An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1011

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005


STATE OF NORTH CAROLINA

v .                         Gates County
                            No. 02 CRS 50000
ROBERT CULLEN ASKEW, JR.

    Appeal by defendant from judgment entered 30 May 2002 by Judge W. Douglas Albright in Gates County Superior Court. Heard in the Court of Appeals 9 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

    McAfee Law, P.A., by Robert J. McAfee, for defendant.

    LEVINSON, Judge.

    Defendant (Robert Cullen Askew, Jr.) appeals from conviction and judgment for assault with a deadly weapon inflicting serious injury. We remand for a new sentencing hearing.
    The evidence may be summarized as follows: Shortly after 9:00 p.m. on 31 December 2001, as Thomas Goodman was walking to his friend Michael Wiggins's house to celebrate the new year, he was suddenly shot in the chest. As Goodman approached Michael Wiggins's house he had seen three men: Wiggins, Eure, and a man he later learned was defendant. When Goodman passed behind defendant's SUV, “at the crack of the gun barrel, it [the bullet] hit me.” Defendant got into his SUV and drove away. Goodman told Wiggins he had been shot. Wiggins “grabbed my coat open,” Goodmantestified, “and blood was running.” Goodman said he had nothing in his own hands.
    In court, Goodman identified defendant as the man who had shot him. Goodman did not know defendant, though he had seen him before “a couple of times riding by.”
    Goodman testified he had suffered a “big gunshot wound” located “[t]wo (2) inches from my heart.” Goodman remembered being taken to Norfolk General Hospital by an air ambulance. After that, he did not remember anything until he was coming out of the intensive care unit. Goodman was hospitalized from 1 January 2002 until 20 February 2002 during which time “some surgeries” were performed on him. Hospital personnel told Goodman that “it [the bullet] tore the top of my liver all to pieces and it broke two (2) of my ribs.” At the time of the trial in May 2002, Goodman was continuing to receive treatment once a week from the Norfolk General Hospital trauma clinic. He continued to have “some pain” as well as “shortage of my breath and I can't hardly breath[e].” Goodman showed the scars from his wound to the jury.
    At the end of Goodman's direct examination, the trial court asked him the following question from the bench, “Tell the jury whether your injuries were painful[.]” Goodman answered, “Yes, sir. I mean, very painful.”
    Michael Wiggins testified that the shooting occurred at the road by his house. Wiggins was out by the road burning a tree stump. His friend, Langdon Eure, was with him. Defendant “came up” and began talking to Wiggins and Eure.     Earlier that evening, Wiggins had invited Goodman to come over to his house to celebrate New Year's Eve. Wiggins saw Goodman coming toward him; Wiggins was “looking right straight at him.” As Goodman passed behind defendant's van, defendant “whipped it [the gun] out and bang.” Wiggins testified:
        And when [Goodman] said he got shot, I thought he was playing because a man get shot with a gun like that and still standing up. He told me he got shot. I just didn't believe it, so I went over there and ripped his coat right off and seen the hole and blood was running everywhere.
    
    According to Wiggins, defendant had said nothing before or after he shot Goodman and Goodman had not made any unusual moves toward defendant. Goodman was just “walking real fast.” After the shooting, defendant “took off . . . just as fast as he could go.”
    Langdon Eure testified that he was talking to Wiggins when defendant drove up to them in a black Blazer. Eure had asked defendant for a cigarette. “About that time,” Eure testified:
    [Goodman] walks up behind [defendant's] truck and he [defendant] whirls away from me and I see this explosion. It was like as [ ] big as a basketball. It was a ball of fire. I heard this little pop.
    It sounded like a firecracker, but I never saw a gun. [Defendant] jumps back in his truck and goes away at a high rate of speed. [Goodman] said, I have been shot. Of course, I didn't want to believe it, you know. [Wiggins] jumped the ditch and opened his coat up and that is when we could see the blood coming down.

