Opinion
No. COA15–606.
01-05-2016
STATE of North Carolina v. Anthony Wade ALBINI.
Attorney General Roy Cooper, by Special Deputy Attorney General Ann Matthews, for the State. Mary McCullers Reece, for defendant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General Ann Matthews, for the State.
Mary McCullers Reece, for defendant-appellant.
Opinion
Appeal by defendant from judgment entered 22 August 2014 by Judge Jeffrey P. Hunt in Forsyth County Superior Court. Heard in the Court of Appeals 28 December 2015.
BRYANT, Judge.
Where the trial court's admission of portions of a videotape did not rise to the level of plain error and where the trial court properly submitted an instruction on acting in concert, we find no error.
During the evening of 16 March 2013, Grant Vestal (“Vestal”) and his friend Brock Crouse were walking down Trade Street in downtown Winston–Salem when Vestal heard a voice say something that sounded like, “Hey, fat ass.” Vestal walked toward a group of four people standing near the sidewalk. As Vestal approached the group, a man identified as Michael Gas (“Gas”) stepped forward and punched Vestal in the head, causing Vestal to fall to the ground. While Vestal lay on the ground, another man in the group who was identified as Anthony Wade Albini, defendant, stomped his foot into Vestal's face several times, causing serious bodily injury.
Leonard Caldwell (“Caldwell”) testified that he saw one man punch another man, knocking the other man to the ground. As the other man lay on the ground, a third man stepped forward and started kicking him in the face. Caldwell intervened and pushed the man, whom he identified as defendant, away from the man on the ground. Defendant then walked away, headed south towards Fourth Street. While one of Caldwell's companions called 911 for assistance, Caldwell chased after defendant.
Anna Young also testified that she witnessed the assault. She identified defendant as the person who kicked Vestal. She knew defendant from high school. She also knew Gas as the boyfriend of a friend.
Officer William McGlaughon responded to the scene and observed a man, bleeding heavily, on the ground. Bystanders at the scene pointed in the direction of Fourth Street, indicating where the perpetrators headed. One bystander described one perpetrator as wearing a black shirt and khaki shorts, and having a bandage on one hand. Officer McGlaughon proceeded down Trade Street to Fourth Street, where he encountered an individual pointing west on Fourth Street, saying, “He's right up there.” The officer saw a man, whom he identified as defendant, wearing a black shirt, khaki pants, and an ACE bandage on his hand. As the officer was speaking to defendant, Caldwell stepped forward and said, “That's him right there. He was kicking him in his face. I saw him doing it.” Another officer located Gas nearby, and defendant and Gas were taken into custody.
Dr. Joseph Molnar, a plastic reconstructive surgeon who treated Vestal, testified that although Vestal's injuries did not require hospitalization that evening, in his opinion Vestal experienced severe pain resulting from the injuries. Dr. Molnar performed surgery upon Vestal's face ten days after the attack, after allowing the facial swelling to subside. Extensive reconstructive work had to be done to the middle of Vestal's face. Vestal's jaws were wired shut for nearly two months, and a tracheostomy had to be performed in order to insert a breathing tube into Vestal's throat to maintain an airway passage. As a result of the surgery and injuries, Vestal was at an increased risk for tracheal stenosis, sinusitis, and other breathing problems with his nose.
On 20 May 2013, defendant was indicted for one count of assault inflicting serious bodily injury. The matter came on for trial before a jury on 21 and 22 August 2014.
At trial, two witnesses testified on defendant's behalf that they witnessed a fight that evening but that defendant was not involved in it. Defendant was found guilty and convicted by a jury of assault inflicting serious bodily injury. The Honorable Jeffrey P. Hunt sentenced defendant to a minimum of 21 months and a maximum of 35 months active. Defendant appeals.
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On appeal, defendant presents two issues: (1) whether the court committed plain error by admitting portions of a videotape; and (2) whether the court erred by submitting an instruction on acting in concert. We find no error.
I
Defendant first contends the court committed plain error by allowing the jury to view a video of Vestal lying in a hospital bed in a pool of blood shortly after his admission to the hospital emergency room. He argues the probative value of the evidence was substantially outweighed by the danger of unfair prejudice or considerations of needless presentation of cumulative evidence. He submits that the purpose of the video segment to show the extent of Vestal's injuries had already been served by multiple still photographs of Vestal's appearance in the aftermath of the incident and another video segment showing Vestal's appearance at the scene of the incident.
To establish that plain error was committed by a court in admitting evidence without objection, the defendant must show that a fundamental error, i.e., one that had a probable impact upon the jury's verdict, was made. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Defendant maintains that but for admission of the video segment recorded at the hospital, the jury probably would not have found the element of serious bodily injury. We do not agree.
