STATE OF NORTH CAROLINA
v. Harnett County
No. 02 CRS 52994
JAMES RANDALL HARDEE
Attorney General Roy Cooper, by Assistant Attorney General
Brandon L. Truman, for the State.
Lemuel W. Hinton for defendant-appellant.
TIMMONS-GOODSON, Judge.
James Randall Hardee (“defendant”) appeals his conviction of
assault with a deadly weapon inflicting serious injury. The
State's evidence at trial tended to show: On the evening of 15 May
2002, Larry Bruce Gregory (“Gregory”) and Andy Parker (“Parker”)
were visiting in defendant's residence in Harnett County, North
Carolina. The three were watching television and drinking.
Defendant's two-year-old daughter was also present. Suddenly,
defendant struck Gregory in the mouth with a four foot crowbar,
whereupon Gregory ran to a neighboring house to call for
assistance. However, before an ambulance could respond to the
scene, Parker transported Gregory to the local hospital in Dunn. After being evaluated at the hospital in Dunn, Gregory was sent to
University of North Carolina Hospital in Chapel Hill for further
treatment. Gregory spent nine days in the hospital where he
underwent surgery and had metal plates and screws placed in his
jaw. As a result of the incident, Gregory lost all of his bottom
teeth and some of his top teeth were cracked.
Gregory and defendant had an altercation earlier that evening.
The two had gotten into a shoving match while at Parker's
residence, but the disagreement had been resolved by the time
Gregory traveled to defendant's residence. Gregory admitted at
trial that he had prior convictions for felony breaking and
entering, larceny and possession of stolen goods. Gregory also
admitted to having been previously convicted of filing a false
police report.
Officers from the Harnett County Sheriff's Department
responded to the scene and noted that there were large amounts of
fresh blood found on defendant's front porch and inside of his
residence. Gregory, however, was not present -- having already
been taken to the local hospital by Parker. When responding
deputies asked defendant about the blood, defendant told them that
he and his girlfriend had been involved in an earlier altercation.
Responding deputies also noticed blood on the carpet, coffee table
next to the sofa, and on defendant's daughter.
At the close of the State's evidence, the trial court
dismissed the charge of resisting, delaying and obstructing a
public officer. Defendant then presented evidence which tended tocontradict that of the State. He first presented the testimony of
his fiancé, Tina Lynn (“Lynn”). Lynn testified that she,
defendant, and defendant's daughter returned home late on the night
of 15 May 2002 after being at the beach for two days. After
dropping defendant and his daughter off at his residence, Lynn
stated that she went to the grocery store in Lillington to pick up
a few items. Lynn denied being at Parker's residence on 15 May
2002, or being in the company of Gregory or Parker on that date.
Lynn further denied having had an argument with defendant on 15 May
2002 or one week before that date. Lynn stated that the blood on
the porch of defendant's residence did not belong to her.
Defendant testified consistent with Lynn regarding the trip to
the beach and their return on the evening of 15 May 2002. He
explained that after he and his daughter had been dropped off,
Gregory suddenly kicked in the door and entered his residence.
Defendant stated that Gregory then knocked him to the floor and
began to kick him. Defendant's daughter began to scream.
Defendant testified that he feared for his life and, therefore,
grabbed a crowbar to defend himself. Defendant posited that
Gregory had entered his home to rob him. On cross-examination,
defendant admitted that he did not tell responding deputies that
Gregory had broken into his house and assaulted him. He explained
to the responding officers that the blood on his porch was from a
bleeding drunk who had come to his door for assistance some time
ago.
At the close of all of the evidence, defendant moved todismiss the remaining assault charge. The trial court denied the
motion, and instructed on the charges of assault with a deadly
weapon inflicting serious injury and the lesser included offense of
assault inflicting serious injury. After deliberating, the jury
convicted defendant of assault with a deadly weapon inflicting
serious injury. The trial court entered judgment on the jury's
verdict, sentencing defendant to thirty-five to fifty-one months
imprisonment. Defendant appeals.
On appeal, defendant argues that the trial court erred in
denying his motion to dismiss the assault charge because there was
insufficient evidence to show that he committed the offense as
charged. We disagree.
A motion to dismiss for insufficiency of the evidence is
properly denied if, viewing the evidence in the light most
favorable to the State, there is substantial evidence that the
defendant committed the offense charged. State v. Jarrett, 137
N.C. App. 256, 262, 527 S.E.2d 693, 697 (2000). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Oxendine,
150 N.C. App. 670, 673, 564 S.E.2d 561, 564 (2002), disc. review
denied, 356 N.C. 689, 578 S.E.2d 325 (2003). Contradictions and
discrepancies are matters for the jury and do not warrant
dismissal. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199
(1995). To that end, a defendant's evidence will be considered
only if it is favorable and does not contradict the State's
evidence. State v. Price, 280 N.C. 154, 157, 184 S.E.2d 866, 868(1971). See State v. Jones, 147, N.C. App. 527, 545, 556 S.E.2d
644, 655 (2001), disc. review denied, 355 N.C. 351, 562 S.E.2d 427
(2002).
To obtain a conviction for assault with a deadly weapon
inflicting serious injury, the State must show the following: (1)
an assault; (2) with a deadly weapon; (3) inflicting serious
injury; (4) not resulting in death. State v. Scott, 161 N.C. App.
104, 109, 587 S.E.2d 485, 489 (2003). An assault is an overt act
or attempt, with force and violence, to immediately physically
injure another person, with the show of force or violence that is
sufficient to put a person of reasonable firmness in fear of
immediate physical injury. State v. Haynesworth, 146 N.C. App.
523, 529, 553 S.E.2d 103, 108 (2001).
It is uncontroverted that defendant hit Gregory in the mouth
with a crowbar on the night of 15 May 2002. As a result, Gregory
spent nine days in the hospital and underwent surgery to have metal
plates and screws placed in his jaw. Gregory also lost all of his
bottom teeth and some of his top teeth were broken. Gregory did not
die as a result of these injuries. This evidence is sufficient to
show that defendant assaulted Gregory as charged. Defendant's
evidence that he hit Gregory after Gregory broke into his home and
attacked him is not properly considered in a motion to dismiss.
See Price, 280 N.C. at 157, 184 S.E.2d at 868; Jones, 147 N.C. App.
at 545, 556 S.E.2d at 655. Therefore, we conclude that the trial
court did not err in denying defendant's motion to dismiss.
We hold that defendant received a trial free from prejudicialerror.
No error.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***