STEPHENS, Judge.

Attorney General Roy Cooper, by Assistant Attorney General Andrew L. Hayes, for the State.

William D. Spence, for Defendant.

Opinion

Appeal by Defendant from judgment entered 24 September 2014 by Judge Claire V. Hill in Johnston County Superior Court. Heard in the Court of Appeals 7 October 2015.

STEPHENS, Judge.

Defendant Alexander Louis Smalls was convicted by a jury in Johnston County Superior Court on one charge of assault inflicting serious bodily injury. On appeal, Smalls argues that the trial court erred in denying his motion to dismiss this charge for insufficient evidence. Smalls also contends that the trial court committed plain error by failing to submit to the jury the lesser included offenses of misdemeanor assault inflicting serious injury and simple assault. After careful consideration, we hold that the trial court did not err, let alone commit plain error.

I. Factual Background and Procedural History

Smalls was indicted by a Johnston County grand jury on 3 March 2014 for one count of assault inflicting serious bodily injury based on allegations that on 20 December 2013, he punched his 18–year–old acquaintance William Cornell Warren so hard that it fractured Warren's jaw in two places. Warren's injury required emergency surgery and left him unable to speak, eat, or open his mouth for nearly a month while his jaw was wired shut.

A jury trial began on 22 September 2014 in Johnston County Superior Court. At trial, Warren testified that he and Smalls were from the same neighborhood and that he had previously purchased small amounts of marijuana from Smalls on several occasions. Warren testified further that on 20 December 2013, he returned home from school to drop off his things and then set out for Byrd's Convenience Store, which was approximately half a mile away from his house. On his way to Byrd's, Warren saw Smalls sitting on a neighbor's porch. Warren had recently received text messages from Smalls accusing him of stealing some of his marijuana, but Warren had denied those accusations. When Smalls saw Warren that day, he stepped down from the porch and again accused Warren of stealing his marijuana. Warren once again denied having stolen any marijuana from Smalls, and the two stood face-to-face for a moment until Smalls told him, “I know you ... took my stuff, but I don't care about it. It's done and it's over with.” Warren testified that he turned to walk away, but looked back over his shoulder “and that's when I seen [sic] the swing coming in.” Smalls then punched Warren in the jaw with his fist. The blow sent Warren to the ground, leaving him “stunned a little bit” and bleeding profusely. Warren was worried about getting away from the scene, so he got up and continued walking to Byrd's, where he purchased a cigar, and then walked to a nearby Burger King, where he called a friend for a ride home. By this point, Warren's jaw began to swell, causing him pain. As his mouth continued to bleed, Warren used a large Styrofoam cup to catch the blood.

Warren's mother, April Davis, testified that her son called her at work and said, “Ma, I think I need to go to the hospital.” Davis testified that she left work as soon as she could and that when she got home, Warren “opened his mouth and there was just blood at the base of his mouth. It looked like there was a secondary tongue under his tongue[.]” Immediately thereafter, Davis took Warren to the nearest hospital, in Clayton, where he was examined before being transferred to WakeMed in Raleigh. After he was admitted to WakeMed, Warren was hooked up to a suction device to remove the blood from his mouth, and he later gave a statement to Officer Justin R. Vause of the Clayton Police Department implicating Smalls in the assault.

WakeMed's director of ear, nose, and throat surgery, Dr. Michael Owen Ferguson, testified that he examined Warren and discovered that he had a mandible fracture, meaning that his jaw was broken in two locations. Dr. Ferguson testified further that a mandible fracture is an injury that prevents a person's teeth from fitting together properly, which impairs the function of the jaw, causing pain and discomfort. On 21 December 2013, Dr. Ferguson performed emergency surgery to repair Warren's jaw by “applying bars across [his] teeth and wiring the bars to the teeth and then wiring the upper teeth to the lower teeth” and then making two separate incisions near Warren's jaw fractures to expose the bone and attach two titanium plates with screws. Dr. Ferguson testified that the surgery went well and that he did not expect additional complications, but noted that Warren's injury could result in “issues with malocclusion or jaw pain later in life.” Warren was discharged from WakeMed on 22 December 2013, but his jaw remained wired shut for four weeks in order to keep it immobilized while the fractures healed. During that time, Warren was unable to open his mouth and could only communicate by writing things down or by texting. He was placed on a liquid diet, which required him to use a straw or syringe to eat, and he lost 15 pounds, which was more than 10% of his body weight, given that he weighed only 125 pounds at the time of the assault. Warren's medical bills for the hospitalization and surgery amounted to approximately $50,000.

