Filed 1 June 2010 This case not for publication
Appeal by defendant from judgments entered 18 December 2008 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 24 May 2010.
Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.
Amos G. Tyndall, for defendant-appellant.
Guilford County Nos. 08 CRS 23168, 08 CRS 78402, 08 CRS 702131.
Defendant appeals from judgments entered based on jury verdicts convicting him of driving while license revoked, felonious hit and run, assault inflicting serious injury, and two counts of assault with a deadly weapon inflicting serious injury. Based upon the jury's verdicts, the trial court sentenced defendant to 53 to 73 months imprisonment in the custody of the North Carolina Department of Correction for assault with a deadly weapon inflicting serious injury on Crystal Roseberry, to a consecutive 53 to 73 months imprisonment in the custody of the North Carolina Department of Correction for assault with a deadly weapon inflicting serious injury on Rhoda Caulder, to a consecutive 15 to 18 months imprisonment in the custody of the North Carolina Department of Correction for felonious hit and run, and to a consecutive 120 days imprisonment in the custody of the North Carolina Department of Correction for driving while license revoked. After careful consideration of defendant's challenges to his convictions in light of the record and the applicable law, we find no error in the proceedings leading to the entry of the trial court's judgments.
The trial court arrested judgment in the case in which defendant was convicted of assault inflicting serious injury.
The State's evidence tends to show that, during the afternoon of 1 February 2008, Ms. Roseberry was taking her mother, Ms. Caulder, for a ride in Ms. Roseberry's newly-acquired Jeep when an approaching vehicle crossed over into her lane of travel and collided with her vehicle. The driver of the other vehicle exited his vehicle and walked away. Ms. Roseberry and Ms. Caulder identified defendant as the driver and sole occupant of the other vehicle.
Officer Brent Kinney of the High Point Police Department investigated the accident. Officer Kinney testified that, when he arrived at the scene, he observed a Jeep Cherokee occupied by two females and an unoccupied Ford Tempo. His subsequent research into information contained in vehicle registration records disclosed that the Ford was jointly owned by Lisa Hatfield and defendant Earnest Joseph Simmons.
Officer Kinney located defendant later that evening at the Budget Inn in Thomasville, North Carolina. At that time, Officer Kinney observed that defendant had several facial injuries, including a fresh abrasion of his nose, a swollen left eye, and a laceration over his left eye.
On appeal, defendant contends that the trial court erred by denying his motion to dismiss the charges of assault with a deadly weapon inflicting serious injury upon Ms. Caulder and Ms. Roseberry. A motion to dismiss based on the alleged insufficiency of the evidence requires the trial court to determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The trial court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn therefrom. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). In considering a motion to dismiss for insufficiency of the evidence, contradictions and discrepancies in the evidence are to be disregarded and left for resolution by the jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
The elements of assault with a deadly weapon inflicting serious injury in violation of N.C. Gen. Stat. § 14-32(b) are (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death. State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990). According to defendant, the State failed to present sufficient evidence to establish that either Ms. Caulder or Ms. Roseberry sustained a serious injury. Defendant concedes that the State presented sufficient evidence to establish all of the other elements of the offenses for which he was convicted.
"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." State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000). "Cases that have addressed the issue of the sufficiency of evidence of serious injury appear to stand 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 the question of whether the injury was serious." State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994). Factors a jury may consider in determining whether a serious injury has been inflicted include hospitalization, pain, loss of blood, or inability to work. State v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983).
Ms. Caulder testified that she injured her back as a result of the accident, that she "couldn't move from where [she] had been slammed from the impact," that she "couldn't twist her body," that she went to the emergency room on the day of the accident for treatment, that she was referred to a chiropractor and a "bone and joint specialist" for follow-up treatment, that she is in pain "24/7," that she is unable to work except under strict doctor's orders, and that, in the aftermath of the accident, she could no longer work and pick up her grandchildren. We hold that, based upon the foregoing testimony, a jury could reasonably find that defendant inflicted serious injury upon Ms. Caulder. Although defendant argues that much, if not all, of the evidence that tends to support a finding that Ms. Caulder sustained a serious injury at the time of the collision was inadmissible due to the absence of expert medical testimony linking the injuries that she sustained to the collision as is required by the principles enunciated in Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965) (stating that a disk condition is "so far removed from the usual and ordinary experience of the average man that expert knowledge is essential to the formation of an intelligent opinion," that "physical processes [that] produce a ruptured disk belong to the mysteries of medicine," and that "`[w]here a layman can have no well-founded knowledge and can do no more than indulge in mere speculation (as to the cause of a physical condition), there is no proper foundation for a finding by the trier without expert medical testimony'") (quoting Burton v. Holden Martin Luther Co., 112 Vt. 17, 19, 20 A.2d 99, 100 (1941)), defendant's argument does not provide any basis for a successful challenge to the trial court's denial of his motion to dismiss the assault with a deadly weapon inflicting serious injury charge relating to Ms. Caulder since all of the evidence, regardless of whether that evidence was properly admitted, State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000); State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996), is considered in evaluating a challenge to the sufficiency of the evidence to support a conviction. As a result, defendant's challenge to the admissibility of Ms. Caulder's testimony concerning the extent of her injuries does not provide any basis for a valid challenge to the sufficiency of the evidence to support the "serious injury" element of assault with a deadly weapon inflicting serious injury.
Similarly, Ms. Roseberry testified that she sustained a knee injury in the collision, which left it "swolled up and bruised." Ms. Roseberry sought treatment for her knee injury in the emergency room, where "they put it in a splint because I could not walk on it." In addition, Ms. Roseberry claimed that she suffered a disk "separation," causing her to "end up going to a chiropracter for my back for about a month and a half" before she requested to be released "because I had no income and I had kids, so I couldn't continue with [chiropractic care] and trying to work, too." Ms. Roseberry testified that she "was in a lot of pain," that she used crutches for "a couple of weeks" after the collision, that she still has pain, that her "knee just starts throbbing real bad" when "the weather is bad," and that her "back always hurts[.]" Although defendant argues that Ms. Roseberry's injuries did not rise to the level of a "serious injury" as that term is used in N.C. Gen. Stat. § 14-32(b) and that "[a] witness' bare conclusions that she suffers from certain ailments without connecting those ailments in any way to the assault is insufficient to support the charge," we conclude, for the reasons set forth above, that Ms. Roseberry's testimony that her injuries resulted from the collision is sufficient to establish a causal link between her injuries and the collision and that a reasonable juror could, but need not, find that the injuries that Ms. Roseberry described in her testimony are "serious injuries" for purposes of N.C. Gen. Stat. § 14-32(b). As a result, the trial court did not err by denying defendant's motion to dismiss the charge that defendant committed an assault with a deadly weapon inflicting serious injury upon Ms. Roseberry.
Thus, for the reasons set forth above, we further find that the trial court did not err by denying defendant's dismissal motions directed at the assault with a deadly weapon inflicting serious injury charges. As a result, we find no error in the proceedings leading to the entry of the trial court's judgments.
Judges STEPHENS and BEASLEY concur.
Report per Rule 30(e).