State v. Pittman

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-765
NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014
STATE OF NORTH CAROLINA

Halifax County
v.
Nos. 11 CRS 054905-06, 054968

DAQUAN SHERROD PITTMAN

Appeal by defendant from judgments entered 2 May 2012 by

Judge Cy A. Grant in Halifax County Superior Court. Heard in

the Court of Appeals 21 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General
M. Elizabeth Guzman, for the State.

William D. Spence, for Defendant.

ERVIN, Judge.

Defendant Daquan Sherrod Pittman appeals from judgments

sentencing him to a term of 83 to 109 months imprisonment based

upon his conviction for assaulting Clarence Whitaker with a

deadly weapon with the intent to kill inflicting serious injury,

to a consecutive term of 29 to 44 months imprisonment based upon

his conviction for assaulting Antonio Holiday with a deadly

weapon inflicting serious injury, and to a consecutive term of
 -2-
14 to 17 months imprisonment based upon his conviction for

possession of a firearm by a convicted felon. On appeal,

Defendant contends that (1) the trial court erred by failing to

dismiss the charge that he feloniously assaulted Mr. Whitaker on

the grounds that the record did not contain sufficient evidence

to show that he intended to kill him and, in the alternative,

that his trial counsel provided him with constitutionally

deficient representation by failing to seek the dismissal of the

charge in question on that basis; (2) the trial court erred by

failing to dismiss the charge that he feloniously assaulted Mr.

Holiday on the grounds that the record did not contain

sufficient evidence that he inflicted a serious injury upon Mr.

Holiday, and, in the alternative, that his trial counsel

provided him with constitutionally deficient representation by

failing to seek the dismissal of the charge in question on that

basis; and (3) the trial court erred by excluding certain

individuals from the courtroom during the testimony of a

particular witness. After careful consideration of Defendant’s

challenges to the trial court’s judgments in light of the record

and the applicable law, we conclude that the trial court’s

judgments should remain undisturbed.

I. Factual Background

A. Substantive Facts
 -3-
Shawanda Themes went to school with Defendant, to whom she

is related. Ms. Themes would see Defendant every weekend at the

home of Edward Moody. Ms. Themes celebrated her birthday on 4

November 2011 by having a party, which started at 7:00 p.m., at

Mr. Moody’s residence. About forty individuals, most of whom

Ms. Themes knew, attended the party, with approximately twenty

of the attendees having been on the front porch when the events

that underlie this case occurred.

Mr. Holiday and Mr. Whitaker arrived at the party at

approximately 11:00 p.m. Mr. Whitaker’s sister, Keosha, who had

known Defendant for several years, was already at the party at

the time that her brother arrived. Although he did not come to

Mr. Moody’s residence with Mr. Holiday and Mr. Whitaker,

Defendant’s appearance at the party coincided with their

arrival.

After they reached Mr. Moody’s residence, Mr. Whitaker and

Mr. Holiday entered the interior of the structure and remained

there for a brief period of time. During that time, Ms. Themes

and Ms. Whitaker were talking in the front hallway. After

speaking with Ms. Themes, Ms. Whitaker went to the porch.

Shortly thereafter, Mr. Holiday and Mr. Whitaker exited the

home. As they did so, Defendant came outside, pulled a black

handgun from his pants, and fired several shots in their
 -4-
direction. Ms. Themes and Ms. Whitaker did not see anyone other

than Defendant with a firearm that night.

After the shots were fired, Ms. Whitaker ran inside the

house. Mr. Whitaker, however, jumped off the front porch and

fell down. Mr. Whitaker did not see who shot him because he had

been attacked from behind. According to Mr. Whitaker, neither

he nor Mr. Holiday had any sort of disagreement with Defendant

prior to the shooting. Although Defendant ran into the woods

after shooting Mr. Whitaker and Mr. Holiday, he returned a few

minutes later and inquired about what had occurred before

leaving the area.

