State v. Wooten

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-1255
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .

NO. COA13-1255

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Wayne County No. 11 CRS 55895

SHIYON KANIQUE WOOTEN

Appeal by defendant from judgment entered 25 June 2013 by

Judge Wayland J. Sermons, Jr. in Wayne County Superior

Court. Heard in the Court of Appeals 19 March 2014.

Roy Cooper, Attorney General, by Narcisa Woods, Assistant Attorney General, for the State.

James W. Carter for defendant-appellant.

DAVIS, Judge.

Defendant Shiyon Kanique Wooten (“Defendant”) appeals from

her conviction for assault with a deadly weapon inflicting

serious injury. On appeal, she contends that the trial court

erred in (1) denying her motion to dismiss; and (2) failing to -2-

instruct the jury on self-defense. After careful review, we

conclude that Defendant received a fair trial free from error.

Factual Background

The State presented evidence at trial tending to establish

the following facts: On 17 November 2011, Defendant and Loreal

Dungee (“Ms. Dungee”) got into an argument near the intersection

of Beech and Daisy Streets in Goldsboro, North Carolina. The

quarrel occurred after Ms. Dungee asked Defendant’s boyfriend,

Chris Bell, if she could use his phone. Ultimately, Defendant

and Ms. Dungee decided to fight. Defendant obtained a kitchen

knife with a four- to five-inch blade from her home and then

returned outside.

Several family members, friends, and other onlookers had

assembled in order to witness the fight, including Reginald

Fields (“Mr. Fields”), Ms. Dungee’s boyfriend. As the two women

approached each other, Defendant pulled out her knife from her

back pocket. Ms. Dungee, upon seeing the knife, turned and

began running away from Defendant. Defendant chased Ms. Dungee

for roughly half a block at which point Ms. Dungee fell.

Defendant then repeatedly stabbed Ms. Dungee while she was lying

on the ground. Ms. Dungee suffered wounds in both thighs and

below her shoulder blade.

Emergency medical personnel were called, and Ms. Dungee was

transported to Wayne Memorial Hospital by ambulance. At the -3-

hospital, Ms. Dungee was treated by Dr. Stephen Moye (“Dr.

Moye”). Dr. Moye testified at trial that he closed Ms. Dungee’s

stab wounds with seventeen staples and numerous sutures and

prescribed her antibiotics as well as medication for pain and

anxiety.

Officer Edmund Gillette (“Officer Gillette”) of the

Goldsboro Police Department was dispatched to the scene of the

crime shortly after the stabbing occurred. Officer Gillette

interviewed Defendant, who admitted that she and Ms. Dungee had

fought and that she had stabbed Ms. Dungee. While Defendant

told Officer Gillette that Ms. Dungee had been armed with a gun

at the time Defendant stabbed her, Defendant could not offer any

description of the gun. Nor was any gun recovered at the scene.

On 28 November 2011, Ms. Dungee saw Dr. Wendy Cipriani

(“Dr. Cipriani”) for removal of the 17 staples she had received.

Dr. Cipriani testified that Ms. Dungee had developed cellulitis

— indicating that her wounds had become infected. Dr. Cipriani

prescribed Keflex, an antibiotic, for the infection, Hydrocodone

for pain, and Xanax for anxiety.

Defendant testified in her own defense at trial. She

stated that when she came back outside after arming herself with

a knife from her kitchen, she saw Mr. Fields hand Ms. Dungee a

gun. Defendant claimed that, for this reason, she believed that

Ms. Dungee was about to harm her. She explained that “before I -4-

gave her time to do what she was going to do to me, I ran her

down.”

On 4 February 2013, Defendant was indicted on one count of

assault with a deadly weapon inflicting serious injury. A jury

trial was held in Wayne County Superior Court on 24 June 2013.

Defendant moved to dismiss the charge against her at the close

of the State’s evidence and at the close of all the evidence.

The trial court denied both of her motions. During the charge

conference, Defendant requested a jury instruction on self-

defense. The trial court denied this request.

Defendant was convicted of assault with a deadly weapon

inflicting serious injury. The trial court sentenced Defendant

to 20-33 months imprisonment, suspended the sentence, and placed

Defendant on supervised probation for 24 months. The court

ordered Defendant to serve an active term of five months

imprisonment as special probation pursuant to N.C. Gen. Stat. §

15A-1351. Defendant gave notice of appeal in open court.

