{
  "id": 9080746,
  "name": "STATE OF NORTH CAROLINA v. JOSE EUGENIO UVALLE, SR., Defendant",
  "name_abbreviation": "State v. Uvalle",
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    "judges": [
      "Judges MARTIN and CAMPBELL concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOSE EUGENIO UVALLE, SR., Defendant"
    ],
    "opinions": [
      {
        "text": "HUDSON, Judge.\nDefendant was convicted by a jury of felonious assault with a deadly weapon inflicting serious injury and sentenced to a minimum term of twenty-five months and a maximum term of thirty-nine months. Defendant appeals.\nWe begin with a brief summary of pertinent facts. The State presented evidence to show that on the evening of 30 March 2000, defendant was involved in an altercation with his wife, Norma Uvalle. Ms. Uvalle testified through an interpreter that her husband came to see her at work on 30 March 2000 and accused her of seeing another man. After an argument, defendant left, and Ms. Uvalle returned to her work. That night, Ms. Uvalle left work earlier than usual, arriving home at 11:15 p.m. Five minutes later, defendant arrived accompanied by the Uvalles\u2019 twelve year old son, Junior. Ms. Uvalle testified that defendant followed her to the bedroom and \u201ckept asking if [she] would tell the truth\u201d about seeing another man. Defendant left the room, and Ms. Uvalle heard noises like he was looking for something in the sink in the kitchen. Ms. Uvalle testified that he came back to the bedroom and threw her off the bed; she did not see a knife until, \u201c[j]ust when he had it in his hand and he started to stab me \u2014 hurt me.\u201d Ms. Uvalle began to scream and her children ran into the bedroom. Junior took the knife away from his father and he helped put a pillow under his mother, trying to stop the bleeding. Defendant told Ms. Uvalle that \u201cfirst [] he was going to finish with her (Ms. Uvalle), and then afterwards, he was going to finish with himself.\u201d She sustained knife wounds in both arms, her shoulder, and her ribs. Ms. Uvalle testified that defendant had threatened and attacked her previously, and had attempted to cut her with a razor blade in January of the same year.\nDr. Kevin Reese, who treated Ms. Uvalle when she was brought into the emergency room on 30 March 2000, testified that Ms. Uvalle had at least five lacerations or stab wounds, four of which required treatment. Three of the lacerations were connected to each other in that the blade went through the tissue of Ms. Uvalle\u2019s forearm and penetrated her abdomen and chest. She also sustained injuries to the shoulder, which Dr. Reese described as \u201cdirected straight down into the shoulder, entering through the Deltoid muscle, which is the muscle that allows you to raise the shoulder like this (indicating), and then entered \u2014 hit bone down into the joint space.\u201d Dr. Reese opined that Ms. Uvalle was stabbed in the shoulder from above, and from the front in the case of the forearm and torso injuries. He did not believe the injuries were self-inflicted and described them as defensive wounds. On cross-examination, Dr. Reese said that the wounds did not necessarily indicate a struggle, although he agreed that they did indicate that Ms. Uvalle\u2019s body changed positions during the incident. Dr. Reese also testified that Ms. Uvalle\u2019s injuries were both serious and permanent.\nThe State also introduced the testimony of Ms. Uvalle\u2019s sister, Olga Gavan Castellio, who was living in the Uvalles\u2019 home at the time of these events. She testified that on 30 March 2000, she heard her sister screaming and found the defendant \u201con top of\u2019 his wife with a butcher knife in his hand. Ms. Castellio also testified that just before the screams, she heard defendant in the kitchen and heard the sounds of dishes moving in the sink, where she had earlier put the butcher knife. The Uvalles\u2019 son, Junior, testified that when he heard his mother screaming, he rushed into the bedroom, and found his father holding the knife over his mother, who had blood on her. In part, Junior testified as follows:\nA. I grabbed my dad from the neck and was trying to pull him back so he wouldn\u2019t stab my mom again.\nQ. And were you able to do that, were you able to stop him?\nA. No.\nQ. What happened?\nA. I went in the bed (sic) \u2014 I was trying to pull the knife and my mom said let go so he won\u2019t stab you. I said, I\u2019m not going to until he lets go. And \u2014 -and then my aunt came and she said, \u201cLet her go, Eugenio (the defendant).