An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-989

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Cleveland County

Nos. 11 CRS 50468, 50471, 50473

JACKIE CARROLL

Appeal by defendant from judgments entered 20 February 2013

by Judge Linwood O. Foust in Cleveland County Superior Court. 

Heard in the Court of Appeals 5 February 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Heather H. Freeman, for the State.

Gilda C. Rodriguez for defendant-appellant.

BRYANT, Judge.

Where there was no conflict in the facts regarding the 

injuries suffered by the victim, the trial court did not err in 

denying defendant’s request for an instruction on assault with a 

deadly weapon as a lesser-included offense of assault with a 

deadly weapon with intent to kill inflicting serious injury. 

Because there was sufficient evidence to support an instruction 
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on the doctrine of acting in concert as to robbery with a 

dangerous weapon, we find no error in the trial court’s jury 

instruction as to that charge.

On 11 April 2011, a Cleveland County Grand Jury indicted 

defendant Jackie Carroll on charges of assault with a deadly 

weapon with intent to kill inflicting serious injury, robbery 

with a dangerous weapon, and possession of a firearm by a felon. 

The matter came on for trial before a jury during the 18 

February 2013 Criminal Session of Cleveland County Superior 

Court, in Shelby, the Honorable Linwood O. Foust, Judge 

presiding.

The evidence presented at trial tended to show that on the 

evening of 2 February 2011, Michael Black, the victim, received 

a phone call from defendant’s daughter, Tangie. Tangie and her 

boyfriend, Steven, were looking for a ride. After picking up 

Tangie and Steven, Tangie told Black that she wanted him to pick

up her mother, defendant. After picking up defendant, someone 

proposed heading to the Royal Motel. Black testified that he

had recently been paid and had over $400.00 on his person. 

Black paid for the motel room. In the room, everyone but Steven 

was drinking beer, and defendant and Tangie were doing drugs. 

Black testified that while sitting on the bed talking, defendant 
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“just like came up and started hitting me in the head with the 

gun. . . . [A]nd then Tangie was trying to help her or whatever 

the situation was.” “[T]hey was going in my pockets taking my 

money and stuff out.” Black described how he was continually 

hit on the head and face, bleeding, and how things became 

“fuzzy.” Black then lost consciousness. When Black regained 

consciousness, defendant, Tangie, and Steven had left the motel 

room. His money had been taken from his pockets, and his car 

was gone. Black called 9-1-1.

Following the close of the State’s evidence, defendant made

motions to dismiss the charges of assault with a deadly weapon 

with intent to kill inflicting serious injury and robbery with a 

dangerous weapon. Both motions were denied. Defendant declined 

to present evidence.

Following the trial court’s instructions, the jury returned 

guilty verdicts against defendant for the offenses of assault 

with a deadly weapon inflicting serious injury, robbery with a 

dangerous weapon, and possession of a firearm by a felon. The 

trial court entered judgment on the charge of assault with a 

deadly weapon inflicting serious injury, sentencing defendant to 

a term of 40 to 57 months. In a separate judgment, the trial 

court consolidated for sentencing the convictions for robbery 
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with a dangerous weapon and possession of a firearm by a felon

and sentenced defendant to a concurrent term of 103 to 133 

months. Defendant appeals.

_____________________________________

On appeal, defendant questions whether the trial court 

committed plain error (I) in denying her request for an 

instruction on a lesser-included offense and (II) instructing 

the jury on acting in concert.

I

Defendant first argues that the trial court committed plain 

error in denying her request for instruction on the lesserincluded offense of assault with a deadly weapon. We disagree.

Preservation of defendant’s challenge and standard of 

review

Defendant was indicted on the charge of assault with a 

deadly weapon with intent to kill inflicting serious injury 

pursuant to N.C. Gen. Stat. ' 14-32(a). At the close of all of 

the evidence, the trial court met with counsel for the State and 

the defense in chambers to discuss the proposed jury 

instructions. The meeting was not recorded. However, the 

parties returned to open court where the trial court summarized 

the in-chambers discussion for the record, as follows:
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The Court has informed the defendant and the 

State that it intends to give the following 

instructions from the patterned jury 

instructions . . . 208.10, assault with a 

deadly weapon inflicting serious injury -–

208.10, assault with a deadly weapon with 

intent to kill inflicting serious injury. 

