An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COAO3-114


Filed: 18 November 2003


         v.                        Union County
                                No. 01 CRS 051113

    Appeal by defendant from judgment entered 26 June 2002 by Judge Sanford L. Steelman, Jr., in Union County Superior Court. Heard in the Court of Appeals 27 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Judith Tillman, for the State.

    David Childers, for defendant-appellant.

    HUDSON, Judge.

    Defendant Virgil Avery Harrison was charged with assault with a deadly weapon with intent to kill inflicting serious injury. A jury convicted defendant of assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant to thirty-four to fifty months imprisonment. Defendant appeals. We find no error.
    The State's evidence tended to show that in March 2001, Rose Mary Caldwell Bristol worked as head housekeeper at the Inn Towne Suites. On the night of 15 March 2001, Bristol threw a birthday party for herself in her room at the motel. Approximately eight people attended the party, including her current boyfriend, BillMoss. Defendant, Bristol's former boyfriend, showed up at the party although he was not invited. After Bristol started cooking breakfast for her guests, defendant told Bristol that he had cut himself on his wrist. Bristol told defendant to clean himself up in the bathroom. When defendant came out of the bathroom, he said, “ya'll laughing at me.” Bristol turned and walked away. Defendant came up behind Bristol and stabbed her in the back with a knife.
    Deputy Dan Rogers of the Union County Sheriff's Department responded to a disturbance call at the Inn Towne Suites and took defendant into custody. Defendant was transported to the hospital for treatment of superficial wrist wounds and then to the Sheriff's Department. After Sergeant Rollins read defendant his Miranda rights, defendant made a written statement. Defendant said that he was upset “about the way things were not working out between me and Rose Mary;” that Rose Mary made a remark that made him “furious,” and that he took a knife and “stabbed her one time in the back, down below her liver.”
    Defendant chose to represent himself at trial, but standby counsel was appointed to assist him throughout the trial. At the end of the State's evidence, defendant moved to dismiss the charge against him based on insufficiency of the evidence. The trial court denied the motion and defendant testified on his own behalf. Defendant testified that he voluntarily committed himself on 2 February 2001 because of his active drug use. He said that after he spent forty days at the Mecklenburg County Substance Abuse Center, he went to Alcoholics Anonymous and Narcotic Anonymousmeetings. Defendant testified that at the party he bought crack cocaine and smoked it, and also drank beer. Defendant testified that he was despondent and suicidal after using the drugs. He further stated that he went to his truck, retrieved a steak knife from the truck and cut his wrist with the knife. Defendant cleaned himself up in Bristol's bathroom. Defendant testified that when he approached Bristol, a man pushed Bristol into defendant who had the knife in his hand.
    Defendant first contends the trial court erred by not dismissing the charge against him because the State failed to present sufficient evidence of serious injury. We disagree.
    The standard for ruling on a motion to dismiss “is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).    Defendant was charged with an offense under N.C. Gen. Stat. §14-32(a). Under this statute, “[w]hether serious injury has been inflicted turns on the facts of each case and is generally a determination for the jury. Pertinent factors for jury consideration include hospitalization, pain, blood loss, and time lost at work.” State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997) (internal citations omitted). Here, the State presented evidence that defendant stabbed Bristol in the flank kidney area with a serrated knife. Bristol testified that the undershirt that she had been wearing the night of the stabbing was “covered with blood”. Furthermore, Bristol was hospitalized for two days and suffered severe pain. In the light most favorable to the State, a reasonable jury could conclude from this evidence that defendant assaulted Bristol with a deadly weapon and caused serious injury. Accordingly, the trial court properly denied defendant's motion to dismiss.
    Defendant also contends the trial court erred by denying his request for a jury instruction on diminished capacity. We note at the outset, that defendant did not object to the trial court's instructions to the jury, although he was given an opportunity to do so out of the presence of the jury, both before and after the court gave the instructions. Defendant therefore waived his right to assign error to the trial court's instructions. See State v. Wilson, 340 N.C. 720, 459 S.E.2d 192 (1995); N.C.R. App. P. 10(b)(2) (2001). Furthermore, defendant has waived plain error review by failing to allege plain error. Id. at 734-35, 459 S.E.2d201; N.C.R. App. P. 10(c)(4) (2001). Nevertheless, we invoke N.C.R. App. P. 2 and review this issue on the merits.
    An instruction on diminished capacity is warranted where the evidence of defendant's mental condition is sufficient to raise a reasonable doubt in the mind of a rational trier-of-fact as to whether the defendant had the ability to form the necessary specific intent to commit the crimes for which he is charged. State v. Clark, 324 N.C. 146, 163, 377 S.E.2d 54, 64 (1989). In State v. Lancaster, this Court held the evidence insufficient to warrant an instruction on diminished capacity. 137 N.C. App. 37, 527 S.E.2d 61, disc. review denied in part and allowed in part on other grounds, 352 N.C. 680, 545 S.E.2d 723 (2000). There, the defendant presented expert testimony evidence of substance abuse addictions and other behaviors and the defendant himself testified he had smoked crack cocaine and drank several beers over the course of the evening in question. Id. at 44-5, 527 S.E.2d at 67. This Court concluded “there was insufficient evidence of defendant's mental condition to create a reasonable doubt in the jurors' minds that defendant was unable to form the specific intent necessary to commit these crimes.” Id. at 45, 527 S.E.2d at 67.
    Here, defendant argues that his testimony about his drug addiction, along with evidence from defendant's medical records, constituted sufficient evidence to warrant a jury instruction on diminished capacity. The trial court, however, used defendant's medical records solely in determining his competency to stand trial and those records were not made part of the evidence presented attrial. Thus, the only evidence to support defendant's assertion is his own testimony that he voluntarily committed himself on 2 February 2001, that he smoked crack and drank beer at the party, and that he was despondent and suicidal after using the drugs. Defendant has failed to present evidence tending to show how these conditions and circumstances prevented him from forming a specific intent.
    Viewed in the light most favorable to the defendant, there was insufficient evidence of defendant's mental condition to create a reasonable doubt in the jurors' minds that defendant was unable to form the specific intent necessary to commit the crime of assault with a deadly weapon inflicting serious injury. Thus, the trial court properly denied his request for jury instructions on diminished capacity.
    No error.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

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