An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-144


Filed: 20 January 2004


v .                         Guilford County
                            No. 99 CRS 101723

    Appeal by defendant from judgment entered 31 July 2002 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 1 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Spurgeon Fields, III, for the State.

    Kathryn L. VandenBerg for defendant-appellant.

    MARTIN, Judge.

    Khadijah Dara Owens appeals from a judgment entered upon her conviction by a jury of assault with a deadly weapon inflicting serious injury. We find no error.
    The evidence at trial tended to show that on 18 September 1999, Tenneille K. Sellers arrived at her home on Sparta Drive in Greensboro about 8:15 p.m. As she was getting her youngest child out of the car seat, defendant rode up on a bicycle. Defendant accused Ms. Sellers of calling the police to her house during the prior week. When Ms. Sellers denied the accusation, defendant hit Ms. Sellers in the head seven or eight times with a telescoping metal rod tipped by a metal ball. As Ms. Sellers made her way to the house, defendant ran away.
    Ms. Sellers suffered a cut to her head which bled profusely. She was transported to the hospital by ambulance. Hospital personnel performed a CAT scan to rule out the presence of skull fractures or a concussion and then closed the wound with four surgical staples. When Ms. Sellers was released, after about an hour and a half of treatment, she was able to walk out of the hospital, and returned to her home. She remained out of work for a week due to her injury.
    Defendant offered no evidence.

    In her first assignment of error, defendant claims the trial court erred when it gave an instruction to the jury which, defendant contends, required the jury to find the element of serious injury in the offense of assault with a deadly weapon inflicting serious injury. The trial court instructed the jurors, inter alia, that the State was required to prove “that the defendant inflicted a serious injury upon the victim” and that “the law defines serious injury as any injury that results in great pain or suffering.” The trial court further instructed:
    if you find the injuries to have been proven by the evidence, then a laceration to the scalp that results in profuse bleeding that requires a CAT scan of the brain to diagnose whether there are any internal injuries and which further requires the use of four surgical staples for closure of the wound, that wound, that injury would be serious injury.

    Defendant relies on State v. Nobles, 350 N.C. 483, 516, 515 S.E.2d 885, 905 (1999), where the defendant received a new sentencing proceeding because the trial court's peremptoryinstruction was found to have relieved the State of its burden to prove an element of an aggravating circumstance of the crime. Defendant also relies on Apprendi v. New Jersey, where the Court found that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” 530 U.S. 466, 476 (2000) (emphasis added) (citation omitted).
    In the present case, the trial court's peremptory instructions dealt with an element of the substantive offense, not a factor in aggravation or enhancement of punishment. The elements of assault with a deadly weapon inflicting serious injury are (1) an assault, (2) with a deadly weapon, (3) inflicting serious injury, (4) not resulting in death. N.C. Gen. Stat. § 14-32(b) (2003). Our Supreme Court approved the use of a peremptory jury instruction with respect to the element of serious injury in State v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-319 (1991), where the Court held that “[i]n the absence of conflicting evidence, a trial judge may instruct the jury that injuries to a victim are serious as a matter of law if reasonable minds could not differ as to their serious nature.” Id.     
    The evidence in this case supports the trial court's peremptory instruction that the victim's injury was serious as a matter of law. The uncontested evidence showed Sellers was hit on the head seven to eight times with a long metal object with a metalball on the end. Ms. Sellers suffered a laceration to her scalp which required medical treatment, including a CAT scan to rule out a skull fracture or a concussion; four staples were required to close the wound. Ms. Sellers described the wound as painful. She remained out of work for a week. We conclude that reasonable minds could not differ as to the serious nature of her injury and hold that the trial court's peremptory instruction with respect thereto was not error.


    Defendant next contends the trial court erred in failing to instruct the jury on two lesser offenses: (1) assault with a deadly weapon and (2) simple assault. “[A] lesser offense should not be submitted to the jury if the evidence is sufficient to support a finding of all the elements of the greater offense, and there is no evidence to support a finding of the lesser offense.” State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226 (1995). Assault with a deadly weapon and simple assault are lesser included offenses of assault with a deadly weapon inflicting serious injury. N.C. Gen. Stat. § 14-32 (2003); N.C. Gen. Stat. § 14-33 (2003).
    [T]he primary distinction between felonious assault under G.S. § 14-32 and misdemeanor assault under G.S. § 14-33 is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor.

State v. Uvalle
, 151 N.C. App. 446, 455, 565 S.E.2d 727, 733(2002), disc. review denied, 356 N.C. 692, 579 S.E.2d 95 (2003).
    The trial court submitted instructions to the jury with respect to the offenses of assault with a deadly weapon inflicting serious injury and assault inflicting serious injury. We have already determined that, from the evidence presented, reasonable minds could not differ as to the serious nature of the injuries inflicted upon Ms. Sellers. Thus, the evidence does not support the submission to the jury of the lesser included offenses sought by defendant, and is sufficient to support the jury's verdict.
    No error.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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