Analysis

I. Denial of Motion to Dismiss

Defendant’s first argument is that the trial court erred in

denying her motion to dismiss on the theory that the State did

not provide sufficient evidence that a serious injury was

suffered by Ms. Dungee. We disagree. -5-

A trial court's denial of a defendant's motion to dismiss

is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). On appeal, this Court must determine

“whether there is substantial evidence (1) of each essential

element of the offense charged, or of a lesser offense included

therein, and (2) of defendant's being the perpetrator . . . .”

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455

(citation omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150

(2000). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d

164, 169 (1980). Evidence must be viewed in the light most

favorable to the State with every reasonable inference drawn in

the State's favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d

211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818

(1995).

In order to survive a defendant’s motion to dismiss a

charge of assault with a deadly weapon inflicting serious

injury, the State must produce substantial evidence of each of

the elements of that offense. The statute codifying the crime

of assault with a deadly weapon inflicting serious injury is

N.C. Gen. Stat. § 14-32(b), which provides that “[a]ny person

who assaults another person with a deadly weapon and inflicts

serious injury shall be punished as a Class E felon.” N.C. Gen. -6-

Stat. § 14-32(b) (2013). “The elements of a charge under G.S. §

14-32(b) are (1) an assault (2) with a deadly weapon (3)

inflicting serious injury (4) not resulting in death." State v.

Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805, 812 (2009)

(citation and quotation marks omitted).

Defendant challenges the sufficiency of the State’s

evidence regarding the third element of the offense, contending

that the State failed to introduce sufficient evidence to show

that Defendant inflicted serious injury on Ms. Dungee.

“Serious injury” as employed in G.S. 14- 32(b) means physical or bodily injury resulting from an assault with a deadly weapon. The injury must be serious, but evidence of hospitalization is not required. The question of whether a serious injury has occurred is determined by the facts of each case and is a jury question.

State v. Rotenberry, 54 N.C. App. 504, 511, 284 S.E.2d 197, 201

(1981), cert. denied, 305 N.C. 306, 290 S.E.2d 705 (1982). A

non-exhaustive list of factors for a jury to consider regarding

whether a serious injury has actually occurred for purposes of

N.C. Gen. Stat. § 14-32(b) was set out by this Court in State v.

McLean, 211 N.C. App. 321, 712 S.E.2d 271 (2011):

Our Supreme Court has not defined serious injury for purposes of assault prosecutions, other than stating that the injury must be serious but it must fall short of causing death and that further definition seems neither wise nor desirable. However, several relevant factors that may guide the determination of whether serious -7-

injury has been inflicted, includ[e], but [are] not limited to: (1) pain and suffering; (2) loss of blood; (3) hospitalization; and (4) time lost from work. Notably, this Court has indicated that competent evidence on any one of these factors is sufficient in itself to constitute substantial evidence of serious injury.

Id. at 325, 712 S.E.2d at 275 (internal citations, quotation

marks, and brackets omitted).

Our appellate courts have recognized that a jury question

will typically exist on this issue in cases where a victim is

injured as a result of an assault with a deadly weapon. See

State v. Alexander, 337 N.C. 182, 189, 446 S.E.2d 83, 87 (1994)

(holding that “[c]ases 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”).

At trial, Defendant admitted to stabbing Ms. Dungee

multiple times. It is undisputed that as a result of the stab

wounds she sustained during this incident, Ms. Dungee was taken

by ambulance to the hospital. Evidence was presented that she

was bleeding from her wounds, and Dr. Moye testified that she

received 17 staples and numerous sutures. Dr. Moye also

prescribed Ms. Dungee antibiotics, pain medication, and anxiety -8-

medication in connection with her injury. Ms. Dungee missed

approximately one week of work after being released from the

hospital. In addition, Dr. Cipriani testified that when Ms.

Dungee came to her office to have the staples removed, she had

developed an infection around her wounds requiring additional

treatment.

We are satisfied that this evidence was sufficient to raise

a factual issue for resolution by the jury as to whether Ms.

Dungee suffered a serious injury for purposes of N.C. Gen. Stat.

§ 14-32(b). Consequently, the trial court did not err in

denying Defendant’s motion to dismiss.

II. Refusal to Instruct Jury on Self-Defense

Defendant’s final argument challenges the trial court’s

denial of her request for a jury instruction on self-defense.

This argument is also without merit.

