STATE OF NORTH CAROLINA
v
.
Haywood County
Nos. 00 CRS 3039
00 CRS 3901
SHANNON DEWAYNE WILLIAMS
Attorney General Roy Cooper, by Assistant Attorney General
Robert R. Gelblum, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Mark D. Montgomery, for defendant-appellant.
CAMPBELL, Judge.
Defendant was indicted for assault inflicting serious bodily
injury in violation of N.C. Gen. Stat. § 14-32.4, felonious
breaking or entering, first degree trespass, and resisting a public
officer. Defendant was tried at the 23 October 2000 Criminal
Session of Haywood County Superior Court. Defendant was found
guilty of assault inflicting serious bodily injury, misdemeanor
breaking or entering, first degree trespass, and resisting a public
officer. Defendant was sentenced to a minimum prison term of 25
months with a maximum term of 30 months for the assault inflicting
serious bodily injury conviction. Defendant was sentenced to aconsecutive term of 120 days for the misdemeanor breaking or
entering conviction. Defendant's convictions for first degree
trespass and resisting a public officer were consolidated for
judgment, and defendant was sentenced to an additional consecutive
term of 60 days. Defendant appeals. For the reasons stated
herein, we hold no error as to defendant's convictions for assault
inflicting serious bodily injury and misdemeanor breaking or
entering; however, we vacate defendant's first degree trespass
conviction and remand defendant's resisting a public officer
conviction for a new sentencing hearing.
The State's evidence tended to show that around midnight on
the evening of 16 February 2000, Ronald Barton Moore (“Moore”) was
asleep in his home when he was awakened by Amber, his teenage
daughter, and Rose Marie Chapman (“Chapman”). Chapman is the
mother of one of Amber's friends, and Amber was staying at
Chapman's apartment that night. Chapman came to Moore's house to
seek his help in making several young men leave her apartment.
Moore rode with Chapman to her apartment, and upon entering the
apartment, found defendant and four or five other young men in the
apartment drinking liquor. At the request of Chapman, Moore asked
the men to leave the apartment, to which the men responded that it
was not Moore's house and he had no right to ask them to leave.
When the men refused to leave, Chapman told Moore that it would
probably be better if Moore and Amber left, and that she would
probably call the police. As Moore and Amber were walking to the
vehicle of a neighbor who was to take them home, defendant and oneof the other men, Jason Caldwell (“Caldwell”), attacked Moore.
Caldwell punched Moore in the face, knocking him to the ground, and
Caldwell and defendant began kicking Moore. The two men stopped
after a few minutes and Moore was helped onto the porch, whereupon
defendant punched Moore in the eye and kicked him three or four
more times before Moore passed out.
As a result of the attack by defendant and Caldwell, Moore
suffered a broken jaw which had to be wired shut for two months.
During those two months, Moore lost thirty pounds. Moore also
testified that his ribs were broken and that he had been forced to
go to the emergency room on two occasions since the attack due to
back spasms that made it difficult for him to breathe. Moore
testified that he was still suffering from back spasms at the time
of the trial. In addition, Moore testified that he suffered from
blurred vision after the attack, and that he had $6,000.00 in
damage to his teeth.
Dr. Tannehill's testimony confirmed that Moore's jaw had been
broken and that Dr. Tannehill had performed the surgery in which
Moore's jaw was wired shut. Dr. Tannehill further testified that
a broken jaw is the type of injury that causes “quite a bit” of
pain and discomfort that “gradually subsides over a period of time,
in varying degrees to the type of [] injury.” Dr. Tannehill
testified that Moore had bruised, not broken, ribs.
Darrell Burnette (“Burnette”), a neighbor of Chapman,
testified that he was awakened in the early morning hours of 17
February 2000 by defendant and Caldwell knocking on his back door. When Burnette opened the door to see what the two men wanted, they
asked to use the telephone. Burnette noticed that the two men were
“badly intoxicated,” told them that his telephone did not work,
shut the door, and started back to bed. Defendant and Caldwell
knocked on the door a second time, and when Burnette again opened
it, the two men asked for a “light.” Burnette told them that he
did not have a “light,” and that they should go about their
business. Burnette again shut the door, turned out the light, and
started back to bed, whereupon he heard a window next to the back
door break. At that point, Burnette picked up a mattock handle,
opened the back door again, and began arguing with defendant and
Caldwell. As Burnette and the two men were arguing, Officer Tamara
Vandermolan, who had been summoned to the scene as a result of
Burnette's wife's call to 911, arrived at the house. As Officer
Vandermolan was preparing to handcuff the two men, they ran off,
with Officer Vandermolan pursuing one and Burnette pursuing the
other.
