Opinion
No. COA12–1024.
2013-04-2
STATE of North Carolina v. Mason Blake SIMPSON.
Attorney General Roy Cooper, by Special Deputy Attorney General Anne J. Brown, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for defendant-appellant.
Appeal by defendant from judgment entered 9 March 2012 by Judge Bradley B. Letts in Transylvania County Superior Court. Heard in the Court of Appeals 25 March 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Anne J. Brown, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Mary Cook, for defendant-appellant.
BRYANT, Judge.
Where defendant has failed to demonstrate how the use of the term “victim” in jury instructions was prejudicial, we hold no error.
Facts and Procedural History
Defendant Mason Blake Simpson appeals from a judgment entered upon a jury verdict finding him guilty of assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant to a suspended term of twenty-five to thirty-nine months imprisonment, and placed defendant on supervised probation for sixty months with the special condition that he serve an active term of six months imprisonment. Defendant gave notice of appeal in open court.
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Defendant's sole argument on appeal is that the trial court committed reversible error when it failed to comply with defendant's request to not use the word “victim” in its instructions to the jury. At trial, defendant testified on his own behalf and stated he acted out of self-defense when he stabbed Mr. Nicholas R. Mooney. During the charge conference, defense counsel requested that the trial court replace the word “victim” in its instructions to the jury with Mr. Mooney's name. The court responded:
I've tried at every juncture to do that. And as you look through it, it will actually have his name. There are some though that—there's one or two, that it's just sort of like a pronoun. But I will certainly make every effort I can. And I will just direct you to the very beginning, the defendant assaulted Nicholas Mooney, the pattern says the victim. I've tried to put Mr. Mooney's name in at every juncture.
During the initial jury charge, the trial court used the word “victim” three times and the court again used the word “victim” three times when it re-instructed the jury on the law of self-defense.
Defendant contends the trial court erred in using the word “victim” in its jury instruction after it had agreed to use Mr. Mooney's name. Defendant further argues the jury's request for clarification on the elements of justifiable self-defense show that the use of the word “victim” in the instructions prejudiced him because the verdict was determined by whether or not the jury believed he acted out of justifiable self-defense. Defendant argues that had the trial court replaced the word “victim” with Mr. Mooney's name throughout its instructions, there is a reasonable possibility that a different result would have been reached by the jury. We disagree.
We first address the State's argument that because defendant did not object to the trial court's failure to replace the word “victim” with Mr. Mooney's name in all instances, this Court may only review the court's jury instructions for plain error. However where, as here, a defendant requests a specific jury instruction at the charge conference and the instruction is promised but not given, the defendant is not required to raise an objection to the instruction to preserve the issue for appellate review. State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988). We thus review defendant's arguments challenging the trial court's jury instructions using the de novo standard of review, State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009), and “freely substitute [our] own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).
An error in jury instructions is prejudicial and requires a new trial only if “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen.Stat. § 15A–1443(a) (2011). The defendant has the burden of showing such prejudice. Id. Assuming arguendo that the trial court erred in failing to replace all instances of the word “victim” in its jury instructions with Mr. Mooney's name, defendant has failed to show he was prejudiced by the error. Defendant's contention that had the trial court replaced the word “victim” with Mr. Mooney's name throughout its instructions there is a reasonable possibility that a different result would have been reached by the jury is nothing more than conjecture. The trial court used the word “victim” three times each in its initial instructions and when re-instructing the jury on self-defense. The court gave nearly identical instructions each time. When instructing the jury on the use of force in self-defense, the court stated:
In making this determination you should consider the circumstances as you find them to have existed from the evidence, including the size, age and strength of the defendant as compared to the victim, the fierceness of the assault, if any, upon the defendant, the number of attackers, and whether the victim possessed a weapon. Again, you, the jury, determine the reasonableness of the defendant's belief from the circumstances appearing to the defendant at the time.
(emphasis added). And in giving its instruction regarding when the jury could find defendant guilty of assault with a deadly weapon inflicting serious injury, the court stated:
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally stabbed Nicholas Mooney in the chest with a folding pocketknife, thereby inflicting serious injury upon the victim, nothing else appearing, it would be your duty to return a verdict of guilty.
(emphasis added). The court's use of the word “victim” in each of these instructions does not suggest that defendant had actually committed the crime at issue, and is merely descriptive of the complainant, Mr. Mooney. See State v. Henderson, 155 N.C.App. 719, 722, 574 S.E.2d 700, 703 (2003) (stating that “this Court has held the use of the term ‘victim’ is generally harmless error” and holding the defendant had not shown prejudice from the trial court's use of the word “victim” in its jury instructions). Moreover, there is nothing in the record that suggests the jury was improperly influenced by the trial court's use of the word “victim” in its instructions. Accordingly, we hold the trial court did not err in using the word “victim” in its jury instructions.
No error. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).