STATE OF NORTH CAROLINA
v. Johnston County
Nos. 02 CRS 11122
02 CRS 59676
ROGER ALVESTER GEDDIE
Roy Cooper, Attorney General, by Susan Kelly Nichols, Special
Deputy Attorney General, and Richard H. Bradford, Assistant
Attorney General, for the State.
Haral E. Carlin for defendant-appellant.
STEELMAN, Judge.
On 18 November 2002, defendant, Roger Alvester Geddie, was
indicted on charges of assault with a deadly weapon inflicting
serious injury and being a habitual felon. The case was tried at
the 2 June 2003 Criminal Session of Johnston County Superior Court.
The evidence presented at trial tended to show the following:
On 26 October 2002, Thomas Frazier went to the home of defendant's
mother to recover a bicycle. Defendant's mother refused to let
Frazier take the bicycle, so Frazier called the police. Officer
Robert Powell of the Smithfield Police Department responded to the
call, and spoke to Frazier about the bicycle. Officer Powell thenwent to defendant's mother's house and retrieved the bicycle for
Frazier.
The bicycle had a flat tire, so Frazier started walking it
back to his home. While walking with the bicycle, defendant and
Dale Johnson drove up to Frazier and jumped out of their car,
approaching Frazier “fussing and cussing.” Defendant threatened to
shoot Frazier and then got back in the car and left. Frazier
started pushing the bicycle again. Soon thereafter, Frazier ran
into Helen Geddie, defendant's sister. Frazier was explaining to
her what happened when defendant and Johnson returned. Before the
car even stopped, defendant had jumped out and started shooting at
Frazier. Frazier was shot twice with a small caliber handgun, once
in the ankle and once in the knee. Defendant then stuck the gun in
Frazier's face and threatened to kill him, before getting back in
the car and driving away.
The trial court charged the jury as to the elements of assault
with a deadly weapon inflicting serious injury. In regards to the
third element, serious injury, the court instructed the jury that
“[a] gunshot wound to the ankle or knee would be a serious injury.”
Defendant was convicted of assault with a deadly weapon
inflicting serious injury. Defendant subsequently entered a plea
of guilty to the status as an habitual felon and was sentenced to
a term of 107 to 138 months imprisonment. Defendant appeals.
Defendant argues that the trial court erred by failing to
define serious injury for the jury, and by instructing the jury
that the injuries sustained by the victim were serious injuries asa matter of law. Defendant cites testimony from one of the
detectives that the wounds were “small,” and contends that
reasonable minds could have differed as to the serious nature of
the injuries inflicted. Thus, defendant argues that by giving a
peremptory instruction that the injury was serious, the trial court
invaded the province of the jury to decide if the injury was indeed
serious. Defendant further argues that there was insufficient
evidence of a serious injury to sustain the conviction.
After careful review of the record, briefs, and contentions of
the parties, we find no error. A “serious physical injury” has
been defined as an injury “that cause[s] great pain and suffering.”
State v. Phillips, 328 N.C. 1, 20, 399 S.E.2d 293, 302, cert.
denied, 501 U.S. 1208, 115 L. Ed. 2d 977 (1991). “ 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, 54, 409 S.E.2d
309, 318 (1991), cert. denied, 529 U.S. 1006, 146 S.E.2d 223
(2000). However, where there is no conflicting evidence, the trial
judge may peremptorily 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. at 53, 409 S.E.2d at 318-19
(citations omitted).
Here, the evidence is uncontradicted that: Defendant shot
Frazier twice, once in the ankle and once in the knee; Frazier
required surgery to remove the bullets from his knee and ankle;
that doctors were unable to remove all of the bullet fragments;that one of the bullets shattered the bone around his ankle;
Frazier was hospitalized for a week; the injuries required five
months of rehabilitation; and that Frazier still has pain in his
knee and ankle, cannot run, and has difficulty walking up steps.
Based on this evidence, we conclude that reasonable minds could not
differ as to the seriousness of Frazier's physical injuries. See
e.g. Hedgepeth, 330 N.C. at 55, 409 S.E.2d at 319 (holding that
where a victim suffered a gunshot wound to the ear, required
emergency room treatment for the gunshot wound, powder burns and
lacerations on her hand and head, and who still suffered from
ringing in her ears as a result of the injury was sufficient for
the judge to instruct the jury that the injury was serious as a
matter of law). Thus, the trial court correctly instructed the
jury that the injuries were serious as a matter of law, and the
defendant's motion to dismiss for insufficient evidence of serious
injury was properly denied.
NO ERROR.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
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