After receiving a call about the shootings at around 1:32

a.m., Detective Obert Wiltsie of the Halifax County Sheriff’s

Office went to Halifax Community Hospital, where he spoke with

Mr. Whitaker and other witnesses. Following his departure from

the hospital, Detective Wiltsie went to Mr. Moody’s home, where

Mr. Moody informed him that no one would speak with

investigating officers given their fear of Defendant. Although

investigating officers were able to find shell casings that had

been fired from a handgun, they did not find any blood at or

around Mr. Moody’s residence.

As a result of the shooting, Mr. Whitaker was hospitalized

for two days. Although he sustained seven gunshot wounds,
 -5-
including wounds in his shoulder, hip, thigh, back, and groin,

Mr. Whitaker claimed that he did not feel anything as the

bullets struck him.1 As a result of his injuries, Mr. Whitaker

has struggled with sexual intimacy and owes a $30,000 hospital

bill. Similarly, Mr. Holiday sustained a gunshot wound to his

right thigh and received treatment for his injuries.

B. Procedural Facts

Warrants for arrest charging Defendant with assaulting Mr.

Whitaker and Mr. Holiday with a deadly weapon with the intent to

kill inflicting serious injury were issued on 5 November 2011.

A warrant for arrest charging Defendant with possession of a

firearm by a felon was issued on 10 November 2011. On 9 January

2012, the Halifax County grand jury returned bills of indictment

charging Defendant with assaulting Mr. Whitaker and Mr. Holiday

with a deadly weapon with the intent to kill inflicting serious

injury and possession of a firearm by a felon.

The charges against Defendant came on for trial before the

trial court and a jury at the 1 May 2012 criminal session of the

Halifax County Superior Court. On 2 May 2012, the jury returned

verdicts convicting Defendant of assaulting Mr. Whitaker with a

deadly weapon with the intent to kill inflicting serious injury,

1
Mr. Whitaker acknowledged that the only reason that he
agreed to testify for the State at Defendant’s trial was his
understanding that he would go to jail if he declined to do so.
 -6-
assaulting Mr. Holiday with a deadly weapon inflicting serious

injury, and possession of a firearm by a felon. At the

conclusion of the ensuing sentencing hearing, the trial court

entered judgments sentencing Defendant to a term of 83 to 109

months imprisonment based upon his conviction for assaulting Mr.

Whitaker with a deadly weapon with the intent to kill inflicting

serious injury, to a consecutive term of 29 to 44 months

imprisonment based upon his conviction for assaulting Mr.

Holiday with a deadly weapon inflicting serious bodily injury,

and to a consecutive term of 14 to 17 months imprisonment based

upon his conviction for possession of a firearm by a felon. On

17 January 2013, this Court granted Defendant’s petition for the

issuance of a writ of certiorari authorizing review of the trial

court’s judgment.

II. Legal Analysis

A. Assault Upon Mr. Whitaker

1. Sufficiency of the Evidence

In his initial challenge to the trial court’s judgments,

Defendant contends that the trial court erred by allowing the

jury to consider the issue of his guilt of assaulting Mr.

Whitaker with a deadly weapon inflicting serious injury on the

grounds that the record did not contain sufficient evidence to

permit a reasonable jury to determine that he intended to kill
 -7-
Mr. Whitaker. Defendant has not, however, properly preserved

this contention for purposes of appellate review. As a result,

we decline to reach the merits of this aspect of Defendant’s

challenge to the trial court’s judgments.

N.C.R. App. P. 10(a)(3) provides that, “[i]n a criminal

case, a defendant may not make insufficiency of the evidence to

prove the crime charged the basis of an issue presented on

appeal unless a motion to dismiss the action, or for judgment as

in case of nonsuit, is made at trial.” In his brief, Defendant

acknowledges that, although he made a motion to dismiss the

felonious assault charge at the end of the State’s evidence, he

simply failed to renew that motion “at the close of all the

evidence.” A close examination of the record clearly

establishes, however, that Defendant never made a motion to

dismiss the case in which he was charged with feloniously

assaulting Mr. Whitaker at all. Instead, Defendant specifically

limited the dismissal motion that he made at the conclusion of

the State’s evidence to the charge that he feloniously assaulted

Mr. Holiday. As a result, Defendant failed to preserve his

challenge to the sufficiency of the evidence to support his

conviction for feloniously assaulting Mr. Whitaker for purposes

of appellate review.
 -8-
In order to rectify the difficulties created by his failure

to properly preserve this issue for appellate review, Defendant

initially contends that this Court should review his challenge

to the sufficiency of the evidence to support his conviction for

feloniously assaulting Mr. Whitaker for plain error. According

to well-established North Carolina law, plain error review is

only available with respect to issues arising from “instructions

to the jury and evidentiary matters.” State v. Greene, 351 N.C.

