STATE OF NORTH CAROLINA
v
.
JOSE EUGENIO UVALLE, SR.,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Dorothy Powers, for the State.
John Calvin Chandler, for defendant-appellant.
HUDSON, Judge.
Defendant was convicted by a jury of felonious assault with a
deadly weapon inflicting serious injury and sentenced to a minimum
term of twenty-five months and a maximum term of thirty-nine
months. Defendant appeals.
We begin with a brief summary of pertinent facts. The State
presented evidence to show that on the evening of 30 March 2000,
defendant was involved in an altercation with his wife, Norma
Uvalle. Ms. Uvalle testified through an interpreter that her
husband came to see her at work on 30 March 2000 and accused her of
seeing another man. After an argument, defendant left, and Ms.
Uvalle returned to her work. That night, Ms. Uvalle left work
earlier than usual, arriving home at 11:15 p.m. Five minutes
later, defendant arrived accompanied by the Uvalles' twelve yearold son, Junior. Ms. Uvalle testified that defendant followed her
to the bedroom and “kept asking if [she] would tell the truth”
about seeing another man. Defendant left the room, and Ms. Uvalle
heard noises like he was looking for something in the sink in the
kitchen. Ms. Uvalle testified that he came back to the bedroom and
threw her off the bed; she did not see a knife until, “[j]ust when
he had it in his hand and he started to stab me -- hurt me.” Ms.
Uvalle began to scream and her children ran into the bedroom.
Junior took the knife away from his father and he helped put a
pillow under his mother, trying to stop the bleeding. Defendant
told Ms. Uvalle that “first [] he was going to finish with her (Ms.
Uvalle), and then afterwards, he was going to finish with himself.”
She sustained knife wounds in both arms, her shoulder, and her
ribs. Ms. Uvalle testified that defendant had threatened and
attacked her previously, and had attempted to cut her with a razor
blade in January of the same year.
Dr. Kevin Reese, who treated Ms. Uvalle when she was brought
into the emergency room on 30 March 2000, testified that Ms. Uvalle
had at least five lacerations or stab wounds, four of which
required treatment. Three of the lacerations were connected to
each other in that the blade went through the tissue of Ms.
Uvalle's forearm and penetrated her abdomen and chest. She also
sustained injuries to the shoulder, which Dr. Reese described as
“directed straight down into the shoulder, entering through the
Deltoid muscle, which is the muscle that allows you to raise the
shoulder like this (indicating), and then entered -- hit bone downinto the joint space.” Dr. Reese opined that Ms. Uvalle was
stabbed in the shoulder from above, and from the front in the case
of the forearm and torso injuries. He did not believe the injuries
were self-inflicted and described them as defensive wounds. On
cross-examination, Dr. Reese said that the wounds did not
necessarily indicate a struggle, although he agreed that they did
indicate that Ms. Uvalle's body changed positions during the
incident. Dr. Reese also testified that Ms. Uvalle's injuries were
both serious and permanent.
The State also introduced the testimony of Ms. Uvalle's
sister, Olga Gavan Castellio, who was living in the Uvalles' home
at the time of these events. She testified that on 30 March 2000,
she heard her sister screaming and found the defendant “on top of”
his wife with a butcher knife in his hand. Ms. Castellio also
testified that just before the screams, she heard defendant in the
kitchen and heard the sounds of dishes moving in the sink, where
she had earlier put the butcher knife. The Uvalles' son, Junior,
testified that when he heard his mother screaming, he rushed into
the bedroom, and found his father holding the knife over his
mother, who had blood on her. In part, Junior testified as
follows:
A. I grabbed my dad from the neck and
was trying to pull him back so he wouldn't
stab my mom again.
Q. And were you able to do that, were
you able to stop him?
A. No.
Q. What happened?
A. I went in the bed (sic) -- I was
trying to pull the knife and my mom said let
go so he won't stab you. I said, I'm notgoing to until he lets go. And -- and then my
aunt came and she said, “Let her go, Eugenio
(the defendant).” And he said, “No, I ain't.”
And then he said, “Okay, I'm going to let her
go, but I'm going to kill myself.” And I
said, “Dad, don't do that because if you do
that, I'm going to kill myself, too.”
. . .
Q. Were you -- both of you just holding
it (the knife) for a little while?
A. It was me, and my mom, and my dad
was holding it.
Q. Now, what part of the knife did your
mom have?
A. It was sharp --
Q. Did she have the blade in her hand?
A. Yes, the blade.
. . .
