversed absent a showing of abuse of that discretion." State v. Aguilar-Ocampo , 219 N.C. App. 417, 422, 724 S.E.2d 117, 121-122 (2012) (citation and quotation marks omitted). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Foster , 235 N.C. App. 365, 377, 761 S.E.2d 208, 217 (2014) (citations and quotation marks omitted). In addition, the trial court is not required "to make specific findings on the record that it considered sanctions before determining not to impose sanctions." State v. Jones , 151 N.C. App. 317, 325, 566 S.E.2d 112, 117 (2002).
Here, the expert's testimony was corroborative testimony. It served only to provide the jury with a clearer picture of the injuries sustained by Leonard, the surgery required as a result of those injuries, and pain levels Leonard endured. Defendant has not demonstrated that there was a reasonable probability of a different result had he been allowed to question the expert about his $875.00 witness fee.
In addition, N.C. Gen. Stat. Section 15A-910 requires that prior to imposing sanctions the trial court "shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Article or an order issued pursuant to this Article." N.C. Gen. Stat. § 15A-910(b) (2019). Here, the trial court determined that no sanctions were appropriate, and, thus, was not required to "make specific findings on the record that it considered sanctions." Jones , 151 N.C. App. at 325, 566 S.E.2d at 117.
The trial court's determination that no sanctions were appropriate was based upon the fact that the prosecutor's error...
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