562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 121

S. Ct. 635, 148 L. Ed. 2d 543 (2000). As a result of the fact

that Defendant’s challenge to the sufficiency of the evidence to

support his conviction for feloniously assaulting Mr. Whitaker

does not fall into either of these categories, plain error

review is not available in this instance.

Secondly, Defendant contends that we should reach the

merits of his challenge to the sufficiency of the evidence to

support his conviction for feloniously assaulting Mr. Whitaker

on the basis of our authority to waive the requirements of the

North Carolina Rules of Appellate Procedure pursuant to N.C.R.

App. P. 2, which “permits the appellate courts to excuse a

party’s default in both civil and criminal appeals when

necessary to ‘prevent manifest injustice to a party’ or to

‘expedite decision in the public interest.’” Dogwood Dev. and
 -9-
Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 196, 657

S.E.2d 361, 364 (2008) (quoting N.C.R. App. P. 2). “While it is

certainly true that [N.C.R. App. P.] 2 has been and may be so

applied in the discretion of the Court, we reaffirm that [N.C.R.

App. P.] 2 relates to the residual power of our appellate courts

to consider, in exceptional circumstances, significant issues of

importance in the public interest or to prevent injustice which

appears manifest to the Court and only in such instances.”

Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-

300 (1999) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340

S.E.2d 358, 362 (1986)). For reasons which will be set forth in

more detail in the course of our discussion of his related

ineffective assistance of counsel claim, Defendant has failed to

demonstrate that there is anything exceptional about this case

or that a failure to address his challenge to the sufficiency of

the evidence to support his conviction for feloniously

assaulting Mr. Whitaker would work a manifest injustice,

rendering this case very different from the cases in which we

have invoked our authority under N.C.R. App. P. 2 to review

otherwise defaulted issues on the merits in criminal cases. See

State v. Gayton-Barbosa, 197 N.C. App. 129, 135, 676 S.E.2d 586,

590 (2009) (stating that “it is difficult to contemplate a more

‘manifest injustice’ to a convicted defendant than that which
 -10-
would result from sustaining a conviction that lacked adequate

evidentiary support”); State v. Batchelor, 190 N.C. App. 369,

378-79, 660 S.E.2d 158, 164 (2008) (holding that, “[i]f we [did]

not review the issue of the sufficiency of the evidence in the

present case, [the defendant] would [have] remain[ed] imprisoned

for a crime that the State did not prove beyond a reasonable

doubt”). As a result, we decline, in the exercise of our

discretion, to review Defendant’s challenge to the sufficiency

of the evidence to support his conviction for feloniously

assaulting Mr. Whitaker on the merits based on the authority

available to us pursuant to N.C.R. App. P. 2.

2. Ineffective Assistance of Counsel

In the alternative, Defendant contends that he is entitled

to a new trial on ineffective assistance of counsel grounds

based upon his trial counsel’s failure to make a motion to

dismiss the charge that he had assaulted Mr. Whitaker with a

deadly weapon with the intent to kill inflicting serious injury

for insufficiency of the evidence. More specifically, Defendant

contends that his trial counsel’s failure to move to dismiss the

case in which he was charged with feloniously assaulting Mr.

Whitaker could not have been motivated by any conceivable

strategic or tactical consideration and that, had his trial

counsel made such a dismissal motion, the trial court would have
 -11-
probably granted it. We do not find Defendant’s argument

persuasive.

