An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-22

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

STATE OF NORTH CAROLINA

         v.                        Wake County
                                No. 03 CRS 74038
ERIC DONALD CUTLER

    Appeal by defendant from judgment entered 10 March 2004 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

    Brannon Strickland, PLLC, by Marlet M. Edwards, for defendant- appellant.

    MARTIN, Chief Judge.

     Defendant was found guilty by a jury of robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. The offenses were consolidated for judgment and defendant was sentenced to a minimum term of 61 months and a maximum term of 83 months. He appeals.
    The State presented evidence tending to show that on 2 September 2002, Robert Earl King was riding his bicycle across the grounds of Carnage Middle School in Raleigh when he was approached by a group of six young males, including defendant. Defendant and another assailant displayed guns. As King attempted to flee, he fell off the bicycle. While he was on the ground, he was beaten by the group of men. Defendant and a co-defendant, Brandon Smith,struck King on the head and back several times with the guns, causing King to feel dizzy and to bleed. The group of men also picked King up and “body slammed” him to the ground. The assailants took the victim's wallet, which contained $115.00 in cash, and ran. King's blood was found on defendant's shirt.
    King was taken to Wake Medical Center, where he was treated for injuries to his head, back, elbow and knee. He was referred to an orthopedic clinic for treatment of an elbow fracture. His arm was placed in a cast and he was out of work for two weeks as a result of the assault. His arm hurt for three weeks.
    Defendant did not present any evidence.
    The sole issue raised on appeal is whether the court erred by denying defendant's motion to dismiss the charge of assault with a deadly weapon inflicting serious injury. Upon a motion to dismiss, a court considers the evidence in the light most favorable to the State and determines whether there is substantial evidence of each essential element of the charged offense and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65- 67, 296 S.E.2d 649, 651-52 (1982). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Assault with a deadly weapon inflicting serious injury in violation of N.C. Gen. Stat. § 14-32(b) consists of (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). Defendantcontends that evidence of the third element, infliction of serious injury, is absent.
    Our Supreme Court has defined the term “serious injury” within the meaning of N.C. Gen. Stat. § 14-32 as “physical or bodily injury resulting from an assault with a deadly weapon . . . .” State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). “Cases that have addressed the issue of the sufficiency of evidence of serious injury appear to stand for the proposition that as long as the State presents evidence that the victim sustained a physical injury as a result of an assault by the defendant, it is for the jury to determine the question of whether the injury was serious.” State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994). Pertinent factors to consider in determining whether an injury is serious include hospitalization, pain, loss of blood, and time lost from work. State v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983).
    Here, the evidence shows King sustained multiple injuries to his head, back, arm and leg as a result of the pistol whipping and beating he received at the hands of defendant and his cohorts. He experienced pain and soreness in his arm for three weeks; thereafter, he lost blood, and he lost two weeks from work. Based upon this evidence, a jury could reasonably find that defendant inflicted serious injury to King.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***