At the outset, we note that defendant sets forth twenty-three
assignments of error, but fails to address many of them in his
brief. Those assignments of error not presented or discussed in
defendant's brief are deemed abandoned pursuant to Rule 28(a) of
the North Carolina Rules of Appellate Procedure.
Defendant first contends that the trial court erred in denying
his motion to dismiss the felony assault charge, arguing that the
evidence was insufficient to show that the victim, Moore, suffered
“serious bodily injury,” as defined in N.C.G.S. § 14-32.4. In ruling on a motion to dismiss on the ground of
insufficiency of the evidence, the trial court must determine
“whether there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator of
the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920,
925 (1996). “Substantial evidence is that which a reasonable juror
would consider sufficient to support a conclusion that each
essential element of the crime exists.” State v. Baldwin, 141 N.C.
App. 596, 604, 540 S.E.2d 815, 821 (2000). “[I]t is well settled
that the evidence is to be considered in the light most favorable
to the State and that the State is entitled to every reasonable
inference to be drawn therefrom.” State v. Alexander, 337 N.C.
182, 187, 446 S.E.2d 83, 86 (1994).
Defendant was charged and convicted of assault inflicting
serious bodily injury, which “requires proof of two elements: (1)
the commission of an assault on another, which (2) inflicts serious
bodily injury.” State v. Hannah, ___ N.C. App. ___, ___ S.E.2d ___
(COA 00-1377, filed 16 April 2002) (citing State v. Wampler, 145
N.C. App. 127, 549 S.E.2d 563 (2001)); N.C. Gen. Stat. § 14-32.4
(1999). While it is clear that there is substantial evidence of
the first element of this offense, defendant argues that there was
insufficient evidence that he inflicted “serious bodily injury” on
Moore. We disagree.
In 1996, the General Assembly created the offense of assault
inflicting “serious bodily injury” by enacting N.C.G.S. § 14-32.4,
which reads: Unless the conduct is covered under some
other provision of law providing greater
punishment, any person who assaults another
person and inflicts serious bodily injury is
guilty of a Class F felony. “Serious bodily
injury” is defined as bodily injury that
creates a substantial risk of death, or that
causes serious permanent disfigurement, coma,
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, or that results
in prolonged hospitalization.
N.C.G.S. § 14-32.4 (1999).
Prior to passage of N.C.G.S. § 14-32.4, the primary statutes
dealing with assaults in this jurisdiction were N.C.G.S. §§ 14-32
and 14-33. N.C.G.S. § 14-33 makes an assault that inflicts
“serious injury” a Class A1 misdemeanor. N.C.G.S. § 14-32 makes an
assault with a deadly weapon that inflicts “serious injury” a Class
E felony, and makes an assault with a deadly weapon with intent to
kill that inflicts “serious injury” a Class C felony. In the past,
the courts of this State have declined to define “serious injury”
for purposes of assault prosecutions other than stating that the
term “serious injury” means physical or bodily injury resulting
from an assault, Alexander, 337 N.C. at 188, 446 S.E.2d at 87, and
that “[f]urther definition seems neither wise nor desirable.”
State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). In State
v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991), the Supreme Court
explained:
Whether a serious injury has been
inflicted depends upon the facts of each case
and is generally for the jury to decide under
appropriate instructions. A jury may consider
such pertinent factors as hospitalization,
pain, loss of blood, and time lost at work indetermining whether an injury is serious.
Evidence that the victim was hospitalized,
however, is not necessary for proof of serious
injury.