At the close of the State's evidence, Smalls moved to dismiss the charge, arguing that there was insufficient evidence that a serious bodily injury had occurred because Warren had not been in significant danger of death and there was no evidence his injuries caused him to suffer from extreme pain, required prolonged hospitalization, or were permanent or protracted. In opposition to this motion, the State argued there was sufficient evidence that Warren's injuries had caused a protracted impairment of the function of his jaw, as well as a protracted condition that caused extreme pain based on this Court's decision in State v. Williams, 150 N.C.App. 497, 563 S.E.2d 616 (2002). The trial court denied the motion to dismiss, and Smalls declined to present any evidence. During the ensuing charge conference, the trial court stated that it did not believe there was any evidence that Warren's injuries had caused extreme pain, but that it would nevertheless instruct the jurors—consistent with our State's pattern jury instructions and the definition of the offense provided by N.C. Gen.Stat. § 14–32.4(a)—that a serious bodily injury includes an injury that creates or causes “permanent or protracted loss or impairment of the function of any bodily member or organ.” Both parties agreed to this instruction, and the charge was submitted to the jury. On 24 September 2014, the jury returned a verdict finding Smalls guilty of assault inflicting serious bodily injury. Smalls gave notice of appeal in open court.

II. Analysis

A. Motion to dismiss for insufficient evidence of serious bodily injury

Smalls argues first that the trial court erred in denying his motion to dismiss the assault inflicting serious bodily injury charge because the State failed to present sufficient evidence that Warren's injury caused him to suffer any permanent or protracted loss or impairment of the function of any bodily member or organ. We disagree.

The standard of review when reviewing a trial court's denial of a motion to dismiss is de novo. See State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). We determine “whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” Id. (citations omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). “The requirement that the State's evidence of each element be substantial is simply a requirement that it be existing and real, not just seeming or imaginary.” State v. Smith, 40 N.C.App. 72, 78, 252 S.E.2d 535, 539 (1979) (citation and internal quotation marks omitted). “Therefore, anything more than a scintilla of evidence is substantial evidence.” Id. (citation and internal quotation marks omitted). “In making [this] determination, [we] must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995).

In the present case, Smalls was charged with assault inflicting serious bodily injury in violation of section 14–32.4(a) of our General Statutes. This offense “requires proof of two elements: (1) the commission of an assault on another, which (2) inflicts serious bodily injury.” State v. Hannah, 149 N.C.App. 713, 717, 563 S .E.2d 1, 4 (citations omitted), disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002). The statute defines “serious bodily injury” as “bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, 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, or that results in prolonged hospitalization .” N.C. Gen.Stat. § 14–32.4(a) (2013). In construing this statutory language, this Court has previously observed that “the General Assembly intended for N.C.G.S. § 14–32.4 to cover those assaults that are especially violent and result in the infliction of extremely serious injuries.” Williams, 150 N.C.App. at 503, 563 S.E.2d at 619. Thus, a “serious bodily injury” as set forth in section 14–32.4(a) “requires proof of more severe injury than the serious injury element of other assault offenses.” Id. at 503, 563 S.E.2d at 619–20 (citation and internal quotation marks omitted). Accordingly, our task in reviewing the record below is to determine whether Warren suffered an injury rising to this level of severity. In making this determination, “we do not consider the entire definition set forth in § 14–32.4; rather we are limited to that part of the definition set forth in the trial court's instructions to the jury.” Id. at 503, 563 S.E.2d at 620.

Here, the trial court's instruction to the jury limited the definition of “serious bodily injury” to an “injury that creates or causes permanent or protracted loss or impairment of the function of any bodily member or organ.” In support of his argument that there was insufficient evidence to satisfy this definition, Smalls contrasts the present facts to those at issue in Williams, which the State cited at trial in opposition to Smalls' motion to dismiss but which Smalls contends involved a far more vicious assault and far more serious and longer-lasting injuries to the victim. The defendant in Williams was convicted of assault inflicting serious bodily injury, which the trial court had defined, consistent with section 14–32.4(a), as “an injury that creates or causes a permanent or protracted condition that causes extreme pain.” 150 N .C.App. at 503, 536 S.E.2d at 620. The evidence introduced at trial tended to show that the defendant and another man had repeatedly punched and kicked the victim until he passed out, leaving him with a broken jaw that had to be wired shut for two months, during which he lost 30 pounds, as well as injuries to his ribs which resulted in back spasms that made it so difficult to breathe that he had to visit the emergency room on two occasions and continued up until the day he testified at trial, eight months later. Id. Moreover, the doctor who performed surgery to repair the victim's broken jaw testified that it was the type of injury that would cause a person “quite a bit” of pain and discomfort. Id. On appeal to this Court, the defendant argued that the trial court erred in denying his motion to dismiss the charge for insufficient evidence that the victim's injuries constituted a “serious bodily injury.” Id. We rejected that argument based on our conclusion that “a reasonable juror could find [the evidence in the record] sufficient to conclude that [the victim's] injuries created a protracted condition that cause[d] extreme pain.” Id. at 504, 563 S.E.2d at 620 (internal quotation marks omitted).

