No. COA-06-28 TWENTY-EIGHTH DISTRICT

1

No. COA-06-28 TWENTY-EIGHTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

)

v.)From Buncombe County

)05CRS53346

CHRISTOPHER SEAN DOWNS,

Defendant/Appellant.

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DEFENDANT-APPELLANT’S BRIEF

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1

INDEX

Table of Cases and Authorities...... ii

Question Presented...... 1

Statement of the Case...... 1

Statement of the Facts...... 3

Argument:

1. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF ASSAULT INFLICTING SERIOUS BODILY INJURY BECAUSE STATE’S EVIDENCE WOULD NOT ALLOW A RATIONAL TRIER OF FACT TO FIND BEYOND A REASONABLE DOUBT THAT THE ASSAULT RESULTED IN SERIOUS BODILY INJURY.

T.II, p.191, l.19-25; p.192-194, l.1-19...... 6

Conclusion...... 11

Certificate of filing and service...... 12

TABLE OF AUTHORITIES

State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1989)---6

State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679 (2003)-9

State v. Frugg, 351 N.C. 576, 528 S.E.2d 893 (2000)------7

State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1 (2002)—8

State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983)----7

State v. Lucas, 353 N.C. 568, 548 S.E.2d 812, 821(2001)-7

State v. Malloy, 309 N.C. 176, 305 S.E.2d 718(1983)-----7

State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980)------7

State v. Williams, 150 N.C. App. 497, 563 S.E.2d 616

(2002)------8

1

No. COA-06-28 TWENTY-EIGHTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

STATE OF NORTH CAROLINA)

)

v.)From Buncombe County

)05CRS53346

CHRISTOPHER SEAN DOWNS

****************************************************

DEFENDANT-APPELLANT’S BRIEF

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Questions Presented

1. DID THE COURT ERR IN DENYING DEFENSE COUNSEL MOTION TO DISMISS THE FELONY OFFENSE OF ASSAULT INFLICTING SERIOUS BODILY INJURY WHEN THERE WAS A LACK OF SUBSTANTIAL EVIDENCE AS TO SERIOUS BODILY INJURY INFLICTED?

TII, p.191, l.19-25; p.192-194, l.1-19

Statement of the Case

This charge of Assault Inflicting Serious Bodily Injury, a Class F felony enacted in 1996, brought against the Defendant Christopher Sean Downs, was brought to trial in Asheville, NC, Buncombe County Superior Court September 14, 2005, before The Honorable Zoro J. Guice, Jr., Judge Presiding. (T.I,p.1)

Chris Hess, Assistant District Attorney, represented State and Samuel A. Snead, Assistant Public Defender, represented the Defendant. (TI,p.2)

There was no recording of opening statements or of closing arguments of counsel.

The jury returned a verdict of guilty of Assault Inflicting Serious Bodily Injury. (R.p. 9)

The Defendant had no prior conviction points and was given a suspended sentence of 16 months minimum, 20 months maximum, with Special Probation requiring Defendant to serve 30 days in county jail. (R.p.12)

Defendant was released from jail pending appeal on payment of a $7,000 bond. (R.p.16)

The Appellate Defender appointed Allen w. Boyer appellate counsel on October 5, 2005. (R.p.18)

The printed copy of the Record on Appeal was mailed from the NC Court of Appeals on February 9, 2006.

There are two volumes to the trial transcript, TI of 61 pages and TII of 239 pages.

Statement of the Facts

Zack Siler testified that on March 8, 2005, in his freshman year at T. C. Robinson High School, he was assaulted by the Defendant, Chris Downs, another student, in a classroom at the school, following minor altercations between the two in the hallways and cafeteria of the school. (TI,p.41, l.16-25;p.42,l.1-6;p.51-52,l.1-23; TI, p.45, l.7-11; p.48, l.18-22,p.49,l.4-12,p.50,l.9-17)

Zack Siler noticed he was bleeding, leaving a “solid trail,” noticed his left eye was swollen shut and a front tooth was missing. (TI,p.53,l.4-16)

He was taken to the hospital for treatment where he had three stitches to his lip. X-rays disclosed a fracture to his nose. He spent 3-4 hours at the hospital before going home. (TI, p.54,55)

Mr. Siler did experience pain and the hospital gave him a prescription for Vicodin with an antibiotic to take home with him. (Tp. 55, l.1)

When Mr. Siler arrived at the hospital he was seen by a nurse, witness Christine McClure, Carolinas Medical Emergency Medicine nurse with 28 years of experience. (TII, p.142) When she examined Mr. Siler he was experiencing “a lot of pain.” (TII,p.147,l-2)