Id. at 53, 409 S.E.2d at 318 (internal citations omitted). In sum,
the case law addressing the issue of the sufficiency of evidence of
serious injury in an assault prosecution stands for the proposition
“that as long as the State presents evidence that the victim
sustained a physical injury as a result of an assault by the
defendant, it is for the jury to determine whether the injury was
serious.” Alexander, 337 N.C. at 189, 446 S.E.2d at 87.
Subsequent to the definition of “serious injury” becoming well
settled in case law, the General Assembly enacted N.C.G.S. § 14-
32.4, which makes an assault inflicting “serious bodily injury” a
Class F felony, “[u]nless the conduct is covered under some other
provision of law providing greater punishment.” N.C.G.S. § 14-
32.4. The General Assembly also expressly defined what it meant by
the term “serious bodily injury.” In so doing, we conclude that
the General Assembly intended for N.C.G.S. § 14-32.4 to cover those
assaults that are especially violent and result in the infliction
of extremely serious injuries, and are not covered by some other
provision of law providing for greater punishment. Thus, this
Court has concluded that “serious bodily injury,” as set forth in
N.C.G.S. § 14-32.4, requires proof of more severe injury than the
“serious injury” element of other assault offenses. Hannah, ___
N.C. App. at ___, ___ S.E.2d at ___.
In determining whether the trial court in the instant case
erred in denying defendant's motion to dismiss, we must determinewhether the record contains substantial evidence that Moore
suffered “serious bodily injury” as defined by N.C.G.S. § 14-32.4.
However, in making this determination, we do not consider the
entire definition set forth in N.C.G.S. § 14-32.4; rather we are
limited to that part of the definition set forth in the trial
court's instructions to the jury. In instructing the jury, the
trial court defined “serious bodily injury” as “an injury that
creates or causes a permanent or protracted condition that causes
extreme pain.” It is well settled that a defendant may not be
convicted of an offense on a theory of guilt different from that
presented to the jury. State v. Helton, 79 N.C. App. 566, 568, 339
S.E.2d 814, 816 (1986). Had the trial court instructed the jury on
the complete definition of “serious bodily injury” set out in
N.C.G.S. § 14-32.4, defendant's conviction could be sustained on
any one of the discrete portions of the definition. However, since
the trial court limited its instruction in the way it did, we must
determine whether the record contains substantial evidence that
Moore suffered from “a permanent or protracted condition that
causes extreme pain.”
Viewing the evidence in the light most favorable to the State,
we hold that there was sufficient evidence that the victim suffered
a “serious bodily injury” consistent with the instruction given to
the jury. The evidence tends to show that Moore suffered a broken
jaw which was wired shut for two months. During those two months,
Moore lost thirty pounds. Moore testified that the injury to his
jaw resulted in $6,000.00 worth of damage to his teeth. Moore alsotestified that his ribs were broken and that he suffered back
spasms on two occasions that made it so difficult for him to
breathe that he had to visit the emergency room. Finally, Moore
testified that his back spasms had continued up until the day he
testified at trial. Dr. Tannehill testified that the type of
injury suffered by Moore, the broken jaw, would cause a person
“quite a bit” of pain and discomfort. We conclude that a
reasonable juror could find this evidence sufficient to conclude
that Moore's injuries created a “protracted condition that cause[d]
extreme pain.” Thus, the trial court did not err in denying
defendant's motion to dismiss, and defendant's first assignment of
error is overruled.
Defendant next contends that the trial court erred in not
allowing defense counsel to cross-examine one of the State's
witnesses, Rose Marie Chapman, with respect to her prior
convictions for shoplifting.
It is the well-settled rule in North Carolina that for the
purposes of impeachment, a witness may be cross-examined with
respect to prior convictions of a felony, or of a Class A1, Class
1, or Class 2 misdemeanor. N.C. Gen. Stat. § 8C-1, Rule 609(a)
(1999); State v. Finch, 293 N.C. 132, 141, 235 S.E.2d 819, 824
(1977); State v. Gallagher, 101 N.C. App. 208, 211, 398 S.E.2d 491,
493 (1990). In the instant case, the following exchange occurred
during cross examination of Chapman by defense counsel:
Q What, if any, crimes have you been
convicted of in the last 10 tens [sic] [years]
that carries [sic] a sentence of 60 days or
more?
