State v. Williams, COA01-496.

• Decision Date: 04 June 2002
• Docket Number: No. COA01-496.,COA01-496.
• Citation: 563 S.E.2d 616,150 NC App. 497
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Shannon Dewayne WILLIAMS.

563 S.E.2d 616

150 NC App. 497

STATE of North Carolina v. Shannon Dewayne WILLIAMS.

No. COA01-496.

Court of Appeals of North Carolina.

June 4, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Robert R. Gelblum, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant.

CAMPBELL, Judge.

Defendant was indicted for assault inflicting serious bodily injury in violation of N.C. Gen.Stat. § 14-32.4, felonious breaking or entering, first degree trespass, and resisting a public officer. Defendant was tried at the 23 October 2000 Criminal Session of Haywood County Superior Court. Defendant was found guilty of assault inflicting serious bodily injury, misdemeanor breaking or entering, first degree trespass, and resisting a public officer. Defendant was sentenced to a minimum prison term of 25 months with a maximum term of 30 months for the assault inflicting serious bodily injury conviction. Defendant was sentenced to a consecutive term of 120 days for the misdemeanor breaking or entering conviction. Defendant's convictions for first degree trespass and resisting a public officer were consolidated for judgment, and defendant was sentenced to an additional consecutive term of 60 days. Defendant appeals. For the reasons stated herein, we hold no error as to defendant's convictions for assault inflicting serious bodily injury and misdemeanor breaking or entering; however, we vacate defendant's first degree trespass conviction and remand defendant's resisting a public officer conviction for a new sentencing hearing.

The State's evidence tended to show that around midnight on the evening of 16 February 2000, Ronald Barton Moore ("Moore") was asleep in his home when he was awakened by Amber, his teenage daughter, and Rose Marie Chapman ("Chapman"). Chapman is the mother of one of Amber's friends, and Amber was staying at Chapman's apartment that night. Chapman came to Moore's house to seek his help in making several young men leave her apartment. Moore rode with Chapman to her apartment, and upon entering the apartment, found defendant and four or five other young men in the apartment drinking liquor. At the request of Chapman, Moore asked the men to leave the apartment, to which the men responded that it was not Moore's house and he had no right to ask them to leave. When the men refused to leave, Chapman told Moore that it would probably be better if Moore and Amber left, and that she would probably call the police. As Moore and Amber were walking to the vehicle of a neighbor who was to take them home, defendant and one of the other men, Jason Caldwell ("Caldwell"), attacked Moore. Caldwell punched Moore in the face, knocking him to the ground, and Caldwell and defendant began kicking Moore. The two men stopped after a few minutes and Moore was helped onto the porch, whereupon defendant punched Moore in the eye and kicked him three or four more times before Moore passed out.

As a result of the attack by defendant and Caldwell, Moore suffered a broken jaw which had to be wired shut for two months. During those two months, Moore lost thirty pounds. Moore also testified that his ribs were broken and that he had been forced to go to the emergency room on two occasions since the attack due to back spasms that made it difficult for him to breathe. Moore testified that he was still suffering from back spasms at the time of the trial. In addition, Moore testified that he suffered from blurred vision after the attack, and that he had $6,000.00 in damage to his teeth.

Dr. Tannehill's testimony confirmed that Moore's jaw had been broken and that Dr. Tannehill had performed the surgery in which Moore's jaw was wired shut. Dr. Tannehill further testified that a broken jaw is the type of injury that causes "quite a bit" of pain and discomfort that "gradually subsides over a period of time, in varying degrees to the type of [ ] injury." Dr. Tannehill testified that Moore had bruised, not broken, ribs.