We find Smalls' reliance on Williams unavailing. Despite Smalls' insistence that the injuries Warren suffered were not as severe as those suffered by the victim in Williams, our decision in Williams did not purport to establish any sort of minimum threshold as to what constitutes a “serious bodily injury.” Instead, Williams made clear that our focus in cases like the present one is on whether the record contains substantial evidence that the victim's injury satisfied the relevant portion of the statutory definition of “serious bodily injury” set forth in the trial court's instructions to the jury as warranted by the underlying facts. See id. at 503, 563 S.E.2d at 620. Thus, our inquiry here must focus not on whether the victim's injuries were more or less serious than the injuries suffered in Williams, but instead on whether the record contains substantial evidence that Warren suffered an “injury that create[d] or cause[d] permanent or protracted loss or impairment of the function of any bodily member or organ.”

On this point, Smalls urges this Court to construe the word “protracted” to mean “not for a short period of time, but for a long period of time, just short of a permanent condition.” While Smalls concedes that “a broken jaw on anyone would be painful,” he nevertheless contends that because Warren's jaw was wired shut for only four weeks—which Smalls emphasizes is similar to the amount of time it would take a broken finger set in a cast to heal—there was insufficient evidence of a protracted loss or impairment as contemplated by the statute. Smalls cites no specific legal authority to support his definition of what “protracted” means, and we find no support for his argument in Williams, where the evidence showed the victim's jaw was wired shut for two months and his back spasms continued for at least eight months up until trial. There was no indication in Williams that either of these injuries was “just short of a permanent condition” in duration, but we nevertheless held there was substantial evidence that they resulted in a “protracted condition that cause [d] extreme pain.” Id. (emphasis added). Although our analysis here focuses on the duration of the loss or impairment of a bodily function or organ, rather than the duration of the victim's extreme pain, we find Smalls' definition contrary to our holding in Williams, and we consequently decline to adopt it.

Moreover, viewing the evidence in the record in the light most favorable to the State, we hold that there was sufficient evidence that Warren suffered a “serious bodily injury” consistent with the instruction given to the jury. The evidence tends to show that Warren suffered two fractures to his jaw, which had to be wired shut for four weeks. During this time, Warren could neither speak nor eat, had to drink liquids through a straw or syringe, and lost 15 pounds, which amounted to more than 10% of his body weight. Because we conclude that a reasonable juror could find this evidence sufficient to find that Warren's injuries “cause[d a] protracted loss or impairment of the function of” his jaw, we hold that the trial court did not err in denying Smalls' motion to dismiss.

B. Jury instruction for lesser included offenses

Smalls also argues that the trial court committed plain error in failing to instruct the jury on the lesser included offenses of misdemeanor assault inflicting serious injury and simple assault. We disagree.

Smalls concedes that because he did not request any instructions on lesser included offenses at trial, the standard of review is plain error. See State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Thus, in order to prevail, Smalls

must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.

Id. (citations, internal quotation marks, and brackets omitted).

Our Supreme Court has made clear that a defendant 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) (citation omitted). However, a trial court must submit a lesser included offense to the jury “when, and only when, there is evidence from which the jury can find that [the] defendant committed the lesser[ ]included offense.” State v. Summit, 301 N.C. 591, 596, 273 S.E.2d 425, 427, cert. denied, 451 U.S. 970, 68 L.Ed.2d 349 (1981). “Where the State's evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required.” State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations and internal quotation marks omitted).

In the present case, Smalls was charged with assault inflicting serious bodily injury, the elements of which include: “(1) the commission of an assault on another, which (2) inflicts serious bodily injury.” Hannah, 149 N.C.App. at 717, 563 S.E.2d at 4. Smalls contends that because both simple assault and assault inflicting serious injury share essential elements with the offense of assault inflicting serious bodily injury, the trial court committed plain error in failing to instruct the jury on them as lesser included offenses. However, the only evidence that Smalls suggests would have “permit[ted the] jury rationally to find him guilty of [these] lesser offense[s] and acquit him of the greater,” Leazer, 353 N.C. at 237, 539 S.E.2d at 924, is that Warren's jaw was wired shut for only four weeks. Here again, Smalls contends this evidence was insufficient to satisfy the definition of “serious bodily injury” that the trial court provided in its jury instruction based on his argument that the word “protracted” in section 14–32.4(a) should be construed to mean “not for a short period of time, but for a long period of time, just short of a permanent condition.” In light of our conclusion supra that the trial court did not err in denying Smalls' motion to dismiss this charge for insufficient evidence, we have no trouble in concluding that the State's evidence was positive as to each element of the offense charged and that there was no contradictory evidence admitted that would have necessitated submitting a jury instruction on any lesser included offenses. Accordingly, we hold that the trial court did not commit plain error by failing to instruct the jury on lesser included offenses.

NO ERROR.

Judges STROUD and DAVIS concur.

Report per Rule 30(e).