1. Assault--deadly weapon with intent to kill inflicting serious injury--victim seriously injured
The trial court did not err in an assault with a deadly weapon with intent to kill inflicting serious
injury case by concluding that the evidence supports a finding that the victim was seriously injured,
because: (1) the record shows a bullet pierced the victim's shoulder, ricocheted off his shoulder blade, and
exited his body and created two holes in his upper body; (2) the victim testified that the pain really struck
when everything calmed down and he looked at the bullet hole that was in his shoulder; and (3) the victim
reported pain at the site of the injury to the emergency medical technicians.
2. Sentencing--mitigating factors--defendant paid child support and maintained a full-time job-
-presumptive range
The trial court did not err in an assault with a deadly weapon with intent to kill inflicting serious
injury and discharging a firearm into occupied property case by allegedly failing to find the existence of
the statutory mitigators that defendant paid child support and maintained a full-time job and by imposing
an aggravated range sentence without finding the existence of an aggravating factor, because: (1) the
decision to depart from the presumptive range is within the trial court's discretion; (2) the need for
findings is only triggered by N.C.G.S. § 15A-1340.16(c) when a court moves outside the presumptive
range; and (3) the trial court did not depart from the presumptive range.
3. Sentencing--Structured Sentencing Act--trial court's discretion--constitutionality
The trial court did not abuse its discretion or violate defendant's constitutional rights by following
the Structured Sentencing Act in an assault with a deadly weapon with intent to kill inflicting serious
injury and discharging a firearm into occupied property case, because: (1) the due process clause is not
violated when a trial court exercises broad discretion in sentencing when it is bound by the range of
sentencing options prescribed by the legislature; (2) defendant's equal protection rights are not violated by
his not being treated similarly to other defendants with no aggravators and statutory mitigators present
when the judge has had the opportunity to hear the facts, observe the parties to the proceedings, and, after
verdict, to inquire into the habits, mentality and past record of the person to be sentenced before imposing
punishment within the statutory limits; and (3) the cruel and unusual punishment clause is not violated as
long as the judge sentences within the limits established by the legislature.
4. Appeal and Error--preservation of issues--failure to present authority--failure to present
argument
Although defendant contends the trial court erred by failing to merge the charge of discharging a
weapon into occupied property into the charge of assault with a deadly weapon with intent to kill
inflicting serious injury, this assignment of error is abandoned because: (1) defendant failed to present
authority or argument to support his contention; and (2) defendant acknowledges existing case law that
contravenes his assignment of error.
Attorney General, Roy Cooper, by Assistant Attorney General Marc D.
Bernstein, for the State.
Cunningham, Dedmond, Petersen, & Smith, L.L.P., by Bruce T.
Cunningham, Jr., for the defendant-appellant.
WYNN, Judge.
From a jury verdict finding him guilty of assault with a deadly
weapon with intent to kill inflicting serious injury and discharging a
firearm into occupied property, defendant appeals. We find no error in
his trial.
The State's evidence tended to show that Constance Wall had a child
by defendant, but the two were no longer seeing each other when she and
Antonio Tanner started dating in March 1998. On 5 April 1998 Tanner
noticed defendant trying to “flag [him] down” in his car. Tanner
responded by pulling into the parking lot. Defendant also pulled into
the lot along the passenger side of Tanner's car and asked, “What is up
with you and my girl?” Immediately thereafter, defendant began shooting
at Tanner. When Tanner got out of his car and started running away,
defendant shot five rounds, hitting Tanner once in the back. That bullet
ricocheted off Tanner's right shoulder blade and exited, leaving two
bullet holes in his upper back. Initially, Tanner did not feel pain,
“[b]ut after everything calmed down . . . that's when the pain really
struck.” Someone, out of several witnesses to the incident, called 911
which dispatched an ambulance that took him to the hospital.
