Appeal by defendant from judgment entered 6 December 2002 by
Judge Zoro J. Guice, Jr., in McDowell County Superior Court. Heard
in the Court of Appeals 29 March 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.
Eric A. Bach for defendant-appellant.
TIMMONS-GOODSON, Judge.
Omar Romero (“defendant”) appeals his conviction of assault
with a deadly weapon inflicting serious injury, first-degree
kidnapping, assault inflicting serious injury, two counts of felony
child abuse inflicting serious injury, and two counts of assault on
a child under twelve. For the reasons stated herein, we hold that
defendant received a trial free of prejudicial error. The State's evidence tends to show the following: At
approximately 9:00 p.m. on 24 August 2002, defendant entered the
home he shared with then-pregnant Laura Valdez (“Valdez”), their
four-year-old daughter, D.R., and their one-year-old son, O.R.
Immediately upon entering the home, defendant began screaming at
Valdez and the children. Defendant claimed that he had been spying
on Valdez, and he demanded that Valdez tell him the name of the man
with whom she and the two children had interacted earlier in the
day.
The ensuing argument between Valdez and defendant quickly
escalated to violence. For the next twenty-five minutes, defendant
repeatedly beat Valdez with his fists, feet, belt, and gun. During
the altercation, Valdez picked up the one-year-old child, O.R., and
held him in front of her, hoping defendant would stop beating her
with his belt. Defendant instead continued to strike Valdez with
his belt, striking O.R. on the head with the belt as well. At
another point during the altercation, defendant confronted D.R. and
questioned her about the man defendant had observed D.R. and Valdez
with earlier during the day. When D.R. would not answer, defendant
began to beat her. Defendant struck D.R. numerous times with his
belt, hitting her on her arms, legs, and back. At a third point
during the altercation, Valdez escaped outside and attempted to
call for help. Defendant pursued Valdez to the front yard, grabbed
her by her hair, and dragged her back inside the home. Once
inside, defendant threatened Valdez with a knife and then beat her
again with his belt and gun.
Valdez was taken to the hospital for examination andobservation, and her unborn child was examined by ultrasound. As
a result of the altercation with defendant, Valdez suffered
numerous bruises, welts, and blisters on her back, face, shoulders,
legs, and feet. She was hospitalized overnight and was given a
neck brace to wear for the next several days. D.R. suffered
numerous welts, red marks, and bruises on her legs, arms, and back.
O.R. suffered a bruise to his forehead.
On 14 October 2002, defendant was indicted on two counts of
assault on a child under twelve, two counts of felony child abuse
inflicting serious injury, one count of first-degree kidnapping,
one count of assault inflicting serious injury, and one count of
assault with a deadly weapon with intent to kill inflicting serious
injury. Defendant's trial commenced on 2 December 2002. On 6
December 2002, the jury returned a guilty verdict on all charges,
with the exception that as to the charge of assault with a deadly
weapon with intent to kill inflicting serious injury, defendant was
found guilty of the lesser-included offense of assault with a
deadly weapon inflicting serious injury. Defendant appeals the
verdicts.
As an initial matter, we note that defendant's brief contains
arguments supporting only two of his original thirteen assignments
of error. Pursuant to North Carolina Rule of Appellate Procedure
28(b)(6) (2004), the eleven omitted assignments of error are deemed
abandoned. Therefore, we limit our present review to those
assignments of error properly preserved by defendant for appeal.
The issues presented on appeal are (I) whether the trial courterred by denying defendant's motion to dismiss the charge of felony
child abuse against O.R.; and (II) whether the trial court erred by
failing to arrest judgment on the charge of assault with a deadly
weapon inflicting serious injury.
[1] Defendant first assigns error to the trial court order
denying defendant's motion to dismiss the charge of felony child
abuse against O.R. Defendant argues that the State presented
insufficient evidence of a required element of felony child abuse.
We disagree.
In
ruling on a motion to dismiss, 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, 431
S.E.2d 245, 247 (1993). Whether the State's evidence is
substantial is a question of law for the trial court.
State v.
Lowe, 154 N.C. App. 607, 609, 572 S.E.2d 850, 853 (2002). The
motion to dismiss must be denied if the evidence, viewed in the
light most favorable to the State, would allow a jury to reasonably
infer that the defendant is guilty.
State v. Williams, 154 N.C.
App. 176, 178, 571 S.E.2d 619, 620-21 (2003).
In the case
sub judice, defendant was charged with felony
child abuse in violation of N.C. Gen. Stat. § 14-318.4(a) (2003).
To convict a defendant of felony child abuse, 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
committ[ed] 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).
Defendant contends that the State presented insufficient
evidence that O.R. suffered “serious physical injury” as a result
of the assault. We disagree.
