An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-299


Filed: 21 June 2005


v .                         Lenoir County
                            No. 03-CRS-52173

    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.

    McGEE, Judge.

    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. Defendant appeals.
    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, 535 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, 165 N.C. App. 763, 776, 600 S.E.2d 16, 25, disc. review denied, 359 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, 513 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, 288 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, 356 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); see also 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 injury.

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 dismiss.

    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 inflicting 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 both arms.
    We find that there is not a fatal variance between the indictment and the evidence presented at trial. In State v. Pelham, 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, 359 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 indictment." Pelham, 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. denied 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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