Opinion
No. COA10-986
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgment entered 5 March 2010 by Judge Tanya T. Wallace in Union County Superior Court. Heard in the Court of Appeals 28 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Hilda Burnett-Baker, for the State. William D. Auman for Defendant.
Union County No. 08 CRS, 53459-60.
Defendant was found guilty of assault with a deadly weapon inflicting serious injury and second degree trespass. The convictions were consolidated for judgment and Defendant was sentenced to a minimum term of 46 months and a maximum term of 65 months. Where the State presented substanial evidence that Defendant committed assault with a deadly weapon inflicting serious injury and second degree trespass, we find no error.
On 21 June 2008, Larry Allen resided at 2012 Confederate Street in Monroe, North Carolina. Allen had posted on a shade tree in his yard a sign which stated "Private Property No Trespassing." The sign had been posted on the tree for eight or ten years prior to 21 June 2008. On that date, Defendant and a group of his friends went into Allen's yard and gathered around a shade tree. Allen asked them to leave. After Allen again asked the group to leave, Defendant walked across the street, picked up a ten-foot-long tree limb, broke off about a foot and half of it, came back into Allen's yard, and struck Allen's arm with the tree limb. The blow fractured two bones, the radius and ulna, in Allen's forearm. Allen underwent surgery to repair the fractures and spent four to five days in the hospital.
Defendant testified that on 21 June 2008, he was standing on the street in front of Allen's house when Allen approached him and ordered him to leave. Defendant refused to obey because he was standing in the street and not in Allen's yard. Defendant saw Allen reach into his pocket and retrieve a knife. Allen threatened to put Defendant "behind the church." Fearing for his life, Defendant picked up a stick, which he described as about twelve to eighteen inches long, and struck Allen on his left arm as Allen approached Defendant.
At the close of the State's evidence and at the close of all the evidence, the trial court denied Defendant's motions to dismiss for insufficient evidence. By presenting evidence, Defendant waived his motion to dismiss at the close of the State's evidence. N. C. R. App. P. 10(b)(3). However, by renewing his motion at the close of all the evidence, Defendant preserved for review the issue of the sufficiency of the evidence. State v. Morganherring, 350 N.C. 701, 732, 517 S.E.2d 622, 640 (1999). Defendant has presented the denial of that motion for our review.
A motion to dismiss requires a court to determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (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). In deciding a motion to dismiss, the court is to consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). If the court determines there is substantial evidence to support a finding that the defendant committed the charged offense, then the case is for the jury and the motion to dismiss should be denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988).
Defendant first argues the evidence is insufficient to support submission of assault with a deadly weapon inflicting serious injury to the jury because the evidence established as a matter of law that Defendant acted in self defense.
The right to act in self-defense rests upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief.
State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). "The resolution of a question of self-defense is squarely based on the reasonableness of defendant's action. This makes it an issue peculiarly within the province of the jury." State v. Shoemaker, 80 N.C. App. 95, 99, 341 S.E.2d 603, 606, appeal dismissed and disc. review denied, 317 N.C. 340, 346 S.E.2d 145 (1986). "The State has the burden of proving that a defendant is not entitled to the defense." State v. Poland, 148 N.C. App. 588, 597, 560 S.E.2d 186, 192 (2002). The State may carry its burden and defeat a motion to dismiss by presenting evidence tending to show the defendant was the aggressor or used excessive force. Id.
The evidence before us, viewed in the light most favorable to the State, shows that Defendant grabbed the limb and struck Allen with it. At the time of the assault, Allen did not have any weapon or knife on his person or within his reach. The blow impacted Allen's arm with force sufficient to fracture Allen's arm at two places. Based upon this evidence, we conclude a jury could find that Defendant did not act in reasonable self-defense, either because he acted as the aggressor or used excessive force.
Defendant next argues the evidence is insufficient to establish all of the elements of the offense of assault with a deadly weapon inflicting serious injury. The elements of this offense are (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death. N.C. Gen. Stat. § 14-32(b) (2009); State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990). Defendant submits that sufficient evidence of the third element, infliction of serious injury, is lacking.
"Whether a serious injury has been inflicted depends upon the facts of each case and is generally for the jury to decide under appropriate instructions." State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991). "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). Factors to consider in making this determination "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).
Here, the evidence shows that the blow broke two bones in Allen's arm. Allen was in a great deal of pain as he was being taken to the hospital, and he was given pain medications upon his arrival at the hospital. Surgery was required to repair the fractures. He was hospitalized for several days. Allen was unable to straighten his arm at the time of trial. His arm also was disfigured. We conclude that based upon the foregoing evidence a jury could find Defendant inflicted a serious injury upon Allen.
Defendant lastly contends that the evidence is insufficient to establish second degree trespass because the evidence fails to show that Defendant was on Allen's property without Allen's consent.
A person commits the offense of second degree trespass if, without authorization, he enters or remains on premises of another:
(1) After he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person; or
(2) That are posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the premises.
N.C. Gen. Stat. § 14-159.13 (2009). Allen testified that a "No Trespassing" sign was posted on his property. Allen also testified that when he saw Defendant come onto his property on 21 June 2008, he ordered Defendant to leave, and that Defendant came back onto his property after he had ordered Defendant to leave. We hold the foregoing evidence is sufficient to permit a jury to find that Defendant came onto or remained on Allen's property without Allen's authorization.
We find no error in the denial of the motion to dismiss and in the judgment.
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).