State v Rice, (02-1349) 06/03/2003

Appeal by defendant from judgment entered 1 May 2002 by Judge Zoro J. Guice in Buncombe County Superior Court. Heard in the Court of Appeals 26 May 2003.

Attorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for the State.

William B. Gibson, for defendant-appellant.

CALABRIA, Judge.

    On 2 April 2001, defendant was indicted on charges of assault with a deadly weapon with intent to kill inflicting serious injury and being an habitual felon. The case was tried at the 30 April 2002 Criminal Session of Buncombe County Superior Court.
    The State presented evidence at trial which tended to show the following: The defendant, Donald Lee Rice, and the victim, David Rusty Beaver, were roommates at the White Fawn Family Care Home. On 14 February 2001, Joyce Richardson, the supervisor in charge at the home, was in the living room when Beaver ran into the room saying “Help, help, help, he stabbed me, he stabbed me.” Richardson testified that Beaver had been stabbed and was coveredin blood. Richardson grabbed a towel and wrapped it around Beaver's arm and called 911. Defendant was arrested and Beaver taken to the hospital for treatment.
    Defendant was convicted of assault with a deadly weapon inflicting serious injury and being an habitual felon and sentenced to a term of 133 to 169 months imprisonment. Defendant appeals.
    Defendant argues that the trial court erred by denying his motion to dismiss and by failing to instruct the jury on the lesser included offense of assault with a deadly weapon, because there was insufficient evidence that the victim suffered a serious injury. Defendant submits that while the jury could reasonably infer that Beaver suffered some pain, the evidence fails to show great pain and suffering. Defendant argues that Beaver “was merely taken to the hospital, stitched up, given some medication and released back to the home.” Defendant notes that Beaver did not testify, and the State presented no expert medical testimony to allow the jury to determine the seriousness of Beaver's injury.
    After careful review of the record, briefs and contentions of the parties, we find no error. To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and that defendant is the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id., 345 N.C. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).     “The elements of [assault with a deadly weapon inflicting serious injury] under G.S. § 14-32(b) 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); N.C. Gen. Stat. § 14-32(b) (2001). A “serious physical injury” has been defined as an injury “that cause[s] great pain and suffering.” State v. Phillips, 328 N.C. 1, 20, 399 S.E.2d 293, 303(1991). Our Supreme Court has stated:
        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 in determining whether an injury is serious. Evidence that the victim was hospitalized, however, is not necessary for proof of serious injury.

State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991) (citations omitted).
    In the instant case, numerous witnesses testified as to Beaver's injury. Richardson testified that a “bunch of blood [was] coming out,” and that after she wrapped it in a towel, the “meat” from his arm came off on the towel. Detective Forest Weaver of the Asheville Police Department testified that Beaver had stab wounds and slices on his arms, and that one of the wounds “was really, really bad, part of it [was] hanging off.” Another of the investigating officers, Officer Sean Aardema, testified that two or three of the wounds “were deep enough that they went to the bone.” As a result of the attack, Beaver required immediate treatment at a hospital, extensive stitches, medication, and an examination ofhis wounds by a doctor to monitor how his wounds. We conclude that this evidence, when taken in the light most favorable to the State, was sufficient for a jury to determine that the injuries caused “great pain and suffering.” Phillips, 328 N.C. at 20, 399 S.E.2d at 303. Accordingly, the assignment of error is overruled.
    Defendant additionally assigns as error that the trial court allowed him to be tried while there existed a material question as to whether he was mentally competent. However, defendant fails to include any argument in support of his assignment of error and fails to cite any authority. N.C.R. App. P. 28(b)(6) (2003). Accordingly, defendant has failed to preserve this assignment of error for appellate review.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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