Summary
holding fractures around eye causing potentially permanent forty percent loss in vision qualified as permanent or protracted loss or impairment of function of a bodily member or organ
Summary of this case from State v. RushingOpinion
No. COA12–30.
2012-08-7
STATE of North Carolina v. Michael Ray KREMSKI.
Attorney General Roy Cooper, by Special Deputy Attorney General, Thomas M. Woodward, for State. Russell J. Hollers III, for defendant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General, Thomas M. Woodward, for State. Russell J. Hollers III, for defendant-appellant.
ERVIN, Judge.
Appeal by defendant from judgment entered 4 February 2011 by Judge James G. Bell in Robeson County Superior Court. Heard in the Court of Appeals 22 May 2012.
Defendant Michael Ray Kremski appeals from a judgment sentencing him to 25 to 30 months imprisonment based upon his conviction for assault inflicting serious bodily injury. On appeal, Defendant contends that the trial court erred by (1) denying his dismissal motion; (2) instructing the jury concerning acting in concert; and (3) allowing photographs and written jury instructions to be sent into the jury room over his objection during the jury's deliberations. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant is not entitled to any relief on appeal.
I. Factual Background
A. Substantive Facts
On 31 July 2008, Forrest Jones drove Bobby Ray Sampson to a convenience store so that Mr. Sampson could purchase beer. Mr. Sampson entered the convenience store, where he encountered Defendant and Luther Chavis. Defendant asked Mr. Sampson if he would “come to [Defendant's] house” so that the two men could “straighten ... out” an earlier argument arising from Defendant's accusation that Mr. Sampson had stolen and damaged a car. At that point, Mr. Sampson left the convenience store, having asked Mr. Jones to drive him to Defendant's residence.
Mr. Sampson testified that, after arriving at the house, he exited the vehicle, walked to a six foot high wooden fence which ran around the side of the house, and entered the fenced-in yard surrounding the house. After entering the yard, Mr. Sampson encountered Mr. Chavis and spoke with him about the accusations concerning the stolen car. After Mr. Chavis hit Mr. Sampson with a metal pipe, the two men began fighting. As Mr. Sampson and Mr. Chavis fought, Defendant struck Mr. Sampson in the back of the head. After Defendant struck Mr. Sampson a second time, Defendant and Mr. Chavis proceeded to beat Mr. Sampson. At one point during this melee, Mr. Chavis held Mr. Sampson while Defendant hit him with the metal pipe.
Mr. Chavis testified that he was at Defendant's residence when Mr. Sampson entered the yard and began yelling. After Mr. Chavis went outside and confronted Mr. Sampson, Mr. Sampson hit Mr. Chavis and slammed him to the ground. As the two men fought, Mr. Chavis got the better of Mr. Sampson. Mr. Chavis claimed that Defendant was not present during this altercation.
Mr. Jones, who had remained in his vehicle, eventually went to look for Mr. Sampson. Upon entering the fenced-in yard, Mr. Jones saw Mr. Sampson lying on the ground. Mr. Jones testified that blood was “everywhere on [Mr. Sampson's] face” and that Mr. Sampson was incoherent. Mr. Jones helped Mr. Sampson back to the vehicle; called Karen Deese, Mr. Sampson's wife; and took Mr. Sampson home. At the time that Mr. Sampson reached home, Ms. Deese observed that Mr. Sampson seemed to be partially unconscious and that he was bleeding about his face, his eyes were swollen shut, and the tip of one of his fingers had been “almost bit [ten] in two.” At that point, assistance was sought for Mr. Sampson.
After his arrival at Mr. Sampson's home, Deputy Robert Bass of the Robeson County Sheriff's Department observed that Mr. Sampson was “covered with blood[,] ... [h]is eyes were swollen[,] his arms appeared to be broken[,]” and he “was [not] very conscious.” At the time of his arrival at the hospital, Mr. Sampson was examined by Dr. Steven Muscoreil, who observed significant injuries to Mr. Sampson's eyes and an open fracture of a finger on Mr. Sampson's left hand, both of which required examination by a specialist. Dr. Muscoreil thought that multiple fractures near Mr. Sampson's eye would permanently impair Mr. Sampson's vision. In addition, Dr. Muscoreil observed indicia of blunt force trauma to Mr. Sampson's face and bruising to his left arm and chest. Based upon his examination of Mr. Sampson's eye, Dr. Muscoreil recommended that Mr. Sampson be transferred to Duke University Medical Center for further evaluation and treatment.