Alternatively the Court will give the lesser 

included offense of assault with a deadly 

weapon inflicting serious injury. That’s 

208.15.

. . .

The Court will now allow the defendant to 

place on record the instructions that she 

requested that the Court has denied.

[Defense Counsel]: Your Honor, I’ve also 

requested instructions 208.50, assault with 

a deadly weapon and 208.60, assault 

inflicting serious injury.

Following the jury instructions, the trial court permitted 

counsel for the State and counsel for the defense an opportunity 

to object to the instructions given. As noted in defendant’s 

brief to this Court, counsel for the defense did not object.

Pursuant to our North Carolina Rules of Appellate 

Procedure, “[a] party may not make any portion of the jury 

charge or omission therefrom the basis of an issue presented on 

appeal unless the party objects thereto before the jury retires 

to consider its verdict . . . out of the presence of the jury.” 

N.C. R. App. P. 10(a)(2) (2013); see also State v. Young, 196 

N.C. App. 691, 697-98, 675 S.E.2d 704, 708 (2009) (holding that 
-6-

where the defense counsel presented his request for a jury 

instruction during the charge conference and the trial court 

denied the request but noted the objection, the objection was 

properly preserved despite a failure to object at the time of 

the jury charge); accord Wall v. Stout, 310 N.C. 184, 188-89, 

311 S.E.2d 571, 574 (1984) (“It is our conclusion that neither 

Rule 10(b)(2) [(now Rule 10(a)(2))] nor Rule 21 [of the General 

Rules of Practice for the Superior and District Courts] required 

plaintiffs to repeat their objections to the jury instructions 

after the charge was given in order to preserve their objections 

for appellate review. These rules were obviously designed to 

prevent unnecessary new trials caused by errors in instructions 

that the court could have corrected if brought to its attention 

at the proper time. It is our opinion that this policy is met 

when a request to alter an instruction has been submitted and 

the trial judge has considered and refused the request. In most 

instances, it is obvious that further objection at the close of 

the instructions would be unavailing.”).

As the record reflects, defense counsel made requests of 

the trial court to instruct on two additional lesser-included 

offenses of assault with a deadly weapon with intent to kill 

inflicting serious injury, i.e., assault with a deadly weapon 
-7-

and assault inflicting serious injury. These requests were 

denied and noted for the record; therefore, defendant’s 

challenge to the jury instruction is preserved for appellate 

review. See Young, 196 N.C. App. at 697-98, 675 S.E.2d at 708.

Where a defendant preserves her challenge to jury 

instructions for appellate review, we review the challenged 

instructions de novo. See State v. Osorio, 196 N.C. App. 458, 

466, 675 S.E.2d 144, 149 (2009).

Analysis

The trial court instructed the jury on the offense of 

assault with a deadly weapon with intent to kill inflicting 

serious injury and assault with a deadly weapon inflicting 

serious injury. The trial court denied defendant’s request for 

an instruction on assault with a deadly weapon and assault 

inflicting serious injury. Following deliberation, the jury 

found defendant guilty of assault with a deadly weapon 

inflicting serious injury.

On appeal, defendant contends the trial court committed 

plain error in failing to instruct the jury on the lesserincluded offense of assault with a deadly weapon. Defendant

argues there was conflicting evidence as to the “serious injury” 
-8-

element of the charge “assault with a deadly weapon inflicting 

serious injury,” for which she was convicted.

The serious injury element of N.C. Gen.

Stat. § 14–32 [(Felonious assault with 

deadly weapon with intent to kill or 

inflicting serious injury; punishments)]

means a physical or bodily injury. The 

courts of this State have declined to define 

serious injury for purposes of assault 

prosecutions other than stating that the 

term means physical or bodily injury 

resulting from an assault, and that further 

definition seems neither wise nor desirable.

State v. Walker, 204 N.C. App. 431, 446-47, 694 S.E.2d 484, 494-

95 (2010) (citations omitted). “It is well-established that 

whether serious injury has been inflicted must be determined 

according to the particular facts of each case and is a question 

the jury must answer under proper instruction.” State v. 