\u201d And he said, \u201cNo, I ain\u2019t.\u201d And then he said, \u201cOkay, I\u2019m going to let her go, but I\u2019m going to kill myself.\u201d And I said, \u201cDad, don\u2019t do that because if you do that, I\u2019m going to kill myself, too.\u201d\nQ. Were you \u2014 both of you just holding it (the knife) for a little while?\nA. It was me, and my mom, and my dad was holding it.\nQ. Now, what part of the knife did your mom have?\nA. It was sharp\u2014\nQ. Did she have the blade in her hand?\nA. Yes, the blade.\nDid your father receive any cuts that night? <y\nNo. <3\nQ. What was your father saying while all this was going on?\nA. He \u2014 I can\u2019t remember, but I \u2014 can\u2019t remember.\nQ. Did he threaten your mother in any way that you remember?\nA. He said he was going to kill her.\nJunior testified that he acted as interpreter for his mother when emergency medical personnel arrived, during the trip to the hospital, and once they arrived at the hospital. He also reported that in January of the same year, he saw his father threaten his mother with a pocket knife.\nDefendant testified through an interpreter in his own defense. He agreed that he was upset with his wife on the night of 30 March 2000, because he suspected that she was seeing another man. However, he testified that he did not bring the knife in from the kitchen. Instead he contended that the knife was underneath Ms. Uvalle\u2019s pillow on the bed, and that he first saw the knife when it fell out from underneath the pillow. He testified during direct-examination:\nQ. And how did the knife get from under the pillow?\n(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)\nA. (ANSWER IN SPANISH)\nINTERPRETER: He don\u2019t know.\nQ. Well, did he take it out from under the pillow or did his wife take it out from under the pillow?\n(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)\nA. (ANSWER IN SPANISH)\nINTERPRETER: The knife fell when she moved.\nQ. And did she later grab the knife?\n(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)\nA. (ANSWER IN SPANISH)\nINTERPRETER: When \u2014 when he saw the knife on the floor, he asked his wife, \u201cAre you going to \u2014 you going to kill me after you done to me?\u201d\n(WITNESS SAYS SOMETHING IN SPANISH)\nINTERPRETER: I was very mad. I picked up the knife and I cut myself.\nQ. All right. Did you then struggle for the knife? Did your wife try to grab the knife?\n(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)\nA. (ANSWER IN SPANISH)\nINTERPRETER: No, he tried to take away the knife from her.\nQ. Did you \u2014 did you all have a struggle together?\n(QUESTION TRANSLATED TO WITNESS BY INTERPRETER)\nA. (ANSWER IN SPANISH)\nINTERPRETER: Yes.\nDefendant later testified during cross-examination that at first his wife was sitting on the bed, then they both fell down in the bed, then he was under her, and once he had the knife, he was on top of her. Defendant insisted that his wife cut herself accidentally when they were struggling for the knife.\nThe defendant also presented the testimony of his uncle, who saw the Uvalles\u2019 argument the previous January. On that occasion, the uncle said that Ms. Uvalle had a piece of a broom handle in her hand. Defendant\u2019s employer testified as to his opinion that defendant is a truthful, law-abiding, and non-aggressive citizen who is a dependable worker.\nThe trial court instructed the jury on assault with a deadly weapon inflicting serious injury and not guilty. The court further instructed the jurors that if they found that defendant acted in self-defense, that would excuse defendant\u2019s actions, and they should find him not guilty. The jury found defendant guilty as charged. In his brief, defendant makes two arguments: (1) problems with the court interpreter amounted to plain and reversible error, and (2) the trial court erred by failing to instruct the jury on four lesser included offenses of assault with a deadly weapon inflicting serious injury. Although he raised eight assignments of error in the record on appeal, he only brings forward numbers 1, 3, 4, 5, and 7. Accordingly, assignments of error 2, 6, and 8 are deemed abandoned. See N.C. R. App. Proc. 28(a) (2001). We address defendants\u2019 two issues in order.\nFirst, defendant contends that the \u201ctrial court committed reversible error and plain error by not directing the interpreter for the State to interpret exactly the question asked by the State and the answer as given by the witness.