An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-237


Filed: 06 September 2005


v .                         Robeson County
                            No. 02 CRS 053726

    Appeal by defendant from judgment entered 8 September 2004 by Judge D. Jack Hooks, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 15 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

    Paul F. Herzog for defendant appellant.

    STEELMAN, Judge.

     Defendant appeals his conviction for assault with a deadly weapon inflicting serious injury. The State's evidence tends to show the following: on 9 June 2002, David Locklear and George Reagan drove in Reagan's car to the home of Jamie Revels, who was Locklear's friend. Ten minutes later, defendant and his girlfriend, Shelly Brewer, arrived at Revels' home. Defendant and Locklear had known each other for about two years, and Brewer was Locklear's former girlfriend. After visiting the Revels' residence for about twenty minutes, Locklear returned to Reagan's car and sat in the passenger's seat, as Reagan was seated in the driver's seat.      Once seated, defendant approached the passenger's side of the vehicle and swung his arm several times towards Locklear. Locklear observed "something shiny" that "was probably about six inches long" in defendant's hand. At trial, defendant admitted to cutting Locklear with a knife.
     After the second swing, Locklear felt a burning sensation "all over [his] body," particularly in his chest, and discovered that he had been cut. As a result, Locklear had trouble breathing and "could see [his] heart beat[ing]." Locklear's "shorts, shirt, hands, [and] arms" were "covered" with blood. Without delay, Reagan drove Locklear to a hospital.
When Locklear arrived at the hospital, he was immediately seen by doctors and felt "intolerable" pain. Doctors stapled and stitched the interior and exterior of Locklear's chest and put a tube into his chest to manage blood leaking out of the wound. The hospital released Locklear the same day he was admitted. Locklear took prescribed pain medication for two months , and blood leaked out of the wound for "weeks." Locklear was also unable to work as a landscaper for about three months, had permanent scaring on his chest, and had reduced chest strength for two years.
    A jury found defendant guilty as charged. The trial court sentenced defendant to an active prison term of twenty-three to thirty-seven months. Defendant appeals.
    In his sole assignment of error, defendant contends that the trial court committed prejudicial error and, in the alternative, plain error by failing to instruct the jury on the lesser-includedoffense of assault with a deadly weapon. Defendant alleges the determination as to whether Locklear's injury was "serious" should have been resolved by the jury because Locklear was "treated and released" from the hospital on the same day the injury happened. We disagree.
    Defendant did request that the court instruct on the lesser- included offense of assault with a deadly weapon. The court declined to so instruct. We therefore review this assignment of error under the prejudice standard found under GS 15A-1442(4)(d) and 15A-1443(a) and not under the plain error standard.
     A "[d]efendant is 'entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'" State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)); see also State v. Uvalle, 151 N.C. App. 446, 452-453, 565 S.E.2d 727, 731 (2002), disc. review denied, 356 N.C. 692, 579 S.E.2d 95 (2003). However, a defendant is not entitled to an instruction on a lesser-included offense where "the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime." State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714 (1972). Furthermore, "a lesser offense should not be submitted to the jury if the evidence is sufficient to support a finding of all the elements of the greater offense, and there is no evidence to support a finding of the lesser offense." State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226 (1995) ; see also Uvalle, 151 N.C. App. at 453, 565 S.E.2d at 731.     
    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." 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) (2004). Assault with a deadly weapon is a lesser-included offense of assault with a deadly weapon inflicting serious injury. See State v. Owens, 65 N.C. App. 107, 110, 308 S.E.2d 494, 497 (1983) and N.C. Gen. Stat. § 14-33(c)(1) (2004).

    "The term 'serious injury' as employed in N.C. Gen. Stat. § 14-32(a) means physical or bodily injury resulting from an assault with a deadly weapon. Whether serious injury has been inflicted must be determined according to the facts of the particular case." State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586-87 (1988); see also State v. Wood, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997). "Pertinent factors" to consider when determining whether an injury was serious include "hospitalization, pain, blood loss, and time lost at work. Evidence of hospitalization, however, is not necessary for proof of serious injury." Wood, 126 N.C. App. at 592, 486 S.E.2d at 261 (citations omitted).
     Contrary to defendant's assertion, the amount of time Locklear spent in the hospital is not determinative of the seriousness of Locklear's injury since hospitalization is "not necessary for proof of serious injury." State v. Joyner, 295 N.C. 55, 65, 243 S.E.2d367, 374 (1978). Furthermore, all "pertinent factors" mentioned in Wood are present in this case. 126 N.C. App. at 592, 486 S.E.2d at 261 . Locklear suffered "intolerable" pain; received staples, stitches, and a tube into his chest; took pain medication for two months; and blood leaked out of Locklear's wound for "weeks." Locklear was unable to work as a landscaper for about three months, and he suffered permanent scaring on his chest and at least two years of reduced chest strength. Defendant presented no evidence that conflicts with the State's evidence concerning the nature or seriousness of Locklear's injury, and defendant testified at trial that he believed the injury was "serious."     
    This evidence does not permit a jury to rationally find defendant guilty of assault with a deadly weapon and acquit defendant of assault with a deadly weapon inflicting serious injury, the trial court did not commit error in failing to instruct the jury on the lesser-included offense of assault with a deadly weapon. We conclude that the trial court properly instructed the jury. Accordingly, defendant's assignment of error is without merit.
    No error.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

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