State v. Roby

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-61 NORTH CAROLINA COURT OF APPEALS Filed: 3 September 2013 STATE OF NORTH CAROLINA v. Rowan County No. 07 CRS 56055 SCOTT JAMES ROBY Appeal by defendant from judgment entered 5 July 2012 by Judge W. David Lee in Rowan County Superior Court. Heard in the Court of Appeals 19 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State. Unti & Lumsden LLP, by Margaret C. Lumsden, for defendantappellant. DILLON, Judge. A jury found Scott James Roby (Defendant) guilty of assault inflicting serious bodily injury. The trial court sentenced him to an active prison term of sixteen to twenty months. Defendant filed timely notice of appeal from the judgment. The evidence at trial showed that Defendant punched Eric Shuping in the side of the head on the morning of 1 September -22007, as Mr. Shuping walked to a friend s vehicle after a night of drinking at a nightclub in Salisbury. The blow caused Mr. Shuping to fall and strike his head on the asphalt. He suffered two skull fractures and was rendered comatose. Mr. Shuping remained in a coma for seventeen days, was hospitalized until 28 September 2007, and required physical, occupational, and speech therapy to recover. After being released to return to work in November of 2007, Mr. Shuping lost his job due to an inability to focus. At the time of Defendant s trial in 2012, Mr. Shuping continued to experience memory problems and remained on prescription medication for seizures, clotting, and pain. On appeal, Defendant claims that the trial court committed plain error by allowing two friends of Mr. Shuping to offer opinion testimony intentions on 1 regarding September Defendant s 2007. In state of describing mind or Defendant s behavior toward Mr. Shuping before the assault, Mr. Shuping s then girlfriend, Randi Miller, described Defendant as looking to start something[,] and looking for a fight that night. She later added that it was like [Defendant] was targeting [Mr. Shuping] that confrontation night. between Randy Ms. Jones, Miller and when asked Defendant about the outside the nightclub, responded, Supposedly, [Defendant] was picking on -3[Mr. Shuping]. (emphasis added). Jones immediately clarified, however, I didn t see none [sic] of it, no. witnesses had no Defendant contends personal their knowledge appraisals of were Because these his state of mind, inadmissible under N.C.R. Evid. 701 and prejudicial in suggesting that he was searching for an opportunity to attack Shuping or otherwise targeting him. Because testimony Defendant at admission. trial, he did must not now object to show plain See N.C.R. App. P. 10(a)(1), (4). the challenged error in its We review claims of plain error under the following standard: . . . [D]efendant 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. . . . [B]ecause plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (third alteration in original) (citations and internal quotation marks omitted). A lay witness may testify to instantaneous conclusions of the mind as to the appearance, condition, or mental or physical -4state of persons, State v. Leak, 156 N.C. 643, 647, 72 S.E. 567, 568 (1911) (quotation omitted), provided this testimony is (a) rationally based on the perception of the witness and (b) helpful to a determination clear of a understanding fact in of his issue. testimony N.C.R. or Evid. the 701. Accordingly, our courts have long held that [o]pinion evidence as to the demeanor of a criminal defendant is admissible into evidence. State v. Stager, 329 N.C. 278, 321, 406 S.E.2d 876, 900 (1991). Assuming, arguendo, that Ms. Miller and Mr. Jones improperly ascribed an intention or motive to Defendant, we find no probability trial. that their testimony affected the outcome at Assault inflicting serious bodily injury is a general intent crime. Cf. State v. Woods, 126 N.C. App. 581, 587, 486 S.E.2d 255, 258 (1997) (assault with a deadly weapon inflicting serious injury); State v. Hunt, 100 N.C. App. 43, 46, 394 S.E.2d 221, 223 (1990). The State was obliged to prove only (1) the commission of an assault on another, which (2) inflicts serious bodily injury. State v. Williams, 150 N.C. App. 497, 501, 563 S.E.2d 616, 619 (2002) (quoting State v. Hannah, 149 N.C. App. 713, 717, 563 S.E.2d 1, 4 (2002)). -5We further note that both Defendant and his witness, Kenneth Osbourne, Jr., offered the jury their own accounts of Defendant s motive in punching Mr. Shuping. Although the two men admitted to making fun of Mr. Shuping as he was getting sick in the bathroom and outside of the club, they described their behavior as light-hearte[d] Osbourne blamed Ms. Miller and for nothing aggressive. escalating the Mr. conflict by cursing at Defendant s friends and ordering them to leave Mr. Shuping alone and go home. Defendant explained that he became scared and when Mr. Shuping Ms. Miller s brother, Mickey Miller, started toward their vehicle, because he believed they were going for a gun. Only when Mr. Shuping lunged and grabbed his shirt collar, Defendant claimed, did he throw the punch. Inasmuch as the jury heard Defendant s and Mr. Osbourne