A I've been caught for shoplifting twice.
Q When was that?
A Ummm, let's see, back in '98 and then it
was in '99.
Q Were you found guilty of those two charges?
MR. JONES: Your Honor, I would object.
Those aren't charges that carries [sic] more
than 60 days anyway.
THE COURT: Sustained at this point.
At that point, defense counsel moved on to another line of
questioning. On appeal, defendant contends that the trial court
erred in sustaining the State's objection because a second offense
of shoplifting is a Class 2 misdemeanor, and, therefore, a proper
subject of impeachment under Rule 609(a).
Assuming, arguendo, that the trial court erred in not allowing
defense counsel to question the witness further concerning her
possible prior convictions, we conclude that defendant has failed
to meet his burden of showing that there is a reasonable
possibility that, had the alleged error in question not been
committed, a different result would have been reached at trial.
N.C. Gen. Stat. § 15A-1443 (1999). Thus, defendant has failed to
show prejudicial error.
While defendant maintains that Rose Marie Chapman was the
State's most damaging witness, and the only reliable witness who
testified that defendant was involved in the actual beating and
kicking of Moore, the record reveals otherwise. In addition to the
victim's testimony that defendant hit him in the eye and kicked him
three or four times, Amber Moore and Chris Reagan both testifiedthat defendant joined Jason Caldwell in the actual beating and
kicking of the victim. Thus, we disagree with defendant's
contention that Rose Marie Chapman was the only witness who
testified that defendant actually delivered blows to the victim,
and we find no prejudicial error.
Defendant next contends that the trial court erred in entering
judgment against him for both first degree trespass and misdemeanor
breaking or entering. The State concedes that first degree
trespass is a lesser included offense of misdemeanor breaking or
entering, see N.C. Gen. Stat. § 14-159.14 (1999), and, therefore,
that defendant is correct that his conviction for first degree
trespass must be vacated and judgment thereon arrested.
However, the State argues that since defendant's conviction
for first degree trespass was consolidated for judgment with his
conviction for resisting a public officer, both of which are
classified as Class 2 misdemeanors, resentencing is not required
for defendant. The record shows that the trial court consolidated
both crimes for judgment and sentenced defendant to 60 days, within
the range for a Class 2 misdemeanor committed by someone at
defendant's prior record level. N.C. Gen. Stat. § 15A-1340.23(c)
(1999). The State contends that since defendant's conviction for
resisting a public officer remains undisturbed, resentencing is not
necessary. We disagree.
In State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999), the
defendant received a consolidated sentence of thirty years for her
conviction of solicitation to commit murder and conspiracy tocommit murder. On appeal, the Supreme Court vacated the conviction
of solicitation to commit murder. The Court held that judgment on
the conspiracy to commit murder conviction must be remanded to the
trial court for resentencing because “we cannot assume that the
trial court's consideration of two offenses, as opposed to one, had
no affect [sic] on the sentence imposed.” Id. at 213, 513 S.E.2d
at 70.
In the instant case, defendant's conviction of resisting a
public officer would support a sentence of 60 days. However,
whether that crime warrants the sentence imposed in connection with
the two consolidated crimes is a matter for the trial court to
reconsider. See State v. Parker, 143 N.C. App. 680, 550 S.E.2d 174
(2001). Thus, defendant's conviction of resisting a public officer
must be remanded for a new sentencing hearing.
Having ruled in defendant's favor on this assignment of error,
we need not consider defendant's remaining assignments of error
pertaining to his first degree trespass conviction.
Accordingly, we hold that defendant received a fair trial free
from prejudicial error on assault inflicting serious bodily injury
and misdemeanor breaking or entering, that defendant's conviction
for first degree trespass is hereby vacated and judgment thereon
arrested, and that the judgment on the resisting a public officer
conviction is hereby remanded for resentencing. No. OO CRS 3039: Assault inflicting serious bodily injury:
No error.
No. OO CRS 3901: Misdemeanor breaking or entering: No
error;
First degree trespass: Conviction vacated
and judgment arrested;
Resisting a public officer: Remanded for
resentencing.
Judges MARTIN and HUDSON concur.
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