During a six day stay at Duke, Mr. Sampson developed the swelling condition known as compartment syndrome resulting from the injury to his left forearm. According to Dr. Muscoreil, compartment syndrome can cause permanent damage in the absence of proper treatment. Mr. Sampson underwent surgery and a skin grafting procedure in order to treat his compartment syndrome.
Mr. Sampson testified that, in the aftermath of the assault, he had lost forty percent of the vision in his left eye. According to Ms. Deese, Mr. Sampson complains of daily headaches, suffers from an impaired field of vision, has trouble concentrating, and regularly becomes confused as a result of the beating that he received. When asked if he was aware of any “serious permanent disfigurements” sustained by Mr. Sampson, Dr. Muscoreil testified that “he's got a significant wound ... on his forearm[.]” However, Dr. Muscoreil indicated that, based upon his examination of Mr. Sampson in the emergency room, he could not “draw a medical conclusion [concerning] any permanent impairment or protracted pain.”
B. Procedural History
On 15 August 2008, a warrant for arrest was issued charging Defendant with assault inflicting serious bodily injury. On 12 January 2009, the Robeson County grand jury returned a bill of indictment alleging that “[D]efendant ... unlawfully, willfully and feloniously did assault [Mr.] Sampson and inflict serious bodily injury, nail puncture wound to the left arm, and bruises about the entire body[.]” The charge against Defendant came on for trial before the trial court and a jury at the 1 February 2011 criminal session of Robeson County Superior Court. At the conclusion of the State's evidence and at the close of all of the evidence, Defendant unsuccessfully moved that the charge that had been lodged against him be dismissed on the grounds that the evidence did not support a finding that Defendant had inflicted injuries to Mr. Sampson consistent with those specified in the indictment. [TIII 305–6; 307 ln 7–8; 372–73] On 4 February 2011, the jury returned a verdict convicting Defendant of assault inflicting serious bodily injury. [R29] Based upon the jury's verdict, the trial court entered a judgment sentencing Defendant to 25 to 30 months imprisonment. [R30] Defendant noted an appeal to this Court from the trial court's judgment. [TIV 475–76; R32]
A charge that had been lodged against Mr. Chavis for his participation in the assault upon Mr. Sampson was heard jointly with the charge filed against Defendant.
II. Legal Analysis
A. Motion to Dismiss
In his initial challenge to the trial court's judgment, Defendant contends that the trial court erred by denying his dismissal motion. [DB6] According to Defendant, the fact that the indictment returned against him alleged that Mr. Sampson had sustained a “nail puncture wound that never happened” and the fact that the bruising that Mr. Sampson sustained constituted “serious injury rather than serious bodily injury” necessitated the dismissal of the assault inflicting serious bodily injury charge and the remanding of this case to the trial court for the entry of a judgment based upon a conviction for assault inflicting serious injury. Defendant's argument lacks merit.
Although Mr. Sampson told investigating officers that he had sustained a nail puncture wound when he and Mr. Chavis fell to the ground during their altercation and although Defendant testified at trial that he had sustained a nail puncture wound when Defendant hit him with a board, Defendant argues that no such wound had been inflicted given the absence of any medical evidence tending to show that Mr. Sampson received a nail puncture wound and the fact that the trial court omitted any reference to such an injury from its instructions to the jury concerning the issue of Defendant's guilt of assault inflicting serious bodily injury.
In order to avoid the dismissal of a criminal case for lack of sufficient evidence, the State must present substantial evidence of “(1) each essential element of the offense charged and (2) of defendant's being the perpetrator of the charged offense.” State v. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citation omitted). In reviewing a trial court's decision to deny a defendant's dismissal motion, we examine the record “in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citation omitted), cert. denied,546 U.S. 830, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005). “When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455–56,cert. denied, 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). A trial court's decision to deny a motion to dismiss is subject to de novo review on appeal. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
Assault inflicting serious bodily injury is defined in N.C. Gen.Stat. § 14–32.4(a), which provides, in pertinent part, that:
any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony. “Serious bodily injury” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.