\u201d The State repeatedly asked the interpreter to repeat exactly what the witness and attorney said. The trial judge instructed the interpreter several times, as requested by the attorneys on both sides, and replaced one interpreter during a recess \u201cto give [her] a break.\u201d\nWe recognize that there may be circumstances in which translation difficulties could violate a non-English speaking defendant\u2019s constitutional rights to a fair trial, to confront and cross-examine witnesses, or to due process under the North Carolina and United States Constitutions. However, these issues were not raised here. During trial, when an interpreter failed to interpret in the first person, or engaged in conversation in Spanish with the testifying witness without translating for the court the contents of the exchange, defendant\u2019s counsel expressed concern and requested further instructions, but never expressly noted an objection. Defendant has properly couched his argument as plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). When we review for plain error, we only grant relief when the \u201cerror is a fundamental error, something so basic, so prejudicial . . . that justice cannot have been done,\u201d or where it denies a fundamental right to a fair trial, or where it had \u201ca probable impact on the jury\u2019s finding that the defendant was guilty.\u201d Id. (internal citation and quotations omitted) (emphasis in original). We do not find error, let alone error of this magnitude, in the instructions given or not given to the interpreters here. After careful review of the transcript and record on appeal, we conclude that the difficulties with the court interpreters did not impede the defense from confronting and cross-examining the state\u2019s witnesses or from presenting its evidence for the jury\u2019s consideration. Thus, we overrule this assignment of error.\nIn his second argument, defendant contends that the trial court erred by not instructing the jury on four lesser included offenses of assault with a deadly weapon inflicting serious injury, to wit: (1) felonious assault inflicting serious bodily injury, (2) assault with a deadly weapon, (3) assault inflicting serious injury, and (4) simple assault. We disagree.\nA defendant \u201cis entitled to an instruction on lesser included offense [s] if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.\u201d State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000); see also State v. Collins, 334 N.C. 54, 58, 431 S.E.2d 188, 190-91 (1993); State v. Siler, 66 N.C. App. 165, 166, 311 S.E.2d 23, 24, aff\u2019d as modified, 310 N.C. 731, 314 S.E.2d 547 (1984). However, \u201ca lesser offense should not be submitted to the jury if the evidence is sufficient to support a finding of all the elements of the greater offense, and there is no evidence to support a finding of the lesser offense.\u201d State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226 (1995).\nThe elements of assault with a deadly weapon inflicting serious injury are \u201c(1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death.\u201d State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990); see also N.C. Gen. Stat. \u00a7 1452(b) (2001). We first note that assault inflicting serious bodily injury is not a lesser included offense of assault with a deadly weapon inflicting serious injury, and that such an instruction would not have been proper here. See e.g., State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1 (2002) (holding that assault inflicting serious bodily injury is not a lesser included offense of assault with a deadly weapon with intent to kill and inflict serious injury as defined in N.C.G.S. \u00a7 14-32(a)). The language of N.C. Gen. Stat. \u00a7 14-32.4 (2001), defines \u201cserious bodily injury\u201d as: \u201c[a] 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.\u201d However, our courts have held that \u201cserious injury,\u201d as used in connection with a charge under N.C.G.S. \u00a7 14-32(b), does not necessarily rise to the level of \u201cserious bodily injury.\u201d See Hannah, 149 N.C. App. at 718, 563 S.E.2d at 5. The Hannah Court stated: \u201cThus, while there may be factual situations in which the elements of \u2018serious bodily injury\u2019 and \u2018serious injury\u2019 are in apparent identity, this does not satisfy the definitional approach required to determine whether one offense is a lesser included offense of another.