Opinion
No. COA09-1156
Filed 4 May 2010 This case not for publication
Appeal by Defendant from judgment entered 1 April 2009 by Judge Christopher M. Collier in Catawba County Superior Court. Heard in the Court of Appeals 12 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Vaughn S. Monroe, for the State. Haral E. Carlin for Defendant.
Catawba County No. 08 CRS 58374.
I. Procedural History
Defendant Billy Eugene Cannon was indicted on 17 November 2008 on one count of assault with a deadly weapon inflicting serious injury ("AWDWISI"). The matter came on for trial at the 30 March 2009 Criminal Session of Superior Court in Catawba County. On 1 April 2009, the jury found Defendant guilty of AWDWISI. The trial court, finding Defendant to be a record level V offender, sentenced Defendant to an active term of 42 to 60 months imprisonment. From this judgment, Defendant appeals.
II. Evidence
The State's evidence tended to show that Defendant and Sergei Demchenko were neighbors in the Fox Den apartment community in Hickory, North Carolina. Shortly after midnight on 5 October 2008, Demchenko heard scratching on his door. When he opened the door, he observed Defendant scratching an "X" in the door with a knife. Demchenko pushed Defendant and asked him what he was doing. Defendant jumped at Demchenko and cut him across his forehead and nose with the knife. Demchenko was also cut on his neck and back. Eventually, the two men ended up fighting inside Defendant's apartment door. The two men were on the ground when police arrived. Defendant was on his stomach and Demchenko was on top of Defendant. Demchenko was treated at Frye Regional Medical Center, where he received pain medication, stitches to his face and staples in his back. He was released from the hospital after four hours.
III. Discussion
Defendant first argues that the trial court erred in denying his motion to dismiss the charge of AWDWISI because there was insufficient evidence of a serious injury.
When reviewing a motion to dismiss, we view "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). If this Court determines that "substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion." Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Defendant was convicted of one count of AWDWISI under N.C. Gen. Stat. § 14-32(b). "The elements of a charge under [N.C. Gen. Stat.] § 14-32(b) 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). Our courts have declined to define "`serious injury' for purposes of assault prosecutions, other than stating that `[t]he injury must be serious but it must fall short of causing death' and that `[f]urther definition seems neither wise nor desirable.'" State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994) ( quoting State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962)). "This is because whether an injury is serious within the meaning of AWDWISI is usually a factual determination that rests with the jury." State v. Bagley, 183 N.C. App. 514, 526, 644 S.E.2d 615, 623 (2007). "Substantial evidence of a serious injury that is sufficient to survive a motion to dismiss includes, but is not limited to, evidence of `hospitalization, pain, blood loss, and time lost at work.'" Id. ( quoting State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997)).
In the present case, the State's evidence tended to show that Defendant jumped at Demchenko and cut him across his forehead and nose with a knife. Demchenko indicated he was bleeding badly from this wound, and Officer Pendleton testified that Demchenko's face was covered in blood. Demchenko also received cuts to his back. Demchenko was treated by EMS on the scene, and subsequently transported to the hospital. Demchenko remained at the hospital for four hours and received stitches for the wound to his face and staples for his back wounds. He was also given pain medication. We conclude that this is substantial evidence from which the jury could find that Defendant inflicted a serious injury on Demchenko.
Defendant argues that "the State never presented any medical testimony" that Demchenko's injuries were serious. However, medical testimony is not required to show that an injury was serious. See Ramseur, 338 N.C. at 507-08, 450 S.E.2d at 471 (sufficient evidence of serious injury where no expert medical evidence was presented and victim testified to the injuries inflicted upon him by the defendant and the treatment he received at the hospital). Accordingly, the trial court did not err in denying Defendant's motion to dismiss for insufficient evidence.
Defendant also argues that the trial court's failure to define the term "serious injury" in its instruction to the jury on the charge of AWDWISI constituted plain error.
A question not preserved by objection at trial or operation of law may be assigned as plain error on appeal. N.C. R. App. P. 10(c)(4). "Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
The trial court's instruction to the jury on AWDWISI tracks North Carolina Pattern Jury Instruction 208.15. The trial court instructed, inter alia,
[t]he defendant has been charged with assault with a deadly weapon inflicting serous injury. For you to find the defendant guilty of this offense, the State must prove three things beyond a reasonable doubt:
. . . .
And third, that the defendant inflicted serious injury upon the victim.
Defendant argues that the trial court erred by not defining the term "serious injury."
However, as explained supra, our courts have declined to define "serious injury for purposes of assault prosecutions, other than stating that [t]he injury must be serious but it must fall short of causing death[,] and that [f]urther definition seems neither wise nor desirable." Ramseur, 338 N.C. at 507, 450 S.E.2d at 471 (citation and quotation marks omitted). What constitutes serious injury is a factual determination that rests with the jury. Bagley, 183 N.C. App. at 526, 644 S.E.2d at 623. As the trial court was not required to define the term "serious injury[,]" we find no error in the instruction to the jury, much less plain error.
NO ERROR.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).