To establish ineffective assistance of
counsel, defendant must satisfy a two-prong
test . . . . Under this two-prong test, the
defendant must first show that counsel’s
performance fell below an objective standard
of reasonableness as defined by professional
norms. This means that defendant must show
that his attorney made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, once defendant
satisfies the first prong, he must show that
the error committed was so serious that a
reasonable probability exists that the trial
result would have been different absent the
error.

State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998)

(citing Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct.

2052, 2068, 80 L. Ed. 2d 674, 698 (1984)) (quoting State v.

Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985))

(citations and quotation marks omitted). An ineffective

assistance of counsel “claim[] brought on direct review will be

decided on the merits when the cold record reveals that no

further investigation is required, i.e., claims that may be

developed and argued without such ancillary procedures as the

appointment of investigators or an evidentiary hearing.” State

v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert.

denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162

(2002). A defendant is not entitled to appellate relief on
 -12-
ineffective assistance of counsel grounds stemming from the

failure of his or her trial counsel to make a dismissal motion

in the event that the record contains sufficient evidence to

support the jury’s verdict. See State v. Fraley, 202 N.C. App.

457, 467, 688 S.E.2d 778, 786, (holding that, “if the evidence

is sufficient to support a conviction, the defendant is not

prejudiced by his counsel’s failure to make a motion to dismiss

at the close of all the evidence”), disc. review denied, 364

N.C. 243, 698 S.E.2d 660 (2010). As a result of our conclusion

that any dismissal motion that Defendant might have made would

and should have been denied, we believe that we are in a

position to adequately address and resolve Defendant’s

ineffective assistance of counsel claim on direct appeal.

“When a defendant moves to dismiss based on insufficiency

of the evidence, the trial court must determine whether there is

substantial evidence (1) of each element of the crime charged

and (2) that the defendant is the perpetrator.” State v.

Liggons, 194 N.C. App. 734, 738, 670 S.E.2d 333, 337 (2009).

Substantial evidence is relevant evidence
that a reasonable person might accept as
adequate, or would consider necessary to
support a particular conclusion. In this
determination, all evidence is considered in
the light most favorable to the State, and
the State receives the benefit of every
reasonable inference supported by that
evidence. The defendant’s evidence, unless
favorable to the State, is not to be taken
 -13-
into consideration, except when it is
consistent with the State’s evidence, the
defendant’s evidence may be used to explain
or clarify that offered by the State.
Additionally, a substantial evidence inquiry
examines the sufficiency of the evidence
presented but not its weight, which is a
matter for the jury. Thus, if there is
substantial evidence--whether direct,
circumstantial, or both--to support a
finding that the offense charged has been
committed and that the defendant committed
it, the case is for the jury and the motion
to dismiss should be denied.

State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009)

(citations and quotation marks omitted). We will now utilize

this standard of review to evaluate the validity of Defendant’s

ineffective assistance of counsel claim.

According to N.C. Gen. Stat. § 14-32(a), “[a]ny person who

assaults another person with a deadly weapon with intent to kill

and inflicts serious injury shall be punished as a Class C

felon.” “Proof of an assault with a deadly weapon inflicting

serious injury not resulting in death does not, as a matter of

law, establish a presumption of intent to kill.” State v.

Thacker, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972),

disapproved on other grounds in North Carolina v. Butler, 441

U.S. 369, 372-73, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286, 291-92

(1979). Instead, the necessary intent to kill must be

established by the State’s evidence, which will usually be

circumstantial in nature. Liggons, 194 N.C. App. at 739, 670
 -14-
S.E.2d at 337. “[T]he nature of the assault, the manner in

which it was made, the weapon, if any, used, and the surrounding

circumstances are all matters from which an intent to kill may

be inferred.” State v. White, 307 N.C. 42, 49, 296 S.E.2d 267,

271 (1982).

In support of his contention that the record was

insufficient to support his conviction for feloniously

assaulting Mr. Whitaker, Defendant points to evidence tending to

show that there had not been any prior ill will or difficulties

between Mr. Whitaker and himself and that he had not argued with

Mr. Whitaker prior to the assault. Defendant’s argument is,

however, too narrowly focused given our responsibility to

consider all of “the surrounding circumstances,” which indicate

that Defendant aimed a deadly weapon at Mr. Whitaker and fired

seven shots in his direction at a reasonably close range. Id.

