Appeal by defendant from judgments entered 6 April 2001, as
amended 4 May 2001, by Judge Clifton W. Everett, Jr., in Wilson
County Superior Court. Heard in the Court of Appeals 22 April
2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert O. Crawford, III, for the State.
Farris and Farris, P.A., by Robert A. Farris, Jr., for
defendant-appellant.
MARTIN, Judge.
A jury found defendant guilty of assault with a deadly weapon
with intent to kill inflicting serious injury and robbery with a
dangerous weapon. The trial court sentenced defendant in the
aggravated range of 145 to 183 months imprisonment for the assault,
based on a finding that “[t]he victim of this offense suffered
serious injury that is permanent and debilitating.” The court
imposed a consecutive, presumptive sentence of 103 to 133 months
for armed robbery. Defendant appeals.
The State's evidence tended to show that on the night of 19
January 2000, defendant entered the Peace Mini Mart at the cornerof Hines and Daniel Streets in Wilson. He pointed a gun at the
clerk and demanded money. When the clerk offered $150 from his
pocket, defendant said it was “not enough” and shot the clerk twice
in the face. Defendant took the money from the cash register and
left the store. In addition to the clerk's positive identification
of defendant, police found defendant's latent fingerprint on a bag
of corn chips next to the cash register.
As a result of the shooting, the clerk bled profusely at the
scene and sustained a broken jaw and broken teeth. He was
hospitalized and underwent surgery “more than once.” The clerk
also lost his left eye, which had to be replaced with a glass
prosthesis.
On 23 January 2000, police went to the residence of Kathy
Ruffin, looking for defendant. Police asked Ruffin and her mother
if defendant was in the residence, explaining that they had
“warrants for [defendant] for the crimes that had been committed.”
An officer explained to Ruffin that if defendant came out, he
should do so “with his hands in plain view due to the nature of the
crime.” Ruffin went back inside the residence for a few minutes
and returned to the door, unsure of what to do. At the suggestion
of the police, she granted permission for a search of her
residence. Once the police were inside, they were informed that
defendant was in the attic. A police canine was brought into the
house. Its handler, Officer James Anthony announced to defendant
that the dog would be released into the attic if he did not come
out. Defendant emerged and was placed under arrest. Defendant denied robbing the Peace Mini Mart or shooting the
clerk. Defendant testified that he believed the police had come
for him at Ruffin's residence because he had missed appointments
with his probation officer. He admitted hiding from the police in
Ruffin's attic until he heard the police canine barking. Surmising
that a police dog would not be used for a probation violation,
defendant came out voluntarily. Ruffin corroborated defendant's
testimony that he hid in order to avoid capture for the probation
violation.
_______________________
Defendant contends the trial court erred in instructing the
jury that his flight from police could be considered as evidence of
guilt. Defendant “concedes that he hid in the attic when the
police came to arrest him.” He further concedes that “hiding from
the police” constitutes flight.
See State v. Abraham, 338 N.C.
315, 451 S.E.2d 131 (1994). However, he insists the evidence
showed he hid in order to avoid arrest on an unrelated probation
violation. Defendant also argues that the form of the flight
instruction, conveyed to the jury the trial court's belief that
defendant fled to avoid capture for the instant crimes. We reject
his contentions.
"Evidence of a defendant's flight following the commission of
a crime may properly be considered by a jury as evidence of guilt
or consciousness of guilt."
State v. King, 343 N.C. 29, 38, 468
S.E.2d 232, 238 (1996). "The fact that there may be other
reasonable explanations for defendant's conduct does not render the[flight] instruction improper."
State v. Irick, 291 N.C. 480, 494,
231 S.E.2d 833, 842 (1977) (citing
State v. Lampkins, 283 N.C. 520,
196 S.E.2d 697 (1973)). “Where there is some evidence supporting
the theory of the defendant's flight, the jury must decide whether
the facts and circumstances support the State's contention that the
defendant fled.”
State v. Norwood, 344 N.C. 511, 535, 476 S.E.2d
349, 360 (1996)
cert. denied, 520 U.S. 1158, 137 L. Ed. 2d 500
(1997).
The State's proffer supported a jury instruction on flight.
It is undisputed that defendant hid in Ruffin's attic to avoid
capture by the police five days after the robbery and shooting
occurred. The State adduced additional evidence that defendant
took this evasive action after police notified Ruffin of the
charges against him and after Ruffin, in turn, informed defendant
that the police were looking for him. Viewed together with the
evidence implicating defendant in these crimes, such circumstances
constitute “some evidence” of flight sufficient to support a jury
instruction. The fact that defendant had other cause to flee goes
to the weight, not the admissibility, of this evidence.
See Irick,
291 N.C. at 494-95, 231 S.E.2d at 843.
Moreover, contrary to defendant's assertion, the form of the
flight instruction did not express an opinion concerning the reason
for defendant's hiding from police. The court instructed the jury
as follows:
Now, in this case Ladies and Gentlemen,
the State contends and the defendant . . .
denies that the defendant fled. Evidence of
flight may be considered by you together withall other facts and circumstances in this case
in determining whether the combined
circumstances amount to an admission or show
of consciousness of guilt.