A conviction for assault inflicting serious bodily injury requires proof of two elements: “ ‘(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,disc. review denied,355 N.C. 754, 566 S.E.2d 81 (2002)). “ ‘[S]erious bodily injury,’ as set forth in N.C. [Gen. Stat] § 14–32.4, requires proof of more severe injury than the ‘serious injury’ element of other assault offenses.” Id. at 503,563 S.E.2d 616, 563 S.E.2d at 619–20 (citation omitted).
The lesser included offense of assault inflicting serious injury is defined in N.C. Gen.Stat. § 14–33(d), which provides, in pertinent part, that “[a]ny person who, in the course of an assault, assault and battery, or affray, inflicts serious injury upon another person ... is guilty of a Class A1 misdemeanor.” “[T]he courts of this State have declined to define ‘serious injury’ for purposes of assault prosecutions other than stating that the term ‘serious injury’ means physical or bodily injury resulting from an assault, and that ‘[f]urther definition seems neither wise nor desirable.’ “ Williams, 150 N.C.App. at 502, 563 S.E.2d at 619 (internal citation omitted and quoting State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962)). Thus, “serious bodily injury” involves something more than “physical or bodily injury resulting from an assault.” Id.
In his brief, Defendant argues that, because the indictment returned against him alleged that he “did assault [Mr.] Sampson and inflict serious bodily injury, nail puncture wound to the left arm, and bruises about the entire body,” the trial court was not entitled to consider any evidence other than that tending to show the existence of a nail puncture wound to Mr. Sampson's left arm and bruises to Mr. Sampson's body in determining whether Mr. Sampson sustained “serious bodily injury” and that the record contains no credible evidence tending to show that Mr. Sampson sustained a nail puncture wound to the left arm or that a nail puncture wound and bruises constituted serious bodily injury as that term is defined by N.C. Gen.Stat. § 14–32.4(a). We do not agree.
“Although ‘the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense,’ a variance which is not essential is not fatal to the charged offense.” State v. Qualls, 130 N.C.App. 1, 8, 502 S.E.2d 31, 36 (quoting State v. Simmons, 57 N.C.App. 548, 551, 291 S.E.2d 815, 817–18 (1982)), disc. review denied, 349 N.C. 237, 516 S.E.2d 604 (1998), aff'd,350 N.C. 56, 510 S.E.2d 376 (1999). If an indictment contains an averment which is not necessary in charging the offense, it may be disregarded as inconsequential.” Id. (citing State v. Lewis, 58 N.C.App. 348, 354, 293 S.E.2d 638, 642 (1982), cert. denied,311 N.C. 766, 321 S.E.2d 152 (1984)).
The first deficiency in Defendant's argument is that the indictment returned against Defendant does not limit the State's ability to prove that Mr. Sampson sustained “serious bodily injury” to any nail puncture wound and bruising that Defendant inflicted upon him. Although the indictment contains the allegations upon which Defendant relies, it also alleges that Defendant “did assault [Mr.] Sampson and inflict serious bodily injury.” The only allegation required in a valid indictment charging a defendant with assault inflicting serious bodily injury is that the defendant assaulted another person and inflicted serious bodily injury upon that person. N.C. Gen.Stat. § 14–32.4(a). Such allegation appears in the indictment returned against Defendant in this case. As a result, the fact that the indictment referred to a nail puncture wound and bruising in its description of the injuries that Mr. Sampson sustained constituted mere surplusage that did not limit the scope of the evidence that the State was entitled to elicit in support of the serious bodily injury element of the crime with which Defendant had been charged.
To the extent that Defendant's argument rests upon an assertion that there was a fatal variance between the language of the indictment and the proof offered at trial in support of the charge against Defendant rather than a simple failure to elicit sufficient evidence to support a finding of guilt, we find such an argument unpersuasive. “ ‘The general rule in this State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words.’ “ State v. Harris, ––– N.C.App. ––––, ––––, 724 S.E.2d 633, 636 (2012) (quoting State v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920 (1953)). As a result, given that the indictment returned against Defendant tracked the statutory language, that indictment was sufficient to charge a violation of N.C. Gen.Stat. § 14–32.4(a) and to allow the consideration of any evidence tending to show the infliction of a serious bodily injury regardless of whether the exact nature of that injury was spelled out in the indictment.
