Opinion
No. 07-1184.
Filed 1 July 2008. This case not for publication.
Mecklenburg County Nos. 05 CRS 200143, 200144, 200146-200148.
Appeal by defendant from judgments entered 5 January 2007 by Judge W. Robert Bell in Superior Court, Mecklenburg County. Heard in the Court of Appeals 15 April 2008.
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State. Lisa Skinner Lefler, for defendant-appellant.
"The constitutional guarantees of due process, assistance of counsel and confrontation of witnesses unquestionably include the right of a defendant to have a reasonable time to investigate and prepare his case." Here, Defendant argues that the trial court committed reversible error by denying his motion to continue, thereby denying his constitutional rights. Because defense counsel had at least five months in which to prepare for trial and confer with any possible witnesses, we find no abuse of discretion by the trial court in denying his motion to continue.
State v. Branch, 306 N.C. 101, 104-05, 291 S.E.2d 653, 656 (1982).
The State's evidence tended to show that on 31 December 2004, Defendant Nelson Moore went out to dinner with his pregnant wife Yvonne Maria Verduga ("Maria"), her sister Yvonne Yvette Verduga ("Navette"), and Isreal Rivera ("Isreal"). Defendant drank beer at dinner and drank more beer after dinner at a pool hall. At the pool hall, a man approached Maria, which prompted a fight between Defendant and the man. After the two men were separated, Defendant, Maria, Navette, and Isreal left the pool hall.
On the drive home, Defendant sat in the back seat with Maria. He started pushing her and yelling at her, accusing her of wanting the other man. When Maria told Defendant she would call the police because he was beating her, he broke her cell phone. Navette then drove to the Pineville Police Station, but no one went in because Defendant agreed to pack his things and leave when they got home.
Maria and Defendant lived in Mecklenburg County with her parents, sister, and brother, but her parents were not home that evening. When they arrived home, Defendant went upstairs to pack his things, while Maria called Defendant's mother to ask her to pick him up. Defendant spoke to his mother on the phone and told her that if anything happened, he wanted her to know that he loved her. Afterwards, Defendant began stabbing Maria with a knife. When Navette heard Maria's cries for help, she ran into the room to help her, but Defendant stabbed Navette in the back of her neck. Navette then ran into another room, where she used a cell phone to call 911. Maria attempted to run into a bathroom, but Defendant followed her, continuing to stab her and kick her. Eventually, Maria was able to grab the knife from Defendant and escape to a bedroom, where Isreal joined her and barricaded the door with a dresser until the police arrived.
Although Maria's baby was not harmed as a result of her being stabbed, Maria testified at trial that she was stabbed in numerous areas, including her shoulder, buttocks, arms, abdomen, and neck, and still had scarring on her head, arms, hands, lower back, and legs. According to hospital records, Defendant's blood alcohol level was over 0.30 when he was brought in.
Defendant was indicted on 24 January 2005 for assault on a female, interfering with emergency communication, assault inflicting serious bodily injury for his assault on Navette, assault with a deadly weapon for his assault on Isreal, and assault with a deadly weapon with intent to kill or inflict serious injury. On 2 January 2007, the date Defendant's trial term was to begin, defense counsel made a motion to continue "to assure the attendance of witnesses that he has issu[ed] subpoenas for their attendance and . . . said subpoenas have apparently not been served." The trial court denied Defendant's motion to continue. The trial court also denied Defendant's motions to dismiss the charges of interfering with emergency communication and assault inflicting serious injury at the end of the State's evidence.
The jury found Defendant guilty on all charges, but on the charge of assault inflicting serious bodily injury on Navette, the jury convicted him of the lesser offense of misdemeanor assault inflicting serious injury. Defendant stipulated to a prior record level of three, and the trial court sentenced him to 150 days for assault on a female, 150 days for the consolidated convictions of assault with a deadly weapon and interfering with emergency communication, and 150 days for assault inflicting serious injury. Additionally, Defendant was sentenced to 116 to 149 months' imprisonment for assault with a deadly weapon with intent to kill or inflict serious injury.
On appeal, Defendant argues the trial court erred by (I) denying his motion to continue; (II) denying his motion to dismiss the charge of assault with a deadly weapon with intent to kill or inflict serious injury; and (III) failing to dismiss the charge of assault inflicting serious injury.
I.
In his first assignment of error, Defendant argues the trial court committed reversible error by denying his motion to continue, thereby denying his constitutional rights of due process, assistance of counsel, and confrontation.
Our standard of review of a trial court's ruling on a motion for continuance is well established:
Ordinarily, a motion to continue is addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court's ruling is not subject to review. When a motion to continue raises a constitutional issue, the trial court's ruling is fully reviewable upon appeal. Even if the motion raises a constitutional issue, a denial of a motion to continue is grounds for a new trial only when defendant shows both that the denial was erroneous and that he suffered prejudice as a result of the error.
State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (internal citations omitted), cert. denied, 535 U.S. 934, 152 L. Ed. 2d 221 (2001). To establish that the denial of a motion to continue was prejudicial, a defendant must show "how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion." State v. Williams, 355 N.C. 501, 540-41, 565 S.E.2d 609, 632 (2002) (quotation and citation omitted), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
In State v. Branch, our Supreme Court stated:
The constitutional guarantees of due process, assistance of counsel and confrontation of witnesses unquestionably include the right of a defendant to have a reasonable time to investigate and prepare his case. No precise time limits are fixed, however, and what constitutes a reasonable length of time for the preparation of a defense must be determined upon the facts of each case.