Under N.C. Gen. Stat. § 14-318.4,
a “serious physical injury”
is defined as an 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
(1991). In determining whether an injury is
serious, pertinent factors to consider include, but are not limited
to: hospitalization, pain, loss of blood, and time lost from work.
State v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983)
.
Defendant contends O.R.'s injury should not be categorized as
serious because witnesses only noticed a small bruise on O.R. and
the State did not provide documentation of the nature of the injury
and degree of pain associated with the injury. However, neither
the statute nor our case law demand that an injury require
immediate medical attention in order for it to be considered a
“serious physical injury.”
Williams, 154 N.C. App. at 180, 571
S.E.2d at 622
. Furthermore, because the nature of an injury is
dependant upon the relative facts of each case, whether an injury
is “serious” is generally a question for the jury.
See
State v.
James, 321 N.C. 676, 688, 365 S.E.2d 579, 586-87 (1988) (holding
that “[w]hether a serious injury has been inflicted must be
determined according to the facts of the particular case.”);
Williams, 154 N.C. App. at 180, 571 S.E.2d at 622 (holding that
“conflicts in the evidence as to [the victim's] level of activity
and the extent, if any, to which she appeared to be in pain afterthe alleged assault are for resolution by the jury.”)
.
The evidence presented in the case
sub judice establishes that
defendant hit his one-year-old son at least once with a belt, that
the child began to cry after being hit, and that the child suffered
a visible bruise to his head as a result of being struck by the
belt. Both McDowell County Sheriff's Deputy David Marler (“Deputy
Marler”) and McDowell County Social Worker Michael Lavender
(“Lavender”) testified regarding the bruise above the child's
hairline. Lavender's photographs of the bruise were also admitted
into evidence, thereby allowing
the jury to observe the extent of
O.R.'s injury. Viewing the evidence in the light most favorable to
the State, we conclude that the State presented sufficient evidence
to allow a reasonable jury to infer that O.R. suffered a serious
injury as a result of the assault. Therefore, we hold that the
trial court did not err in denying
defendant's motion to dismiss
the charge of felony child abuse against O.R.
[2] Defendant next assigns error to the trial court decision
not to arrest judgment on the charge of assault with a deadly
weapon inflicting serious injury. Defendant argues that the same
conduct was used to prove the serious bodily harm of the kidnapping
charge and the serious injury element in the assault charge. Thus,
defendant argues, the constitutional guaranty against double
jeopardy prohibits defendant from being sentenced to both first-
degree kidnapping and assault with a deadly weapon inflicting
serious bodily injury. We disagree.
N.C. Gen. Stat. § 14-39(a) defines the law of kidnapping in
North Carolina. It provides: Any person who shall unlawfully confine,
restrain, or remove from one place to another,
any other person 16 years of age or over
without the consent of such person . . . shall
be guilty of kidnapping if such confinement,
restraint or removal is for the purpose of:
(3) Doing serious bodily harm to or
terrorizing the person so confined,
restrained or removed[.]
N.C. Gen. Stat. § 14-39(a) (2003). Kidnapping is elevated to the
first degree where the person kidnapped either was not released in
a safe place or was seriously injured or sexually assaulted. N.C.
Gen. Stat. § 14-39(b). N.C. Gen. Stat. § 14-32(b) defines the law
of assault with a deadly weapon inflicting serious injury. It
provides:
Any person who assaults another person with a
deadly weapon and inflicts serious injury
shall be punished as a Class E felon.
N.C. Gen. Stat. § 14-32(b) (2003).
It is well established that more than one criminal offense may
arise out of the same course of action or conduct.
State v.
Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351-352 (1978). For
example, a defendant may break into a home intending to commit a
larceny, and after breaking and entering into the home, actually
commit the larceny. In such a case, the defendant may properly be
convicted of the breaking and entering with an intent to commit
larceny, as well as the larceny itself.
Id. at 524, 243 S.E.2d at
352. Likewise, the Constitution does not forbid conviction for
both felony kidnapping by restraining and another felony committed
after such restraint, provided that the restraint constituting the
kidnapping is “a separate, complete act, independent of and apart
from the other felony.”
Id.;
see State v. Shue, 163 N.C. App. 63,___, 592 S.E.2d 233, 237 (2004) (“[W]here the first offense is
committed with the intent to commit the second offense, followed by
the commission of the second offense . . . a defendant may be
convicted of both offenses.”).