A serious bodily injury is defined as one “that causes serious permanent disfigurement ... [or] 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 ....“ N.C. Gen.Stat. § 14–32.4(a) (2013). The evidence is uncontradicted that (1) Vestal's injuries required surgical repair involving “disimpaction” of his face and installation of permanent plates and screws in his face; (2) he had LeFort I, II, and III level fractures across his nose and middle of his face; (3) Vestal remained in the hospital for four days after the surgery; (4) he required a tracheostomy to insert a breathing tube, which he had in his neck for two to three weeks; (5) he still has a scar from the tracheostomy; (6) he is unable to chew certain things or chew for a long period of time due to pain in his jaw; (7) he does not have complete feeling in his four front teeth, such that he could not go to a dentist for more than one year for a checkup and cleaning of his teeth because it was too painful; (8) he missed two months of work; (9) the injuries caused severe pain; and (10) Vestal is at increased risk for long term or permanent sinus problems, including infections.
Dr. J.A. Molnar explained on direct the nature of LeFort I, II, and III fractures:
With regard to the video segment showing Vestal's appearance at the scene of the incident, Vestal's injuries are barely visible since it was nighttime and the officer did not get close enough to show the extent of the injuries as Vestal lay on the sidewalk. It was only once Vestal was at the hospital that the officer got close enough to show the extent of Vestal's injuries. Even so, the video segment showing Vestal's injuries at the hospital is almost identical to the most graphic of the photos shown to the jury.
Therefore, even assuming arguendo that the videos were improperly introduced into evidence, where, as here, the jury had already seen graphic pictures of the injuries and heard the testimony of Vestal and Dr. Molnar, there is no reasonable likelihood that the jury would not have convicted defendant of the crime charged. The presence of overwhelming evidence of a defendant's guilt can render an error in admitting such evidence harmless. State v. Johnson, 298 N.C. 355, 376, 259 S.E.2d 752, 765 (1979). Accordingly, this assignment of error is overruled.
II
Defendant lastly contends that the court erred by instructing the jury as to the principle of acting in concert. Specifically, defendant argues the trial court erred in giving the instruction because there was insufficient evidence that defendant joined in a common purpose with Gas. We disagree.
After the jury retired to deliberate, the jury returned to the courtroom with two questions, the second of which was: “if the defendant contributed to the serious bodily injury but others did, too, is he guilty of issue one [assault inflicting serious bodily injury] or issue two [assault inflicting serious injury]”? Over defendant's objection, the court instructed the jury as follows:
For a defendant to be guilty of a crime, it is not necessary that he do all the acts necessary to constitute that crime. If two or more persons join in a common purpose to commit either the crime of assault inflicting serious bodily injury or the crime of assault inflicting serious injury to them, if actually or constructively present, is guilty of that crime.
Now, if you find from the evidence beyond a reasonable doubt that on March 16th, 2013, the defendant, Anthony Albini, acted by himself, or acting together with one or more other persons, assaulted Grant Vestal inflicting serious bodily injury, then your duty would be to find the defendant guilty of assault inflicting serious bodily injury.
If you do not so find or have a reasonable doubt as to any element thereof, then you would find the defendant not guilty of assault inflicting serious bodily injury, and you would move on to consider issue number two wherein if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant, acting by himself or acting together with one or more other persons, assaulted the alleged victim, Mr. Vestal, inflicting serious injury, it would be your duty to find him guilty in issue number two of assault inflicting serious injury.
“To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose.” State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979). “Where the state seeks to convict a defendant using the principle of concerted action, that this defendant did some act forming a part of the crime charged would be strong evidence that he was acting together with another who did other acts leading toward the crimes' commission.” Id. at 356–57, 255 S.E.2d at 395. “If the defendant is present with another and with a common purpose does some act which forms a part of the offense charged, the judge must explain and apply the law of ‘acting in concert.’ “ State v. Mitchell, 24 N.C.App. 484, 486, 211 S.E.2d 645, 647 (1975).
We find sufficient evidence to support the instruction. Vestal's friend testified that he and Vestal walked past a group of people, a person in that group made a derogatory statement to them, Vestal confronted the group and one member of the group—identified as Gas—punched Vestal and knocked him unconscious, defendant and others in the group gathered around Vestal after he fell on the ground, defendant kicked Vestal in the face, and defendant and Gas departed the scene.
Accordingly, we hold defendant received a fair trial, free from prejudicial error.
NO ERROR.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).
... Rene LeFort was a French physician in the 19th century who did some terrible things to cadavers to demonstrate the patterns of fractures of the face, and LeFort I is across the base of the nose where all your teeth are separated from the rest of the head. LeFort II is where the nose and all of your teeth are separated from the head, and the LeFort III actually goes through the—under the eye through the orbit out here.
And [Vestal] had some small fractures that made it LeFort III, some fractures that made it LeFort II, and the major component that was consistent from side to side was a LeFort I, which was down at the bottom of the nose level on the right side but went higher on the left side, as I recall.