306 N.C. 101, 104-05, 291 S.E.2d 653, 656 (1982). In terms of what constitutes a "reasonable length of time," in Branch, the Court held that the trial court did not abuse its discretion by denying the defendant's motion to continue where the defendant's motion was made four months after his indictment and the defendant failed to show why that period of time was not sufficient to locate necessary witnesses and have them present for trial. Id. at 105, 291 S.E.2d at 657. Additionally, in State v. Searles, the Court held that the trial court did not err in granting a continuance of only two days because the fifty-six day interim between the date of defense counsel's appointment and the date the case was originally calendared for trial was more than enough time for counsel to confer with his client and any possible witnesses. 304 N.C. 149, 154, 282 S.E.2d 430, 433-34 (1981).
In this case, Defendant was indicted on 24 January 2005 and his motion to continue was filed almost two years later, on 2 January 2007. Additionally, a review of the record shows that Defendant's attorney had represented him since at least 14 July 2006. Defendant's motion to continue stated that he needed a continuance "to verify the full extent of [Dr. James Watkins'] testimony," the doctor who attended to Defendant upon his admission to the hospital after the assaults and would testify that Defendant would have been unable to form the intent to kill because of his blood alcohol level. However, defense counsel did not subpoena Dr. Watkins until 18 December 2006 because he "didn't know we needed that information. The State had made an offer to reduce on the other charges, to reduce the intent to kill down to . . . just assault with a deadly weapon with inflicting serious injury."
Even if defense counsel believed the State would reduce Defendant's charges, he had at least five months in which to prepare for trial and confer with any possible witnesses. Because our Supreme Court has held that four months constitutes a "reasonable length of time" to locate necessary witnesses and have them present for trial, Branch, 306 N.C. at 104, 291 S.E.2d at 656, we cannot conclude that the trial court abused its discretion by denying Defendant's motion to continue. This assignment of error is overruled.
II.
Defendant next argues that the trial court erred by denying his motion to dismiss the charge of assault with a deadly weapon with intent to kill or inflict serious injury. However, North Carolina Rule of Appellate Procedure 10(b)(3) provides that "[a] defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action . . . at trial." N.C. R. App. P. 10(b)(3) (2007).
In this case, Defendant did make a motion to dismiss at the close of the State's evidence for the charges of interfering with emergency communication and assault inflicting serious injury. However, as to the charge of assault with a deadly weapon with intent to kill or inflict serious injury, defense counsel stated, "as to the other charge, I could argue that there was no intent to kill, but I'd be wasting my time on that one so — but as to those [other] two charges, we believe that the Court should dismiss those charges at the end of the State's evidence." Accordingly, because Defendant failed to make a motion to dismiss the charge of assault with a deadly weapon with intent to kill or inflict serious injury, he cannot now assign error to the insufficiency of the evidence to prove that crime. See id. This assignment of error is dismissed.
III.
In his final assignment of error, although Defendant was convicted of assault inflicting serious injury, he argues that the trial court erred by failing to dismiss the charge of assault inflicting serious bodily injury for his assault on Navette. Defendant also argues that the trial court erred by submitting to the jury the charge of assault inflicting serious bodily injury with the lesser included offense of assault inflicting serious injury.
When determining whether to dismiss a criminal action for insufficiency of evidence:
[T]he trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference which may be drawn from the evidence and resolving all inconsistencies in the State's favor. A motion to dismiss is properly denied if there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.
State v. McCree, 160 N.C. App. 200, 204, 584 S.E.2d 861, 864 (2003) (internal citations omitted). The elements of assault inflicting serious bodily injury are "(1) the commission of an assault on another, which (2) inflicts serious bodily injury." State v. Brown, 177 N.C. App. 177, 187, 628 S.E.2d 787, 793 (2006); see also N.C. Gen. Stat. § 14-32.4 (2007). Section 14-32.4 of our General Statutes 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).
Defendant does not dispute that there was sufficient evidence of the first element, but contends there was insufficient evidence that the assault inflicted serious bodily injury on Navette. We disagree. At trial, Navette testified that Defendant stabbed her in the back of the neck, that her entire arm was numb as a result of the stabbing, and that she continued to have numbness in her left arm and fingers at the time of trial. Additionally, the jury viewed pictures of the wound on Navette's neck. Considering this evidence in the light most favorable to the State, we cannot conclude that the trial court erred by failing to grant Defendant's motion to dismiss.
Additionally, assuming arguendo that Navette did not suffer "serious bodily injury" as Defendant contends, any error in submission to the jury was harmless. See State v. Williams, 154 N.C. App. 176, 181, 571 S.E.2d 619, 622 (2002) ("Even assuming, arguendo, there was insufficient evidence of `serious bodily injury' to satisfy the statutory definition, any error in submission to the jury of the greater offense was rendered harmless by the jury's verdict convicting defendant of the lesser offense of assault inflicting serious injury."). Accordingly, this assignment of error is overruled.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).