State v. Rushing, 110519 NCCA, COA18-1100

Docket Nº:COA18-1100
Opinion Judge:ARROWOOD, Judge.
Party Name:STATE OF NORTH CAROLINA v. WILLIAM CHRISTOPHER RUSHING
Attorney:Attorney General Joshua H. Stein, by Special Deputy Attorney General Victoria L. Voight, for the State. Paul F. Herzog for defendant-appellant.
Judge Panel:Judge DIETZ concurs. Judge ZACHARY concurs ZACHARY, Judge, concurring in part, dissenting in part.
Case Date:November 05, 2019
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

WILLIAM CHRISTOPHER RUSHING

No. COA18-1100

Court of Appeals of North Carolina

November 5, 2019

Heard in the Court of Appeals 11 April 2019.

Appeal by defendant from judgments entered 17 August 2016 by Judge Walter H. Godwin, Jr. in Pitt County Nos. 16 CRS 51635, 51655 Superior Court.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Victoria L. Voight, for the State.

Paul F. Herzog for defendant-appellant.

ARROWOOD, Judge.

William Christopher Rushing ("defendant") appeals from judgments entered against him for assault inflicting serious bodily injury, assault on a female, and habitual misdemeanor assault. For the reasons that follow, we find no error.

I. Background

In May 2016, a Pitt County grand jury indicted defendant for assault inflicting serious bodily injury, assault on a female, assault on a child under twelve years of age, and habitual misdemeanor assault.1 The case came on for trial on 16 and 17 August 2016 in Pitt County Superior Court before the Honorable Walter H. Godwin.

The evidence of the State tended to show that defendant and Ms. Keyosha Leachman ("Ms. Leachman") had an eleven-year-old child, of whom defendant had physical custody on weekends. On Sunday, 6 March 2016, defendant and Ms. Leachman got into a heated argument as Ms. Leachman was attempting to pick up their child from defendant's mother's home. As the argument escalated, defendant pushed Ms. Leachman.

Having been assaulted by defendant in the past, Ms. Leachman drew a pocket knife and stabbed defendant in the chest. In the ensuing brawl, defendant threw Ms. Leachman's head into the concrete, disarmed her, punched her again, threw her into the concrete driveway, and dragged her across the driveway. Ms. Leachman-still attempting to fight back-was able to get to her feet. Wanting Ms. Leachman to "stay down," defendant punched her one last time, flinging her onto the hood of her car. Defendant finally relented after a neighbor threw herself over Ms. Leachman.

Ms. Leachman testified that she was immediately taken to the hospital after defendant assaulted her. At the hospital, she was told by physicians that she had sustained two concussions. In addition to scrapes and bruises on her scalp, she also received six stitches on her hand and one stitch on her leg.

Among these other injuries, defendant's assault of Ms. Leachman inflicted significant damage to her left eye. In an effort to reduce the pain in her eye, the lights in her hospital room were turned off. Detective Sonya Verdin from the Greenville Police Department testified that Ms. Leachman "was in very obvious pain" when they spoke to one another at the hospital. Ms. Leachman stayed at the hospital for three hours.

It was determined that the orbital (socket) of her left eye had been fractured during the assault. She was given several sutures near her eye. Due to her fractured eye socket and swelling around her eye, Ms. Leachman was rendered temporarily blind in her left eye. This complete blindness continued for one week. As a result, Ms. Leachman was not permitted to drive for one week. Ms. Leachman's overall facial swelling took five days to subside with the aid of medication. Her black eye lasted for a week and a half. Her vision in her left eye was not fully restored for two weeks, and she could not return to work until after her vision was restored. Ms. Leachman further testified regarding her orbital fracture in the present tense: "I actually have an orbital fracture, . . . what your eye sits on, the socket part is broken."

At the close of the State's evidence, defendant moved to dismiss all charges against him. The trial court granted the motion to dismiss for the charge of assault on a child under twelve years of age, but denied the motion as to the rest of the charges. Defendant renewed his motion to dismiss the charges at the close of all the evidence, which the trial court denied. On 17 August 2016, defendant was found guilty of assault inflicting serious bodily injury and assault on a female. Defendant failed to properly give notice of appeal; however, we granted defendant's petition for writ of certiorari to review defendant's case.

II. Discussion

On appeal, defendant raises several arguments: (1) the indictment fails to allege the crime of assault inflicting serious bodily injury; (2) the State failed to present substantial evidence that defendant's assault inflicted serious bodily injury upon the victim; and (3) defendant should be resentenced for the class A1 misdemeanor of assault inflicting serious injury. We address each contention in turn.

A. Sufficiency of the Indictment

In the case sub judice, the indictment alleged that defendant "unlawfully, willfully and feloniously did assault [Ms.] Leachman and inflict serious bodily injury, several lacerations to the face resulting in stitches and a hematoma to the back of the head." Defendant argues that this language merely describes the misdemeanor crime of assault inflicting serious injury. We disagree. The indictment alleged the offense of assault inflicting serious bodily injury by reciting the words of the statute itself: "[A]ny person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony." N.C. Gen. Stat. § 14-32.4(a) (2017) (emphasis added); see also State v. James, 321 N.C. 676, 680-81, 365 S.E.2d 579, 582 (1988) ("The general rule is that an indictment for a statutory offense is facially sufficient if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words.").

The additional descriptions of Ms. Leachman's injuries in the indictment are irrelevant to its validity, and may be disregarded as incidental to the salient statutory language. See State v. Pelham, 164 N.C.App. 70, 79, 595 S.E.2d 197, 203 ("Allegations beyond the essential elements of the offense are irrelevant and may be treated as surplusage and disregarded . . . ."), appeal dismissed, disc. rev. denied, 359 N.C. 195, 608 S.E.2d 63 (2004). Therefore, in accordance with our policy that "[q]uashing indictments is not favored[, ]" State v. Flowers, 109 N.C. 841, 844, 13 S.E. 718, 719 (1891) (citation omitted), we hold that the indictment in this case was facially valid.

B. Motion to Dismiss

Defendant argues that the trial court erred in denying both motions to dismiss because the State failed to present substantial evidence that defendant's assault on Ms. Leachman resulted in her "serious bodily injury." We disagree.

1. Standard of Review

A trial court should deny a criminal defendant's motion to dismiss if there is substantial evidence of (1) each essential element of the offense charged, and (2) the defendant being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982) (citation omitted). Evidence is considered "substantial" if it is relevant and a reasonable mind might accept such evidence as "adequate to support a conclusion." State v. Cummings, 46 N.C.App. 680, 683, 265...

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