State v. Allen

• Decision Date: 21 October 2008
• Docket Number: No. COA08-215.,COA08-215.
• Citation: 667 S.E.2d 295
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jason W. ALLEN.

667 S.E.2d 295

STATE of North Carolina v.Jason W. ALLEN.

No. COA08-215.

Court of Appeals of North Carolina.

October 21, 2008.

Appeal by defendant from judgment entered 11 June 2007 by Judge Phyllis Gorham in Onslow County Superior Court. Heard in the Court of Appeals 27 August 2008.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberly D. Potter, for the State.

William D. Spence, Kinston, for defendant-appellant.

JACKSON, Judge.

On 13 June 2007, Jason W. Allen("defendant") was convicted of assault with a deadly weapon inflicting serious injury, felonious larceny of a motor vehicle, and felonious possession of a stolen vehicle.The trial court arrested judgment on the charge of felonious possession of a stolen vehicle; the remaining charges were consolidated, and defendant was sentenced within the presumptive range to twenty-seven to forty-two months imprisonment.Defendant appeals.For the reasons stated below, we hold no error.

As of 7 September 2002, defendant had been living with Susan Clarkson("Clarkson") in her Jacksonville, North Carolina residence for approximately two months.On 7 September 2002, Clarkson and defendant invited Clarkson's friend, George Wilhelm("Wilhelm") for dinner.Throughout the evening, Clarkson, Wilhelm, and defendant ate food and drank various alcoholic beverages.At some point that evening, Clarkson and Wilhelm danced together.In response, defendant became upset and stated to Clarkson that it made him jealous.

Around midnight that evening, Clarkson hugged Wilhelm in her doorway as Wilhelm departed.Clarkson then began to walk through her home to her master bedroom when defendant struck her from behind in the back of her head with his fist.Clarkson testified that defendant then punched her in the face repeatedly, held her down by her neck, spat on her, and threw her around her bedroom onto the floor and the bed.Clarkson eventually lost consciousness from the repeated punches to her head.

When Clarkson regained consciousness, she called 911 and received medical treatment from EMS and at the hospital.Although Clarkson did not suffer any fractures as a result of the assault, her face remained extremely bruised and swollen for over a month.

Following defendant's assault, Clarkson learned that her 1995Ford Explorer, valued at $10,000.00 and which had been at her residence on 7 September 2002, was missing.The car was recovered more than a week later in Norfolk, Virginia where defendant had driven and abandoned it.Clarkson did not give defendant permission to use her car on either 7 or 8 September 2002.

On appeal, defendant first contends that the trial court erred by denying defendant's motion to dismiss the assault with a deadly weapon inflicting serious injury charge at the close of all the evidence because the evidence was insufficient to establish every element of the crime.Specifically, defendant argues that (1) the use of his hands and fists during his assault did not constitute the use of a deadly weapon; and (2)defendant did not inflict serious injury upon Clarkson.We disagree.

In order to survive a motion to dismiss based upon the sufficiency of the evidence, the State must present substantial evidence of each essential element of the charged offense and of defendant's being the perpetrator.State v. Fritsch,351 N.C. 373, 378, 526 S.E.2d 451, 455(2000)."Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."State v. Blake,319 N.C. 599, 604, 356 S.E.2d 352, 355(1987)(internal citations and quotation marks omitted).The reviewing court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences that can be drawn from the evidence.Fritsch,351 N.C. at 378-79, 526 S.E.2d at 455.

Defendant was convicted of assault with a deadly weapon inflicting serious injury pursuant to North Carolina General Statutes, section 14-32(b)."The elements of a charge [pursuant to section]14-32(b) are (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death."State v. Woods,126 N.C.App. 581, 592, 486 S.E.2d 255, 261(1997)(quotingState v. Aytche,98 N.C.App. 358, 366, 391 S.E.2d 43, 47(1990)).

