State v. Rushing

836 S.E.2d 262

STATE of North Carolina

v.William Christopher RUSHING

No. COA18-1100

Court of Appeals of North Carolina.

Filed: November 5, 2019

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

Paul F. Herzog, Fayetteville, 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 S.E.2d 923, 925 (citation omitted), aff'd , 301 N.C. 374, 271 S.E.2d 277 (1980). On appeal, the trial court's denial of a motion to dismiss is reviewed de novo . State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).

2. "Serious Bodily Injury"

Defendant was charged with committing assault inflicting serious bodily injury in violation of N.C. Gen. Stat. § 14-32.4, which requires the State to establish two elements: "(1) the commission of an assault on another, which (2) inflicts serious bodily injury." State v. Williams , 150 N.C. App. 497, 501, 563 S.E.2d 616, 619 (2002) (citations omitted) [hereinafter Williams I ].² Everyone concedes that an assault was perpetrated by defendant against Ms. Leachman. The issue is whether the State has presented sufficient evidence to support a determination that Ms. Leachman suffered serious bodily injury.

"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. Gen. Stat. § 14-32.4(a).

In this case, the trial court instructed the jury only on a portion of the statute: that, in order to convict, they must find a serious bodily injury that "creates or causes a permanent or protracted loss/impairment of the function of any bodily member or organ." Thus, we are limited to this instruction in determining whether there is sufficient evidence to allow a jury to find this element of the offense. See State v. Rouse , 198 N.C. App. 378, 382, 679 S.E.2d 520, 524 (2009) ("It is well settled that a defendant may not be convicted of an offense on a theory of guilt different from that presented to the jury." (internal quotation marks omitted)). Whether a serious bodily injury can be found "depends upon the facts of each case and is generally for the jury to decide under appropriate instructions." Williams I at 502, 563 S.E.2d at 619 (citation omitted).

3. "Protracted Impairment"

None of the injuries that Ms. Leachman suffered were permanent in nature. Thus, we must determine whether her injuries resulted in a protracted loss or impairment of the function of any bodily member or organ. In doing so, we focus our inquiry on the injury Ms. Leachman suffered to her left eye. The eye is clearly a bodily member or organ, and damage to vision is an "impairment" of the eye's function. See State v. Kremski , 222 N.C. App. 318, 729 S.E.2d 732, 2012 WL 3192720, at *5 (2012) (unpublished) (holding fractures around eye causing potentially permanent forty percent loss in vision qualified as permanent or protracted loss or impairment of function of a bodily member or organ).

Accordingly, the issue here turns on whether the term "protracted impairment" encompasses an eye injury that results in complete blindness for a week and impaired vision for two weeks. Webster's Dictionary defines "protracted" as "prolong[ed] in time or space:...