An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1142


Filed: 4 May 2004


         v.                        Mecklenburg County
                                No. 01 CRS 158340

    Appeal by defendant from judgment entered 5 June 2003 by Judge Beverly T. Beal in Superior Court, Mecklenburg County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Christine M. Ryan, for the State.

    Carlton, Rhodes & Carlton, by Gary C. Rhodes for defendant- appellant.

    McGEE, Judge.

    Defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. He was found guilty of assault with a deadly weapon inflicting serious injury. Defendant was sentenced within the presumptive range to a minimum term of 53 months and a maximum term of 73 months.
    The evidence of the State tends to show that on 11 April 2001, Charles Thomas Owensby, Jr. resided with five other homeless persons, including defendant, in a field near the Panthers' football stadium in Charlotte. After visiting a friend, Owensby returned to the field about midnight. Owensby commanded defendant to come to a common area of the homeless camp. Owensby asked defendant to move out of the camp. Defendant called Owensby anobscenity and refused to leave. Defendant shoved Owensby and Owensby retaliated by hitting defendant. Defendant nicked Owensby's neck with a knife. Owensby knocked defendant away. Defendant came back and stabbed Owensby three times with a knife. Owensby looked down at his wounds, said, "Oh God," and walked out of the field to a nearby residence. Owensby asked the resident who opened the door for help. The last thing Owensby remembered before awakening in the hospital was the resident calling for emergency assistance. Owensby sustained wounds to his liver and spleen, underwent surgery twice to repair the damage, and remained hospitalized for more than three weeks.
    Defendant first argues that the court erred by denying his motions to dismiss at the close of the State's evidence and at the close of all the evidence. In deciding a motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are to be disregarded and left for resolution by a jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65- 66, 296 S.E.2d 649, 651 (1982). "The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged." State v.Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991).
    The crime of assault with a deadly weapon inflicting serious injury consists of "(1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death." State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990). A defendant may use deadly force to repel a felonious assault when it appears reasonably necessary to protect himself from death or great bodily harm. State v. Hunter, 315 N.C. 371, 373, 338 S.E.2d 99, 102 (1986). The defendant, however, has the right of self-defense only if he is without fault in provoking, engaging in, or continuing a difficulty with another. State v. Anderson, 230 N.C. 54, 56, 51 S.E.2d 895, 897 (1949). In addition, when the defendant is confronted with a non-felonious assault, he has a duty to retreat if there is any available way of escape. State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998).
    Defendant argues the evidence fails to identify him as the perpetrator and even if the identification testimony of Owensby is sufficient, the evidence shows he acted in self-defense. We disagree. Owensby's identification testimony is sufficient to submit the case to the jury on that issue. The evidence also shows that defendant initiated the physical scuffle by shoving Owensby. Rather than retreating when Owensby retaliated, defendant escalated the affray by producing a knife and assaulting Owensby with it. Owensby never displayed or used a weapon during the altercation.
    Defendant next contends that the court's submission of an instruction on flight is not supported by the evidence. "So longas there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given." State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). "Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension." State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991).
    Owensby testified that after he stopped to look at his wounds, defendant "ran the other way." [T.57]. Approximately three hours after the assault occurred, a police officer encountered defendant on some railroad tracks. In response to the officer's inquiry as to why he was on the property, defendant stated "he was on his way to the bus station to leave town." [T. 108]. When law enforcement officers attempted to serve a warrant for defendant's arrest, they could not find him at the homeless camp. [T. 133-34]. We conclude a reasonable inference may be drawn from the foregoing evidence that defendant fled to avoid apprehension. This assignment of error is overruled.
    Finally, he contends the court erred by peremptorily instructing the jury that the victim sustained serious injury. The rule is 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." State v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-19 (1991). In this case, reasonable minds could notdiffer. The evidence is uncontradicted that the victim sustained life-threatening injuries to important internal organs which required surgery twice and hospitalization for more than three weeks. This assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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