An assailant's hands may be considered deadly weapons for the purpose of the crime of assault with a deadly weapon inflicting serious injury depending upon the manner in which they were used and the relative size and condition of the parties.See, e.g., State v. Harris,___ N.C.App. ___, ___, 657 S.E.2d 701, 708-09(2008)(substantial evidence of defendant's use of his hands as a deadly weapon when the 175 pound defendant caused hand-print bruises on the 110 pound victim's arms, thighs, and buttocks, as well as bruises on the victim's neck which could have been the cause of the victim's swollen mouth, tongue, and throat);State v. Rogers,153 N.C.App. 203, 211, 569 S.E.2d 657, 663(2002)(substantial evidence of defendant's use of his hands as a deadly weapon when defendant was six feet two inches tall and weighed 165 pounds and struck victim in her face, breaking her nose, cheekbone, and jaw when victim was five feet three inches tall and weighed ninety-nine pounds);State v. Grumbles,104 N.C.App. 766, 769-71, 411 S.E.2d 407, 409-10(1991)(substantial evidence of defendant's use of his hands as a deadly weapon when the 175 pound defendant hit and choked the 107 pound victim leaving marks on her neck and causing facial swelling and a broken jaw).

In the casesub judice,the State presented evidence that defendant was twenty-five years old, seven inches taller, and forty pounds heavier than Clarkson who was thirty-eight years old.Defendant struck repeated blows to Clarkson's head and face with his hands and fists.Clarkson suffered traumatic head injuries and extreme facial bruising and swelling, as well as bleeding from her left ear and nose.Additionally, Clarkson's left eye was swollen shut for over a month, the inside of her ear was damaged, and the inside of her mouth was "chewed up."As a result of defendant's blows to Clarkson's head and face, she lost consciousness.When she awoke, she remained disoriented.

Accordingly, we hold the State presented substantial evidence of defendant's use of his hands as deadly weapons and that Clarkson suffered severe injury as a result.That she did not ultimately suffer any fractures as a result of the assault is relevant, but not determinative as to whether she sustained severe injury."Any weakness in the State's evidence or discrepancy between the State's evidence and [d]efendant's testimony was for the jury to consider."Harris,___ N.C.App. at ___, 657 S.E.2d at 709.The trial court did not err in denying defendant's motion to dismiss the assault with a deadly weapon inflicting serious injury charge.

Defendant requests that we reconsider the analysis provided in the first footnote of Harris which maintains the use of hands as deadly weapons for purposes of the crime of assault with a deadly weapon and distinguishing the North Carolina Supreme Court's decision in State v. Hinton,361 N.C. 207, 210, 639 S.E.2d 437, 439-40(2007).We agree with the analysis set forth in Harris, and we hold that precedent set forth in Hinton does not control in the casesub judice.

In Harris,we specifically noted that the Supreme Court's holding in Hinton neither addressed nor distinguished the statutory rule of law germane to both Harris and the casesub judice,North Carolina General Statute, section 14-32(b).SeeHarris,___ N.C.App. at ___, 657 S.E.2d at 708-09 n. 1, andN.C. Gen.Stat. § 14-32(b)(2005)¹.In Hinton, our Supreme Court held that a defendant's hands are not a deadly weapon for purposes of the crime of robbery with a dangerous weapon as set forth in North Carolina General Statutes, section 14-87.Hinton,361 N.C. at 208, 639 S.E.2d at 438.The Court explained [i]t is true assault with a deadly weapon is a lesser included offense of robbery with a dangerous weapon....However, the fact that assault with a deadly weapon is a lesser included offense of robbery with a dangerous weapon does not mean that the scope of the weapon elements must be identical for each offense.The fact that every dangerous weapon under N[orth Carolina General Statutes, section] 14-87 would also be a deadly weapon for purposes of assault with a deadly weapon does not necessitate that all deadly weapons for purposes of assault with a deadly weapon are dangerous weapons under N[orth Carolina General Statutes, section] 14-87.The doctrine of lesser included offenses moves downstream, not upstream. ...

Hinton,361 N.C. at 210, 639 S.E.2d at 439-40(first emphasis in original)(second emphasis added).For these reasons, we decline to reconsider the first footnote in Harris.Hinton does not control the casesub judice.

Defendant next contends that the trial court erred by denying defendant's motion to dismiss the felonious larceny of a motor vehicle charge at the close of all the evidence because the evidence was insufficient to establish every element of the crime.We disagree.

As stated above, in order to survive a motion to dismiss based on the sufficiency of the evidence, the State must present substantial evidence of each essential element of the charged offense and of defendant's being the perpetrator.Fritsch,351 N.C. at 378, 526 S.E.2d at 455."Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Blake,319 N.C. at 604, 356 S.E.2d at 355(internal citations and quotation marks omitted).The court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences that can be drawn from the evidence.Fritsch,351 N.C. at 378-79, 526 S.E.2d at 455.

Defendant was convicted of felonious larceny of a motor vehicle in violation of North...