    Eure testified Goodman had nothing in his hands and that he saw nothing near Goodman after the shooting that looked like a gun. Before he was shot, Goodman had not said anything to defendant nor made any motions towards defendant. Eure confirmed that after theshooting, defendant got into his SUV and drove “away at a fast rate of speed.”
    Billy Wynn, the chief officer of the rescue squad and EMS in Gates County, testified to the treatment Goodman received from the EMS team. Wynn called for an air ambulance evacuation of Goodman by helicopter and treated Goodman on the way to the helicopter landing zone.
    Deputy Randy Hathaway of the Gates County Sheriff's Department interviewed Wiggins and Eure. They described defendant and his residence on Hackley Road to the deputy. Officers secured the residence and learned that the person described by the witnesses was defendant Robert Cullen Askew, Jr. Officers discovered a black Ford Explorer in the yard of defendant's home and they obtained and executed a search warrant. When Officer Hathaway and Sheriff Webb entered the house, they found doors and dresser drawers open and it appeared that someone had left the house in a hurry. Defendant “turned himself in” at approximately daybreak that next morning.
    Deputy Johnny Wiggins testified. Several hours after the shooting, he learned that Debbie Askew, defendant's wife, had called the sheriff's department and that defendant wanted to surrender to the police. Officer Wiggins drove to defendant's house where he took defendant into custody. Defendant showed the officer the location of his gun and Deputy Wiggins secured it. The weapon was a .357 caliber pistol.
    Defendant testified. In the fall of 2001, someone had kicked in his back door. On 21 December 2001 in Suffolk, Virginia,defendant had been robbed at gunpoint by three people. He later began receiving threatening telephone calls at home and a number of strange cars had been pulling into his driveway. On 31 December 2001, while he was outside his house, he heard three shots fired and saw a truck heading toward the Roduco community, near Eure's house. Defendant went to investigate and found Eure at Wiggins's house. Defendant was carrying a gun because of having heard the gunshots. Defendant saw Goodman when Goodman “jumped out from behind [defendant's] truck.” Defendant believed Goodman was carrying a “chrome pistol” and believed Goodman was one of the men who had robbed him. Defendant did not intend to kill Goodman.
    Debbie Askew, defendant's wife, testified she and defendant had been married for over 21 years. She confirmed their house was broken into twice in the fall of 2001 and that defendant told her he had been robbed in December 2001. She testified that late in December 2001 a man identified as “Keith” appeared at the house asking for defendant. She was home when the shots were fired behind the house and defendant left to investigate. Defendant returned at approximately 10:00 p.m., upset that he might have shot one of the men who had robbed him. She and defendant left the house and drove to her mother's house in Virginia. They immediately drove back home.
    The jury found defendant guilty of assault with a deadly weapon inflicting serious injury. The trial court found one aggravating factor, that the victim suffered “serious injury that is permanent and debilitating,” and sentenced defendant in theaggravated range as a Level II Offender to a term of 36 to 53 months. From this judgment and conviction, defendant appeals.
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    On appeal defendant argues that the trial court erred by (1) questioning the prosecuting witness as to the painfulness of his injuries, and (2) by finding an aggravating factor and imposing a sentence in the aggravated range.
    Defendant first argues the trial court's questioning of the witness from the bench was improper. Defendant argues he was prejudiced because the trial court's question elicited a response which helped establish a critical element of the State's case, that Goodman's injury was painful, which the State had failed to establish itself. For the reasons which follow, the trial court's questioning of the witness does not constitute reversible error.
    The trial court questioning a witness from the bench is not, in itself, improper. See N.C.G.S. § 8C-1, Rule 614(b) (2003) (“The court may interrogate witnesses, whether called by itself or by a party.”). While a trial judge may interrogate a witness, judges are prohibited by law from “express[ing] during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.” N.C.G.S. § 15A-1222 (2003). “Where the court does not express an opinion as to the facts, it is not error for a court to question a witness when necessary to clarify even a critical element of the case.” State v. Rios, ___ N.C. App. ___, ___, 610 S.E.2d 764, 772-73 (2005) (citing State v. Shepherd, 163 N.C. App. 646, 652-53, 594 S.E.2d 439, 444 (2004)). “When the trial judge questions a witness to clarify his testimony or to promote an understanding of the case, such questioning does not amount to an expression of the trial judge's opinion as to defendant's guilt or innocence.” State v. Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978) (citing State v. Everette, 284 N.C. 81, 199 S.E.2d 462 (1973), and State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968)).
    At the end of the State's direct examination of the prosecuting witness, the trial court questioned the witness as follows:

        [THE COURT]: Tell the jury whether your injuries were painful[.]

        [WITNESS]: Yes, sir. I mean, very painful.

    The elements 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. N.C.G.S. § 14-32(b) (2003); State v. Wade, 161 N.C. App. 686, 689, 589 S.E.2d 379, 381-82 (2003), disc. review denied, 358 N.C. 241, 594 S.E.2d 33-34 (2004). “Factors our courts consider in determining if an injury is serious include pain, loss of blood, hospitalization and time lost from work.” State v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983).
    While the witness' answer was probative of the “seriousness” of his injury, a “critical element” of the State's case, “the jury could not [have] reasonably infer[red] that the judge was expressing an opinion as to the facts of the case.” Shepherd, 163N.C. App. at 653, 594 S.E.2d at 444. Consequently, the trial court did not err in questioning the witness.
    This assignment of error is overruled.
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    Defendant argues next that the trial court erred by sentencing him in excess of the statutory maximum based on an aggravating factor not submitted to the jury and not admitted by defendant. Defendant argues he is entitled to a new sentencing hearing pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, __ U.S. __, 159 L. Ed. 2d 851 (2004). We agree.
    In the instant case, defendant's sentence was aggravated based on a finding that “[t]he victim . . . suffered serious injury that is permanent and debilitating.” The trial court sentenced defendant at the top of the aggravated range to a term of 36 to 53 months. The aggravating factor was not found by the jury, and it was not admitted by defendant. We remand for resentencing in conformity with the rulings in Blakely and State v. Allen, ___ N.C. ___, ___ S.E.2d ___ (No. 485PA04)(filed 1 July 2005).
    Remanded.
    Judges HUNTER and MCCULLOUGH concur.
    Report per Rule 30(e).

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