The issues on appeal are whether: (I) The evidence supported a
finding that the victim was seriously injured; (II) the trial court
failed to follow the sentencing procedures contained in Article 81B;
(III) a trial court can either comply with the structured sentencing law
at its discretion; and (IV) the trial court erred in not merging the
charge of discharging a weapon into occupied property and assault with a
deadly weapon with intent to kill inflicting serious injury. [1]First, defendant contends that the evidence did not
support a
finding that the victim was seriously injured. We disagree.
The term “inflicts serious injury” means physical or
bodily injury resulting from an assault with a
deadly weapon with intent to kill. The injury must
be serious but it must fall short of causing death.
Further definition seems neither wise nor desirable.
Whether such serious injury has been inflicted must
be determined according to the particular facts of
each case.
State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). Serious injury
is a “physical or bodily injury” that is “serious.” State v. Williams,
29 N.C. App. 24, 222 S.E.2d 720, cert. denied, 289 N.C. 728, 224 S.E.2d
676 (1976). “A jury may consider such pertinent factors as
hospitalization, pain, loss of blood, and time lost at work in
determining whether an injury is serious.” State v. Hedgepeth, 330 N.C.
38, 53, 409 S.E.2d 309, 318 (1991).
In the subject case, the record shows that the bullet pierced
Tanner's shoulder, ricocheted off his shoulder blade, and exited his body
and created two holes in his upper body. Furthermore, Tanner testified
that “after everything calmed down . . . , that's when the pain really
struck, you know, when I looked at the bullet hole that was in my
shoulder.” Tanner also reported pain at the site of the injury to the
emergency medical technicians. This was sufficient evidence for a jury
to determine that Tanner sustained a serious injury. See State v. Woods,
126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997). Thus, this
assignment of error is rejected.
[2]Second, defendant contends that the trial court failed to follow
the Sentencing Procedures contained in Article 81B. He specifically
argues that the trial court failed to find the existence of
uncontroverted statutory mitigators and considered aggravating factors,
but did not consider mitigating factors, in violation of N.C. Gen. Stat.§ 15A-1340.16. We disagree.
During the sentencing hearing, defendant argued that three statutory
mitigators existed. Defendant presented evidence that he paid child
support and that he maintained a full-time job. The trial court also
asked defendant directly for evidence in mitigation. Then, the trial
court considered evidence supporting aggravating factors. After
considering mitigation and aggravation evidence, the trial court stated:
“I'm choosing not to find aggravated or mitigated [factors]. Sentencing
in the presumptive, which I have the discretion to do.” The trial court
imposed two sentences in the presumptive range, 100 to 129 months and 24
to 38 months consecutively.
N.C. Gen. Stat. § 15A-1340.16(a) (1999) provides in part that
“[t]he court shall consider evidence of aggravating or mitigating factors
present in the offense that make an aggravated or mitigated sentence
appropriate, but the decision to depart from the presumptive range is in
the discretion of the court.” Since the decision to depart from the
presumptive range is within the trial court's discretion, we must reject
defendant's argument on this issue.
Defendant also argues that the trial court imposed an aggravated
range sentence without finding the existence of an aggravating factor in
violation of N.C. Gen. Stat. § 15A-1340.16 (b) and 1340.13(e). We
disagree.
N.C. Gen. Stat. § 15A-1340.17(c)(2) (1999) provides that:
A presumptive range of minimum durations, if the
sentence of imprisonment is neither aggravated or
mitigated; any minimum term of imprisonment in that
range is permitted unless the court finds pursuant
to G.S. 15A-1340.16 that an aggravated range or
mitigated sentence is appropriate. The presumptive
range is the middle of the three ranges in the cell.
According to N.C. Gen. Stat. § 15A-1340.16(c), the need for findings istriggered when a court moves outside the presumptive range. &#
147;[T]he Act
dictates that once a minimum sentence is determined, the corresponding
maximum sentence is specified in a table set forth in the statute. Thus,
N.C. Gen. Stat. § 15A-1340.17 (1999) does not provide for judicial
discretion in determination of maximum sentences.” State v. Parker, 143
N.C. App. 680, 686, 550 S.E.2d 174, 177 (2001).
