An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-943
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Filed: 15 April 2003


         v.                        Union County
                                No. 01 CRS 03808

    Appeal by defendant from judgment entered 15 April 2002 by Judge Sanford L. Steelman, Jr., in Union County Superior Court. Heard in the Court of Appeals 7 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.

    Allen W. Boyer for defendant-appellant.

    MARTIN, Judge.

    Defendant was found guilty of assault with a deadly weapon inflicting serious injury. He appeals from a judgment entered upon the verdict, suspending a sentence of twenty-five to thirty-nine months' imprisonment and placing defendant on supervised probation for thirty months.
    The State's evidence tended to show that defendant shot her husband, David Knight (Knight), in the left thigh with a twenty- five caliber handgun during an argument on 24 March 2001. Knight's “leg gave out,” and he fell to the ground “hollering.” The police who responded to the scene found Knight “moaning” and in “[a] lot of pain.” He was taken by ambulance to Union Regional MedicalCenter. An x-ray revealed that the bullet was lodged in his buttocks, where it remained as of the date of trial. The treating physician estimated that the bullet had traveled six to eight inches inside Knight's body. Knight was kept for two nights in the hospital and had to walk on crutches for several days thereafter Knight told police that defendant shot him. Defendant gave a statement to police admitting to the shooting.
    Defendant's first assignment of error reads as follows: “The trial judge erred in not appointing standby counsel to assist the Defendant in her defense.” In her brief to this Court, however, defendant faults the trial court for failing to make certain that her waiver of the right to counsel was knowing and voluntary. The trial court's failure to appoint standby counsel for a defendant proceeding in propria persona is an issue distinct and separate from the validity of that defendant's waiver of her constitutional right to counsel. See State v. Stanback, 137 N.C. App. 583, 586, 529 S.E.2d 229, 230-31 (2000) (“[N]either the statutory responsibilities of standby counsel . . . nor the actual participation of standby counsel . . . is a satisfactory substitute for the right to counsel in the absence of a knowing and voluntary waiver.").     None of defendant's assignments of error allude to her waiver of counsel. Absent a corresponding assignment of error, defendant's argument challenging the waiver is not properly before this Court for review. See State v. Thomas, 332 N.C. 544, 553-54, 423 S.E.2d 75, 80 (1992) (overruled on other grounds by State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998)); N.C.R. App. P.10(a), (b)(1), (c)(1).
    We note that the record on appeal contains two waiver of counsel forms executed by defendant in both district and superior court. "When a defendant executes a written waiver which is in turn certified by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise." State v. Warren, 82 N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986). Nothing in the record calls defendant's waiver into question.
    We find no grounds to review the trial court's failure to appoint standby counsel. Defendant did not request standby counsel at trial and failed to assign plain error in the record on appeal. Therefore, she has not properly preserved this issue. State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001) (citing N.C.R. App. P. 10(c)(4)). Moreover, under G.S. § 15A-1243 (2001), the appointment of standby counsel is a matter left entirely to the trial court's discretion. See State v. Seraphem, 90 N.C. App. 368, 368 S.E.2d 643 (1988). The North Carolina Supreme Court “has not applied the plain error rule to issues which fall within the realm of the trial court's discretion, and we decline to do so now.” State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).
    Defendant next claims the trial court erred in instructing the jury that the wound allegedly sustained by Knight was a “serious injury” as a matter of law. A trial court may give a peremptory jury instruction on the element of serious injury if "the evidence'is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.'" State v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-19 (quoting State v. Pettiford, 60 N.C. App. 92, 97, 298 S.E.2d 389, 392 (1982)), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000).
    In electing to give the peremptory instruction, the trial court relied upon our holding in State v. Crisp, 126 N.C. App. 30, 37, 483 S.E.2d 462, 466-67, appeal dismissed and disc. review denied, 346 N.C. 284, 487 S.E.2d 559 (1997). In Crisp, the victim was shot once in the leg. The bullet went through his calf muscle before exiting his body. The victim suffered burning and numbness and required assistance leaving the area. He received treatment at a hospital. Based on these facts, “we decline[d] to disturb the trial court's determination that [the] injury was 'serious' within the meaning of N.C. Gen. Stat. § 14-32(a) and that reasonable minds could not differ as to the seriousness of his injuries.” Id.     We agree that the Crisp decision controls here. The uncontested evidence showed Knight was shot in the thigh. The bullet traveled six to eight inches inside his body. His leg “gave out” and he remained on the ground until paramedics took him to the hospital. Knight experienced “a lot of pain[,]” which he described as “burning like a hot coal.” He was hospitalized overnight and had to use crutches for several days thereafter. We find Knight's injury to be at least as serious as that sustained in Crisp.
    Defendant expressly abandons her remaining assignment of error.    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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