“Our Court reviews a trial court's decisions regarding jury

instructions de novo.” State v. Cruz, 203 N.C. App. 230, 235,

691 S.E.2d 47, 50, aff’d per curiam, 364 N.C. 417, 700 S.E.2d

222 (2010). We have held that “[a] defendant is entitled to a

jury instruction on self-defense when there is evidence from

which the jury could infer that [s]he acted in self-defense.”

State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206

(1998). “In determining whether the self-defense instruction

should have been given, the facts are to be interpreted in the -9-

light most favorable to the defendant.” State v. Moore, 111

N.C. App. 649, 654, 432 S.E.2d 887, 889 (1993) (citation,

quotation marks, and brackets omitted).

There are two types of self-defense, perfect self-defense, which consists of the following four elements, and imperfect self- defense, which consists of only the first two elements:

(1) it appeared to defendant and he believed it to be necessary to kill the [victim] in order to save himself from death or great bodily harm; and

(2) defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.

Therefore, for defendant to be entitled to an instruction on self-defense, the following questions must be answered affirmatively: (1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in -10-

order to protect himself from death or great bodily harm, and (2) if so, was that belief reasonable?

State v. Meadows, 158 N.C. App. 390, 401, 581 S.E.2d 472, 478

(internal citations and quotation marks omitted), appeal

dismissed and disc. review denied, 357 N.C. 467, 586 S.E.2d 774

(2003).

In her brief, Defendant attempts to show her entitlement to

a self-defense instruction by pointing to her own testimony that

she saw Mr. Fields hand Ms. Dungee a gun. No corroborating

evidence was offered to show that Ms. Dungee ever possessed a

gun during this incident, and Defendant was unable to provide a

description of the alleged gun to police officers during her

questioning shortly after the incident. Mr. Fields testified at

trial that he did not give Ms. Dungee a gun at any point during

or immediately preceding the fight. Furthermore, no witnesses

testified to seeing Ms. Dungee with a gun.

In Meadows, the defendant waited on his ex-girlfriend’s

porch with a gun drawn. Id. at 393, 581 S.E.2d at 474. The

defendant testified that when he saw his ex-girlfriend and her

date (the victim) approach, he walked up behind the victim and

saw the victim “pulling from his crotch area” and that he “saw

something shine.” Id. at 402, 581 S.E.2d at 479. The defendant

then proceeded to shoot the victim in the head. The defendant

argued that based upon his testimony, the jury should have been -11-

instructed on self-defense. Id., at 401-02, 581 S.E.2d at 479.

We rejected this argument, stating that

where the record was totally void of any evidence supporting defendant's self-serving claim that he believed the other person was reaching for a weapon, the Court may hold defendant's belief was not objectively reasonable and that the trial court properly refused to instruct the jury on self- defense. Accordingly, under the facts of this case, we hold the trial court did not err in failing to instruct the jury on self- defense.

Id. at 402, 581 S.E.2d at 479 (citation and quotation marks

omitted); see also State v. Bush, 307 N.C. 152, 159-60, 297

S.E.2d 563, 568-69 (1982) (holding that self-serving statements

by defendant that he was “nervous” and “afraid” of victim before

stabbing was not, without more, sufficient basis for jury

instruction on self-defense).

Here, we believe the trial court properly denied

Defendant’s request for an instruction on self-defense. In

addition to the absence of any evidence supporting her own

assertion that she saw Mr. Fields hand Ms. Dungee a gun, the

undisputed evidence showed that Defendant chased Ms. Dungee down

after Ms. Dungee had abandoned the confrontation upon seeing

Defendant brandish her knife. Indeed, Ms. Dungee began fleeing

down the street and was chased by Defendant for approximately

half a block before Defendant caught up with her and began

stabbing her after Ms. Dungee had fallen to the ground. No -12-

evidence was offered that Ms. Dungee was holding — or reaching

for — a weapon at the time Defendant stabbed her.

We conclude that Defendant failed to demonstrate that she

formed a reasonable belief that it was necessary for her to use

deadly force against Ms. Dungee in order to protect herself from

death or great bodily harm. Accordingly, the trial court did

not err in denying Defendant’s request for an instruction on

self-defense.

Conclusion

For the reasons stated above, we hold that Defendant

received a fair trial free from error.

NO ERROR.

Judges ELMORE and McCULLOUGH concur.

Report per Rule 30(e).