An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-977


Filed: 01 June 2004


v .                         Forsyth County
                            No. 02 CRS 52167


    Appeal by defendant from judgment entered 12 February 2003 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 18 May 2004.

    Roy Cooper, Attorney General, by Susan R. Lundberg, Assistant Attorney General, for the State.

    Center for Death Penalty Litigation, by Shelagh Kennedy, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Ronnie Singletary, appeals the conviction of assault with a deadly weapon inflicting serious injury. For the reasons discussed herein, we find no error.
    The uncontroverted evidence at trial showed that defendant and the victim, Carlezetta Glenn, were living together and involved in a romantic relationship. This relationship had been ongoing for approximately twelve years. On 25 February 2002, after defendant got off from work, he and Ms. Glenn walked four or five blocks from their home to Cherry Street where they smoked crack cocaine and drank wine. On their way home, Ms. Glenn stopped by a grocerystore and purchased a bottle of wine. When they returned home, Ms. Glenn began cooking dinner and the couple started arguing. During the argument, defendant struck Ms. Glenn in the head with the bottle of wine. After hitting Ms. Glenn with the wine bottle, defendant propped her up against the freezer and placed a towel on her head to help stop the bleeding. Defendant stayed with Ms. Glenn until the police and the ambulance arrived.
    When the police arrived, Officer M.A. Cox, observed Ms. Glenn sitting in the floor crying, with a bloody towel pressed to her head, and blood running down her face from the cut on the right side of her scalp. Both defendant and Ms. Glenn told the police that defendant had hit her in the head with the wine bottle. An ambulance arrived and took Ms. Glenn to the emergency room at Baptist Hospital to receive treatment for her injuries.
    Ms. Glenn suffered a one and a half inch laceration to her scalp, just within the hairline, which required eight surgical staples to close. A CT Scan of Ms. Glenn's head revealed no brain injury. Ms. Glenn testified that after she was hit she started having headaches with sharp pain, and remained in bed for four days after the incident due to those headaches.
    Defendant presented no evidence.
    The jury found defendant guilty of assault with a deadly weapon inflicting serious injury. Defendant appeals.
    In defendant's first assignment of error, he contends the trial court erred in allowing Ms. Glenn to testify at trial about two prior incidents of domestic violence where defendant had struckher. Defendant contends this testimony was inadmissible under Rule 404(b) of the North Carolina Rules of Evidence as it only showed his propensity to commit violent acts. Defendant also contends that this testimony was irrelevant and prejudicial because he had already conceded at the beginning of the trial that he assaulted the victim, so the only issues remaining were whether the wine bottle was a deadly weapon and whether the injury Ms. Glenn suffered was a serious injury. We disagree.
    Rule 404(b) provides for the inclusion of relevant evidence of other crimes, wrongs, or acts committed by a defendant. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). However, if the only purpose for which the evidence is being offered is to show defendant's propensity or disposition to commit a crime similar to the one he is being charged with, the evidence must be excluded. State v. Carrilo, 149 N.C. App. 543, 550, 562 S.E.2d 47, 51 (2002). Evidence of other crimes, wrongs or acts is admissible to show such things as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b). The only way to exclude such relevant evidence is if the prejudicial effect of the evidence outweighs its probative value. Carrilo, 149 N.C. App. at 550-51, 562 S.E.2d at 52. It is within the trial court's sound discretion to exclude evidence of other crimes or bad acts. Id. at 551, 562 S.E.2d at 52. Only where it can be shown that the trial court's decision was “manifestly unsupported by reason and couldnot have been the result of a reasoned decision” will the trial court be found to have abused its discretion. Id.
    Following a voir dire hearing, the court allowed Ms. Glenn to testify concerning the two prior incidents of domestic violence by defendant. In January 1997 the couple got into an argument, defendant got mad, and he threw a bottle of sauce and a pot of hot water at her. The hot water hit Ms. Glenn on the left side of her body, burning her. She also suffered a black eye as a result of the assault. Ms. Glenn also testified that in June 1997, the couple again got into an argument, defendant got mad, and he pushed her down onto some glass, causing her to be cut and scratched. The trial court admitted the evidence for the limited purpose of showing scheme, design, and pattern of defendant's behavior, as well as showing that when defendant hit Ms. Glenn in the head it was intentional and not a mistake or accident. The trial judge gave the jury a limiting instruction during the trial and again as part of the jury instructions.
    Defendant contends that he stipulated to committing the assault and that the admission of the Rule 404(b) evidence was irrelevant and prejudicial. Prior to jury selection, the trial court had a discussion with both counsel and defendant. At the conclusion of this discussion, the court asked defendant if he objected to his counsel conceding that “some type of contact or struggle” took place between Ms. Glenn and defendant. Defendant advised the court that “I don't mind.” To the extent that this can even be considered a stipulation, it was only that a “contact orstruggle” took place. It was not a stipulation that defendant intentionally assaulted the victim. In fact, at one point during this discussion defendant told the trial judge that when he struck Ms. Glenn “it wasn't intentional.”
    This discussion did not remove the issue of whether defendant intentionally assaulted Ms. Glenn from the jury's consideration. Further, the trial court's charge to the jury did not mention any admission or stipulation on the part of defendant. This charge required the State to prove beyond a reasonable doubt that defendant assaulted Ms. Glenn by “intentionally striking her with the bottle” in order for the jury to find defendant guilty of an assault.
    The prior acts of defendant were relevant in this case to show a scheme, design, and pattern of assaultive behavior by defendant when he and Ms. Glenn had arguments. It was also relevant to show whether the 25 February 2002 assault was intentional and not the result of a mistake or accident.
