An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-881

NORTH CAROLINA COURT OF APPEALS

Filed: 2 November 2004

STATE OF NORTH CAROLINA

v .                         Johnston County
                            Nos. 01 CRS 58914, 58915
LARRY DWAIN DAVIS,
        Defendant.

    Appeal by defendant from judgments entered 12 February 2003 by Judge Knox V. Jenkins, Jr. in Superior Court in Johnston County. Heard in the Court of Appeals 22 April 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.

    Adrian M. Lapas, for defendant-appellant.

    HUDSON, Judge.

    On 14 January 2002, the Johnston County Grand Jury indicted defendant, Larry Dwain Davis, on two counts of assault with a deadly weapon inflicting serious injury. A jury convicted defendant on both counts. The trial court sentenced defendant to 30 to 45 months imprisonment on both counts, with the sentences to run consecutively. Defendant appeals, and for the reasons set forth below, we find no error.
    The State presented evidence tending to show that on the evening of 20 October 2001, defendant, Benji Aycock, Derrick Pope and Joseph Pilkington were gathered at the home of Raymond Creech, who was also present. Creech lived in a single-wide trailer. In the yard of Creech's home was a barn with an open shelter attachedto it.
    Aycock testified that the five men were all drinking and playing pool. After a while, defendant and the three other men got into an argument about going to a bar. Defendant came towards Aycock with a beer bottle in his hand. Aycock swung and hit defendant in the head with his fist, knocking defendant into the shelter. Defendant and Aycock then began punching each other. Aycock knocked defendant down three more times and let him get back up each time. Aycock tried to end the scuffle, but defendant came towards him each time he got back up. After the two eventually stopped fighting, Aycock walked back to the shelter and defendant picked up one or two beer bottles and sat on the hood of Pope's car.
    Defendant and Aycock continued to exchange words from a distance of approximately thirty to forty yards. After a short time, Aycock picked up a shovel and said to defendant, “If you've got beer bottles I've got a shovel.” Aycock then put the shovel down. A short time later, defendant got off the hood of the car and, still holding the beer bottles, walked up under the shelter where the other men were located.
    Aycock began to walk towards the car to leave, when he heard a commotion and someone say “Watch out.” At that moment, Aycock turned, caught a glimpse of defendant swinging a shovel, and put his left hand up to protect his face. Defendant struck Aycock in the hand and on the back of his head with the shovel, knocking him to the ground. Defendant hit Aycock with the shovel seven or eightmore times, mostly in the feet, legs and ribs. As a result of the beating, Aycock suffered two broken bones in his hand and a contusion on his head.
    Pilkington then tackled defendant to the ground, and Pope came and took the shovel away. The other men then pulled Pilkington off defendant, and noticed that Pilkington was bleeding badly on the left side of his face. Aycock, Pope and Pilkington got in Pope's car and drove to Johnston Memorial Hospital. As a result of the blow, several bones around Pilkington's eyes were crushed, his left eyelid was torn off, his left eyeball was crushed and his sinus cavity and tear duct were destroyed. Pilkington underwent several surgeries, including the implantation of a coral reef ball and a prosthetic eye, as well as additional surgery on his tear duct.
    Aycock was treated at the hospital for broken bones in his left hand that required him to wear a cast for one month. Aycock also suffered a contusion on his head above his left ear, bruised cartilage in his left ear, bruised ribs and a foot-long bruise in the shape of a shovel on his chest that was visible for over a week.
    Joseph Pilkington also testified regarding the incident on 20 October 2001. His version of the story was similar to Aycock's, with the only difference being that he said defendant struck him before striking Aycock with the shovel. Derrick Pope also testified, and his description of the events was similar to Aycock's.
    Defendant testified that he came to Johnston County to see hismother and decided to hang out with Creech. While at Creech's trailer, he and Aycock got into an argument. Defendant claims that a fight began after Aycock threw a punch at him. After the fight broke up, defendant went and leaned against the car to catch his breath. He said he went to get a beer and heard Pope scream “He's got a beer bottle.” Aycock then grabbed a shovel, and defendant grabbed another shovel, which he swung attempting to knock the shovel out of Aycock's hands. According to defendant, at some point, someone hit him from behind and knocked him to the ground. Once on the ground, defendant said that Pilkington and Aycock were on him and that someone was choking him, and that Creech pulled Pilkington off of him.
    After the other men left for the hospital, defendant called his aunt and mother and they took him to Wilson Memorial Hospital. Defendant was treated and released. Defendant claims that after he arrived home, he attempted to contact investigating officer Det. Brian Johnson to give a statement. However, defendant claims that he was not able to get Det. Johnson to come and take his statement.
    Raymond Creech testified on behalf of defendant that he remembered pulling Pilkington off of defendant and that after the other three men left, defendant complained of an injured foot. However, Creech was unable to give police officers a statement the following day because he could not remember what had transpired due to the amount of alcohol he had consumed.
    Finally, defendant's mother, Gloria Davis, testified that defendant called her on the evening of 20 October 2001 to pick himup. When she arrived, she noticed two shovels lying in Creech's yard. Defendant complained of an injured foot and his shirt was torn. She took defendant to Wilson Memorial. Ms. Davis also testified that she attempted to speak to Det. Johnson regarding her son's version of the incident, but Det. Johnson was unavailable and did not return her calls.