Here, the trial court did not did not depart from the presumptive
range. Defendant was sentenced for a Class C felony with Prior Record
Level II for a minimum of 100 months. See N.C. Gen. Stat. § 15A-
1340.17(c) (1999). The maximum sentence specified under N.C. Gen. Stat.
§ 15A-1340.17(e) for a minimum term of 100 months is 129 months. The
trial court as required by statute sentenced defendant for a maximum of
129 months. Therefore, we reject this assignment of error.
[3]Third, defendant contends that if a trial judge can either
comply or not comply with the structured sentencing law at his
discretion, then the portion of the Structured Sentencing Act allowing
such discretion is unconstitutional. We cannot agree.
Defendant specifically argues that the power of a judge to opt out
of complying with the requirement of finding uncontroverted statutory
mitigators violates his right to due process. A trial judge may
“exercise a wide discretion in the sources and types of evidence used to
assist him in determining the kind and extent of punishment to be imposed
within limits fixed by law.” Williams v. New York, 337 U.S. 241, 246, 93
L. Ed. 1337, 1341 (1954). Recently, the United States Supreme Court
pointed out that: “We have often noted that judges in this country have
long exercised discretion of this nature in imposing sentence within
statutory limits in the individual case.” Apprendi v. New Jersey, 530
U.S. 466, 481, 147 L. Ed. 2d 435, 449 (2000) (emphasis omitted). In
Apprendi, the Supreme Court noted that trial courts exercise “broaddiscretion in sentencing” which is “bound by the r
ange of sentencing
options prescribed by the legislature.” Id. Thus, we find the Due
Process Clauses of our federal and State Constitutions are not offended
by the Structured Sentencing Act.
Defendant also argues that his equal protection rights were violated
by not being treated similarly to other defendants with no aggravators
and statutory mitigators present. Our Supreme Court addressed this issue
in State v. Jenkins, 292 N.C. 179, 191, 232 S.E.2d 648, 655 (1977):
The Legislature has granted a wide discretion to the
trained presiding judge who has had the opportunity
to hear the facts, observe the parties to the
proceeding and, after verdict, to inquire into the
habits, mentality and past record of the person to
be sentenced before imposing punishment within the
statutory limits. The use of this discretionary
power by the trial judge is not a denial of equal
protection of the laws.
Defendant next argues that the Structured Sentencing Act
is arbitrary, in violation of the cruel and unusual punishment clauses of
the United States Constitution. Our Supreme Court has found that as long
as the judge sentences within the limits established by the legislature,
the Eighth Amendment is not offended. See State v. Cameron, 284 N.C.
165, 200 S.E.2d 186 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153
(1974); see also State v. Jenkins, supra. In the present case, the trial
judge followed the Structured Sentencing Act and did not abuse his
discretion. Therefore, we find defendant's arguments without merit and
reject this assignment of error.
[4]In his final argument, defendant contends the trial court erred
by not merging the charge of discharging a weapon into an occupied
property and assault with a deadly weapon with intent to kill inflicting
serious injury because each offense contains an element distinct from the
other. We cannot agree.
“Assignments of error not set out in the appellant's brief, or insupport of which no reason or argument is sta
ted or authority cited, will
be taken as abandoned." N.C.R. App. P. 28(b)(5)(1999); see also State v.
Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991); State v. Thompson, 110 N.C.
App. 217, 429 S.E.2d 590 (1993)(holding that where appellant fails to
cite authority in support of an argument, the assignment of error upon
which that argument is based will be deemed abandoned). We deem this
assignment of error to be abandoned because the defendant presented no
authority or argument to support his contention. Moreover, defendant
acknowledges existing case law that contravenes his assignment of error.
See State v. Rollins, 131 N.C. App. 601, 508 S.E.2d 554 (1998).
In summation, we hold that defendant received a fair trial, free
from prejudicial error.
No error.
Judges HUNTER and Tyson concur.
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