In
Fulcher, the Court found that the defendant kidnapped his
victims for the purpose of facilitating felony crimes against
nature. The Court concluded that “[t]he restraint of each of the
women was separate and apart from, and not an inherent incident of,
the commission upon her of the crime against nature, though closely
related thereto in time.” 294 N.C.
at 524, 243 S.E.2d at 352. In
State v. Oxendine, this Court concluded that asportation of a rape
victim is sufficient to support a charge of kidnapping if the
defendant could have perpetrated the offense when he first
threatened the victim but instead removed the victim to a more
secluded area to prevent others from witnessing or hindering the
rape. 150 N.C. App. 670, 676, 564 S.E.2d 561, 565 (2002),
disc.
rev. denied, 356 N.C. 689, 578 S.E.2d 325 (2003). In
State v.
Washington, the defendant argued that his restraint of the victim
was an inherent part of his assault on the victim, and thus could
not be used to support a kidnapping charge. 157 N.C. App. 535,
538, 579 S.E.2d 463, 465 (2003). Testimony in that case tended to
show that the defendant grabbed the victim from his car and threw
the victim to the ground and then onto the hood of the car.
Id. at
538, 579 S.E.2d at 466. The defendant restrained the victim by
parking his vehicle directly in front of the victim's vehicle and
by “continu[ing] to hold [the victim] down while assaulting him.”
Id. at 538-39, 579 S.E.2d at 466. Under the facts of that case,this Court held that the restraint was separate and distinct from
the assault, and that therefore it was proper to send the
kidnapping charge to the jury.
Id. at 539, 579 S.E.2d at 466.
In the case
sub judice, the evidence presented at trial
established that at some point during her altercation with
defendant, Valdez fled from inside the home screaming, in an
attempt to call for help. Defendant chased Valdez outside and
caught her in their front yard. Defendant then grabbed Valdez from
behind, dragged her back inside by her hair, and then began to beat
her again. As a result of the altercation, Valdez suffered
numerous bodily injuries and bruises that remained on her body for
six weeks. Although Valdez cannot recall exactly when during the
altercation she was beaten with the belt and gun, in his admitted
confession, defendant stated that once he had dragged Valdez back
inside, he picked up a knife he had dropped while pursuing Valdez
and threatened her with it. He further stated that after dragging
Valdez back inside, he located his gun and “hit [Valdez] once or
twice in the face with the gun.” Defendant also admitted to
hitting Valdez with the belt several times after he had dragged her
back inside. We conclude the State presented sufficient evidence
to support a finding that defendant dragged Valdez back inside his
home for the purpose of assaulting her with a deadly weapon.
Once defendant dragged Valdez back inside the house, the crime
of kidnapping was complete, irrespective of whether the
contemplated assault with a deadly weapon ever occurred.
See
Fulcher, 294 N.C. at 524, 243 S.E.2d at 338. Defendant could have
committed the assault on Valdez when he caught her in the yard. However, defendant chose to drag Valdez back inside to prevent
others from witnessing him then beat Valdez with his fists, gun,
and belt. Therefore, we conclude that the restraint and removal of
Valdez was separate and apart from, and not an inherent incident
of, the commission of the assault with a deadly weapon.
In Case No. 02 CRS 52905, defendant was indicted for
“willfully and feloniously” assaulting Valdez “with a knife, a
handgun, and fist, a deadly weapon, with the intent to kill and
inflict serious injury.” In Case No. 02 CRS 52904, defendant was
indicted for “willfully and feloniously” kidnapping Valdez, “by
unlawfully confining and restraining and removing her from one
place to another, without [her] consent, and for the purpose of
doing serious bodily injury to [her], and terrorizing [her].”
Although the State may have been required to prove Valdez suffered
serious bodily injury in order to show defendant's purpose in
restraining and removing her, this alone does not mandate the
application of the principles of double jeopardy to arrest judgment
on the assault with a deadly weapon charge.
State v. Martin, 47
N.C. App. 223, 236, 267 S.E.2d 35, 42,
appeal dismissed and disc.
review denied, 301 N.C. 238, 283 S.E.2d 134, 135 (1980). In
Martin, we concluded that “[t]he gist of the offense proscribed by
G.S. 14-39 is the unlawful, nonconsensual confinement, restraint or
removal of victim, for the purposes of committing certain acts
specified in the statute.”
Id. Thus, as in
Martin, we now
conclude that “the intent of the legislature in establishing the
punishment for kidnapping was to impose an indivisible penalty for
restraint and removal for specified purposes, no hypothetical partof which penalty represents a punishment for” defendant's actions
after completion of the kidnapping.
Id. at 236, 267 S.E.2d at 43.
Therefore, we hold that the trial court did not err in refusing to
arrest judgment on defendant's assault with a deadly weapon charge.
For the foregoing reasons, we hold that the defendant received
a trial free of prejudicial error.
No error.
Judges LEVINSON and THORNBURG concur.
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