Q. Did your father receive any cuts
that night?
A. No.
Q. What was your father saying while
all this was going on?
A. He -- I can't remember, but I --
can't remember.
Q. Did he threaten your mother in any
way that you remember?
A. He said he was going to kill her.
Junior testified that he acted as interpreter for his mother when
emergency medical personnel arrived, during the trip to the
hospital, and once they arrived at the hospital. He also reported
that in January of the same year, he saw his father threaten his
mother with a pocket knife.
Defendant testified through an interpreter in his own defense.
He agreed that he was upset with his wife on the night of 30 March
2000, because he suspected that she was seeing another man.
However, he testified that he did not bring the knife in from the
kitchen. Instead he contended that the knife was underneath Ms.
Uvalle's pillow on the bed, and that he first saw the knife when it
fell out from underneath the pillow. He testified during direct-examination:
Q. And how did the knife get from under
the pillow?
(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)
A. (ANSWER IN SPANISH)
INTERPRETER: He don't know.
Q. Well, did he take it out from under
the pillow or did his wife take it out from
under the pillow?
(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)
A. (ANSWER IN SPANISH)
INTERPRETER: The knife fell when she
moved.
Q. And did she later grab the knife?
(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)
A. (ANSWER IN SPANISH)
INTERPRETER: When -- when he saw the
knife on the floor, he asked his wife, “Are you
going to -- you going to kill me after you done
to me?”
(WITNESS SAYS SOMETHING IN SPANISH)
INTERPRETER: I was very mad. I picked
up the knife and I cut myself.
Q. All right. Did you then struggle for
the knife? Did your wife try to grab the
knife?
(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)
A. (ANSWER IN SPANISH)
INTERPRETER: No, he tried to take away
the knife from her.
Q. Did you -- did you all have a
struggle together?
(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)
A. (ANSWER IN SPANISH)
INTERPRETER: Yes.
Defendant later testified during cross-examination that at first
his wife was sitting on the bed, then they both fell down in the
bed, then he was under her, and once he had the knife, he was on
top of her. Defendant insisted that his wife cut herself
accidentally when they were struggling for the knife.
The defendant also presented the testimony of his uncle, who
saw the Uvalles' argument the previous January. On that occasion,
the uncle said that Ms. Uvalle had a piece of a broom handle in herhand. Defendant's employer testified as to his opinion that
defendant is a truthful, law-abiding, and non-aggressive citizen
who is a dependable worker.
The trial court instructed the jury on assault with a deadly
weapon inflicting serious injury and not guilty. The court further
instructed the jurors that if they found that defendant acted in
self-defense, that would excuse defendant's actions, and they
should find him not guilty. The jury found defendant guilty as
charged. In his brief, defendant makes two arguments: (1) problems
with the court interpreter amounted to plain and reversible error,
and (2) the trial court erred by failing to instruct the jury on
four lesser included offenses of assault with a deadly weapon
inflicting serious injury. Although he raised eight assignments of
error in the record on appeal, he only brings forward numbers 1, 3,
4, 5, and 7. Accordingly, assignments of error 2, 6, and 8 are
deemed abandoned. See N.C. R. App. Proc. 28(a) (2001). We address
defendants' two issues in order.
First, defendant contends that the “trial court committed
reversible error and plain error by not directing the interpreter
for the State to interpret exactly the question asked by the State
and the answer as given by the witness.” The State repeatedly
asked the interpreter to repeat exactly what the witness and
attorney said. The trial judge instructed the interpreter several
times, as requested by the attorneys on both sides, and replaced
one interpreter during a recess “to give [her] a break.”
We recognize that there may be circumstances in whichtranslation difficulties could violate a non-English speaking
defendant's constitutional rights to a fair trial, to confront and
cross-examine witnesses, or to due process under the North Carolina
and United States Constitutions. However, these issues were not
raised here. During trial, when an interpreter failed to interpret
in the first person, or engaged in conversation in Spanish with the
testifying witness without translating for the court the contents
of the exchange, defendant's counsel expressed concern and
requested further instructions, but never expressly noted an
objection. Defendant has properly couched his argument as plain
error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983). When we review for plain error, we only grant relief when
the “error is a fundamental error, something so basic, so
prejudicial . . . that justice cannot have been done,” or where it
denies a fundamental right to a fair trial, or where it had “a
probable impact on the jury's finding that the defendant was
guilty.” Id. (internal citation and quotations omitted) (emphasis
in original). We do not find error, let alone error of this
magnitude, in the instructions given or not given to the
interpreters here. After careful review of the transcript and
record on appeal, we conclude that the difficulties with the court
interpreters did not impede the defense from confronting and cross-
examining the state's witnesses or from presenting its evidence for
the jury's consideration. Thus, we overrule this assignment of
error.