Secondly, the record contains sufficient evidence, when viewed in the light most favorable to the State, to support Defendant's conviction for assault inflicting serious bodily injury in violation of N.C. Gen.Stat. § 14–32.4(a). Mr. Sampson testified that, after arriving at Defendant's house, he was approached by Mr. Chavis and eventually began fighting with him. As Mr. Sampson and Mr. Chavis fought, Defendant hit Mr. Sampson from behind and joined Mr. Chavis in assaulting Mr. Sampson. Mr. Sampson claimed that, at one point, Mr. Chavis held his arms while Defendant hit him with a metal pipe. Dr. Muscoreil testified that Mr. Sampson had sustained blunt force trauma to both sides of his face, bruising to his arms and chest, multiple facial fractures, and an open fracture to a finger on his left hand, causing Dr. Muscoreil to be concerned that the fractures near Mr. Sampson's eye would result in permanent impairment to his vision. Mr. Sampson was transferred to Duke, where he spent approximately six days undergoing treatment. As the result of the injuries which he sustained to his left forearm, Mr. Sampson developed compartment syndrome, which required surgery and skin grafting. Although Dr. Muscoreil testified that he did not have an opinion concerning the extent to which Mr. Sampson had sustained a permanent injury as a result of the assault, both Mr. Sampson and Ms. Deese testified that Mr. Sampson had suffered protracted and, possibly, permanent vision loss. More specifically, Mr. Sampson testified that he had lost forty percent of the vision in his left eye as a result of his injuries. In addition, Ms. Deese testified that, since the assault, Mr. Sampson complained of daily headaches, suffered from an impaired field of vision, and had trouble concentrating. As a result, we conclude that the record contains sufficient evidence to support a jury determination that Defendant assaulted Mr. Sampson and that Mr. Sampson had suffered a “permanent or protracted loss or impairment of the function of [a] bodily member or organ [,]” most notably his left eye, due to Defendant's conduct. N.C. Gen.Stat. § 14–32.4(a). Thus, the trial court did not err by denying Defendant's dismissal motion.
B. Acting in Concert Instruction
Secondly, Defendant contends that the trial court erred by “instructing the jury on acting in concert after closing arguments, after the initial charge, and after several hours of deliberation.” Once again, we disagree.
At the jury instruction conference, the State requested that the trial court instruct the jury that the Defendant and Mr. Chavis had “act[ed] in concert [by] repeatedly striking [Mr. Sampson] causing extensive bruising to the body, or head and body, [and] damage to both eyes.” However, the State did not specifically request that the trial court deliver N.C.P.I.-Crim. 202.10, which is the North Carolina Pattern Jury Instruction concerning the doctrine of acting in concert. The trial court's initial charge to the jury did not contain an acting in concert instruction. After charging the jury, the trial court asked the parties if they had any requests for additions or deletions to its charge as delivered. However, the State did not either request the trial court to give an acting in concert instruction or object to the trial court's failure to deliver such an instruction at that time. During its deliberations, the jury requested a written copy of the trial court's instructions, at which point the trial court had the jury return to the courtroom for the purpose of obtaining clarification concerning its request. In response to inquiries from the trial court, the foreman stated that “[w]e were [not] sure if [the trial court] had said or if we had heard elsewhere something about if one person was involved, how much the involvement was.” As a result, the State requested that the trial court instruct the jury concerning the doctrine of acting in concert in accordance with N.C.P.I.-Crim. 202.10. After hearing arguments from the parties, the trial court granted the State's request, noted Defendant's objection, and reinstructed the jury concerning the issue of Defendant's guilt in such a manner as to include an acting in concert instruction.
N.C. Gen.Stat. § 15A–1234 provides, in pertinent part, that:
(a) After the jury retires for deliberation, the judge may give appropriate instructions to:
(1) Respond to an inquiry of the jury made in open court; or
(2) Correct or withdraw an erroneous instruction; or
(3) Clarify an ambiguous instruction; or
(4) Instruct the jury on a point of law which should have been covered in the original instructions.
