Appeal by defendant from judgment entered 5 November 2003 by
Judge Paul L. Jones in Superior Court, Lenoir County. Heard in the
Court of Appeals 16 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Floyd M. Lewis, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant.
Alton Ray Foye (defendant) was convicted on 5 November 2003 of
assault with a deadly weapon inflicting serious injury. Defendant
was sentenced to fifty-three to seventy-three months in prison.
The State's evidence at trial tended to show that on 11 April
2003, defendant visited his twin sister, Dorothy Smith (Ms. Smith),
at her home in Kinston, North Carolina. Defendant and Ms. Smith
argued and she asked defendant to leave. He left, but returned ten
minutes later and a second argument ensued. During this argument,
defendant stabbed Ms. Smith in her arm, breast, and knee. As a
result of her injuries, Ms. Smith received stitches in her leg and
arm and had to wear a leg brace. Ms. Smith was unable to walk orcare for herself while she was recuperating and relied on her
mother and boyfriend for her care. Ms. Smith testified that she
was in pain for seven days following her injuries and took pain
medication. At the time of trial, Ms. Smith had scars on her arm,
breast, and leg where defendant had stabbed her.
Defendant's first assignment of error alleges that defendant
received ineffective assistance of counsel during the trial.
Specifically, defendant argues that his trial counsel failed to
pursue pretrial motions, failed to object to various evidence
introduced at trial, failed to move to strike certain portions of
trial testimony, failed to inquire into Ms. Smith's use of alcohol,
prescription drugs, and illegal drugs, and failed to object to the
submission of the case to the jury when the evidence varied from
the charged conduct and the jury instructions.
To effectively assert ineffective assistance of counsel, a
defendant must show "both that 'counsel's performance was so
deficient as to deprive [the defendant] of his right to be
represented and that absent the deficient performance by defense
counsel, there would have been a different result at trial.'"
State v. Rogers
, 355 N.C. 420, 449-50, 562 S.E.2d 859, 878 (2002)
(quoting State v. Strickland
, 346 N.C. 443, 455, 488 S.E.2d 194,
201 (1997), cert. denied
, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998),
and cert. denied
, 354 N.C. 579, 559 S.E.2d 551 (2001)); see also
Strickland v. Washington
, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).
Our Supreme Court has held that "because of the nature of[ineffective assistance of counsel] claims, defendants likely will
not be in a position to adequately develop many [ineffective
assistance of counsel] claims on direct appeal." State v. Fair
354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001), cert. denied
U.S. 1114, 153 L. Ed. 2d 162 (2002). However, "N.C. Gen. Stat. §
15A-1419 (a)(3) (2003) 'requires a defendant to raise on direct
appeal "those [ineffective assistance of counsel] claims on direct
review that are apparent from the record."'" State v. Jackson
N.C. App. 763, 776, 600 S.E.2d 16, 25, disc. review denied
N.C. 72, 604 S.E.2d 923 (2004) (alteration in original) (citations
omitted). As a result, "it is likely that [defense] counsel will
err on the side of bringing claims for ineffective assistance of
counsel on direct review even when they cannot be accurately
determined at such a stage." State v. Lawson
, 159 N.C. App. 534,
544, 583 S.E.2d 354, 361 (2003). Therefore, "[ineffective
assistance of counsel] claims brought on direct review will be
decided on the merits when the cold record reveals that no further
investigation is required, i.e., claims that may be developed and
argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing." Fair
, 354 N.C. at 166,
557 S.E.2d at 524.
In the case before us, we cannot determine from the cold
record whether defendant's ineffective assistance of counsel claim
has merit. More evidence is needed before this Court can provide
a meaningful review of defendant's claims of ineffective assistance
of counsel. As a result, we overrule this assignment of errorwithout prejudice so that defendant may raise this issue in a
postconviction motion for appropriate relief. See State v. Long
354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001); State v. Blizzard
N.C. App. ___, ___, 610 S.E.2d 245, 255 (2005); Jackson
, 165 N.C.
App. at 777, 600 S.E.2d at 25.
Defendant assigns error to the admission of the testimony of
Kinston Police Officer William Murphy (Officer Murphy). Defendant
argues that it was error to allow Officer Murphy to testify that
Ms. Smith was suffering from "excruciating pain" after Ms. Smith
was stabbed. Defendant argues that this testimony constituted an
improper lay opinion.
