State v. McCombs

• Court: Court of Appeals of North Carolina
• Decided: February 18, 2014
• Docket: 13-916
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-916 NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Rowan County Nos. 10 CRS 994, 50588 JOHN SMITH MCCOMBS, IV

Appeal by Defendant from judgments entered 10 April 2013 by

Judge W. Erwin Spainhour in Rowan County Superior Court. Heard

in the Court of Appeals 27 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

Irving Joyner for Defendant.

DILLON, Judge.

John Smith McCombs, IV (“Defendant”) appeals from judgments

entered upon his conviction for assault with a deadly weapon

inflicting serious injury (“AWDWISI”) and robbery with a

dangerous weapon, challenging the trial court’s denial of his

motion to dismiss and alleging a violated his Sixth Amendment

right to confrontation. Because we find substantial evidence

that the victim sustained a “serious injury” for purposes of -2- AWDWISI, and because the out-of-court statements made to a

State’s witness were not admitted into evidence for their truth,

we find no error.

Defendant and a companion robbed pizza deliveryman Juan

Artiga at gunpoint on 23 January 2010. During the robbery, Mr.

Artiga attempted to drive away but accidentally shifted his car

into neutral. Hearing the engine rev, Defendant fired his gun

and shot Mr. Artiga in the leg. Defendant then fled the scene,

discarding the stolen pizzas as he ran. Mr. Artiga drove until

he located a police officer, who called an ambulance. Mr.

Artiga was taken to the hospital, treated, and released two

hours later.

Defendant first challenges the trial court’s denial of his

motion to dismiss the AWDWISI charge based on a lack of

substantial evidence that he inflicted a “serious injury” upon

Mr. Artiga. Defendant notes the prosecution presented no

testimony regarding the medical treatment provided to Mr. Artiga

in the emergency room or the amount of pain he experienced as a

result of his injury.

We find no merit to Defendant’s claim. Our courts have

long held that, “as long as the State presents evidence that the

victim sustained a physical injury as a result of an assault by -3- 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) (citing State v. Joyner, 295

N.C. 55, 65, 243 S.E.2d 367, 374 (1978)). Here, the State

adduced evidence that the bullet passed through Mr. Artiga’s

leg, producing “a lot of blood” and necessitating treatment in

the emergency room. See State v. Hedgepeth, 330 N.C. 38, 52-53,

409 S.E.2d 309, 318 (1991) (upholding peremptory instruction

that “a bullet wound which is through and through, that is

enters the flesh and exits the flesh[,] is a serious injury”).

Photographs of the entry and exit wounds were admitted into

evidence. Mr. Artiga further testified that he missed three

weeks of work at the pizza restaurant and two weeks at his full-

time job as a result of the gunshot, during which time he was

bedridden and unable to walk. This evidence was substantial to

support a jury finding of serious injury.

Defendant next challenges the trial court’s admission into

evidence of out-of-court statements made by siblings April and

Hubert McCleave to Salisbury Police Officer Travis Shulenburger

during the course of his investigation. Defendant claims that

allowing Officer Shulenburger to recount the McCleaves’

statements violated his Sixth Amendment right to confrontation -4- under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177

(2004) and Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224

(2006). We review the trial court’s ruling on this

constitutional issue de novo. See State v. Tate, 187 N.C. App.

593, 599, 653 S.E.2d 892, 897 (2007).

The trial transcript reflects that the contested portion of

Officer Shulenburger’s testimony was not admitted for the truth

of the matters asserted by the McLeaves but to explain the

officer’s subsequent conduct -- specifically, his inclusion of

Defendant’s picture in the photographic lineup presented to Mr.

Artiga. The trial court instructed the jury “not to accept this

testimony for the truth of . . . what they said at all. It’s

not made under oath and you may not consider it as truthful

testimony in your deliberations.” Rather, the court allowed the

jury to receive the evidence solely “to explain what the officer

did later as a result of this information, not for the truth of

the matter asserted.”

Defendant concedes the evidence at issue did not constitute

hearsay, inasmuch as it was not offered for the truth of the

matters asserted by the declarants to Officer Shulenberger. See

N.C.R. Evid. 801(c); State v. Call, 349 N.C. 382, 409, 508

S.E.2d 496, 513 (1998). He suggests, however, that the -5- constitutional rule established in Crawford is not limited to

hearsay evidence but applies to any “out-of-court testimonial

statement” entered into evidence, even when not offered for its

truth.

Defendant’s argument is meritless. As this Court has

recognized, the opinion in Crawford expressly provided that

“[t]he Confrontation Clause ‘does not bar the use of testimonial

statements for purposes other than establishing the truth of the

matter asserted.’” State v. Miller, 197 N.C. App. 78, 87, 676

S.E.2d 546, 552 (2009) (quoting Crawford, 541 U.S. at 59 n.9,

158 L. Ed. 2d at 197-98 n.9). Moreover, we have repeatedly held

a declarant’s out-of-court statement to police to be admissible

for the precise purpose indicated here by the trial court. See

Tate, 187 N.C. App. at 601-02, 653 S.E.2d at 898; State v.

Alexander, 177 N.C. App. 281, 284, 628 S.E.2d 434, 436 (2006),

disc. review denied and appeal dismissed, 361 N.C. 358, 644

S.E.2d 357 (2007). Accordingly, Defendant’s objection is

overruled.

NO ERROR.

Chief Judge MARTIN and Judge HUNTER, JR., concur.

Report per Rule 30(e).