Darrell Burnette ("Burnette"), a neighbor of Chapman, testified that he was awakened in the early morning hours of 17 February 2000 by defendant and Caldwell knocking on his back door. When Burnette opened the door to see what the two men wanted, they asked to use the telephone. Burnette noticed that the two men were "badly intoxicated," told them that his telephone did not work, shut the door, and started back to bed. Defendant and Caldwell knocked on the door a second time, and when Burnette again opened it, the two men asked for a "light." Burnette told them that he did not have a "light," and that they should go about their business. Burnette again shut the door, turned out the light, and started back to bed, whereupon he heard a window next to the back door break. At that point, Burnette picked up a mattock handle, opened the back door again, and began arguing with defendant and Caldwell. As Burnette and the two men were arguing, Officer Tamara Vandermolan, who had been summoned to the scene as a result of Burnette's wife's call to 911, arrived at the house. As Officer Vandermolan was preparing to handcuff the two men, they ran off, with Officer Vandermolan pursuing one and Burnette pursuing the other.

At the outset, we note that defendant sets forth twenty-three assignments of error, but fails to address many of them in his brief. Those assignments of error not presented or discussed in defendant's brief are deemed abandoned pursuant to Rule 28(a) of the North Carolina Rules of Appellate Procedure.

Defendant first contends that the trial court erred in denying his motion to dismiss the felony assault charge, arguing that the evidence was insufficient to show that the victim, Moore, suffered "serious bodily injury," as defined in N.C.G.S. § 14-32.4.

In ruling on a motion to dismiss on the ground of insufficiency of the evidence, the trial court must determine "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence is that which a reasonable juror would consider sufficient to support a conclusion that each essential element of the crime exists." State v. Baldwin, 141 N.C.App. 596, 604, 540 S.E.2d 815, 821 (2000). "[I]t is well settled that the evidence is to be considered in the light most favorable to the State and that the State is entitled to every reasonable inference to be drawn therefrom." State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994).

Defendant was charged and convicted of assault inflicting serious bodily injury, which "requires proof of two elements: (1) the commission of an assault on another, which (2) inflicts serious bodily injury." State v. Hannah, ___ N.C.App. ___, 563 S.E.2d 1 (2002) (citing State v. Wampler, 145 N.C.App. 127, 549 S.E.2d 563 (2001)); N.C. Gen.Stat. § 14-32.4 (1999). While it is clear that there is substantial evidence of the first element of this offense, defendant argues that there was insufficient evidence that he inflicted "serious bodily injury" on Moore. We disagree.

In 1996, the General Assembly created the offense of assault inflicting "serious bodily injury" by enacting N.C.G.S. § 14-32.4, which reads:

Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony. "Serious bodily injury" is defined 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.G.S. § 14-32.4 (1999).

Prior to passage of N.C.G.S. § 14-32.4, the primary statutes dealing with assaults in this jurisdiction were N.C.G.S. §§ 14-32 and 14-33. N.C.G.S. § 14-33 makes an assault that inflicts "serious injury" a Class A1 misdemeanor. N.C.G.S. § 14-32 makes an assault with a deadly weapon that inflicts "serious injury" a Class E felony, and makes an assault with a deadly weapon with intent to kill that inflicts "serious injury" a Class C felony. In the past, the courts of this State have declined to define "serious injury" for purposes of assault prosecutions other than stating that the term "serious injury" means physical or bodily injury resulting from an assault, Alexander, 337 N.C. at 188, 446 S.E.2d at 87, and that "[f]urther definition seems neither wise nor desirable." State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962). In State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991), the Supreme Court explained:

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. A jury may consider such pertinent factors as hospitalization, pain, loss of blood, and time lost at work in determining whether an injury is serious. Evidence that the victim was hospitalized, however, is not necessary for proof of serious injury.

Id. at 53, 409 S.E.2d at 318 (internal citations omitted). In sum, the case law addressing the issue of the sufficiency of evidence of serious injury in an assault prosecution stands 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 whether the injury was serious." Alexander, 337 N.C. at 189, 446 S.E.2d at 87.

Subsequent to the definition of "serious injury" becoming well settled in case law, the General Assembly enacted N.C.G.S. § 14-32.4, which makes an assault inflicting "serious bodily injury" a Class F felony, "[u]nless the conduct is covered under some other provision of law providing greater...