In his second argument, defendant contends that the trialcourt erred by not instructing the jury on four lesser included
offenses of assault with a deadly weapon inflicting serious injury,
to wit: (1) felonious assault inflicting serious bodily injury, (2)
assault with a deadly weapon, (3) assault inflicting serious
injury, and (4) simple assault. We disagree.
A defendant “is entitled to an instruction on lesser included
offense[s] if the evidence would permit a jury rationally to find
him guilty of the lesser offense and acquit him of the greater.”
State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000);
see also State v. Collins, 334 N.C. 54, 58, 431 S.E.2d 188, 190-91
(1993); State v. Siler, 66 N.C. App. 165, 166, 311 S.E.2d 23, 24,
aff'd as modified, 310 N.C. 731, 314 S.E.2d 547 (1984). However,
“a lesser offense should not be submitted to the jury if the
evidence is sufficient to support a finding of all the elements of
the greater offense, and there is no evidence to support a finding
of the lesser offense.” State v. Nelson, 341 N.C. 695, 697, 462
S.E.2d 225, 226 (1995).
The elements of assault with a deadly weapon inflicting
serious injury are “(1) an assault (2) with a deadly weapon (3)
inflicting serious injury (4) not resulting in death.” State v.
Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990); see also
N.C. Gen. Stat. § 14-32(b) (2001). We first note that assault
inflicting serious bodily injury is not a lesser included offense
of assault with a deadly weapon inflicting serious injury, and that
such an instruction would not have been proper here. See e.g.,
State v. Hannah, ___ N.C. App. __, 563 S.E.2d 1 (2002) (holdingthat assault inflicting serious bodily injury is not a lesser
included offense of assault with a deadly weapon with intent to
kill and inflict serious injury as defined in N.C.G.S. § 14-32(a)).
The language of N.C. Gen. Stat. § 14-32.4 (2001), defines “serious
bodily injury” as: “[a] 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.” However, our courts have held that “serious
injury,” as used in connection with a charge under N.C.G.S. § 14-
32(b), does not necessarily rise to the level of “serious bodily
injury.” See Hannah, ___ N.C. App. at ___, 563 S.E.2d at 5. The
Hannah Court stated: “Thus, while there may be factual situations
in which the elements of 'serious bodily injury' and 'serious
injury' are in apparent identity, this does not satisfy the
definitional approach required to determine whether one offense is
a lesser included offense of another.” Id. “We conclude that,
because the element of 'serious bodily injury' requires proof of
more severe injury than the element of 'serious injury,'” assault
inflicting serious bodily injury is not a lesser included offense
of assault with a deadly weapon inflicting serious injury. Id.
Thus, since defendant was not charged with an offense under
N.C.G.S. § 14-32.4, but only under N.C.G.S. § 14-32(b), he was not
entitled to an instruction on an offense which is not a lesser
included offense and with which he was not charged. Defendant also argues that he was entitled to instructions on
the lesser included offenses of assault with a deadly weapon (no
serious injury), assault inflicting serious injury (no deadly
weapon), and simple assault (no serious injury or deadly weapon).
See N.C.G.S. § 14-32(b). Assault is defined as either “a show of
violence causing a reasonable apprehension of immediate bodily
harm” or “an intentional offer or attempt by force or violence to
do injury to the person of another.” State v. Thompson, 27 N.C.
App. 576, 577, 219 S.E.2d 566, 567-68 (1975), disc. rev. denied,
289 N.C. 141, 220 S.E.2d 800 (1976). Whether defendant is entitled
to an instruction on an offense which is a lesser included offense
depends upon the evidence presented at trial.
Defendant testified that the knife was under the pillow, that
it fell out, and the struggle ensued. During the struggle, he
testified that Ms. Uvalle was accidentally cut by the knife. Ms.
Uvalle, on the other hand, testified that the defendant repeatedly
stabbed her with the knife, that she grabbed the blade to stop him
from stabbing her. Their son corroborated this description of
events. The emergency room doctor also gave his opinion that Ms.
Uvalle's injuries were not self-inflicted.
Generally, “[w]hether a serious injury has been inflicted
depends upon the facts of each case and is generally for the jury
to decide under appropriate instructions.” State v. Hedgepeth, 330
N.C. 38, 53, 409 S.E.2d 309, 318 (1991), cert. denied, 529 U.S.
1006, 146 L. Ed. 2d 223 (2000). “Pertinent factors for jury
consideration include hospitalization, pain, blood loss, and timelost at work.” State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d
255, 261 (1997). Here, the trial court did not instruct the jury
on the offense of assault with a deadly weapon, which does not
include the element of “serious injury.” In Hedgepeth, the Supreme
Court approved a peremptory instruction on serious injury, where
the evidence of the prosecuting witness's injury “'is not
conflicting and is such that reasonable minds could not differ as
to the serious nature of the injuries inflicted.'” 330 N.C. at 54,
409 S.E.2d at 318 (quoting State v. Pettiford, 60 N.C. App. 92, 97,
298 S.E.2d 389, 392 (1982)).
In State v. Crisp, 126 N.C. App. 30, 37, 483 S.E.2d 462, 466-
67, disc. rev. denied, 346 N.C. 284, 487 S.E.2d 559 (1997), the
trial court gave a peremptory instruction on “serious injury” when
the victim was shot and the bullet went through his calf muscle.
The defendant was charged with assault with a deadly weapon with
intent to kill inflicting serious injury under the same statute as
the one at issue in the present case, N.C.G.S. § 14-32. This Court
“decline[d] to disturb the trial court's determination that [the
victim's] injury was 'serious' within the meaning of [N.C.G.S.] §
14-32(a) and that reasonable minds could not differ as to the
seriousness of his injuries.” Id. at 37, 483 S.E.2d at 467.
“Thus, the trial court was not required to submit the lesser
included offense of assault with a deadly weapon to the jury.” Id.
Here, the trial court did not give a peremptory instruction,
but there is no genuine dispute in the evidence as to the serious
nature of the prosecuting witness' injury. The uncontrovertedevidence, including the unequivocal opinion of the treating
physician, indicates that she sustained several deep knife wounds
resulting in permanent debilitating injuries. Thus, defendant was
not entitled to instructions on either simple assault or assault
with a deadly weapon which omitted the element of “serious injury,”
since the evidence did not “permit the jury rationally to find him
guilty of the lesser offense and acquit him of the greater.”
Leazer, 353 N.C. at 237, 539 S.E.2d at 924.
Further, the evidence was undisputed that, however it
occurred, Ms. Uvalle's injuries were sustained by a butcher knife
with a blade “about a foot long,” which qualifies as a deadly
weapon per se. See State v. Cox, 11 N.C. App. 377, 380, 181 S.E.2d
205, 207 (1971); State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665
(1970). Thus, defendant was not entitled to an instruction on an
assault not involving a deadly weapon.
Finally, defendant argues that the jury should have been
instructed on misdemeanor simple assault, pursuant to N.C. Gen.
Stat. § 14-33 (2001). However, this Court has explained in State
v. Owens, 65 N.C. App. 107, 110-11, 308 S.E.2d 494, 498 (1983),
[t]he primary distinction between felonious
assault under G.S. § 14-32 and misdemeanor
assault under G.S. § 14-33 is that a
conviction of felonious assault requires a
showing that a deadly weapon was used and
serious injury resulted, while if the evidence
shows that only one of the two elements was
present, i.e., that either a deadly weapon was
used or serious injury resulted, the offense
is punishable only as a misdemeanor.
(emphasis in original). Defendant contended at oral argument and
the State agreed, that if the knife was introduced into thealtercation by accident, he was entitled to this instruction
because the jury could find the absence of the “use of a deadly
weapon” element. However, the defendant testified that he “picked
up the knife” and the struggle ensued. Thus, we believe that the
trial court correctly concluded that, even if the jury believed
that the knife fell out from under the pillow, there was no
evidence to dispute that defendant “used” it. We concluded above
that a deadly weapon caused the victim's injuries, and that there
is no rational dispute about whether serious injury resulted.
Therefore, we hold that the trial court properly declined to
instruct the jury on misdemeanor assault.
In sum, the trial court did not commit plain error in managing
the interpreters, and did not err by refusing to instruct the jury
on the lesser-included offenses of assault with a deadly weapon
inflicting serious injury.
No error.
Judges MARTIN and CAMPBELL concur.
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