\u201d Id. \u201cWe conclude that, because the element of \u2018serious bodily injury\u2019 requires proof of more severe injury than the element of \u2018serious injury,\u2019 \u201d assault inflicting serious bodily injury is not a lesser included offense of assault with a deadly weapon inflicting serious injury. Id. Thus, since defendant was not charged with an offense under N.C.G.S. \u00a7 14-32.4, but only under N.C.G.S. \u00a7 14-32(b), he was not entitled to an instruction on an offense which is not a lesser included offense and with which he was not charged.\nDefendant also argues that he was entitled to instructions on the lesser included offenses of assault with a deadly weapon (no serious injury), assault inflicting serious injury (no deadly weapon), and simple assault (no serious injury or deadly weapon). See N.C.G.S. \u00a7 14-32(b). Assault is defined as either \u201ca show of violence causing a reasonable apprehension of immediate bodily harm\u201d or \u201can intentional offer or attempt by force or violence to do injury to the person of another.\u201d State v. Thompson, 27 N.C. App. 576, 577, 219 S.E.2d 566, 567-68 (1975), disc. rev. denied, 289 N.C. 141, 220 S.E.2d 800 (1976). Whether defendant is entitled to an instruction on an offense which is a lesser included offense depends upon the evidence presented at trial.\nDefendant testified that the knife was under the pillow, that it fell out, and the struggle ensued. During the struggle, he testified that Ms. Uvalle was accidentally cut by the knife. Ms. Uvalle, on the other hand, testified that the defendant repeatedly stabbed her with the knife, that she grabbed the blade to stop him from stabbing her. Their son corroborated this description of events. The emergency room doctor also gave his opinion that Ms. Uvalle\u2019s injuries were not self-inflicted.\nGenerally, \u201c[w]hether a serious injury has been inflicted depends upon the facts of each case and is generally for the jury to decide under appropriate instructions.\u201d State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000). \u201cPertinent factors for jury consideration include hospitalization, pain, blood loss, and time lost at work.\u201d State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997). Here, the trial court did not instruct the jury on the offense of assault with a deadly weapon, which does not include the element of \u201cserious injury.\u201d In Hedgepeth, the Supreme Court approved a peremptory instruction on serious injury, where the evidence of the prosecuting witness\u2019s injury \u201c \u2018is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.\u2019 \u201d 330 N.C. at 54, 409 S.E.2d at 318 (quoting State v. Pettiford, 60 N.C. App. 92, 97, 298 S.E.2d 389, 392 (1982)).\nIn State v. Crisp, 126 N.C. App. 30, 37, 483 S.E.2d 462, 466-67, disc. rev. denied, 346 N.C. 284, 487 S.E.2d 559 (1997), the trial court gave a peremptory instruction on \u201cserious injury\u201d when the victim was shot and the bullet went through his calf muscle. The defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury under the same statute as the one at issue in the present case, N.C.G.S. \u00a7 14-32. This Court \u201cdecline[d] to disturb the trial court\u2019s determination that [the victim\u2019s] injury was \u2018serious\u2019 within the meaning of [N.C.G.S.] \u00a7 14-32(a) and that reasonable minds could not differ as to the seriousness of his injuries.\u201d Id. at 37, 483 S.E.2d at 467. \u201cThus, the trial court was not required to submit the lesser included offense of assault with a deadly weapon to the jury.\u201d Id.\nHere, the trial court did not give a peremptory instruction, but there is no genuine dispute in the evidence as to the serious nature of the prosecuting witness\u2019 injury. The uncontroverted evidence, including the unequivocal opinion of the treating physician, indicates that she sustained several deep knife wounds resulting in permanent debilitating injuries. Thus, defendant was not entitled to instructions on either simple assault or assault with a deadly weapon which omitted the element of \u201cserious injury,\u201d since the evidence did not \u201cpermit the jury rationally to find him guilty of the lesser offense and acquit him of the greater.\u201d Leazer, 353 N.C. at 237, 539 S.E.2d at 924.\nFurther, the evidence was undisputed that, however it occurred, Ms. Uvalle\u2019s injuries were sustained by a butcher knife with a blade \u201cabout a foot long,\u201d which qualifies as a deadly weapon per se. See State v. Cox, 11 N.C. App. 377, 380, 181 S.E.2d 205, 207 (1971); State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665 (1970). Thus, defendant was not entitled to an instruction on an assault not involving a deadly weapon.