    For, these reasons, we find that the trial court did not abuse its discretion in admitting the evidence under Rule 404(b).
    In defendant's second assignment of error, he argues that the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon inflicting serious injury, as he contends the State failed to prove that Ms. Glenn suffered a “serious injury”.
    In considering a motion to dismiss, the trial court must determine whether there is substantial evidence, either direct,circumstantial, or both: (1) of each essential element of the offense charged; and (2) of defendant being the perpetrator of such offense. State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). Substantial evidence is that evidence which would allow a jury to reasonably infer that defendant is guilty. Id. Furthermore, the trial court must view the evidence in the light most favorable to the State, and give the State the benefit of every reasonable inference. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620-21 (2002). Contradictions and discrepancies in the evidence are matters for the jury and do not warrant dismissal. King, 343 N.C. at 36, 468 S.E.2d at 237.
    The crime of assault with a deadly weapon inflicting serious injury is defined as: “(1) an assault, (2) with a deadly weapon, (3) inflicting serious injury, (4) not resulting in death.” State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000). See also N.C. Gen. Stat. § 14-32(b) (2003). Our Courts have declined to define “serious injury” other than to say that it is an injury “that cause[s] great pain and suffering.” State v. Phillips, 328 N.C. 1, 20, 399 S.E.2d 293, 303, cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 977 (1991). See also State v. Hannah, 149 N.C. App. 713, 718, 563 S.E.2d 1, 4, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002). “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.” State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991), cert. denied, 529 U.S. 1006, 146 S.E.2d 223 (2000). In making such a determination, it isproper to consider such factors as “hospitalization, pain, loss of blood, and time lost at work . . . .” Id. Furthermore, our Supreme Court noted in State v. Alexander that “as long as the State presents evidence that the victim sustained a physical injury as a result of an assault by the defendant, it is for the jury to determine the question of whether the injury was serious.” 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994).
    Here, the State presented uncontroverted evidence that Ms. Glenn suffered a physical injury of a one and half inch gash to her head, which required medical treatment and eight staples to close the wound, and which bled profusely. Ms. Glenn also testified that she had to remain in bed for four days after the assault due to pain, and she also stated that she still suffers from severe headaches. We note that one of the state's own witness, a physician's assistant at Baptist Hospital who treated Ms. Glenn's injuries, opined that Ms. Glenn's injury did not constitute a “serious injury.” However, the other evidence presented by the State of the nature, extent, and consequences of the physical injury were sufficient to withstand defendant's motion to dismiss. This assignment of error is without merit.
    In defendant's third and final assignment of error, he contends the State misstated the law and referred to the definition of “serious bodily injury” in its closing argument instead of “serious injury,” and the trial court's overruling his objection to this alleged misstatement violated his constitutional rights.    When the State's argument to the jury is challenged as improper, the argument of both counsel is to be included in the record on appeal. State v. Quilliams, 55 N.C. App. 349, 352, 285 S.E.2d 617, 620, cert. denied, 305 N.C. 590, 292 S.E.2d 11 (1982). However, if any portion of the argument of either counsel is omitted from the record on appeal, the argument is to be presumed proper. Id. In the instant case, closing arguments were not recorded and therefore, were not reproduced in the record on appeal. Consequently, the State's closing argument is presumed to have been proper.
    Furthermore, where an argument is improper, it may usually be corrected during the trial judge's instructions regarding the charge to the jury and such instruction will generally remove any prejudicial effect of the improper argument. Id. See also Smith v. Hamrick, 159 N.C. App. 696, 698, 583 S.E.2d 676, 678-79, disc. reviewed denied, 357 N.C. 507, 587 S.E.2d 674 (2003). Even assuming arguendo, that the State did incorrectly refer to the definition of “serious bodily injury” rather than “serious injury” in its closing argument, the trial court's charge to the jury corrected any such improper argument. The trial court's charge specifically stated that the State had to prove defendant inflicted “serious injury” upon the victim and that “serious injury is such injury as causes great pain and suffering.”
    Furthermore, even if defendant is correct and the trial court should have sustained his objection, the error did not rise to the level requiring a new trial. Prosecutorial misstatements of thelaw are not to be the basis of a new trial unless defendant demonstrates the error was material and prejudicial. State v. Harris, 290 N.C. 681, 695, 228 S.E.2d 437, 445 (1976). To be deemed material and prejudicial, defendant must show that a reasonable possibility existed that had the error not been committed a different result would have been reached at trial. State v. Ratliff, 341 N.C. 610, 617, 461 S.E.2d 325, 329 (1995); N.C. Gen. Stat. § 15A-1443(a).
    This Court has recently held that “'serious bodily injury' requires proof of more severe injury than the 'serious injury' element” of N.C. Gen. Stat. § 14-32 (a) or (b). State v. Lowe, 154 N.C. App. 607, 615, 572 S.E.2d 850, 856 (2002) (quoting State v. Hannah, 149 N.C. App. at 718-19, 563 S.E.2d at 4). Therefore, if the state referred to “serious bodily injury” rather than “serious injury” in its closing argument, such was not a material error nor did it prejudice defendant. Rather, this misstatement would have led the jury to believe that proof of a more severe injury was required to find defendant guilty of assault with a deadly weapon inflicting serious injury pursuant to N.C. Gen. Stat. § 14-32(b). This could not have resulted in prejudice to defendant. This assignment of error is without merit.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***