Heard in the Court of Appeals 11 April 2019.
by defendant from judgments entered 17 August 2016 by Judge
Walter H. Godwin, Jr. in Pitt County Nos. 16 CRS 51635, 51655
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Victoria L. Voight, for the State.
F. Herzog for defendant-appellant.
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.
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. The case came on for trial on 16 and 17
August 2016 in Pitt County Superior Court before the
Honorable Walter H. Godwin.
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.
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.
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
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
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."
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.
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
Sufficiency of the Indictment
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
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.