As a result of our belief that Defendant’s conduct sufficed to

support an inference that he intended to kill Mr. Whitaker, any

dismissal motion that his trial counsel might have made would

and should have been denied. Thus, Defendant is not entitled to

relief from his conviction for feloniously assaulting Mr.

Whitaker on ineffective assistance of counsel grounds.

B. Assault Upon Mr. Holiday
 -15-
Secondly, Defendant contends that the trial court erred by

denying his motion to dismiss the charge that he had assaulted

Mr. Holiday with a deadly weapon and inflicted serious injury on

the grounds that the record did not contain sufficient evidence

to establish that Mr. Holiday had sustained a serious injury.2

In the alternative, Defendant contends that he received

constitutionally deficient representation given the decision by

his trial counsel to limit the scope of the dismissal motion

advanced on Defendant’s behalf at trial to a single element of

the crime charged. We do not find either of Defendant’s

arguments persuasive.

According to well-established North Carolina law, “[a]

party may not present arguments on appeal that were not

presented before the trial court.” Dalenko v. Peden Gen.

Contractors., Inc., 197 N.C. App. 115, 124, 676 S.E.2d 625, 632

(2009), appeal dismissed, 363 N.C. 801, 690 S.E.2d 534, and

cert. denied, 363 N.C. 854, 694 S.E.2d 202 (2010). Although
2
In his brief, Defendant candidly acknowledges the limited
nature of the dismissal motion that he made in the trial court
in connection with the case in which he was charged with
feloniously assaulting Mr. Holiday and seeks to have us review
the sufficiency of the evidence to support a determination that
Mr. Holiday sustained a serious injury on plain error grounds.
As a result of the fact that plain error review is only
available for the purpose of addressing alleged evidentiary or
instructional errors, Greene, 351 N.C. at 566, 528 S.E.2d at
578, we are not authorized to review Defendant’s sufficiency of
the evidence challenge to his conviction for feloniously
assaulting Mr. Holiday using a plain error standard of review.
 -16-
Defendant did seek to obtain the dismissal of the felonious

assault charge that had been lodged against him in connection

with the shooting of Mr. Holiday, he did not argue in support of

that motion that the State had failed to adduce sufficient

evidence to support a determination that Mr. Holiday had

sustained a serious injury and simply argued, instead, that the

record did not contain sufficient evidence to show that

Defendant intended to kill Mr. Holiday. As a result, Defendant

did not preserve his right to challenge the sufficiency of the

evidence to support a finding that Mr. Holiday sustained a

serious injury as a result of the assault that was inflicted on

him by Defendant. See State v. Sharpe, 344 N.C. 190, 194, 473

S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175

S.E. 836, 838 (1934)) (holding that, “where a theory argued on

appeal was not raised before the trial court, ‘the law does not

permit parties to swap horses between courts in order to get a

better mount’” on appeal).

In addition to challenging the trial court’s refusal to

dismiss the charge that he feloniously assaulted Mr. Holiday on

its own motion, Defendant also argues that his trial counsel’s

failure to challenge the sufficiency of the evidence to

establish that he inflicted a serious injury upon Mr. Holiday in

the course of making his dismissal motion constituted
 -17-
constitutionally deficient representation entitling him to

relief on ineffective assistance of counsel grounds. In order

to appropriately address this contention, we must, for the

reasons set forth above, consider the merits of Defendant’s

challenge to the sufficiency of the evidence to support the

jury’s finding that he seriously injured Mr. Holiday.

An injury sufficient to support a conviction for felonious

assault in violation of N.C. Gen. Stat. § 14-32(a) “must be

serious but it must fall short of causing death.” State v.

Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). “Whether such

serious injury has been inflicted must be determined according

to the particular facts of each case.” Id. “Factors our courts

consider in determining if an injury is serious include pain,

loss of blood, hospitalization and time lost from work.” State

v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983).