“ ‘Whether or not to give additional instructions rests within the sound discretion of the trial court and will not be overturned absent abuse of that discretion.’ “ State v. Williams, 185 N.C.App. 318, 335, 648 S.E.2d 896, 908 (2007) (quoting State v. Bartlett, 153 N.C.App. 680, 685, 571 S.E.2d 28, 31 (2002), disc. review denied,356 N.C. 679, 577 S.E.2d 892 (2003)), disc. review denied, 362 N.C. 372, 664 S.E.2d 559, 2008 N.C. LEXIS 568 (2008) (unpublished). As this Court has previously noted, “ ‘[t]he trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis [to be] placed on a particular portion of the court's instruction.’ “ Bartlett, 153 N.C.App. at 685, 571 S.E.2d at 31 (quoting State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986)). “In order to support a jury instruction on acting in concert, the State must prove that the defendant is ‘present at the scene of the crime’ and acts ‘together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.’ “ State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009) (quoting State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979)).
Although the trial court did not identify the specific subsection of N.C. Gen.Stat. § 15A–1234(a) under which it granted the State's request to deliver the additional acting in concert instruction, it acted in this manner after the foreman stated that the jury was confused concerning the issue of Defendant's guilt given that more than one individual was allegedly involved in the commission of the crime that Defendant had been charged with committing. As a result of the fact that the challenged instruction was delivered in response to an inquiry made by the jury in open court, the trial court's supplemental acting in concert instruction was clearly authorized by N.C. Gen.Stat. § 15A–1234(a)(1). In addition, although Defendant contends that the record did not contain sufficient evidence to support a determination that Defendant and Mr. Chavis acted in concert during the assault upon Mr. Sampson, we believe that the record contains ample support for the trial court's acting in concert instruction. For example, the record contains evidence tending to show that (1) Defendant had previously accused Mr. Sampson of stealing and damaging a car; (2) Mr. Sampson encountered Defendant and Mr. Chavis at the convenience store; (3) Defendant asked Mr. Sampson to come to his home so they could discuss their disagreement; (4) Mr. Sampson went to Defendant's home, where he encountered Mr. Chavis in the yard; (5) after Mr. Chavis argued with Mr. Sampson, Mr. Chavis hit Mr. Sampson with a metal pipe; (6) Defendant approached Mr. Sampson from behind and struck him in the back of the head; and, (7) during the assault, Mr. Chavis held Mr. Sampson's arms while Defendant hit him with the metal pipe. Although Defendant argues that the evidence, even when taken in the light most favorable to the State, showed that two different altercations, the first between Mr. Sampson and Mr. Chavis and the second involving Defendant, occurred, with Mr. Sampson's injuries having been sustained before Defendant's involvement began, we believe that the record can easily be read as indicating that Mr. Sampson's injuries were sustained as the result of a single assault that involved both Mr. Chavis and Defendant. As a result, we hold that the record contains ample evidentiary support for the trial court's acting in concert instruction and that the trial court did not err by delivering a supplemental instruction addressing the issue of Defendant's guilt on the basis of an acting in concert theory. Williams, 185 N.C.App. at 335, 648 S.E.2d at 908 (holding that the trial court's additional acting in concert instruction was appropriate under N.C. Gen.Stat. § 15A–1234(a)(4) given the existence of evidence tending to show that the defendant and an accomplice planned to rob the victim and that the accomplice acted as a decoy while the defendant entered the victim's house).
C. Photographs and Jury Instructions
Finally, Defendant contends that the trial court erred by sending photographs and a written copy of its instructions into the jury room over his objection. Although the trial court acted within the scope of its authority by allowing the jury instructions to be sent to the jury room, it did err by allowing the jury to take photographs previously admitted into evidence into the jury room without Defendant's consent. However, given that Defendant has failed to demonstrate that the trial court's action prejudiced him, he is not entitled to relief from his conviction based upon this error.
During its deliberations, the jury requested to be provided with a written copy of the trial court's acting in concert instructions and to examine photographs of Mr. Sampson's injuries that had previously been admitted into evidence. Despite Defendant's objection, the trial court granted the jury's requests and allowed the photographs and jury instructions to be taken into the jury room.