We first note that defendant did not object to this testimony
at trial. Therefore, we grant defendant's request that we review
this assignment of error for plain error. Plain error is error "so
fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than it
otherwise would have reached." State v. Bagley
, 321 N.C. 201, 213,
362 S.E.2d 244, 251 (1987), cert. denied
, 485 U.S. 1036, 99 L. Ed.
2d 912 (1988). Plain error review places "the burden . . . on the
defendant to show that 'absent the error the jury probably would
have reached a different verdict.'" State v. Bellamy
, 159 N.C.
App. 143, 147, 582 S.E.2d 663, 667, cert. denied
, 357 N.C. 579, 589
S.E.2d 130 (2003) (citations omitted).
Lay opinion testimony is governed by Rule 701 of the N.C.
Rules of Evidence: If the witness is not testifying as an expert,
his testimony in the form of opinions or
inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2003). Admissible lay opinion
testimony includes "shorthand statements of fact." State v. Eason
336 N.C. 730, 747, 445 S.E.2d 917, 927 (1994), cert. denied
U.S. 1096, 130 L. Ed. 2d 661 (1995); State v. Williams
, 319 N.C.
73, 78, 352 S.E.2d 428, 432 (1987); see also
Official Commentary to
N.C. Gen. Stat. § 8C-1, Rule 701 (stating that "[n]othing in the
rule would bar evidence that is commonly referred to as a
'shorthand statement of fact'" (citation omitted)). Shorthand
statements of fact have been defined by our Supreme Court as
"'instantaneous conclusions of the mind as to the appearance,
condition, or mental or physical state of persons, animals, and
things, derived from observation of a variety of facts presented to
the senses at one and the same time.'" State v. Spaulding
N.C. 397, 411, 310 S.E.2d 178, 187 (1975) (citations omitted),
vacated in part on other grounds by
428 U.S. 904, 49 L. Ed. 2d 1210
(1976); see also Williams
, 319 N.C. at 78, 352 S.E.2d at 432.
At trial, Officer Murphy testified on direct examination:
Q. Now shortly after [arriving at the
scene], [Officer] Murphy, you went to
Lenoir Memorial Hospital?
A. Yes, I did.
Q. And again you had occasion to see Ms.
. . . Smith?
A. Yes, I did. Q. Describe her condition, what she looked
like when you got there at the hospital
and saw her.
A. She was in disarray. She was in -- she
was crying, she was in excruciating
pain. . . .
Officer Murphy's testimony was an "instantaneous conclusion
of the mind as to the appearance, condition, or mental or physical
state of" Ms. Smith, and was based on Officer Murphy's observation
of Ms. Smith while Ms. Smith was at the hospital receiving
treatment for her injuries. Spaulding
, 288 N.C. at 411, 319 S.E.2d
at 187. As a result, we hold that Officer Murphy's testimony was
proper lay opinion testimony, and defendant has failed to show that
the admission of the testimony was plain error.
Defendant assigns error to the trial court's denial of his
motions to dismiss at the close of the State's evidence and again
at the close of all of the evidence on the grounds of insufficiency
of the evidence. A defendant's motion to dismiss should be denied
when "there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator of
the offense." State v. Ocasio
, 344 N.C. 568, 574, 476 S.E.2d 281,
284 (1996). The evidence must be considered "in the light most
favorable to the [S]tate, giving the [S]tate the benefit of every
reasonable inference that the evidence permits." State v. White
322 N.C. 770, 779, 370 S.E.2d 390, 395-96, cert. denied
, 488 U.S.
958, 102 L. Ed. 2d 387 (1988). When substantial evidence exists,
a motion to dismiss is improper, even when evidence is presenttending to show the defendant's innocence. State v. Butler
N.C. 141, 145, 567 S.E.2d 137, 140 (2002).
The elements of the offense of assault with a deadly weapon
inflicting serious injury are: "(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);
N.C. Gen. Stat. § 14-32(b) (2003). On appeal, defendant
only argues that the State presented insufficient evidence that Ms.
Smith suffered a "serious injury."
Our Supreme Court has held that:
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. A jury may consider
such pertinent factors as hospitalization,
pain, loss of blood, and time lost at work in
determining whether an injury is serious.