Ultimately, however, a determination of the extent to which an

injury is “serious” for purposes of N.C. Gen. Stat. § 14-32(a)

hinges upon a consideration of the totality of the relevant

facts, with the Supreme Court having specifically stated that

the adoption of a definition of “serious injury” more detailed

than a “physical or bodily injury resulting from an assault with

a deadly weapon with intent to kill” that “must be serious but .
 -18-
. . fall short of causing death” “seems neither wise nor

desirable.” Jones, 258 N.C. at 91, 128 S.E.2d at 3.

The only evidence in the present record concerning the

extent of Mr. Holiday’s injuries was contained in the testimony

of Mr. Holiday and the testimony of the physician who treated

him after his arrival at the hospital. On the one hand, Mr.

Holiday testified that he was shot in the leg, that he felt a

little sting at the time of the shooting, and that he stayed in

the hospital for one day after having been injured. Although

Mr. Holiday received pain medication during his time in the

hospital, he did not receive any stitches or have his wound

bandaged. In spite of the fact that Mr. Holiday denied having

had any ongoing medical problems stemming from the shooting, he

did plan to have the bullet removed in the future. Aside from

the presence of the bullet in his leg, the only residual injury

that Mr. Holiday claimed to have had as a result of the shooting

was a scar.

On the other hand, Dr. Dawd Siraj testified that he had

treated Mr. Holiday following his arrival at Halifax Community

Hospital, where he presented himself with a “very painful right

thigh.” At that time, Dr. Siraj noticed that Mr. Holiday’s

right thigh was very swollen and that no exit wound could be

detected. Although blood was present in the wound itself, Dr.
 -19-
Siraj did not observe any active bleeding. After reviewing an

x-ray of Mr. Holiday’s leg, Dr. Siraj determined that the bullet

was lodged close to Mr. Holiday’s bone and that there was no

observable fracture. At the time that Mr. Holiday left the

hospital for transportation to Pitt County Memorial for the

purpose of receiving treatment that was not available at Halifax

Community Hospital, Dr. Siraj gave Mr. Holiday an injection of

Demerol, which is a high-level painkiller, to dull the in-

transit pain.3

In attempting to persuade us that the record did not

suffice to support a determination that Mr. Holiday sustained a

serious injury as that term is used in N.C. Gen. Stat. § 14-

32(a) as a result of the shooting, Defendant notes that the

record did not contain any evidence of blood loss, that Mr.

Holiday’s hospital stay was relatively brief, that Mr. Holiday

did not receive extensive treatment for his gunshot wound, and

that Mr. Holiday denied having been in pain. Although the
3
In addition, Dr. Siraj testified that Mr. Holiday rated his
pain at ten on a scale from one to ten. However, in describing
the manner in which a patient should provide pain scale
information, Dr. Siraj stated he would tell an individual who
had not suffered a gunshot wound that “ten would be a gunshot
wound and zero would be none.” Although the record does not
clearly indicate that Dr. Siraj used this description in the
course of explaining the pain scale to Mr. Holiday, this
statement does limit the usefulness of the pain scale results
for evaluating the extent of the injury that Mr. Holiday
sustained.
 -20-
evidence upon which Defendant relies does appear in the record,

the record also contains substantial additional testimony

tending to support a contrary determination. As an initial

matter, Mr. Holiday’s claim that he was not in pain to the

contrary notwithstanding, the record contains evidence tending

to show that he presented himself for treatment by Dr. Siraj

with a painful leg wound, that Mr. Holiday described the pain

that he was experiencing as at the top of a one to ten pain

scale, and that Dr. Siraj believed that he should prescribe a

powerful medication to alleviate Mr. Holiday’s pain. In

addition, the record contains evidence tending to show that Mr.

Holiday remained hospitalized for a day, that his injuries were

sufficient to necessitate his transfer to another facility, that

the bullet fired by Defendant remained in Mr. Holiday’s leg at a

point close to the bone, that Mr. Holiday wished to have the

bullet surgically removed, and that there was residual scarring

at the wound site. We believe that this evidence, when

considered in the light most favorable to the State, sufficed to

support a determination that Defendant inflicted a serious

injury upon Mr. Holiday for purposes of N.C. Gen. Stat. § 14-

32(a). As a result, since any challenge that Defendant’s trial

counsel might have made to the sufficiency of the evidence to

support a determination that Mr. Holiday sustained a serious
 -21-
injury would have been unavailing, Defendant is not entitled to

relief from his conviction for feloniously assaulting Mr.