N.C. Gen.Stat. § 15A–1233(b) provides, in pertinent part, that, “[u]pon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received into evidence.” “N .C. [Gen.Stat. § ] 15A–1233(b) ... applies to exhibits and writings received as evidence, [but] not [to] 53 N.C.App. 40, 280 S.E.2d 7, 11 (1981) (holding that the trial court did not err by reducing a portion of its jury instructions to writing and allowing the jury to take those written instructions into the jury room during its deliberations). “A trial court's ruling in response to a request by the jury to review testimony or other evidence is a discretionary decision, ordinarily reviewable only for an abuse thereof.” State v. Perez, 135 N.C.App. 543, 554, 522 S.E.2d 102, 110 (1999) (citations omitted)), appeal dismissed and disc. review denied, 351 N.C. 366, 543 S.E.2d 140 (2000). In addition to demonstrating that the trial court erred by allowing the jury to take evidence into the jury room over his objection, Defendant must also demonstrate that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached ...,” N.C. Gen.Stat. § 15A–1443(a), with Defendant having the burden of showing both error and prejudice. State v. Cannon, 341 N.C. 79, 83–84, 459 S.E.2d 238, 241 (1995); N.C. Gen.Stat. § 15A–1443(a).
In light of this Court's previous determination that N.C. Gen.Stat. § 15A–1233(b) does not apply to jury instructions, we conclude that the trial court did not err by allowing the jury to review the jury instructions in the jury room during the course of its deliberations. Bass, 53 N.C.App. at 45, 280 S.E.2d at 11. In addition, as the State candidly concedes, Defendant is correct in contending that the trial court erred by allowing the jury to take the photographs of Mr. Sampson's injuries into the jury room without Defendant's consent. However, we further conclude that Defendant has failed to demonstrate that the trial court's error prejudiced him.
Although Defendant contends that the trial court's actions “compounded” the prejudice which he suffered as a result of its decision to deliver a supplemental instruction concerning the issue of Defendant's guilt under an acting in concert theory given his decision to base his defense, at least in part, on a contention that Defendant was not involved in the infliction of the specific injuries outlined in the indictment, we do not find this argument persuasive. As an initial matter, we have already determined that the trial court did not err by delivering the supplemental acting in concert instruction. Moreover, the photographs in question were admitted into evidence and published to the jury without objection. In light of these facts, “the trial court [would have had] the discretion [pursuant to N.C. Gen.Stat. § 15A–1233(a) ] to permit the jury to reexamine the pictures closely and at length in the courtroom,” Cannon, 341 N.C. at 85, 459 S.E.2d at 242, had it chosen to proceed in that fashion. Finally, Mr. Sampson, Ms. Deese, and Dr. Muscoreil offered considerable testimony concerning the nature and extent of Mr. Sampson's injuries. As a result, “[o]n the record before us, we are not persuaded that [D]efendant has shown a reasonable possibility that[,] had the jury not been allowed to review these photographs in the jury room, a different result would have been reached.” Id. (holding that no prejudicial error occurred in a case in which the trial court allowed the jury to take photographs depicting the victim's wounds, among other things, into the jury room during its deliberations because the photographs “had been previously admitted and shown to the jury to illustrate the testimony of witnesses” and because the trial court could have allowed the jury to re-enter the courtroom to review the photographs in the exercise of its discretion); see also State v. Huffstetler, 312 N.C. 92, 115, 322 S.E.2d 110, 124 (1984) (holding that there was no prejudicial error where the trial court allowed photographs to go into the jury room, over the defendant's objection, given that the photographs had previously been admitted into evidence and were illustrative of a witnesses' testimony and that the trial court had the discretion to allow the jury to re-examine the photographs in the courtroom), cert. denied,471 U.S. 1009, 105 S.Ct. 1877, 85 L.Ed.2d 169 (1985). Thus, Defendant is not entitled to relief from the trial court's judgment based upon its decision to allow the jury to review photographs of Mr. Sampson's injuries in the jury room.
III. Conclusion
Thus, for the reasons set forth above, none of Defendant's challenges to the trial court's judgment suffice to support an award of appellate relief. As a result, the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART.