Appeal by defendant from judgment entered 24 May 2001 by Judge
Benjamin G. Alford in Lenoir County Superior Court. Heard in the
Court of Appeals 17 September 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Diane Stevens, for the State.
Sonya S. Davis for defendant-appellant.
MARTIN, Judge.
Defendant was originally indicted for felonious child abuse
and felonious assault inflicting serious bodily injury. He appeals
from a judgment entered upon his conviction of felonious child
abuse and misdemeanor assault inflicting serious injury.
Briefly summarized, the evidence tended to show that on or
about 6 October 2000, a Friday, defendant struck his 8-year-old
daughter, Tanaje, on the buttocks with a board multiple times while
disciplining her for perceived misbehavior. Tanaje testified that
her buttocks bled after the spanking and hurt badly. Although she
was able to play outside over the weekend, employees at her school
observed her limping the following week. She was examined by the
school nurse and later by social service workers. Tanaje was
subsequently seen at the emergency room at Lenoir MemorialHospital, where she was examined by Dr. Tracy Lee Smith. He
described the injury as a “large hematoma” and stated that Tanaje
had moderate blood loss and might develop a permanent scar from the
injury.
Defendant testified that he had punished Tanaje by giving her
five “licks” with a “batting ball paddle.” He denied that she was
injured by the paddling and testified that she went out to eat with
him later that evening and played normally during the entire
weekend, never complaining that she was in pain. Tracy Watts
testified that she was present when defendant spanked Tanaje and
that she observed no bruises nor any bleeding as a result of the
spanking. Lillie Keyes testified that defendant and Tanaje spent
the weekend at her house and that she did not notice anything
unusual about Tanaje and that Tanaje did not complain to her about
pain.
Additional evidence necessary to an understanding of the
issues raised on appeal will be discussed in the opinion.
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Defendant's sole assignment of error is to the denial of his
motion to dismiss made at the close of all the evidence. He
asserts that the evidence was insufficient to support a guilty
verdict on either charge. We find no error.
In ruling on a motion to dismiss at the close of evidence made
pursuant to G.S. § 15A-1227, a trial court must determine whether
there is substantial evidence of each essential element of the
offenses charged.
State v. Roddey, 110 N.C. App. 810, 812, 431S.E.2d 245, 247 (1993). If, viewed in the light most favorable to
the State, the evidence is such that a jury could reasonably infer
that defendant is guilty, the motion must be denied.
The
defendant's evidence is not to be considered unless it is favorable
to the State.
Id. at 812-13, 431 S.E.2d at 247.
Defendant first challenges the sufficiency of the evidence to
withstand his motion to dismiss the charge of felonious child
abuse. To convict a defendant of felonious child abuse in
violation of G.S. § 14-318.4(a), the State must prove (1) that
defendant is the parent or caretaker of a child under the age of
16, (2) that defendant “intentionally inflict[ed]. . . serious
physical injury upon or to the child or . . . intentionally
commit[ted] an assault upon the child,” and (3) that the assault or
infliction of injury resulted in “serious physical injury.” N.C.
Gen. Stat. § 14-318.4(a). The element of intent is satisfied if
the defendant intentionally causes injury to the child and that
injury turns out to be serious.
State v. Campbell, 316 N.C. 168,
340 S.E.2d 474 (1986). Defendant's challenge to the trial court's
denial of his motion is based on his contention that there is not
substantial evidence that Tanaje sustained a “serious physical
injury.” We disagree.
Serious physical injury, within the meaning of G.S. § 14-
318.4, is injury that causes “great pain and suffering.”
State v.
Phillips, 328 N.C. 1, 20, 399 S.E.2d 293, 303,
cert. denied, 501
U.S. 1208, 115 L. Ed. 2d 977 (1991). In the present case, Tanaje
testified that her father struck her on her buttocks with a boardthat was eighteen or twenty inches by four or five inches. She
testified that he initially made her bend over a chair and that she
was wearing underwear; later, he made her remove her underwear and
told her to bend over and hold her feet while he swung the board at
her “like a baseball bat.” Tanaje testified that the beating hurt
“badly.” Because of the pain, she kept falling over and defendant
had his girlfriend hold her hands down. Although she could not
remember how many times her father hit her, she stated that the
beating went on for “a very long time.” Her buttocks were bleeding
after the beatings; she did not take a bath that night because she
was afraid it would burn her wounds and she “couldn't sleep at all”
due to the pain. She testified that over the weekend after the
beating she was able to play, but could not sit down except on a
pillow.
There was also evidence that the following week, employees at
Tanaje's school noticed that she was walking “funny.” Tanaje
stated that she walked that way because her backside was “swollen”
and she could not feel her legs. She was called to the nurse's
office where the school's nurse examined her; the nurse testified
that Tanaje had a large bruise on her buttocks that was crusted
around the outside and had a spot that was “open and oozing” near
the middle. The nurse also testified that when she saw the wound
she “gasped.”
Tanaje's mother testified that she was called to the hospital
emergency room and that she “just started screaming” when she saw
her daughter's wounds. She stated that Tanaje's buttocks were“blistered, cracked, scarred” and there were bloodstains on her
underwear from where it stuck to the wounds.
Tanaje was released from the emergency room into her mother's
custody. Her mother testified that the wounds took another week to
heal and that Tanaje had difficulty walking and sitting during that
time because her bottom was swollen and the wounds would re-open if
she tried to run and play. She also had difficulty going to the
bathroom. Tanaje's mother testified that at the time of trial
Tanaje had scars on her buttocks from the injury that were “real
dark spots on both sides.” Tanaje had received a bruise on her arm
when she tried to block the board her father was using and was
still complaining of pain in her arm at the time of trial.
The emergency room physician, Dr. Smith, stated that when he
examined Tanaje in the emergency room and touched her wound very
gently, it “appeared to be very painful” to Tanaje and that she
winced and cried during the examination. He stated that Tanaje
suffered a hematoma that resulted from a “large amount of trauma
that broke blood vessels” and caused the outer skin to die due to
lack of blood supply. He testified that she would have experienced
“moderate to severe pain at the time [of the beating] and for many
days thereafter.” In addition, he noted that it would probably
have taken her 14 to 21 days to recover from the injury.
Defendant argues that because Tanaje was able to go to school
after the alleged assault, did not require immediate medical
attention, was not hospitalized nor given medication, the injury
was, as a matter of law, not “serious.” There is no requirement inthe statute or in our case law that an injury require immediate
medical attention in order to be a “serious physical injury.”
Moreover, conflicts in the evidence as to Tanaje's level of
activity and the extent, if any, to which she appeared to be in
pain after the alleged assault are for resolution by the jury.
Campbell,
at 172, 340 S.E.2d at 477 (“[c]ontradictions and
discrepancies in the evidence are to be resolved by the jury”).
Viewed in the light most favorable to the State, we hold that
the evidence was sufficient for a jury to reasonably infer that the
injury inflicted by defendant caused Tanaje great pain and
suffering, and thus satisfied the statutory element of “serious
physical injury.” The trial court did not err in denying the
motion to dismiss the charge of felonious child abuse.
Defendant next contends the trial court erred in denying his
motion to dismiss the charge of felonious assault inflicting
serious bodily injury.
See N.C. Gen. Stat. § 14-32.4 (2002). The
elements of that offense include (1) an intentional assault on
another person (2) resulting in serious bodily injury. In the
statute, “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. Gen. Stat. § 14-32.4 (2002). Defendant argues there was
insufficient evidence that Tanaje sustained “serious bodily injury”
to survive his motion to dismiss. After denying defendant's motion to dismiss the charge of
felonious assault, the trial court submitted to the jury the issues
of defendant's guilt of felonious assault inflicting serious bodily
injury and the lesser included offense of misdemeanor assault
inflicting serious injury in violation of
G.S. § 14-33(c)(1)
(2002). Defendant was convicted of the misdemeanor.
On appeal, defendant does not argue that the trial court erred
in failing to dismiss the lesser included offense, which requires
proof only of “serious injury” rather than “serious bodily injury”
as defined by G.S. § 14-32.4. Our courts have defined “serious
injury” as injury which is serious but falls short of causing death
and have indicated that “the element of 'serious bodily injury'
requires proof of more severe injury than the element of 'serious
injury.'”
State v. Hannah, 149 N.C.
App. 713, 718-19, 563 S.E.2d
1, 4-5 (2002) (citations omitted). Even assuming,
arguendo, there
was insufficient evidence of “serious bodily injury” to satisfy the
statutory definition, any error in submission to the jury of the
greater offense was rendered harmless by the jury's verdict
convicting defendant of the lesser offense of assault inflicting
serious injury.
State v. Williams, 100 N.C. App. 567, 397 S.E.2d
364 (1990). This assignment of error is overruled.
No error.
Chief Judge EAGLES and Judge THOMAS concur.
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