STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 01 CRS 158340
DORSEY COOK
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.
*** Converted from WordPerfect ***
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).