However, proof of this circumstance is
not sufficient in itself to establish the
defendant's guilt. . . .
In
State v. Lloyd, 354 N.C. 76, 118, 552 S.E.2d 596, 625 (2001),
the Supreme Court approved a flight instruction couched in
virtually identical language:
“Now, ladies and gentlemen, the State contends
that the defendant . . . fled. Evidence of
flight may be considered by you together with
all other facts and circumstances in this case
in determining whether the combined
circumstances amount to an admission or show
of consciousness of guilt. However, proof of
this circumstance is not sufficient in[ ]
itself to establish the defendant's guilt[ ].”
Rejecting the defendant's claim of prejudice, the
Lloyd court
found, “The [trial] court did not suggest that there was evidence
to support the State's contention of flight, but instructed only
that the State contended that defendant fled.”
Lloyd, 354 N.C. at
120-21, 552 S.E.2d 626-27. The same is true here. “The trial
court . . . accurately informed the jury that it was the contention
of the State, not the trial court, that defendants fled.”
State v.
Abraham, 338 N.C. at 362, 451 S.E.2d at 157. Under this
instruction, the jury was free to accept defendant's explanation of
his actions.
See id.
Defendant next claims the court erred in sentencing him in the
aggravated range for assault with a deadly weapon with intent to
kill inflicting serious injury, based on a finding that “[t]he
victim of this offense suffered serious injury that is permanentand debilitating.” N.C. Gen. Stat. § 15A-1340.16(d)(19) (1999).
Defendant points to G.S. § 15A-1340.16(d), which provides that
"[e]vidence necessary to prove an element of the offense shall not
be used to prove any factor in aggravation . . . ." Because
“serious injury” is an essential element of his offense, defendant
avers the court erred in aggravating his sentence based upon the
severity of the clerk's injuries.
This Court has previously rejected defendant's interpretation
of G.S. § 15A-1340.16(d) and has allowed the trial court to find
the aggravating factor in G.S. § 15A-1340.16(d)(19), even where
serious injury is an element of the defendant's crime. “[T]he
language of the statute, that 'the serious injury inflicted upon
the victim is permanent and debilitating' creates a distinction
between the suffering of the victim at the time the serious injury
is inflicted and any long-term or extended effects that arise due
to that serious injury.”
State v. Crisp, 126 N.C. App. 30, 39, 483
S.E.2d 462, 468,
appeal dismissed, disc. review denied, 346 N.C.
284, 487 S.E.2d 559 (1997).
In asserting that the “serious injury” element of felonious
assault with a deadly weapon with intent to kill inflicting serious
injury denotes an injury with long-term effects, defendant points
to G.S. § 14-32.4 (1999), which defines “serious bodily injury” as
that which “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, orthat results in prolonged hospitalization." This Court has not yet
determined whether the definition of “serious bodily injury”
applies to the “serious injury” element of assault with a deadly
weapon with intent to kill inflicting serious injury under G.S. §
14-32(a).
See State v. Poland, ___ N.C. App. ___, 560 S.E.2d 186
(2002). As in
Poland, however, it is unnecessary to resolve this
question in order to rule on defendant's claim.
In
State v. Wampler, 145 N.C. App. 127, 133, 549 S.E.2d 563,
568 (2001), this Court upheld an aggravated sentence for the
offense of assault with a deadly weapon with intent to kill
inflicting serious injury, based on a finding that the victim's
injuries were “permanent and debilitating” under G.S. § 15A-
1340.16(d)(19). The
Wampler court noted prior decisions holding
“that long term effects or extended effects that arise from the
victim's injuries may be properly used as an aggravating factor” in
sentencing.
Id. (citing
State v. Brinson, 337 N.C. 764, 448 S.E.2d
822 (1994);
State v. Crisp,
supra). Although the Court quoted the
definition of “serious bodily injury” found in G.S. § 14-32.4 as an
element of the defendant's offense, it agreed with the trial court
that the victim's long-term disfigurement and impairment could
constitute an aggravating factor under G.S. § 15A-1340.16(d)(19):
In the present case, the victim's injuries
went beyond the "serious injury" necessary to
convict defendant of the offense. [The victim]
received several serious injuries including a
broken wrist, chewed fingers, and a gash in
the head. The aggravating factors that he
suffered included permanent disfigurement of
his fingers, surgery, loss of use and
impairment. Moreover, the victim cannot bend
his fingers and will always have a steel plateand screws in his hand.
Wampler, 145 N.C. App. at 133, 549 S.E.2d at 568.
As in
Wampler, the victim in this case sustained severe
injuries. As a result of two gunshot wounds to the face, the store
clerk suffered a broken jaw, broken teeth, and heavy bleeding.
Beyond these serious injuries, the loss of his left eye is a
permanent disfigurement and impairment separate from the “serious
injury” element of the underlying offense. The trial court
committed no error in finding the aggravating factor listed in G.S.
§ 15A-1340.16(d)(19).
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***