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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1374


Filed: 5 June 2007


         v.                        Henderson County
                                No. 04 CRS 54697

    Appeal by defendant from judgment entered 4 April 2006 by Judge C. Philip Ginn in Henderson County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Christine M. Ryan, for the State.

    Charlotte Gail Blake for defendant-appellant.

    LEVINSON, Judge.

    Kimberly Gail Teesateskie (defendant) was charged with assault inflicting serious bodily injury and with communicating threats. She was found guilty of assault inflicting serious bodily injury and was acquitted of communicating threats.
    The State presented evidence tending to show the following: On 19 July 2004, defendant engaged in a physical altercation with Linda Hemphill. Defendant knocked Hemphill to the floor and beat Hemphill in the face with her hands. Hemphill's son separated the two women.
    Hemphill underwent surgery on 20 July 2004 in an attempt to repair damage done to her left eye as a result of the altercation with defendant. The surgery failed to repair the damage and threedays later, her eye was removed and subsequently replaced by a prosthetic device. Hemphill also sustained a fracture to the right eye bone as a result of the altercation.
    An ophthalmologist who treated Hemphill for her eye injuries testified that the eye is an organ of the body and may not be replaced surgically. He noted that prior to the incident Hemphill had 20-40 vision in the left eye and 20-20 vision in the right eye.
    Defendant testified that she struck Hemphill in self defense.
     The sole issue on appeal is whether the court committed plain error by instructing the jury that loss of an eye is a serious bodily injury.
    To find plain error an appellate court must be convinced that absent the error the jury probably would have reached a different verdict. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-89 (1983). We are not convinced that the court erred. A serious bodily injury is defined by statute as “a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ[.]” N.C. Gen. Stat. § 14-32.4(a) (2005). “In the absence of conflicting evidence, a trial judge may instruct the jury that injuries to a victim are serious as a matter of law if reasonable minds could not differ as to their serious nature.” State v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-19 (1991). The evidence in this case is uncontradicted that an eye is a bodily organ and that Hemphill lost her left eye as a result of a beating inflicted by defendant. Reasonable minds could not differ as towhether the permanent loss of an eye, and the resultant loss of vision, is a serious injury. This assignment of error is overruled.
    No error.
    Judges MCCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

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