Analysis
I.
    Defendant first argues that the trial court committed plain error in refusing to instruct the jury on the lesser included offense of assault with a deadly weapon on Benji Aycock. We disagree.
    Our Courts have consistently held that:
    [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).
    Where there is positive and uncontradicted evidence as to the element of serious injury, an instruction on the lesser offense ofassault with a deadly weapon is not warranted. State v. Hensley, 90 N.C. App. 245, 249, 368 S.E.2d 208, 210-11 (1988). Whether a “serious injury” has been inflicted must be decided on the facts of each case. State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994). Our courts have not defined “serious injury” for assault prosecutions other than that the injury must be serious but it must fall short of causing death. Id. Factors which might be considered in determining whether an injury is serious include, but are not limited to, pain and suffering, loss of blood, hospitalization, and time lost from work. Hensley, 90 N.C. App. at 248, 368 S.E.2d at 210.
    Here, the evidence showed that Aycock suffered a broken hand that required him to wear a cast on his arm for a month. Aycock also suffered bruised ribs, and a painful injury to his head and ear. We believe this evidence sufficiently establishes a serious injury, and thus overrule this assignment of error.
II.
    Defendant next argues that the trial court committed plain error by failing sua sponte to exclude the victims' testimony regarding the injuries they suffered from defendant's assault, contending that such testimony was impermissible opinion testimony. We disagree.
    The standard of plain error review is set out above, and applying that standard we cannot conclude that this is the exceptional case where justice could not have been done.
    Under Rule 701 of the North Carolina Rules of Evidence, a laywitness may testify as to his opinion if it is “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C.G.S. . 8A-1, Rule 701. Under this rule, “[c]ommon inferences derived from the appearance, condition, or mental or physical state of persons . . . are proper subjects of opinion testimony by non-experts.” State v. Hedgepeth, 350 N.C. 776, 791, 517 S.E.2d 605, 614 (1999), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000). Thus, the victims were permitted to testify as to the extent of their injuries, and the trial court did not commit plain error in failing to strike such testimony sua sponte.
III.
    Defendant next argues that the trial court committed plain error by allowing the prosecutor to question defendant regarding his efforts to contact the investigating officer after he was released on bail. Again, we find no error.
    In State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002), our Supreme Court noted that:
    It is well established under both the United States and the North Carolina Constitutions that post-Miranda silence may generally not be used to impeach the defendant on cross-examination. This rule is supported by the assurance, given explicitly in the Miranda warnings, that silence will carry no penalty.
    When the defendant chooses to speak voluntarily after receiving Miranda warnings, however, the rule in Doyle is not triggered. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. Once the defendant speaks voluntarily, cross-examination on those statements is permissible ifit merely inquires into prior inconsistent statements. Cross-examination can properly be made into why, if the defendant's trial testimony regarding his alibi is true, he did not include in his earlier statement the relevant information disclosed at trial. Conversely, cross-examination on prior inconsistent statements is improper if it is intended to elicit meaning from, or comment on, the defendant's exercise of his or her right to remain silent.

Id. at 156, 557 S.E.2d at 518-19 (internal citations and quotation marks omitted) (emphasis in original).
    Here, during the State's case-in-chief, the prosecutor elicited testimony from Det. Johnson that he was unable to speak to defendant on the night of the assault and that defendant did not provide any statement to him. On further questioning, Det. Johnson testified that he received a phone call from defendant's mother where she said that defendant “wanted to give his side of the story.” In response to this statement, Det. Johnson testified as follows:
    And I told him [sic] I would be glad to take a statement from him if he would just be willing to meet with me. And on more than one occasion he called and wanted to give his side of the story and I gladly told him to come to my office and I'd be glad to meet with him and take his side of the story.

Det. Johnson further testified that defendant never “came in” and never gave a statement.
    Defendant later testified that he and his mother attempted to contact Det. Johnson to give his version of the events. Defendant specifically testified that on the night he was arrested, “I wanted to, you know, express my side of the story and press charges for my pain and suffering basically, and I was unallowed to do that.”     Based upon the holding in Fair, we cannot conclude that the trial court committed any error, let alone plain error, by not striking this testimony. We overrule this assignment of error.
IV.
    Finally, defendant argues that the trial court erred by denying his motion for a mistrial after the jury informed the trial court that it was unable to reach a verdict. For the following reasons, we disagree.
    The decision to deny a motion for a mistrial rests in the sound discretion of the trial court. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). A trial court's ruling on such a motion “will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” Id. N.C.G.S. . 15A-1235(c) provides, in pertinent part, that:
    If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

Id.
    In State v. Baldwin, 141 N.C. App. 596, 540 S.E.2d 815 (2000), the jury informed the trial court that it was at an impasse after only two and one-half hours of deliberations. The trial court ordered the jury to continue deliberating. The jury reached a verdict at 11:04 p.m. that evening. We reviewed the trial court's actions, and found no abuse of discretion. Id. at 609, 540 S.E.2d at 824.    The present case is very similar to Baldwin. Here, the jury began deliberations at 3:05 p.m. on a Tuesday afternoon. Just two hours later, at 5:05 p.m., the jury sent a note to the trial court stating that “The jury is not able to reach a verdict at this time.” In response to questions from the court, the foreperson stated that the jury was not making progress, that further deliberations would be of no value, and that they were split nine to three. In response to that, the trial court told the jury:
    I'm going to direct the jury to deliberate further. I'm not suggesting that anyone should surrender their conscience -- conscientious beliefs as to the evidence and the law of the case.

The jury returned the next day at 10:00 a.m. and reached a verdict at 11:20 a.m. Based upon our holding in Baldwin, we find no abuse of discretion on the part of the trial court. This assignment of error is overruled.
    No error.
    Judges MCCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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