s versions of the incident, we find no probability of a different outcome at trial but for the alleged error. In a related counsel rendered failing to Miller and Shuping. counsel In to the Jones reviewing ( IAC ), Defendant constitutionally object Mr. claim, we asserts ineffective aforementioned regarding claims employ that his his assistance testimony intentions of ineffective the familiar trial by from Ms. toward Mr. assistance two-part of test -6articulated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), and adopted for state constitutional purposes in State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985). Defendant must show that (1) his counsel s performance fell below an objective standard of reasonableness[,] and (2) there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. State v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698), cert. denied, __ U.S. __, 181 L. Ed. 2d 53 (2011). Moreover, under Strickland, we need not determine whether counsel made errors if the record does not show a reasonable probability that a different verdict would have been reached in the absence of counsel s deficient performance. State v. Banks, 163 N.C. App. 31, 36, 591 S.E.2d 917, 921 (2004) (citing Braswell, 312 N.C. at 563, 324 S.E.2d at 248-49), disc. review denied, 358 N.C. 377, 597 S.E.2d 767 (2004). In his brief before this Court, Defendant describes the Strickland standard for ineffective assistance of counsel claims as follows: [A] defendant must show that the defense lawyer s performance was deficient . . . and performance prejudiced the defendant. that the deficient Nowhere does Defendant -7acknowledge Strickland s heightened prejudice threshold a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698. Defendant s entire argument to this Court on the issue of prejudice consists of the following two sentences: As stated above, the admission of the improper testimony prejudiced Defendant by allowing the State to characterize the conflict between two groups of bar patrons as an intentional attack on Shuping. Without that characterization, the jury could have found Defendant not guilty, or guilty of a lesser offense. (emphasis added); see N.C.R. App. P. 28(b)(6). Defendant fails to articulate how the challenged testimony had a probable impact on the outcome of his trial. See State v. Simmons, 191 N.C. App. 224, 229, 662 S.E.2d 559, 562 (2008) (stating that though defendant . . . claims that the admission of the testimony constituted error so serious that a reasonable probability exists that the trial result would have been different absent the error, he neglects entirely to establish why that is so ) (quotation omitted). It is not the job of this Court to make Defendant s argument for him. State v. Mills, __ N.C. App. __, __, 741 S.E.2d 427, 433 (2013) (COA12855). Absent a meaningful argument of prejudice under the well- -8known Strickland standard, we overrule this claim. See Simmons, 191 N.C. App. at 229, 662 S.E.2d at 562; State v. Pendleton, 175 N.C. App. 230, 233, 622 S.E.2d 708, 710 (2005) (rejecting conclusory claim of prejudice). As discussed above, assault inflicting injury is not a specific intent crime. serious bodily The lesser included offenses of assault inflicting serious injury and simple assault differ not in the mens rea of the defendant, but in the degree of harm inflicted. would have Defendant has thus failed to show how he obtained a more favorable outcome at trial had counsel objected to Ms. Miller s and Mr. Jones testimony. Defendant next excepts to the trial court s failure to find mitigating evidence factors of a at positive sentencing based employment system, and prior military service. claim. on his history, uncontroverted community support We find no merit to this It is well-established that a court is not obliged to make written findings of aggravating and mitigating factors when it imposes a sentence from within the applicable presumptive range. State v. James, __ N.C. App. __, __, 738 S.E.2d 420, 426 (2013) (quoting State v. Allah, 168 N.C. App. 190, 197, 607 S.E.2d 311, 316, disc. review denied, 359 N.C. 636, 618 S.E.2d 232 (2005)). As defendant was sentenced . . . in the -9presumptive range, the trial court did not err in failing to make findings as to mitigating factors. Allah, 168 N.C. App. at 197, 607 S.E.2d violation of at his 316. right To to the due extent process Defendant under claims Blakely a v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), or other constitutional rights, we find that he failed to preserve these constitutional issues. See State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) (stating that a constitutional error will not be considered decision for Furthermore, the in defendant s the presumptive-range first Blakely had sentence, time no on appeal ). application which was to fully supported by the facts found by the jury in reaching its guilty verdict. State v. Norris, 360 N.C. 507, 516, 630 S.E.2d 915, 920, cert. denied, 549 U.S. 1064, 166 L. Ed. 2d 535 (2006). NO ERROR. Judges GEER and ERVIN concur. Report per Rule 30(e).

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