Evidence that the victim was hospitalized,
however, is not necessary for proof of serious
State v. Hedgepeth
, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991),
(citations omitted). We find that there was substantial evidence
that Ms. Smith suffered a "serious injury" as defined by Hedgepeth
The evidence showed that Ms. Smith suffered stab wounds in her arm,
breast and knee, and that these wounds were the source of extensive
bleeding. The wounds in her arm and knee required stitches and
Ms. Smith had to wear a leg brace for over a week. Ms. Smith
testified that as a result of the attack she was in pain and took
pain medication for seven days. Ms. Smith was unable to care for
herself for approximately three weeks following the assault, and
had to rely on her mother and boyfriend for assistance. Finally,Ms. Smith testified that, over six months after the assault, she
still had scars on her arm, breast, and leg.
Defendant argues that the trial court's instruction to the
jury on the definition of "serious injury" was a more restrictive
definition than required by Hedgepeth
, and that the evidence was
insufficient to meet this definition. The trial court instructed
the jury that "[s]erious injury is defined as such physical injury
as causes great pain and suffering."
We first note that our Court has previously upheld a jury
instruction that defined "serious injury" as "any physical injury
that causes great pain and suffering." State v. Williams
, 29 N.C.
App. 24, 25-26, 222 S.E.2d 720, 721, disc. review denied
, 289 N.C.
728, 224 S.E.2d 676 (1976). We further find that the evidence in
this case is sufficient to show that Ms. Smith's injuries caused
her "great pain and suffering." Ms. Smith testified that she was
in pain for seven days after the attack and that she had to take
"some of that strong pain medicine that makes you sleepy[.]" Ms.
Smith's boyfriend also testified that he observed that Ms. Smith
was in pain after she left the hospital. Finally, as noted above,
Officer Murphy testified that Ms. Smith was in "excruciating pain"
while she was receiving treatment for her injuries. We hold that
the trial court did not err in denying defendant's motions to
Defendant's final assignment of error contends that the trial
court erred by submitting defendant's case to the jury when therewas a "clear and fatal variance" between the allegations in the
indictment and the evidence at trial. The indictment alleged that
defendant "unlawfully, willfully, and feloniously did assault and
inflict serious injury upon [Ms.] Smith with a knife, a deadly
weapon, by cutting victim about the head and arms
serious injury, to wit: causing lacerations." (emphasis added).
Defendant argues that the indictment is fatally variant from
the evidence which tended to show that Ms. Smith suffered injury to
only one arm, her breast, and her knee. In contrast, the
indictment indicates that Ms. Smith suffered injury to her head and
We find that there is not a fatal variance between the
indictment and the evidence presented at trial. In State v.
, we stated:
An indictment must set forth each of the
essential elements of the offense.
Allegations beyond the essential elements of
the offense are irrelevant and may be treated
as surplusage and disregarded when testing the
sufficiency of the indictment. To require
dismissal any variance must be material and
substantial and involve an essential element.
164 N.C. App. 70, 79, 595 S.E.2d 197, 203, disc. review denied
N.C. 195, 608 S.E.2d 63 (2004) (citations omitted). We have
further stated: "It is only 'where the evidence tends to show the
commission of an offense not charged in the indictment [that] there
is a fatal variance between the allegations and the proof requiring
dismissal.'" State v. Poole
, 154 N.C. App. 419, 423, 572 S.E.2d
433, 436 (2002), cert. denied
, 356 N.C. 689, 578 S.E.2d 589 (2003)
(alteration in original) (quoting State v. Williams
, 303 N.C. 507,510, 279 S.E.2d 592, 594 (1981).
In the case before us, the location of Ms. Smith's injuries
was not an essential element of the charge of assault with a deadly
weapon inflicting serious injury. Therefore, the allegation that
Ms. Smith suffered injury to her "head and arms" can "be treated as
surplusage and disregarded when testing the sufficiency of the
, 164 N.C. App. at 79, 595 S.E.2d at 203; see
also State v. Dammons
, 159 N.C. App. 284, 293, 583 S.E.2d 606, 612,
disc. review denied
, 357 N.C. 579, 589 S.E.2d 133 (2003), cert.
541 U.S. 951, 158 L. Ed. 2d 382 (2004). Since the
indictment alleged all the essential elements for assault with a
deadly weapon inflicting serious injury, the location of the
injuries was surplusage, and the evidence did not show the
commission of an offense not alleged in the indictment, there was
not a fatal variance between the indictment and the evidence
presented at trial.
No error in part, dismissed without prejudice in part.
Judges TYSON and GEER concur.
Report per Rule 30(e).
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