In her 3/8/05 report she noted Siler’s physical condition as:

1. Had “severe facial swelling” (TII,p.148,l.14-15)
2. Abrasion on lateral aspect of scalp (TII,p.149,l.11-17)
3. Left eye totally closed – right eye swollen (TII,p.149,l.21-22)
4. A deformity of nose (TII,p.149, l.25) It looked fractured. (TII,p.151,1.15)
5. One tooth missing. (TII,p.150,l.1,2)

CT scans performed showed minimally displaced nasal fracture, swelling, but “no orbital fracture and no mandible fracture at all.” (TII,p.154,1.22-24)

After treating him, the nurse referred Mr. Siler to his dentist and also to a Dr. Pate to examine his nose. (TII,p.155,l.24-25) (TII,p.156,l.1)

Dr. Pate, an ear, nose and throat specialist, examined Mr. Siler on March 11, 2005. (TII,p.16) He found that his nose was fractured but “had not shifted dramatically from its position.”

(TII,p.170,l.18-23)

The injury to the nose wasn’t bad enough “to get a blood clot in the septum,” so no treatment of the inner nose was required. (TII,p.171,l.15-22)

Dr. Pate recalled advising Mr. Siler to put ice on face and nose for swelling and “don’t blow the nose hard for a couple of days.” (TII,p.172,l.1-5)

Robert Huffman, D.D.S., a general dentist practicing in Asheville, NC, 15 years in practice, testified that he had been Mr. Siler’s dentist since 1997, and he saw him after the fight of March 8th because of a tooth that had been knocked out. (TII,p.174)

He replaced the tooth that was lost with a prosthetic tooth. Because of Siler’s age 15, Dr. Huffman set braces on his teeth with the prosthetic tooth to remain from 12 to 24 months to maintain spacing. At that time a new tooth would be put in place and the braces would come off. (TII,p.178,8-19;TII,p.182)

Mr. Siler, by his own testimony, regained his normal appearance in 3 to 4 weeks after March 8, 2005. The pain in his nose went away in about a week. (TII,p.74,l.7-13)

Argument

THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF ASSAULT CAUSING SERIOUS BODILY INJURY BECAUSE STATE’S EVIDENCE WOULD NOT ALLOW A RATIONAL TRIER OF FACT TO FIND BEYOND A REASONABLE DOUBT THAT THE ASSAULT RESULTED IN SERIOUS BODILY INJURY. TII,p.191,l.19-25;p.192-194,l.1-19;N.C.G.S. 14-32.4

Assignment of Error No. 1

The Court denied Defendant’s motion to dismiss the felony charges of Assault Inflicting Serious Bodily Injury, N.C.G.S. 14-32.4 for which he was indicted, the Defendant arguing that the State’s evidence was insufficient on the element of inflicting serious bodily injury defined by the Statute 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.”

Zack Siler’s injuries consisted of:

Severe facial swelling (TII, p.148)

Abrasion on lateral aspect of scalp (TII, p.149)

Left eye closed – right eye swollen (TII, p.149)

Minimally-displaced nasal fracture (TII, 171, l.16)

One tooth missing (TII, p.150)

Mr. Siler required treatment at the hospital; and was released after 3-4 hours. He was referred to his dentist and to Dr. Pate, an ear, eye, nose specialist. (TII, p.155, l.24-25;p.156,l.1)

According to Zack Siler, he regained his normal appearance in 3 to 4 weeks and the pain of his nose went away in a week. (TII, p.74, l.7-13)

The standard of review for denial of a Motion to Dismiss requires the Court to consider the evidence in the light most favorable to the State and decide whether there is substantial evidence to establish every element of the offense charged. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982); State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 812, 821 (2001)

Substantial evidence is that which “a reasonable mind might accept to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79; 265 S.E.2d 164,169 (1980) A More recent case defines substantive evidence as that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion. State v. Frugg, 351 N.C. 576, 584, 528 S.E.2d 893, 899 (2000)

If the evidence only raises conjecture or suspicion as to the existence of any element of the offense, then the Motion to Dismiss must be allowed, even though the suspicion is strong. State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983)

The Defendant makes no argument here that State’s evidence was insufficient as to the assault element of the offense in the case subjudice.

Defendant asserts that none of Siler’s injuries rose to the level of any of the injuries set out in the definition of serious bodily injury in N.C.G.S. 14-32.4.

