in the Court of Appeals 14 February 2019.
by Defendant from Judgments entered 12 January 2018 by Judge
Paul C. Ridgeway in Durham County Superior Court Nos. 15 CRS
59893, 17 CRS 444.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Lisa Bradley, for the State.
Richard Croutharmel for defendant-appellant.
and Procedural Background
Lamar Fields (Defendant) appeals from Judgments adjudicating
him guilty of (1) Assault Inflicting Serious Bodily Injury
and (2) Habitual Misdemeanor Assault. The Record before us
demonstrates the following:
August 2016, a Grand Jury indicted Defendant for Malicious
Maiming of Privy Member and Assault Inflicting Serious Bodily
Injury. On 6 February 2017, the Grand Jury entered a
superseding indictment for Attempted Malicious Castration or
Maiming of a Privy Member and Assault Inflicting Serious
Bodily Injury. The Grand Jury additionally indicted Defendant
for Assault, and for Habitual Misdemeanor Assault, a separate
substantive offense. These indictments alleged, on 2 November
2015, Defendant attacked and tore the scrotum of A.R.,
transgender woman. In advance of trial, Defendant stipulated
to two prior misdemeanor assaults as elements of Habitual
close of the State's evidence, Defendant moved to dismiss
the charges against him on the grounds of insufficiency of
the evidence. Specifically, Defendant alleged the
"evidence is insufficient as a matter of law on every
element of each charge to support submission of the charge to
the jury," and "there is a variance between the
crime alleged in the indictment and the crime for which the
State's evidence may have been sufficient for submission
to the jury[.]" Defendant also argued, "as it
relates to the attempted malicious maiming indictment, the
[S]tate has failed to show there was . . . any specific
intent . . . with malice to maim, disfigure, or render
impotent" A.R., A.R. was "not permanently
injured," and "the [S]tate has failed to show that
there was serious bodily injury" to A.R. The trial court
denied the Motion. Defendant declined to offer evidence on
his own behalf and renewed his Motion to Dismiss, which the
trial court again denied.
trial court submitted to the jury the two felony charges of
Attempted Castration or Maiming and Assault Inflicting
Serious Bodily Injury. Rather than submit the charge of
Habitual Misdemeanor Assault, the trial court submitted the
underlying predicate misdemeanor offense of Assault
Inflicting Serious Injury, pursuant to N.C. Gen. Stat. §
jury returned verdicts finding Defendant not guilty of
Attempted Castration or Maiming, guilty of Assault Inflicting
Serious Bodily Injury, and guilty of Assault Inflicting
Serious Injury. The jury further found as an aggravating
factor Defendant took advantage of a position of trust or
confidence to commit the offense.
trial court found Defendant had a prior felony record level
of III. The court sentenced Defendant to a minimum of 19
months and a maximum of 32 months, in the presumptive range,
for Assault Inflicting Serious Bodily Injury; and a minimum
of 9 months and a maximum of 20 months, in the presumptive
range, for Habitual Misdemeanor Assault; to be served
consecutively in the custody of the North Carolina Department
of Adult Correction. Defendant appeals.
dispositive issues raised by Defendant in this case are: (I)
Whether there was sufficient evidence of a "serious
bodily injury" to submit the charge of Assault
Inflicting Serious Bodily Injury to the jury; and (II)
Whether the trial court erred in entering judgment on the
Habitual Misdemeanor Assault conviction, predicated on the
Defendant's conviction for misdemeanor Assault Inflicting
Serious Injury, in light of Defendant's conviction for
felony Assault Inflicting Serious Bodily Injury arising from
the same conduct.
Assault Inflicting Serious Bodily Injury
first argument, Defendant contends the trial court erred in
failing to dismiss the charge of Assault Inflicting Serious
Bodily Injury. We disagree.
Standard of Review
Court reviews the trial court's denial of a motion to
dismiss de novo." State v. Smith, 186
N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
'Upon defendant's motion for dismissal, the question
for the Court is 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 of such offense. If so, the motion is
properly denied.'" State v. Fritsch, 351
N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v.
Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),
cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).