Wallace, 197 N.C. App. 339, 347, 676 S.E.2d 922, 928 (2009) 

(citation and quotations omitted). “Relevant factors in 

determining whether serious injury has been inflicted include, 

but are not limited to: (1) pain and suffering; (2) loss of 

blood; (3) hospitalization; and (4) time lost from work. 

Evidence that the victim was hospitalized, however, is not 

necessary for proof of serious injury.” State v. Morgan, 164 

N.C. App. 298, 303, 595 S.E.2d 804, 809 (2004) (citing State v. 

Joyner, 295 N.C. 55, 65, 243 S.E.2d 367, 374 (1978)).
-9-

At trial, the State presented the following evidence 

regarding the extent of Black’s injuries. During the early 

morning hours of 3 February 2011, Officer Michael Howard of the 

City of Kings Mountain Police Department was dispatched to the 

Royal Motel in response to a report of an assault and robbery. 

When he first encountered Michael Black, Officer Howard 

described him as “[b]loody.”

He was complaining of head injury and neck 

injury, that he was hurting. When I had 

first arrived on the scene and began 

speaking to him, he had stated that he 

believed he had went unconscious during the 

assault.

Emergency Medical Service responder Casey Woods also 

reported to the scene.

Q. What wounds, if any, were you able to 

determine he had?

A. According to my detailed physical 

findings his face had some soft tissue 

swelling/bruising. He had bleeding 

controlled laceration to the head. Neck, he 

complained of neck pain without swelling or 

bruising noted. . . . His head had some 

bleeding around his nose.

Black was transported to the Cleveland Regional Medical 

Center Emergency Room for further evaluation and treatment. 

Using hospital records, the treating nurse gave the following 

testimony regarding Black’s condition and treatment upon 
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admission to the hospital:

[Black] had a hematoma which [sic] bruising 

to his forehead and lacerations to the left 

and right side of his -– the back of his

head.

. . .

Q. Does the hospital record indicate what 

kind of treatment Mr. Black underwent as a 

result of having those injures?

A. Yes. EMS notes his lacerations which are 

the cuts on the back of his head were 

cleansed. We took him to CT for his 

lacerations on his head to make sure he 

didn’t have bleeding inside of his head. . . 

. Looks like the physician stapled the 

laceration in his head on both sides.

. . .

Q. Would those kind of injuries have 

required him to receive some sort of follow 

up care?

. . .

A. He would need to follow up for a recheck 

and have the staples removed.

The evidence of the seriousness of Michael Black’s wounds 

is not conflicting. The victim was beaten about the head with a 

gun, causing bleeding and lacerations requiring emergency 

medical treatment which resulted in staples to his head on both 

sides. Based on these facts, it was proper for the trial court 

to instruct and for the jury to find that the injuries suffered 
-11-

by Black’s wounds were serious injuries. See Wallace, 197 N.C. 

App. 339, 676 S.E.2d 922 (holding no error in the trial court’s 

denial of defendant’s motion to dismiss the charge of assault 

with a deadly weapon with intent to kill inflicting serious 

injury after defendant argued there was no serious injury where 

the evidence indicated that defendant and co-defendant bloodied 

their 79-year-old victim’s face by beating him with their fists 

and tree limbs). Defendant’s argument is overruled.

II

Next, defendant argues the trial court committed plain 

error in instructing the jury on the theory of acting in concert

as it applied to the offense of robbery with a firearm. We 

disagree.

Defendant acknowledges that she failed to object to the 

trial court’s instruction on acting in concert given with the 

armed robbery instruction. As such, defendant requests that we 

review this issue for plain error.

[T]he plain error rule ... is always to be 

applied cautiously and only in the 

exceptional case where, after reviewing the 

entire record, it can be said the claimed 

error is a fundamental error, something so 

basic, so prejudicial, so lacking in its 

elements that justice cannot have been done, 

or where [the error] is grave error which 

amounts to a denial of a fundamental right 

of the accused, or the error has resulted in 
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a miscarriage of justice or in the denial to 

appellant of a fair trial or where the error 

is such as to seriously affect the fairness, 

integrity or public reputation of judicial 

proceedings or where it can be fairly said 

the instructional mistake had a probable 

impact on the jury's finding that the 

defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 

(2012) (citation and quotations omitted).