In the case of State v. Williams, 150 N.C. App. 497, 563 S.E.2d 616 (2002), the appellate Court found that the State had presented substantial evidence under N.C.G.S. 14-32-4 of “an injury that creates or causes a permanent or protracted condition that causes extreme pain,” where the evidence showed that the victim suffered a fractured jaw, which was wired shut for two months, and such injury caused quite a bit of pain and discomfort, and the victim suffered from back spasms from broken ribs continuing from the date of injury, February 16, 2000, to the date of trial, October 24, 2000. Id. State v. Williams, 563 S.E.2d at 620.

In the case of State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1 (2002), the appellate Court made the observation that serious injury may not rise to the level of “serious bodily injury as defined under N.C.G.S. 14-32.4” for example:

“A review of the case law would suggest that our Courts have found serious injury in situations that may not rise to the level of serious bodily injury as defined under N.C.G.S. Sec. 14-32.4, for example: shards of glass in the arm and shoulder of a victim of a drive-by shooting into the victim’s vehicles, coupled with an officer’s observation that the victim was shaken, State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994); a bullet that pierced through the shoulder of the victim, creating two holes in his upper body, State v. Streeter, 146 N.C. App. 594, 553 S.E.2d 240 (2001); gunshot wound which resulted in multiple broken bones of the victim’s arm, State v. Washington, 142 N.C. App. 657, 544 S.E.2d 249 (2001); stab wound to the back and shoulder, State v. Grigsby, 351 N.C. 454, 526 S.E.2d 460 (2000); and a broken wrist, chewed fingers and a gash in the head, State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563. Id. State v. Hannah, 563 S.E.2d at 5.

In the case of State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679 (2003), the Court of Appeals in considering an issue of lesser included offense had this to say about the difference between the term “serious injury” and the term “serious bodily injury:”

“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).

G.S. Sec. 14-32.4

‘In 1996, the General Assembly enacted G.S. Sec. 14-32.4, which makes an assault inflicting serious bodily injury a Class F felony ‘(unless the conduct is covered under some other provision of law providing greater punishment.) In N.C. Gen.Stat. Sec. 14-32.4. The General Assembly also expressly defined what it meant by the term “serious bodily injury” as follows: “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. Sec. 14-3 2.4. This Court has described the legislative intent in enacting Sec. 14-32.4: (“W)e conclude that the General Assembly intended for N.C.G.S. Sec. 14-32.4 to cover those assaults that are especially violent and result in the infliction of extremely serious injuries, and are not covered by some other provision of law providing for greater punishment.’ State v. Williams, 150 N.C. App. 497, 503, 563 S.E.2d 616, 619 (2002).’

State v. Ezell, supra. 759 N.C. App. 103, 582 S.E.2d at 684-685.

The trial Court in the case subjudice instructed the jury first on Assault Inflicting Serious Bodily Injury as defined in N.C.G.S. 14-32.4, and then instructed the jury to consider Assault Inflicting Serious Injury pursuant to N.C.G.S. 14-33©(1) if it found that all elements of Assault Inflicting Serious Bodily Injury were not proved beyond a reasonable doubt.

This instruction does not cure the error of the Court in denying Defendant’s motion for dismissal of the offense of Assault Inflicting Serious Bodily Injury.

The definition of serious bodily injury required that there be substantial evidence of:

1. Injury that creates a substantial risk of death, or
2. Causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or
3. Permanent or protracted loss or impairment of the function of any bodily member or organ, or
4. That results in prolonged hospitalization.

The facial injuries Zack Siler received in the school fight with the Defendant, a fellow student, do not come close to the level of serious bodily injuries contained in the statutory definition of serious bodily injury in NCGS 14-32.4.

CONCLUSION

For all the foregoing reasons, Defendant respectfully contends that the absence of substantial evidence as to serious bodily injury as defined in N.C.G.S. 14-32.4, the judgment should be reversed.

Respectfully submitted this the ___ day of March, 2006.

______

Allen W. Boyer

Attorney at Law

PO Box 11933

Charlotte, NC 28220

704-523-5710)

ATTORNEY FOR DEFENDANT

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed by mail pursuant to Rule 26 by sending it first-class mail, postage prepaid to the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina 27602, by placing it in a depository for that purpose.

I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon Michael Youth, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by first-class mail, postage prepaid.

This the ____ day of March, 2006.

______

Allen W. Boyer

Attorney at Law

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the Appeal Information Sheet in the appeal of State v. Downs, COA-06-28, has been served on Michael Youth, Assistant Attorney General, PO Box 629, Raleigh, NC 27602, by deposit in the US Mail this the ____day of March, 2006.

______

Allen W. Boyer

Attorney at Law