\nFinally, defendant argues that the jury should have been instructed on misdemeanor simple assault, pursuant to N.C. Gen. Stat. \u00a7 14-33 (2001). However, this Court has explained in State v. Owens, 65 N.C. App. 107, 110-11, 308 S.E.2d 494, 498 (1983),\n[t]he primary distinction between felonious assault under G.S. \u00a7 14-32 and misdemeanor assault under G.S. \u00a7 14-33 is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor.\n(emphasis in original). Defendant contended at oral argument and the State agreed, that if the knife was introduced into the altercation by accident, he was entitled to this instruction because the jury could find the absence of the \u201cuse of a deadly weapon\u201d element. However, the defendant testified that he \u201cpicked up the knife\u201d and the struggle ensued. Thus, we believe that the trial court correctly concluded that, even if the jury believed that the knife fell out from under the pillow, there was no evidence to dispute that defendant \u201cused\u201d it. We concluded above that a deadly weapon caused the victim\u2019s injuries, and that there is no rational dispute about whether serious injury resulted. Therefore, we hold that the trial court properly declined to instruct the jury on misdemeanor assault.\nIn sum, the trial court did not commit plain error in managing the interpreters, and did not err by refusing to instruct the jury on the lesser-included offenses of assault with a deadly weapon inflicting serious injury.\nNo error.\nJudges MARTIN and CAMPBELL concur.",
        "type": "majority",
        "author": "HUDSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Dorothy Powers, for the State.",
      "John Galvin Chandler, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOSE EUGENIO UVALLE, SR., Defendant\nNo. COA01-531\n(Filed 16 July 2002)\n1. Criminal Law\u2014 testimony through translator \u2014 no plain error\nThere was no plain error in an assault prosecution where defendant testified through an interpreter. There may be circumstances in which translation difficulties could violate a non-English speaking defendant\u2019s constitutional rights, but those issues were not raised here, and the difficulties with court interpreters in this case did not impede the defense from confronting and cross-examining the State\u2019s witnesses or from presenting its evidence.\n2. Assault\u2014 deadly weapon inflicting serious injury \u2014 assault inflicting serious injury \u2014 instruction not given\nThe trial court did not err in a prosecution for assault with a deadly weapon inflicting serious injury by not giving an instruction on assault inflicting serious bodily injury. Assault inflicting serious bodily injury is not a lesser included offense of assault with a deadly weapon inflicting serious injury because \u201cserious injury\u201d does not necessarily rise to the level of \u201cserious bodily injury.\u201d\n3. Assault\u2014 deadly weapon inflicting serious injury \u2014 lesser included offenses \u2014 instruction not given\nThe trial court did not err in a prosecution for assault with a deadly weapon inflicting serious injury by not giving instructions on the lesser included offenses of assault with a deadly weapon, assault inflicting serious injury, or simple assault where the uncontroverted evidence indicated that the victim sustained several deep knife wounds resulting in permanent debilitating injuries and that the injuries (however they occurred) were inflicted with a butcher knife with a blade about a foot long.\n4. Assault\u2014 instructions \u2014 misdemeanor assault \u2014 use of weapon\nThe trial court did not err by not instructing on misdemeanor simple assault in an action for assault with a deadly weapon inflicting serious injury where defendant testified that he picked up a knife and a struggle ensued. Even if the knife was introduced by an accident such as falling out from under a pillow, there was no evidence to dispute that defendant used it.\nAppeal by defendant from judgment entered 13 December 2000 by Judge Wiley F. Bowen in Brunswick County Superior Court. Heard in the Court of Appeals 21 February 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Dorothy Powers, for the State.\nJohn Galvin Chandler, for defendant-appellant."
  },
  "file_name": "0446-01",
  "first_page_order": 476,
  "last_page_order": 486
}