Holiday on ineffective assistance of counsel grounds.

C. Exclusion of Individuals from the Courtroom

Finally, Defendant contends that the trial court erred by

ordering that certain members of the public be excluded from the

courtroom during the testimony of a particular witness. More

specifically, Defendant contends that the trial court’s decision

to exclude these three individuals from the courtroom during the

testimony of Ms. Whitaker violated his right to a public trial

as guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 18 of the

North Carolina Constitution and contravened the provisions of

N.C. Gen. Stat. § 15A-1034(a), which allow the imposition of

“reasonable limitations on access to the courtroom when

necessary to ensure the orderliness of courtroom proceedings or

the safety of persons present.” We are not persuaded that

Defendant is entitled to relief from the trial court’s judgments

based upon these contentions.

1. Relevant Facts

Prior to the delivery of the parties’ opening statements,

the State sought the entry of an order precluding three

individuals from being present during the testimony of certain
 -22-
witnesses. During the trial court’s consideration of this

motion, Ms. Themes testified that the only reason that the

presence of the individuals in question made her nervous stemmed

from the fact that she did not like speaking in front of a large

group of people. According to her voir dire testimony, however,

Ms. Whitaker felt uncomfortable testifying at Defendant’s trial

given Defendant’s history of assaultive conduct and the fact

that certain individuals in the courtroom were associated with

Defendant, although she denied being afraid that these

individuals would shoot anyone. In addition, Ms. Whitaker

testified that Defendant and the other individuals in the

courtroom were members of a gang that was known for its violent

tendencies.

In the course of her voir dire testimony, Ms. Whitaker

described the activities of two individuals named Tony and June.

Prior to trial, Tony and June had inquired of Ms. Whitaker about

the content of the testimony that she expected to give on behalf

of the State. However, Ms. Whitaker declined to tell the two

men anything about the information that she planned to

communicate to the jury at the time that she took the stand. On

each subsequent occasion when she encountered the two men, Tony

and June reiterated their request that Mr. Whitaker tell them

about the likely content of her trial testimony. On the day
 -23-
prior to trial, Tony and June asked Ms. Whitaker to help

Defendant on the grounds that he had changed, that he would not

engage in similar conduct in the future, and that the two of

them wanted Defendant to get out of prison. In fact, Tony and

June went so far as to inform Ms. Whitaker about the length of

the sentence that could be imposed upon Defendant in the event

that he was convicted and assured Ms. Whitaker that Defendant

would not bother her children in the event that he was

acquitted. On the other hand, Tony informed Ms. Whitaker that

Defendant could “do something” to her in the event that he was

convicted even if he was in prison. Although no explicit

threats were ever made to Ms. Whitaker, she feared that her

children would be harmed in the event that she had to testify in

front of Tony and June, stated that she did not feel comfortable

testifying in their presence, and indicated that she would not

testify in their presence even if she was held in contempt.

Based upon this evidence, the trial court ordered that Tony,

June, and an unnamed third person be excluded from the courtroom

during Ms. Whitaker’s testimony.

2. Relevant Legal Analysis

In his brief, Defendant has challenged the trial court’s

decision to exclude the three individuals from the courtroom on

both constitutional and statutory grounds. “It is well settled
 -24-
that constitutional matters that are not ‘raised and passed

upon’ at trial will not be reviewed for the first time on

appeal.” State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724,

745 (2004) (quoting State v. Watts, 357 N.C. 366, 372, 584

S.E.2d 740, 745 (2003), cert. denied, 541 U.S. 944, 124 S. Ct.