For error to constitute plain error, a 

defendant 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.

Id. at 518, 723 S.E.2d at 334 (citations and quotations 

omitted).

Codified under General Statutes, section 14-87, the 

essential elements of armed robbery, as articulated by our 

Supreme Court, are “(1) the unlawful taking or an attempt to 

take personal property from the person or in the presence of 

another (2) by use or threatened use of a firearm or other 

dangerous weapon (3) whereby the life of a person is endangered 

or threatened.” State v. Hope, 317 N.C. 302, 305, 345 S.E.2d 

361, 363 (1986) (citation and quotations omitted); see also N.C. 

Gen. Stat. ' 14-87(a) (2013). Acting in concert is not an 
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element of armed robbery; therefore, adding the theory of acting 

in concert to the indictment would amount to surplusage. See

State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) 

(“A criminal indictment is sufficient if it expresses the charge 

against the defendant in a plain, intelligible, and explicit 

manner. Specifically, the indictment must allege all of the 

essential elements of the crime sought to be charged. 

Allegations beyond the essential elements of the crime sought to 

be charged are irrelevant and may be treated as surplusage.” 

(citations and quotations omitted)); see also State v. Sanders, 

No. COA06–783, 2007 N.C. App. LEXIS 244, at *8 (6 February 2007) 

(“Acting in concert is not an essential element of robbery with 

a dangerous weapon and, thus, would have been surplusage if 

included in the indictment.” (citation omitted)).

Here, the grand jury found defendant unlawfully stole, 

took, and carried away $400.00 in United States currency from 

the person of Michael Black and that defendant committed this 

act having in possession and with the use and threatened use of 

a .45 caliber handgun whereby the life of Michael Black was 

endangered or threatened. Defendant does not challenge the 

validity of the indictment.

Following the close of the evidence, the trial court gave 
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the following instruction on armed robbery along with an 

instruction on acting in concert:

The defendant has been charged with robbery 

with a firearm which is taking and carrying 

away of the personal property of another 

from his person or in his presence without 

his consent by endangering or threatening a 

person’s life with a firearm the taker 

knowing that he was not entitled to take the 

property and intending to deprive another of 

its use permanently.

. . .

For a person to be guilty of a crime, it is 

not necessary that she personally do all of 

the acts necessary to constitute the crime.

If two or more persons join in a common 

purpose to commit robbery with a dangerous 

weapon, each of them, if actively or 

constructively present, is not only guilty 

of that crime if the other person commits 

the crime, but is also guilty of any other 

crimes committed by the other person in 

pursuance of the common purpose to commit 

robbery with a dangerous weapon or a natural 

or probable consequence of thereof.

If you find from the evidence beyond a

reasonable doubt that on or about the 

alleged date the defendant either by herself 

or together with Tangie Carroll and Steve 

Clark had in their possession a firearm and 

took and carried property from the person or 

presence of that person without his 

voluntary consent by endangering or 

threatening his life with the use or 

threatened use of a firearm the defendant 

knowing that she was not entitled to take 

the property and intending to deprive that 

person of its use permanently, it would be 
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your duty to return a verdict of guilty.

If you do not so find or if you have a 

reasonable doubt as to one or more of these 

things, it would be your duty to return a 

verdict of not guilty.

The evidence presented at trial clearly showed defendant, 

armed with a gun, began beating Black in the head and face with 

the gun while having her daughter, Tangie, assist in relieving 

Black of his money.

I wasn’t paying [defendant] no attention to 

her being a threat. I was just like talking, 

and then she just like came up and started

hitting me in the head with the gun.

. . .

[Defendant] called for Tangie, and then 

Tangie was trying to help her or whatever 

the situation was.

. . .

. . . I don’t really remember when I 

released [defendant’s arm] or all that. The

only thing I know was they was going in my 

pockets taking my money and stuff out.

. . .

Q. Did you see who it was that was going

[through your pockets?] 

A. . . . I know [defendant] went in there. 

This evidence was more than sufficient to support the jury 

instruction on acting in concert. Therefore, we hold the trial 
-16-

court did not err in giving this instruction to the jury. 

Defendant’s argument is overruled.

No error.

Judges STEPHENS and DILLON concur.

Report per Rule 30(e).