1673, 158 L. Ed. 2d 370, (2004)), cert. denied, 543 U.S. 1156,

125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005). In contending that

the trial court violated his state and federal constitutional

rights to a public trial by failing to make adequate findings of

fact as required by the decision of the United States Supreme

Court in Waller v. Georgia, 467 U.S. 39, 47, 104 S. Ct. 2210,

2216, 81 L. Ed. 2d 31, 39 (1984) (stating that any “party

seeking to close the hearing must advance an overriding interest

that is likely to be prejudiced, the closure must be no broader

than necessary to protect that interest, the trial court must

consider reasonable alternatives to closing the proceeding, and

it must make findings adequate to support the closure”),

Defendant suggests, in apparent recognition of his failure to

make any sort of explicit constitutional argument in the court

below, that we should consider this issue on the merits on the

grounds that the general nature of his objection was apparent

from the context in which it was made. E.g., State v. Rollins,

__ N.C. App. __, __, 729 S.E.2d 73, 76 (2012) (alteration in
 -25-
original) (holding that the nature of the defendant’s objection

was sufficiently apparent from the context given his argument

that a “[c]ourt should be open”). Although Defendant’s trial

counsel did object to the exclusion of these individuals from

the courtroom in the trial court, the only basis cited in

support of that objection was the assertion that the excluded

individuals were members of Defendant’s family.4 We are unable

to interpret this objection, unlike the objection deemed

sufficient in Rollins, to be tantamount to the assertion of a

constitutional right given the absence of any reference to any

of the considerations that underlie a defendant’s state and

federal constitutional right to a public trial. As a result,

Defendant did not properly preserve his federal constitutional

challenge to the exclusion of these individuals from the

courtroom for purposes of appellate review.5 See State v.

4
Interestingly, Defendant later told the trial court that he
did not know June, Tony, or the unnamed third individual whom
the State wished to have excluded from the courtroom.
5
In addition to the argument advanced in the text, Defendant
has requested that we review his constitutional claim on the
merits for plain error or pursuant to N.C.R. App. P. 2.
However, we decline to accede to Defendant’s request given that
plain error review is only available in connection with
challenges to trial court evidentiary rulings and instructional
decisions, Greene, 351 N.C. at 566, 528 S.E.2d at 578, and given
that the trial court appears to have had an adequate basis for
excluding Tony, June, and the other unnamed individual from the
courtroom and could have made appropriate findings had
Defendant’s contention been brought to its attention in a timely
 -26-
Register, 206 N.C. App. 629, 634, 698 S.E.2d 464, 469 (2010)

(citing State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607

(2001)) (holding that, “[t]o the extent that defendant is

arguing that he had a constitutional right to have his family

present, that argument was not made at trial, and we will not,

therefore, consider it for the first time on appeal”).

In addition, we believe that the record developed in the

trial court adequately supported the exclusion of Tony, June,

and the unnamed individual from the courtroom as authorized by

N.C. Gen. Stat. § 15A-1034(a) on the grounds that these

individuals posed a threat to the safety of Ms. Whitaker and her

family. See State v. Dean, 196 N.C. App. 180, 188, 674 S.E.2d

453, 459, (holding that the trial court did not abuse its

discretion in ordering the spectators removed pursuant to N.C.

Gen. Stat. § 1033), disc. review denied, 363 N.C. 376, 679

S.E.2d 139 (2009).6 As we have already noted, Ms. Whitaker

testified that Tony and June had repeatedly attempted to

dissuade her from testifying against Defendant and made implicit

threats that she and her children would be harmed if she did not

accede to their requests. In light of this evidence, the trial

manner.
6
Although Defendant has not cited N.C. Gen. Stat. § 15A-1033
in his brief, we believe that decisions construing that
statutory provision are helpful in understanding the manner in
which a trial court should apply N.C. Gen. Stat. § 15A-1034(a).
 -27-
court had ample justification for exercising its authority under

N.C. Gen. Stat. § 15A-1034(a) to order that Tony, June, and the

unnamed individual be excluded from the courtroom during Ms.

Whitaker’s testimony. As a result, Defendant is not entitled to

relief from his convictions on the basis of his challenge to the

exclusion of these individuals from the courtroom during a

portion of his trial.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have merit. As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

NO ERROR.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).